HomeMy WebLinkAbout08 ENTRY PERMIT 04-17-95PROFESSIONAL CORPORATION
NO. 8
4-17-95
MEMORANDUM
TO:
FROM:
DATE:
RE:
Honorable Mayor and Members of the City Council
City of Tustin
City Attorney
April 10, 1995
Entry Permit for Jamboree Soils Remediation Site
Recommendation:
Approve the attached entry permit with The Irvine Company, subject to approval as
to form and substance by the City Attorney.
Background:
As you know, the City through Assessment District 86-2 is obligated to remediate
an adverse soils condition on some Irvine Company property. The City is currently in
litigation with the prior contractor and soils engineer over the faulty work. The City has
recently awarded a contract for the soils remediation and hired a new consulting engineer.
This permit is necessary for the City to begin work. The City Attorney has a number of
comments as to changes to the agreement, which the City Attorney is optimistic can be
resolved amicably with the Company. In order to expedite this matter, it is recommended
that the City Council move forward on the basis that these matters will be resolved prior to
execution by City officials.
LOiS E. JEFFREY/" ,j
LEJ:cas
Attachment
CC:
William A. Huston, City Manager
Tim D. Serlet, City Engineer
1100-00022
11527_1
ENTRY PERMIT
THE IRVINE COMPANY
55O ~ORT CENTER DRIVE.
NEWPORT BEACH, CA 92660
L~UED TO: City of Tusfin
P~rmission is hereby ismacd to the City of Tustin Oaereim~r referred to as 'Pcrmittec"), and
its employees, officers, representatives and contractors employed tn accomplish thc purpose
for this Entry Pcrmit ("Permit") aa set forth in paxagraph 2 below ("Pcnnittee's Agents"), to
enter upon the property of THE IR~ COM?ANY (the 'Company'), subject to thc
following conditions:
1.' - Are: This Entry Permit (this "Permit') ix limited to the area depicted on
Exhibit ' A' (the "Property").
2. Pttrpose: This Permit is limited tn the following purpose: Remediafion of the
Property as directed by the Decision entered in the arbitration of TKE IP.V])~ COMPANY
v. CITY OF TUSTIN.
3. Dates: This Permit' is limited to the following Date(s)' From the date hereof until
Petmittee 'completes the 'remediation of the Property.
4. Number of Persons: This permit is limited to a maximum of 30 persons.
5. Special Requirements: Permittr, e shall comply with the special conditions I through
XI omar. bed to this Permit. PenrfiReed shah also use reasonable efforts to have a copy of the
Entry Pemfit carried by any persons entering the Property.
6. Rights and Responsibilities: Petmitm's rights and rmpomib~ifies under this Permit
are and shall be subject to, and Permittee shall comply and shall cause each and all of
Permittec's Agents to comply with the following:
(a) Personal Supervision: .Each person entering upon the Property shall be
cominuously under the personal supervision and control of the City Engineer or his or
her designated representative.
(b) Compliance with Rules: Each person entering tl~ Pro~ under this Permit
shall bc considered to be acting as Pcrmittce's a~nt, and all such persons slmll enter
the Property at their own risk ~ sh~[ not light any ['acs (except in areas specifically
designated in writing by the Company), shall not carry f~ arms onto the Property or
any othex prol~rty of the Company, and shall otherwise comply wi~ any az~ all
ins~ons and directions of ~ authofiz~ agents of thc Company.
(e) No Duty to Warn: The Company shall have no duty m inspect the Property
and no duty to warn any person of any latent or patent defezt, cor~lifion or risk that
might be inzun'ed in the exercise of the rights granted herein.
(ti) No Food or Beverages_: No person shall sell or otherwise proride any tickem,
food, beverages, or other items to anyone w. ho is not directly afffliat~ with, or a
personal guest of, the Permitte~. Furthermore, no ~n shall sell, serve, distribute,
or give any alcoholic beverages to ANYONE (unless specifically agreed to in writing
by the Company anti, where applicable, proper evidence of Liquor liability im'uran~
has been rec~i~ by the Company).
(e) Damag~ to the Company's. Pr~ert~: Perraittee hereby agrees to be liable for
and to pay to the Company the cost of my damage of any kind whatsoever to,
including the loss of, live stoclc, fences, gates, crops, trees, improvementS of any kind
and natnre, or any other property of the Company, including to the soils of the
· Ptope~, arising from or in any way retated to (i) the acts' or omis~ons of Petmittee.
or Permittee's Agents, or (it') any breach by Permittee of any of its obligations under
ti:tis Penait, tmless and to the extent any of the foregoix~ ~_~h~fl ~y_~court of
· compe~t jurisdiction to have been causetl solely by the~ae~'~'figehr-~ or wilful
misconduct of the Company. There shall be no removal of any property of any type
from the Property without the express prior written consent of the Company.
