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HomeMy WebLinkAbout12 RIGHT-OF-ENTRY 06-05-00 NO. 12 6-5-00 AGENDA .....Int -com TO: FROM: SUBJECT: WILLIAM A. HUSTON, CITY MANAGER PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION RIGHT-OF-ENTRY AND TEMPORARY CONSTRUCTION LICENSE WITH SOUTHERN CALIFORNIA WATER COMPANY OVER A PORTION OF THE CITY OWNED NEWPORT AVENUE RESERVOIR PROPERTY SUMMARY The Southern California water Company is planning to replace their existing reservoir and is 'requesting permission to utilize a portion of the adjacent City-owned property during construction of their new reservoir. RECOMMENDATION It is recommended that the City Council approve the attached Right-of-Entry and Temporary Construction License and authorize the Mayor and the City Clerk to execute it on behalf of the City (subject to approval by the City Attorney). FISCAL IMPACT There is no fiscal impact to the City Construction License. associated with this Right-of-Entry and Temporary DISCUSSION The Southern California water Company (SCWC) will be replacing their existing bolted steel reservoir with a new welded steel reservoir located adjacent to the City's Newport Avenue reservoir as shown on the attached location map. SCWC is requesting permission to utilize a portion of the City-owned Newport Reservoir property for approximately six months during construction of their reservoir. The right-of-entry and temporary construction license will be valid for twelve months to cover any unforeseen delays during construction. The portion of the City property to be utilized by SCWC will be for vehicular and pedestrian ingress and egress, maintaining temporary water tanks, maintaining a portable trailer, and storing equipment and materials in connection with. the construction of the new SCWC reservoir. This request has been reviewed by the Public Works Department/Engineering Division and Water Services Division and found to be acceptable. The City Attorney reviewed the attached Right-of-Entry and Temporary Construction License and determined, that the terms and conditions contained therein are appropriate and adequately protects the City's interest. Right-of-Entry and Temporary Construction License with Southern California Water Company Over a Portion of the City Owned Newport Avenue Reservoir Property June 5, 2000 Page 2 It is staff's recommendation, concurred to by the City Attorney, that the City Council approve the attached Right-of-Entry and Temporary Construction License and authorize the Mayor and City Clerk to execute it on behalf of the City (subject to approval by the City Attorney). Tim D. Serlet Director of Public Works/City Engineer ,~er~otte~-on Associate Civil Engineer Attachments: Location Map Right-of-entry and Temporary Construction License TDS:JO:ccg:S:\City Council Items\O0 City Council Items\SC Water Co temp const license.doc Z RIGHT OF ENTRY AND TEMPORARY CONSTRUCTION LICENSE THIS RIGHT OF ENTRY AND TEMPORARY CONSTRUCTION LICENSE (the "License") is made and entered into as of the ~ day of~, 2000 (the "Effective Date"), by and between City of Tustin, hereinafter referred to as the "City", and Southern California Water Company, hereinafter referred to as the "Water Company". RECITALS: WHEREAS, the City is the owner of certain property located at 11301 Newport Avenue, in the City of Tustin, County of Orange, State of California (the "Property"); and WHEREAS, the Water Company owns certain property located at 11581 Newport Avenue, County of Orange, State of California (the "Water Company Property"); and WHEREAS, in connection with constructing and developing a water reservoir (the "Reservoir") on the Water Company Property, the Water Company desires to obtain, and the City desires to grant,, a temporary right of entry in, over, upon, and across certain areas of the Property comprising a total of approximately Six Thousand Four Hundred Twenty (6,420) square feet, as more particularly showm on the map attached hereto as Exhibit "A" (the "License Area"), for purposes of storing construction materials and providing vehicular andother ingress and egress to and from the Water Company Property. NOW, THEREFORE, in consideration of the above recitals and the performance of the covenants herein contained, the City does hereby grant a temporary license upon the terms and conditions hereinafter set forth. 1. G1L4NT OF LICENSE. The City hereby grants unto the Water Company and its contractors, agents and employees (collectively referred to as the "Water Company Persons"), without the payment of any fee, a temporary license to enter upon the License Area for the purpose of vehicular and pedestrian ingress and egress, installing, storing, using and maintaining temporary water tanks, maintaining a portable trailer, equipment, fencing, depositing tools and equipment and storing materials in connection with the construction of the Reservoir on the Water Company Property. All such activity shall be at the sole cost and expense of the Water Company. 2. TERM. The term of this License shall commence on the Effective Date, and shall continue, subject to Section 9 below, until the date that is twelVe (12) months after the date of this A~eement, or until the construction of the Reservoir has been completed, whichever is sooner. Water Company shall diligently pursue obtaining all permits and approvals necessary for construction of the Reservoir. 3. FENCING OF LICENSE AREA. Water Company may erect a temporary construction fence around the perimeter of the License Area, or so much thereof which is being utilized by the Water Company, and maintain such fencing for the period that construction work is being conducted. The location and materials of the fencing shall be subject to the City's prior written approval (which approval shall not be unreasonably withheld). Upon the earlier to occur of (i) the completion of the construction work on the Reservoir, or (ii) the expiration of this License as provided in Section 2 above, the Water Company shall remove the temporary construction fence. 4. RESTORATION OF THE LICENSE AREA. Upon the termination of this License, the Water Company shall restore the License Area to substantially the same condition existing as of the Effective Date at the Water Company's sole cost and expense. 5. PERSONAL PROPERTY/ENCUMBRANCE OF LICENSE. The fights of Water Company under this License are personal property interests only and shall under no circumstances convey any interest in the Property or any portion thereof and shall under no circumstances result in a lien against the Property or any portion thereof. The Water Company shall not encumber or assign its interest in this License. 