HomeMy WebLinkAboutDIOCESE OF ORANGE EDUCATION AND WELFARE CORPORATION - 2005
Oct 11 2005 14:21
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N-2005-128
INSURANCE NOl ON mE
WORK MAY NOT PROCEED
CLERK OF COUNCIL
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RIGHT OF ENTRY AGREEMENT
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THIS RIGHT OF ENTRY AGREEMENT ("Agreement") is made and entered into as
of /0T"- day of lIoyeJnhft, 2005 by and between the CITY OF SANTA ANA, a charter city
duly organized under the Constitution and laws of the State of California (the "City"), and
DIOCESE OF ORANGE EDUCATION AND WELFARE CORPORHION, a California
nonprofit corporation ("Licensee"), with respect to the foJloVl'ing:
RECITALS
A. The Licensee desires to enter onto the real property owned by the City on the
comer of Borchard and Bristol Streets in the City of Santa Ana, California, consisting of
approximately 33,562 square feet and known as Orange County Assessor's Parcel Number
109-266-17 (hereafter ''the Property"), to temporarily park staff and faculty of Mater Dei High
School.
B. The City wishes to accommodate the Licensee's desire to utilize the Property for
temporary parking lot for staff and faculty of Mater Dei High School by granting a right of entry
to Licensee upon certain terms and conditions.
NOW, 11IEREFORE, for good and valuable consideration, Licensee and City do
hereby agree as foJlows:
1. Rigbt of Entry. Provided that all of the terms and conditions oftrus Agreement
are fuJly satisfied, the City hereby grants to Licensee and its employees, agenh and contractors
the nonexclusive, nonassignable, personal right to enter upon the Property for temporary parking
of staff and faculty of Mater Dei High School, and for no other purposes. This Agreement shall
automatically terminate and expire August 1,2006. It is expressly understood that this
Agreement does not in any way whatsoever grant or convey any rights of possession, easement
or other cognizable property interest in the Property.
2. Agreement. By execution of this Agreement, Licensee agrees for itself and on
the behalf of its employees, agents, consultants and contractors as follows:
(a) That Licensee will not permit any dangerous condition to be created on the
Property .
(b) All acts and things done by Licensee on the Property will be done in a
careful and reasonable manner, in accordance with all federal, state and local laws.
(c) Licensee shall enter the Property entirely at its own cost, risk and expense.
(d) Prior to undertaking performance of work under this Agreement, Licensee
shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as
described below:
i. Commercial General Liability Insurance. Licensee shall maintain
commercial general liability insurance naming the City and its officers, employees, agents,
volunteers and representatives as additional insured(s) and shall include, but not be limited to,
protection against claims arising from bodily and personal injury, including death resulting
therefrom and damage to property, resulting from any act or occurrence arising out of Licensee's
operations in the performance ofthis Agreement, including, without limitation, acts involving
vehicles. The amounts of insurance shall be not less than the following: single limit coverage
applying to bodily and personal injury, including death resulting therefrom, and property
damage, in the total amount of$I,OOO,OOO,OO per occurrence. Licensee shall supply City with a
fully executed additional insured endorsement in substantially the form attached hereto as
Exhibit A upon execution of this Agreement and shall be approved in form by the City Attorney,
ii. The following requirements apply to the insurance to be provided
by Licensee pursuant to this section:
. Licensee shall maintain all insurance required above in full force and effect
for the entire period covered by this Agreement.
. Certificates of insurance shall be furnished to the City upon execution of this
Agreement and shall be approved in form by the City Attorney.
. Certificates and policies shall state that the policies shall not be canceled or
reduced in coverage or changed in any other material aspect without thirty
(30) days prior written notice to the City.
111. If Licensee fails or refuses to produce or maintain the insurance
required by this section or fails or refuses to furnish the City with required proof that insurance
has been procured and is in force and paid for, the City shall have the right, at its election, to
forthwith terminate this Agreement.
(e) Licensee shall not permit any mechanics', materialmen's or other liens of
any kind or nature ("Liens") to be filed or enforced against the Property in connection with this
Agreement. Licensee shall indemnify, defend and hold harmless City from all liability for any
and all liens, claims and demands, together with costs of defense and reasonable attorneys' fees,
arising from any Liens. City reserves the right, at its sole cost and expense, at any time and from
time to time, to post and maintain on the Property, or any portion thereof, or on the
improvements on the Property, any notices of non-responsibility or other notice as may be
desirable to protect City against liability. In addition to, and not as a limitation of City's other
rights and remedies under this Agreement, should the Licensee fail, within ten (10) days of
written request from City, either to discharge any Lien or to bond for any Lien, or to defend,
indemnify, and hold harmless City from and against any loss, damage, injury, liability or claim
arising out of a Lien, then City, at its option, may elect to pay such Lien, or settle or discharge
such Lien and any action or judgment related thereto and all costs, expenses and attorneys' fees
incurred in doing so shall be paid to City, as applicable, by the Licensee upon written demand.
