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HomeMy WebLinkAbout25H - AGMT - RIGHT OF ENTRY AUTO MALL DRREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 18, 2014 TITLE: RIGHT OF ENTRY AGREEMENT WITH PAG WEST, LLC, TO INSTALL FIBER OPTIC CABLE IN AUTO MALL DRIVE !Ea V e / CITY WANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on I� Reading ❑ Ordinance on 2°" Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a Right of Entry and License Agreement with PAG West, LLC, to grant a revocable encroachment permit to install a fiber optic cable at a second location across Auto Mall Drive. DISCUSSION On July 6, 2010, the City Council approved a Right of Entry and License Agreement for the installation of an underground fiber optic backbone cable across Auto Mall Drive. This fiber optic cable directly bridged the network communication systems of Crevier BMW and Crevier Mini (Exhibit 1). The fiber optic cable enabled the two dealerships to communicate at its desired high -speed level without delays. Since then, the Penske Automotive Group (PAG) acquired numerous dealerships and properties in the Santa Ana Auto Mall, including interests in both Crevier dealerships, all four Commonwealth dealerships, and the Hyundai dealership. PAG has connected the communication network systems of its dealerships and would like to have one integrated system infrastructure. To facilitate this, PAG is requesting approval to install a second underground fiber optic backbone cable across Auto Mall Drive (Exhibit 2). Since the fiber optic cable in the Auto Mall Drive right -of -way will be owned and maintained by PAG - -a private party rather than a public utility - -an agreement for a revocable encroachment permit is required along with insurance and a surety bond. The license agreement will incorporate the existing fiber optic cable. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed project is exempt from further review per section 15282 (k). Statutory Exemption ER No. 2013 -103 will be filed for this project. 25H -1 Right of Entry License Agreement to Install Fiber Optic Cable in Auto Mall Drive February 18, 2014 Page 2 of 2 FISCAL IMPACT There is no fiscal impact associated with this action. Edwin "William" 6alvez, P.E. Interim Executive Director Public Works Agency EWG /AC Exhibits: 1. Location — Existing 2. Location — Proposed 3. Agreement 25H -2 LIS AST O M9<< Oq CREVIER BMW DEALERSHIP EXISTING LOCATION "PROPOSED CREVIER MINI DEALERSHIP 1455 AUTO'L MALL DRIVE EXISTING BUILDING 1500 AUTO MALL DRIVE E X I DO BUILDING D c 0 3 D O EXHIBIT 1 T O EXISTING BUILDING �'�, FREEWAY HONDA SANTA ANA Title: P'citycouncil EXISTING FIBER OPTIC Agenda Date: u FEBRUARY 18,2014 CABLE IN AUTO MALL DRIVE MC MS AGENCY w 25H -4 Y EXISTING BUILDING COMMONWEALTHuJ PRE —OWNED II DEALERSHIP PARCEL. I P.M.E. '10/4°9....47 1350 AUTO MALL DRIVE ,EXIST INGJ BUILDING' PROPOSED- , LOCATION f` L COMMONWEALTH PRE —OWNED DEALERSHIP DAN GURNEY DR VOLVO OF ORANGE COUNTY SANTA ANA City Council PWA Agenda Date: FEBRUARY 18,2014 Pu&IC WORKS AGENCY oq All PARCEL 4 P.M 1:3. 210/45 -47 n 1405 AUTO o MALL DRIVE rte- EXISTING, p i BUILDING COMMONWEALTH HYUNDAI AUDI DEALERSHIP \ AUTO MALL DR w COMMONWEALTH CREVIER VW BMW z a 0 EXHIBIT 2 PROPOSED FIBER OPTIC CABLE IN AUTO MALL DRIVE A= 25H -6 EXHIBIT 3 RIGHT OF ENTRY AND LICENSE AGREEMENT THIS RIGHT OF ENTRY AND LICENSE AGREEMENT ( "Agreement ") is made and entered into this _ day of , 2014 by and between the CITY OF SANTA ANA, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California, (hereinafter referred to as the "CITY'), and PAG West LLC, a Delaware limited liability company (herein referred to as "LICENSEE "), with respect to the following: RECITALS A. LICENSEE owns that certain property located at 1405 Auto Mall Drive, Santa Ana, CA (hereinafter "Premises 1 "), on which LICENSEE operates an auto dealership. B. LICENSEE is the lessee of that certain property located at 1350 Auto Mall Drive, Santa Ana, CA (hereinafter "Premises 2 "), on which LICENSEE operates an auto dealership. C. LICENSEE is the sole shareholder of PAG Santa Ana B 1, Inc., a Delaware Corporation (hereinafter referred to as "PAG "). D. PAG owns that certain property located at 1500 Auto Mall Drive, Santa Ana, CA (hereinafter "Premises 3 "), on which PAG owns and operates an auto dealership. E. PAG owns that certain property located at 1455 Auto Mall Drive, Santa Ana, CA (hereinafter "Premises 4"), F. CITY owns or has an easement for public utility purposes along, above and under the public street commonly known as Auto Mall Drive (hereinafter "Street "), which abuts Premises 1, 2, 3 & 4. G. LICENSEE desires a license to install, maintain and repair a fiber optic cable from Premises I to Premises 2 (License Area 1), and maintain and repair an existing fiber optic cable from Premises 3 to Premises 4 (License Area 2), both of which are below the surface of a portion of Auto Mall Drive (hereinafter referred to as "License Areas "), as described in Exhibit A and depicted in Exhibit B, attached hereto and incorporated by reference, NOW, THEREFORE, for good and valuable consideration, LICENSEE and CITY do hereby agree as follows: 1. Rieht of Entry and License. Provided that all of the terms and conditions of this Agreement are frilly satisfied, as of the Effective Date of this Agreement CITY hereby grants to LICENSEE and its employees, agents and contractors the nonexclusive, non - assignable, personal, revocable right and license to install under the Street surface, a 4" conduit with the capacity to am a fiber optic cable from 25H -7 Premises I to Premises 2, 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 said Street. Said License shall include the right to install, maintain and repair said fiber optic cable in License Area 1, and maintain/repair said fiber optic cable in License Area 2. 2. Ucensee's Duties. By execution of this Agreement, LICENSEE agrees for itself and on behalf of its employees, agents, consultants and contractors as follows: a, All work shall comply with the current edition of the Standard S gcifications for Fublio _Works Construction C recn BOW and all applicable City Ordinances, Standards and Specifications currently in effect. Tho work, including inatlrod of installation and limits of construction of the fiber optic cable shall be depicted on a plan and shall be subject to review inspection and approval by the City Engineer. Any contractor performing work shall first obtain an excavation permit from the CITY. The LICENSEE shall endeavor to maintain and repair the License+ Areas from private property owned or controlled by LICENSEE, if practical. Any maintenance or repair of the conduit or its contents via Auto Mall Drive right of way shall require the LICENSEE to apply for and obtain an excavation permit from the City. b. LICENSEE accepts full responsibility for all damages and restoration and agrees to reimburse CITY for performing all wort: and furnishing all materials to correct any failure to comply with the rules and terms hereof and all applicable City regulations, Failure to pay ally bills due under any permission issued by CITY may result in rendering LICENSEE ineligible for any additional public Works Agency permit until such bill is paid. C. All work shall be clone by a. State Licensed Contractor with the appropriate classification. In addition, fire oontmetor shall possess a current City Business Lioonso, d. Traffic. Traffic control shall comply with City Standard Plan No. 1125F and the Work Area Traffic Control Hardbook (WATCH). Amber lights must be maintained at night. Any street closure shall comply with CCU St_eLi dic flan Noj 2LF. e. Fire Hydrant Permits shall be obtaiyad from the Public Works Agency bofore water is obtained from any public hydrant, I. LICENSEE or its contractor shall patch all authorized street cuts to City Standards, including backfillingwith 90 peroontrelativo compaction and temporary AC pavement. LICENSEE or its contractor shall place permanent: patch within 30 days of placing the temporary patch. A City Street Construction Inspector must be present to inspect placement of backfill and both temporary and permanent patches. g. Refuse, rubblo, gravel, dirt or unused materials shall be, removed on a daily basis and final cleanup shall take place within 3 days after completion of the work. If not so removed, CITY will remove such refuse, rabble, gravol, dirt or unused materials at LdC,ENSEE's expense, including the current call -out charge. 25H -8 h. UTILITY MARKINGS. Upon completion of the installation work, or any necessary service work, LICENSEE shall require that its contractor shall remove all painted utility markings using the removal method acceptable to the inspector. LICENSEE, or its contractor shall register the fiber optic cable with, and maintain its presence in the Underground Service Alert (Digniert) database. i. LICENSEE shall provide plans for the project on City Standard Sheets and almll provide as -built plans when installation is complete. j, CITY's grant of this License Agreement does not authorize entry onto, or commencement of work at any Premises described herein. LICENSEE shall be solely responsible for obtaining all necessary authorizations of the property owners) of any such Premises, to install, maintain and repair fiber optic cable at that Promises, LICENSEE shall be solely responsible to indemnify said property owacr(s) for any and all liability arising from the Installation, maintenance or repair of such fiber optio cable en Premises. 