(0 Third Party Dama~ or InjurE: The Company ~ not be liable for any'
damage of any kind whatsoever to the property belonging to or used by. Permittee or
any persons entering upon the Property under this Permit, including loss of use of any
su~ property, or for any injury of any kind whatsoever to any person entering upon
thc Ih-openy under this Permit, arising from any caug whatsoever, and Permittee
hexeby waives all claims and demands relating ~. Pemaittee agrees to
indemnify, defend 'and hold the Company and its employee.% officer.% shareholders,
agents and repre~ntativea ~ it~ and their respective su~essors and assigns
(collectively, the ~Indemnit?x.s') harmless from and against any and all claims, l°sses,
liabilities, costs and expenseS, including attorney's fees (collectively the "Claims") for
damage m real, personal, tangible or intangible property, including loss of use of any
such property, and all Claims for bodily injury, siclff~ess, dk~.ase or death of any
person, arising from or in any way related to (D any entry upon tlae Property or othe~
activity under this Permit by ?ermitt= or Permittee's Representatives (including but
not limited to any Claim by any insurance company which has paid a claim and Lg
subrogatext, to tl~ righm of the claimant), or (ii) any breach by Permittee of its
obligations under ~s Pennit; provided, however, that no Indemnitee shall be entitled
to indemnification under this paragraph to the extent that any Claim i~ held by a zourt
of competent jurisdiction tn have bccn caused by the active negligence or willful
misconduct of such Indemnitee.
(g) Auto/General Liabili~_~ Insur~;~ce: Prior to any entry under this Permit, the
Company must be fumish~ with a poli~ or certificate of comprehensive genexal
liability anti automobile insuraw~ carried by Permittee endorsed to include the
Company as additional insured and including, a thirty (30) day notice to the Company
in the event of cancellation or any material change in coverage. In addition, this
..ins~ce policy shall reticet that thc policy is primary insurance as respects any
claim, loss or liability arising directly or indirectly from Permittee's operations, and
any other insurance maintained by the Company shall be eomidered non-contr~uting.
This liability in,mrance must be in a form satisfactory to the Company and written
with Iimies of liability not less than the greater of (i) $1,000,000 (or such greater
amotmt as may reasonably be required by the Company) combined single bodily
injury and property damage lhbility per oecu~nce, or (ii) the eu::rent limit of
liability earriefl by Pennittee. If Permittee.earries greater liability insurance than the
minimum amount required in (7 above, the certifica~ or policy delivexed to 'the
Compa~ must evidence this greater amount. The Compa~ will not be responsible
for any costs of premiums or other ¢l~arges ior-such inmran~. In addition, Permit~ee
shall provide the Company with Wo~er'a Compensation and Employer's Liability
Insuranze coverage with a Waiver of Subrogation Agreement by the insurance carrier
as respects the Company.
Failure by thc Company to obtain from ?ermittec evidence of any insurance required
hereunder shall not constitm~ a waiver of the requirement for such ~.
Nothing in rigs subparagraph shall limit ?ermiuee's obligations under the other
provisions of this Permit.
Penniuee shall not self-insure any portion of the insurance r~lu~ under this
paragraph without the express written consent of the Company, which consent may be
withheld by thc Corapany in its sole and absolut~ discretion (except that a City or
County may self-insure pursuant to a general self-insurance plan approved by the City
Council or County Board of Supervi.~rs). In the event Permittee is permitted to
self-insum under this Permit, prior to any entry under thi.~ Permit, Permitt~e shall ,
provide to the Company sufficient evidence of self-insurance, together with a financial
statement ar other documentation dcmonstrafing Permitt~'s adextuat~ net worth to
self-insure. Permittcc understands and acknowlexlges that thc Company will be
relying on the financial statement or other documentation submitted. Pcrmittee shall
at all times maintain suffi¢iem flands available to provide the same amountx,
coverages, protection and payments by way of self-insurance as would be pruvided if
the Permktee was to obtain the type of insurance required above, and shall provid~
the Company with a policy or certificate of insurance (meeting all of the z-equiremems
set forth above) for any coverage carried by Pennitme in excess of or in addition to
Such self-insurance. At the Company's clccfion, any materi~ negative change in
Pcmfittcc's firmneial condition, as compaz~ with r~t dcscfibcd in ~ documern-ation
~bmi~ in order to mtisfy the requi~ments of this self-~ce pm-agraph, shall
constimt~ a default under this Permit unless Permit~ provides the insurance
d~sc-ntmd in the foregoing paragraph promptly after any such change. Permittec shall
give the Company immediate written notice of any such change of financial condition,
and on request by the Company, ghall from time to time give lo th~ Company
supplemental flnanctal irfformation.
(h) Entry_. Fee: There shall bc no entry fee charged to thc Pcrmittee for the usc
during the term of the Permit.
(i) Fire Reatrietions: Permission to enter the Property under this Permit is mbject
to all of the following conflifions:
(1) No smoking shall be allowed anywhere on the Ploperty (including
within any vehicles) except within a cleared area on nat less than 30 feet
square.