(f) Licensee shall not have any interest in the Property or be entitled to any
reimbursement or repayment for any work performed upon the Property pursuant to this
Agreement.
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(g) The Licensee shall take all necessary precautions to prevent the import
and/or release into the environment of any hazardous materials which are imported to, in, on or
under the Property during this right of entry. If hazardous materials are imported onto the
Property, the Licensee shall be solely responsible for removing such imported hazardous
materials in conformance with all governmental requirements. The Licensee shall report to the
City, as soon as possible after each incident, any unusual or potentially important incidents with
respect to the environmental condition of the Property,
(h) The Licensee shall prepare and submit to the City's Public Works Director
(or designee) for approval a plan to ensure that its use of the Property does not violate the City's
Waste Discharge Requirement issued by the Santa Ana Regional Water Quality Control Board
(Order No, R9 -2002-001) or the City's approved Drainage Area Master Plan (DAMP).
(i) The Licensee shall prepare and submit to the City's Public Works Director
(or designee) for approval a plan showing vehicular entrance and exit to the Property only from
Borchard Street. No vehicular access shall be permitted from Bristol Street.
3. Indemnity. Licensee hereby agrees to defend, indemnify and hold the City and
its officers, officials, members, employees, agents and representatives, harmless from and against
any and all loss, damage, injury, liability, claim, cost or expense (including, without limitation,
reasonable attorneys' fees, expert witness fees, court costs, and expenses) arising from or
attributable to the activities of Licensee or any of its employees, agents, consultants or
contractors upon the Property pursuant to this Agreement. All use of and entry upon the
Property shall be at the sole cost, risk and expense of the Licensee. Licensee recognizes and
understands that should this Agreement be deemed by the County of Orange to create a possessory
interest subject to property taxation, and that should said County claim that Licensee is subject to
the payment of property taxes levied on such interest, Licensee shall defend, indemnifY and hold
the City and its officers, officials, members, employees, agents and representatives, harmless
from and against any and all such claims.
4. Miscellaneous.
(a) Choice of Law. This Agreement is to be governed by, and construed in
accordance with, the laws of the State of California.
(b) Remedies. Either party shall, in addition to all other rights provided
herein or as may be provided by law, be entitled to the remedies of specific performance and
injunction to enforce its rights hereunder, except to the extent expressly provided to the contrary
in this Agreement. All rights and remedies under this Agreement are cumulative and no one of
them shall be exclusive of any other, and each party shall have the right to pursue anyone or all
of such rights and remedies or any other remedy which may be provided by law, whether or not
stated in this Agreement, except to the extent expressly provided to the contrary in this
Agreement.
(c) Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
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(d) Non-Liability of Public Officials. No officer, employee, member, agent
or representative of the City shall be personally liable to Licensee, or any successor in interest, in
the event of any default or breach by the City, or for any amount which may become due to
Licensee or its successor, or for any breach of any obligation of the terms of this Agreement.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the
date first set forth above.
CITY:
ATTEST:
CITY OF SANTA ANA
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Patricia Ii Healy
Clerk of the Council
By:
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David N. Ream
City Manager
APPROVED AS TO FORM:
Joseph W, Fletcher, City Attorney
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BY:ct4~
Benjamin Kaufman
Chief Assistant City Attorney
PROV AL:
r Ross, Executive DIrector
ublic Works Agency
(signatures continued on next page)
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(signatures continued from prior page)
LICENSEE:
DIOCESE OF ORANGE EDUCATION AND
WELFARE CORPORATION
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EXHIBIT A
ADDITIONAL INSURED ENDORSEMENT
FOR COMMERCIAL GENERAL LIABILITY POLICY
Insurance Company
This endorsement modifies such insurance as is afforded by the provisions of Policy
# relating to the following:
I. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 9270 I; its
officers, employees, agents, volunteers and representatives are named as additional insureds
("additional insureds") with regard to liability and defense of suits arising from the operations
and uses performed by or on behalf of the named insured,
2. With respect to claims arising out of the operations and uses performed by or on
behalf of the named insured, such insurance as is afforded by this policy is primary and is not
additional to or contributing with any other insurance carried by or for the benefit of the
additional insureds,
3. This insurance applies separately to each insured against whom claim is made or
suit is brought except with respect to the company's limits of liability. The inclusion of any
person or organization as an insured shall not affect any right which such person or organization
would have as a claimant if not so included.
4. With respect to the additional insureds, this insurance shall not be cancelled, or
materially reduced in coverage or limits except after thirty (30) days written notice has been
given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 9270 I,
(Completion ofthe following, including countersignature, is required to make this
endorsement effective.)
Effective
Policy #
Issued to
, this endorsement form as a part of
Named Insured
Countersigned by
Authorized Representative
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