3. denoral Terms and C a Loons. a. Insurance. Prior to undertaking performance of work under this Agreement, LICENSEE shall obtain, and maintain for the duration of this Agreement, and shall require its Contractor to obtain and maintain Commercial General Liability Insurance, which 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 of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the followiuig: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, $2,000,000 in the aggregate. Such insurance shall be endorsed to (a) nave the City„ its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary with respect to insurance or self - insurance programs maintained by tho City; and (c) contain standard separation of insureds provisions. i, 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 [big Agreement and shall be approved in form by the City Attorney. Certificates and policies shall state that rho 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. ii. If LICENSEE fails or refuses to produce or maiotahnthe insurance required by this section or fails or refuses to furnish CITY with required proof that insurance has been procured and is in fordo and paid for, CITY shall have the right, at its election, to forthwith ternunate this Agreement. b. LICENSER shall not permit any mechanics, matOrialman'a or other liens of any kind or nature ( "Liens ") to be filed or enforced against the License Areas in connection with this Agreement. 25H -9 LICENSEE shall indemnify, defend and hold harmless CITY, its officers, employees and agents, from all liability for any and all hens, claims and demands, together with costs of defense and reasonable attorneys' fees, arising flom 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 License Areas, or any portion thereof, or on the improvements on the License Areas, 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 CITTY's other rights and remedies under this Agreement, should LICENSEE fail, within tan (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 Lion, then CITY, at its option, may elect to pay such Licit, or settle or discharge such Lien and any action orjudgment related thereto and all costs, expenses and attorneys' fees incurred in doing so shall be paid to CITY, as applicable, by LICENSEE upon written domand. c. LICENSEE shall not have any interest in the License Areas or be entitled to any reimbursement or repayment for any work performed upon the License Areas pursuant to this Agreement. d. LICENSEE may not encroach upon the Licenao Areas for any other purpose or business than that sp efflod in paragraph 1, above, other than pedestrian purposes already available to members of the general public, without obtaining the prior written consent of the City's Executive Director of the public Works Agency. o. CITY will not be held responsible for loss of, or damage to, any improvements made by LICENSEE in the License Area. f, This License is made subject and subordinate to die prior and continuing right of CITY to use the public right -of -way. d•, Inderuni LICENSEE hereby agroes to defend, indemnify and hold the City of Santa Ana 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 License Areas pursuant to this Agreement. All use of and entry upon the License Areas shall be at the sole cost, risk and expense of LICENSEE. LICENSEE acknowledges and understands that should this Agreement be deemed by the County of Orange to create a possessory interest subject to property taxation, that LICENSEE shall be subject to the payment of property taxes levied on such interest, and that it shall defend, indemnify and hold the City of Santa Ana and its officers, officials, members, employees, agents and representatives, harmless from and against any and all such claims, 5. License fees. At the time of the street work pernut issuance, all outstanding fees associated with ilte license processing, street improvement plan -check and street work permit shall be paid in full by LICENSEE. 