6. INDEMNIFICATION. City shall not be liable for any loss, damage or injury of any kind or character to any person or property arising from the use of the License Area or any part thereof by the Water Company, and the Water Company shall indemnify, defend and hold harmless the City from and against any claims, actions, damages, liabilities, and expenses in connection with any loss of life, personal injury and/or damage to property arising from or out of the use by the Water Company Persons of the License Area or any part thereof (except that Water Company shall have no obligation to indemnify, defend or hold the City harmless against any such matter resulting from the goss negligence or willful misconduct of the City or the City's agents, contractors or employees). Water Company' s obligations under this Section 6 shall survive the termination of this License. 7. INSURANCE: During the term of this License, the Water Company shall either self-insure for the liability'risk described below, maintain adequate reserves therefor, or take out and maintain a policy or policies of general liability insurance in an amount of not less than One Million Dollars ($1,000,000) insuring against injury to persons or property occurring on, at or about the License Area. Any such self-insurance or self-insured retention shall be subject to City's approval, which shall not be unreasonably withheld. Such policy shall name the City as an additional insured. Before any Water Company Person commences any work in, on or around the License Area, Water Company shall deliver to City reasonably satisfactory evidence that such insurance or self-insured retentions in satisfactory amounts are in place. 8. NO LIENS. Water Company shall not voluntarily or involuntarily encumber the License Area or any other portion of the Property with any deed'of trust, mortgage or other security instrument, and shall further keep the License Area and the Prope~' free and clear from any and all mechanics', materialmens', contractors' or subcontractors' liens (each, a "Lien") based on or in connection with the Water Company's cons~uction, repair, restoration, replacement or improvement on or about the License Area_ If any such Lien is imposed on the License Area or the Property which is not removed within five (5) business days from the receipt of demand from City, City shall have the right, but not the obligation, to procure a release bond, in which event Water Company shall reimburse City for all costs and fees incurred thereby. 9. BREACH. Should the Water Company default in the performance of or breach any covenant, condition, or restriction of this License on its part to be kept or performed and should such default or breach continue uncured for a period of ten (10) business days from and after written notice thereof by the City to the Water Company, then in such event the City may exercise any and all legal and equitable remedies available, including, without limitation, termination of this License, except that if such cure cannot reasonably be completed within ten (10) business days, Water Company shall have such longer period of time as is reasonably necessary to cure such breach, provided that the Water Company commences such cure within such 10 business day period and thereafter diligently pursues such cure. 10. MISCELLANEOUS. 10.1 Interpretations; Governing Law. This License is the result of negotiations between the parties hereto and shall be construed according to its fair meaning. The License shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this License. Titles and captions are for convenience only and shall not constitute a portion of this License. As used in this License, masculine, feminine, or neuter gender in the singular or plUral number, shall be deemed to include the others whenever the context so dictates. 10.2 No Waiver. No delay or omission by either party in exercising any right or remedy accruing upon the compliance or failure of performance by the other part)., shall impair any such fight or remedy, or be construed to be a waiver thereof. A waiver by either party of a breach of any of the covenants, conditions or agreements hereof to be performed by the other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or .conditions hereof. 10.3 Modifications. Any alteration, change or modification of or to this License, in order to become effective, shall be made by written instrument or endorsement thereof, and in each such instance executed on behalf of each party hereto. 10.4 Severabilitv. If any term, covenant, condition or provision of this License is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired, or invalidated hereby. 10.5 Merger of Prior Agreements and Understandines. This License contains the entire understanding between the parties relating to the transaction contemplated hereby. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein and shall be of no further force or effect. 10.6 Execution in Counterpart. This License may be executed in several counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatories to the original or the same counterpart. 10.7 Attorneys' Fees. in the event of any litigation relating to this Agreement or the breach thereof, the prevailing party shall be entitled to recover from the losing party all reasonable attorneys' fees and costs. 10.8 Notices. Any notice which either party may desire to give to the other party must be in writing and may be given by personal delivery or by mailing the same by first class mail, postage prepaid, to the party to whom the notice is directed at the address of such party hereinafter set forth, or such other address and to such other persons as the parties may hereinafter designate. Notice shall be deemed given and served upon delivery if delivered personally, or three (3) calendar days after depositing in the United States Mail. To City: City of Tustin 300 Centennial Way Tustin, CA 92680 Attention: Mr. Tim Serlet, Director of Public Works To Water Company: Southem California Water Company Orange County District 1920 West Corporate Way Anaheim, California 92801 Attention: Patrick Scanlon [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF, the parties hereto have executed this License as of the day and year first above written. "CITY" CITY OF TUSTIN ATTEST: By Jeffery M. Thomas, Mayor Pamela Stoker, City Clerk APPROVED AS TO FORM: Lois E. Jeffrey, City Attorney Water Company: SOUTHERN CALIFORNIA WATER COMPANY, a California corporation By: Its: EXHIBIT A FOR INGRESS/ EGRESS ONLY NO STORAGE0F EQUIPMENT/MATERIALS PERMITTED IN THIS AREA. PROPOSED CONSTRUCTION EASEMENT APPROX. LOCATION OF UNDERGROUND VAULT. DO NOT BLOCK ACCESS MAINTAIN A MINIMUM 2' CLEARANCE ON ALL SIDES. SCWC. PROPERTY CITY OF TUSTIN PROPERTY SCALE: NTS COWAN HEIGHTS SYSTEM ~ NEWPORT RESERVOIR CONSTRUCTION EASEMENT FROM CITY OF TUS TIN A-1 J.N. 27&00121 CAD_REF= (C): _ _ _ _.j