Loading...
HomeMy WebLinkAboutORANGE, COUNTY OF (3) - 2016INSURANCE Nil FILE ORK MAY &Z PROCEED CLERK OF COUNCIL DATE. A-2016-204 RIGHT OF ENTRY AND LICENSE AGREEMENT THIS RIGHT OF ENTRY AND LICENSE AGREEMENT ("Agreement") is made and entered into this 1_&O day of, 2016 by and between the CITY OF SANTA ANA, a charter city and municipal corpor tion organized and existing under the Constitution and laws of the State of California, (hereinafter referred to as the "CITY"), and the COUNTY OF ORANGE, a political subdivision of the State of California (herein referred to as "LICENSEE"), with respect to the following: RECITALS A. LICENSEE owns that certain property located at 3001320 N. Flower Street, Santa Ana, CA, described in Assessor's Map, Book 405, Page 16 as Assessor Parcel Number (APN) 405-162-17 (hereinafter "Premises 1"), which is occupied by the Orange County Public Works agency and the Sheriff -Coroner department. B. LICENSEE owns that certain property located at 308 N. Olive Street and 1015 W. Third �] Street, Santa Ana, CA, described in Assessor's Map, Book 405, Page 16 as APN 405- 161-42 and 405-161-43 (hereinafter "Premises 2"), which LICENSEE operates as parking structure for parking of Premises 1. C. CITY owns or has an easement for public street/road purposes along, above and under the public street commonly known as Santa Ana Boulevard (hereinafter "Street"), which abuts Premises 1 and 2 and was recorded on June 17, 1991 as Instrument No. 91-306621 as Parcel Map No. 90-251 filed in Book 263, page 37 and 38 of Parcel Maps in the Office of the County Recorder of County of Orange, State of California. D. LICENSEE desires a license to install, maintain and repair a fiber optic cable and handhole from Premises 1 to Premises 2 (hereinafter "License Area I"), which are below and on the surface of the Street, 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. Right of Entry and License. Provided that all of the terms and conditions of this Agreement are fully 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 2" conduit with the capacity to run a fiber optic cable from Premises 1 to Premises 2 and one (1) handhole. 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. Page 1 of 8 2. Licensee'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 performed by LICENSEE on License Area 1 shall comply with the current edition of the Standard Specifications for Public Works Construction (Green Book) and all applicable CITY Ordinances, Standards and Specifications currently in effect. The work, including method 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 Area I from private property owned or controlled by LICENSEE, if practical. Any maintenance or repair of the conduit or its contents via the CITY's 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 work and furnishing all materials to correct any failure to comply with the rules and terms hereof and all applicable CITY regulations. C. All work shall be done by a State Licensed Contractor with the appropriate classification. In addition, the contractor shall possess a current CITY Business License. d. Traffic. • Traffic control shall comply with CITY Standard Plan No. I I 25 and the Work Area Traffic Control Handbook (WATCH). Amber lights must be maintained at night. • Any street closure shall comply with CITY Standard Plan No 1125F. e. Fire Hydrant permits shall be obtained from the Public Works Agency before water is obtained from any public hydrant. f. LICENSEE or its contractor shall patch all authorized street cuts to CITY Standards, including backfilling with 90 percent relative 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, rubble, 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, nibble, gravel, dirt or unused materials at LICENSEE's expense, including the current call -out charge. h. UTILITY MARKINGS. Upon completion of the installation work, or any necessary service work, LICENSEE shall require that its contractor shall remove all painted Page 2 of 8 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 (Digalert) database. i. LICENSEE shall provide plans for the project on CITY Standard Sheets and shall provide as -built plans when installation is complete, j. CITY's grant of this License does not authorize entry onto, or commencement of work at Premise 1 and 2. LICENSEE shall be solely responsible for obtaining all necessary authorizations of the property owner(s) of any such Premises, to install, maintain and repair fiber optic cable at Premise 1 and 2. CITY shall have no responsibility to indemnify said property owner(s) for liability arising from the installation, maintenance or repair of such fiber optic cable on Premise 1 and 2. 3. General Terms and Conditions. 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 following: 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) name 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 the 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 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. ii. If LICENSEE fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish CITY with required proof that insurance has been procured and is in force and paid for, CITY shall have the right, at its election, to forthwith terminate this Agreement. Page 3 of 8 b. LICENSEE shall not permit any mechanics, materialman's or other liens of any kind or nature ("Liens") to be filed or enforced against the License Area 1 in connection with this Agreement. LICENSEE shall indemnify, defend and hold harmless CITY, its officers, employees and agents, 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 License Area 1, or any portion thereof, or on the improvements on the License Areal, 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 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 LICENSEE upon written demand. C. LICENSEE shall not have any interest in the