25H -10 61 Revocation, CITY may revoke this License, at will, open thirty days notice in writing to the LICENSEE. Notices. Any notice to be given by either party shall be deemed to be properly served if deposited with the United States Postal Service, or other acceptable mailing service, postage prepaid, to the addresses below: TO CITY: Clerk Of The Council City of Santa Ana 20 Civic Center Plaza (M -30) P,O. Box 1988 Santa Ana, California 92702 With courtesy copy to: TO LICENSEE: PAG West, LLC 7015 E. Chauncoy Lane Phoenix, AZ, 85054 Executive Director of the Public Works Agenoy City of Santa Ann 20 Civic Center Plaza (M -21) P.O. Box 1988 Santa Ana, California 92702 8. Yermivation gf Occupancy. a. LICENSEE accepts the Lieeuso Areas in an "as is" oond,ition and upon termination or revocation of this License, LICENSEE shall, at its own cost and expense, remove any improvements installed and maintained by LICENSEE and sm'render possession of the License Areas to the CITY in good, order and repair and as nearly praoticable to the state and condition in which it existed prior to the grant of this License, to the satisfaction of CITY. b. In the event LICENSEE fails, neglocts or rofuses to remove said improvements and restore the License Aroas, suoh removal and restorations may be performed by CITY', at LICENSEE's expense, which expense LICENSEE agrees to pay to CITY upon demand. C. LICENSEE shall provide to CITY along with this Agreement, a performance bond issued by a corporate surety duly authorized to transact business in the State of Califoraia or cash deposit in an amount approved by the CITY to guarantee performance of LICENSEE's termination obligations. LICENSEE shall maintain a performance bond in full force, unless released by the CITY by written communication to the Surety. 9, 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. Remedios. 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. Ail rights and 25H -11 remedies under this Agreement are cumulative and no one of them shail be exclusive of any other, and each party shall have the right to pursue any one or all of such right's 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. d. Noo- Liability of Public Officials. No officer, employee, member, agent or representative of CITY shall be personally liable to LICENSEE, or any successor in interest, in the event of any default or breach by CITY, or for any amount which may become duo to LICENSEE or its successor, or, for any breach of any obligation of the terms of this Agreement. e, Effective Date. This Agreement shall become effective on the date first set forth above. £ Assignment. LICENSEE shall not record, hypothecate, assign or attempt to record, hypothecate or assign this personal License. Any attempt by LICENSEE to record, hypothecate or assign this License shall automatically terminate this Liceaase Agreement and render this Licenso void and invalid for all purpose. IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the date first set forth above. Attest: Maria D. Huizar Cleric of the Council Approved as to form: Laura Sheedy Assistant City Attorney Recommended for Approval: Edwin " Witham° Cralvez Lrterim. Executive Director - PW A CITY OF SANTA ANA David Cavazos —fT City Manager PAG West, LLC George Raysile Secretary and TreasLuor PAO West, LLC. 25H -12 EXHIBIT All LEGAL DESCRIPTION FOR LICENSE AREAS LICENSE AREA It BEING THAT PORTION OF AUTO MALL DRIVE ABUTTING PARCELS I AND 4 IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON MAP FILED IN BOOK 210, PAGE 45, OF PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. DEPICTED AS "LICENSE AREA I" ON EXHIBIT "B ". LICENSE AREA 2'. BEING THAT PORTION OF AUTO MALL DRIVE ABUTTING PARCELS G AND B IN THE CITY OF SANTA ANA,COUNTY OF ORANGE,STATE OF CALIFORNIA,AS SHOWN ON MAP FILED IN BOOK 210, PAGE 45, OF PARCEL. MAPS IN 'THE OFFICE OF THE COUNTY RECORUER OF SAID COUNTY. DEPICTED AS "LICENSE AREA 2" ON EXHIBIT "B", 25H -13 EXHIBIT 1911 SKETCH TO ACCOMPANY LEGAL DESCRIPTION FOR LICENSE AREA 1. EXISTING BUILDING COMMONWEALTH PRE-OWNED 11 DEALERSHIP PARCEL I PMA3. 210/45­47 1350 AUTO MALI_ DRIVE EXISTING ,l BUILDING LICENSE- AREA I Le COMMONWEALTH PRE-OWNED DEALERSHIP DAN GURNEY DR VOLVO OF ORANGE COUNTY >L �pu rr LLJ PARCEL 4 P.M.B. 210/45­17 1405 AUTO MALL DRIVE EXISTING BUILDING HYUNDAI DEALERSHIP 0 0 fN 40� AUTO MALL DR SKET 14P COMMONWEALTH AUDI COMMONWEALTH CREVIER VW I BMW 25H-14 EXHIBIT "B" SKETCH TO ACCOMPANY LEGAL DESCRIPTION FOR LICENSE AREA 2 A�Tb Mq {{ LICENSE -, AREA 2 CREVIER MINT DEALERSHIP T n�ry 1455 AUTO';, n. MALL DRIVE�i BUILDING PARCEL 8 1,N P.M.B.2Wf 5 -47 ,� PARCf_L, 6 aui otNG CREVIER BMW "<` "'r` "`�V 1500 AUTO DEALERSHIP MALL DRIVE I Ex1 1�iNC' BUILDING EDINGER AV c v r r u 25H -15 P m.l 2101/45-47 FREEWAY HONDA SHED 2 OF 2 1 25H -16