License Area 1 or be entitled to any reimbursement or repayment for any work performed upon the License Area 1 pursuant to this Agreement. d. LICENSEE may not encroach upon the License Area I for any other purpose or business than that specified 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. e. CITY will not be held responsible for loss of, or damage to, any improvements made by LICENSEE in the License Area 1. f. This License is made subject and subordinate to the prior and continuing right of CITY to use the public right-of-way. 4. Indemnity. LICENSEE hereby agrees 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, except for loss, damage, injury, liability, claim, cost or expense arising from the negligence or misconduct of the CITY, its officers, officials, members, employees, agents, or representatives. All use of and entry upon the License Area 1 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. Page of 5. License Fees. At the time of the street work permit issuance, all outstanding fees associated with the license processing, street improvement plan -check and street work permit shall be paid in full by LICENSEE. 6. Revocation. CITY may revoke this License, at will, upon Nine (9) months' notice in writing to the LICENSEE. 7. 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 TO COUNTY: Scott D. Mayer City of Santa Ana Chief Real Estate Officer 20 Civic Center Plaza (M-30) CEO, Real Estate Services P.O. Box 1988 300 N. Flower Street Santa Ana, California 92702 Santa Ana, CA 92703 With courtesy copy to: Executive Director of the Public Works Agency City of Santa Ana 20 Civic Center Plaza (M-21) P.O. Box 1988 Santa Ana, California 92702 8. Termination of Occupancy. a. LICENSEE accepts the License Area 1 in an "as is" condition and upon termination or revocation of this License, LICENSEE shall, at its own cost and expense, remove any improvements installed, as stated below, and maintained by LICENSEE and surrender possession of the License Area I to the CITY in good order and repair and as nearly practicable to the state and condition in which it existed prior to the grant of this License, to the satisfaction of CITY. The LICENSEE shall not be required to remove or relocate its fiber optic cables from the street right-of-way unless the fiber optic cables improvements substantially interfere with other CITY -related public projects. If fiber optic conduit is relocated, updated as -built plans shall be provided to City by the County. Page 5of8 b. In the event LICENSEE fails, neglects or refuses to remove said improvements, as stated above, and restore the License Areas, such removal and restorations may be performed by CITY, at LICENSEE's expense, which expense LICENSEE agrees to pay to CITY upon demand. 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. 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 any one 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. d. Non -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 due 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. f 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 License Agreement and render this License 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: 'e- aria D. Huizar Clerk of the Council CITY OF SANTA ANA , David Cavazos City Manager Page 6 of 8 Approved as to form: os andoval ssistant City Attorney Rec mmend d for Approval: Fre4 Mou avipour Executive Director Public Works Agency Approved as to Deput County Counsel Office of the County Counsel Count of Orange, California OF Sc tt D, Mayer Chief Real Estate Officer Co-unty Executive Office, Real Estate Page 7of8 EXHIBIT A LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF SANTA ANA, AND IS DESCRIBED AS FOLLOWS: SEE ATTACHMENT Page 8 of 5NUNTFIVAU License Area Legal Description A strip of land, in the City of Santa Ana, County of Orange, State of California, lying within the right of way of Santa Ana Boulevard and adjoining Parcel Map No. 90-2.51, filed in Book 263, Pages 37 and :38 of Parcel Maps, more particularly described as follows: Parcel GA401-281; The southerly 1.4.00 feet of Santa Ana Boulevard, having a half width right of way of 52.00 feet per said Parcel Map, bounded as follows: On the east by a line parallel with and 70.00 feet westerly of the westerly right of way of Plower Street, having a half width right of way of 30.00 feet per said Parcel Map, said right of way also being the easterly line of Parcel 1 of said parcel map; and On the west by a line parallel with and 370.00 feet westerly of the westerly right of way of said Flower Street. Containing 4,200 square feet. This legal description is not intended for use in the conveyance of land in violation of the Subdivision Map Act of the State of California. �.,,, Prepared under the direction of: T06vor D. Rice, PLS 8862 Signed: 06/3.3/16 U Woolley & Associates, hic., 2832 Walnut Avenue, Suite A, Tustin, California 92780 Page l oN EXHIBIT 11611 SKETCH TO ACCOMPANY LEGAL DESCRIPTION FOR LICENSE AREA W SANTA ANA BOULEVARD 300.00' 52.00' FIDEROPTICCCNUUIT' APPROXIMATE LOCATION OF PROPERTY LINE FOR REFERENCE HUTTUN TOWERS PARKING STRUCTURE PARCEL3 PREMISES 2 € 1 <I o PARCEL MAP NO, BUILDING320 SHERIFF FORENSIC SCIENCE SERVICE PARCEL2 PREMISES 1 90-251 `APPROXIMATE LOCATION OF PROPERTY LINE FOR REFERENCE Ih PMB 263!37-38 COUNTY PARCEL � U C. I �o o a w O I a U o �, a ' I I II�1 300.00' 52.00' FIDEROPTICCCNUUIT' APPROXIMATE LOCATION OF PROPERTY LINE FOR REFERENCE HUTTUN TOWERS PARKING STRUCTURE PARCEL3 PREMISES 2 € 1 <I o PARCEL MAP NO, BUILDING320 SHERIFF FORENSIC SCIENCE SERVICE PARCEL2 PREMISES 1 90-251 `APPROXIMATE LOCATION OF PROPERTY LINE FOR REFERENCE Ih PMB 263!37-38 COUNTY PARCEL � , I o �, ISI: BIJILDING 30C I �OC PUBLIC WORKS !�C WASTE & RECYCLING sl ,I PARCEL 1 I . LICENSE AREA ®= 4,200 SF (GA401-281) CURB AND CUTTER PLAN NORTH 0 So 120 FT. GRAPHIC SCALE: 1"= 60'-0"