(2) Each vehicle used for entry to the Property shall carry at least one
serviceable round point shovel' with an overall length of not less than 4 feet
and one 2-1/2 gallon p~ water extinguisher or one 4 gallon pump type
water exthguisher, fully equipped and ready to use. A chemical type fire
extinguisher is not sufficient to satisfy thi.~ requirement..
(3) All persons entering the Property shall do everyr_hirtg possible to
prevent fires, and to take immediate steps to control any firc discovered.
(4) Vehicles equipped with catalytic converter exhaust ~y:,'tewa should stay
on travelled road~ and not park over tall grass or bushes.
(5) Drive directly to and from the d~fion, staying on maintained roads.
(6) .- 'Protect all water sources from poilu/ion arising in connection with any
entry under.thi.~ Permit. ' . · ' ~~ ~/44. \
0') "Miscellaneous: Thc obligations and lhbilities of Pcrmittee~unde~
shall survive the termination or expiration of this Permit, and shall not be affecUxl by
or diminished in any way by the existence (or lack thereof) of other entry permits or
entry agrzcments covering all or a portion of thc Property. Pcrmittec acknowledges
that neither the Company nor any employee, agent or representative of thc Company
has made representations or warranties concerning the condition of the Property. All
powers, fights or remetiies of the parties to this Permit shall be ammhtive with; and
not exclusive of, any powers, rights or remedies otherwi~ available at law or in
8 ~:LgLZ, Sgl] ~I/. ,-~'SNIXLV// ~ h~'Pfl,V-I : l~'O0:OI: I~6-9I-6 :A~t 2X.qS
equity. The rigl~ axed obligations of thc paxtics mxlcr this Pcmfit shaft i~rc to thc
benefit of and bc biadix~g upon thc mcccssors and assigm of thc parties he. reto.
IN WITNF~S WIIEREOF, the Comply and Permittee have entered into this Entry Permit
as of ,199_.
"PERMITTRR"
COMPANY
City of Tustin, a California municipal
corporation
TIqE IRVINE COMPANY, a Mielxig~
corporation, doing businev~ as Irvinc
Community Builders
By
Mayor
APPROVED AS TO FORM:
City Attorney
By
C. Keith Greet, President, Irvine
Community Builders, a division of
The Irvine Company
By
Lois Jeffrey
By
James R. Cavanaugh, Asfi~ant
Secretary, The lrvine Con'rpa~
6 $1igL/, .egg $,I/., q'O'$NI)t£¥~t ~' h~J, WIt }qVI0:0I: ~-9I-6 :3,[t ,I~$
n.
DUST CONTROL. Permittec shall comply with ail specifications pertaining to noise and
dust control as set forth in the Standard Rpecifieatiom for Public WorkS Commamfion.
In addition, Pemxi~ shall comply, and ensure that all employees, agents, subcan~r~,
li~, and other persons present on the Property under Permiucc's supervision or
control, comply with the requhemvnts of Souti~ Coast Air Quality Managemeaxt Disa'ict
("SCAQMD") Rnle 403 (governing fugitive dust emissions), including, if applicable, thc
requixements of any approved fugitive dust emissions control plan prepared by TlC or
Pm-mittec for the Property. If no such approved fugitive dust emissions control plan
currently cxisL% and if such plan is rexluir~ for fl~c Property, ?crmincc shall, at its sole
cost, prepare and implement such plan for the Pro~ in accordance with Rule 403. In
~uch event, Permittr~ sluffl provide TIC with a copy of suc~ plan within ten (10) days of
submission of same to $CAQMD.
EROSION CONTROL. Permil/ee shall be responsible for erosion and sediment control
for all activities under this en~3' _permit.
TRAFFIC COh~ROL. Pcrmittce shall be responsible for all county and city of ~
traffic controls ~:elated to ingress and egress from thc site. ·
·
FUEL STORAGE'~ Perrnittee shall not store any gasoline or other: fuels on the Property.
V. ~.-CONDITION-OF PROPERTY. Permittee shall, keep the Property in a good and safe
condition.
ENTRY.- Pcrmittcc.. shall.enter the P~peny only during normal wortdng hour~ and
.during-regular work-days (Monday to Friday cxclusive of weekends and holidays).
.o
TRASH I~RMOYAL. Permittee s '1~11 clean trash from the Property and surrounding
area afar the acfivi~ pcrmiaed under r. his permit.
P'ERMI'I~. Pcrmittee is responsible for obtaining ail permits required to perform thc
activifie~ permitted under this permit.
~US WASTE. No "hazardous or toxic wastes, substances or materials," as
such terms axe or may from time to time be defined by Federal, state, coum~] or
municipal laws, ordinances, orders or regulations applicable to the use and enjoyment of
the Property (whiCh regulat~ materials art: collectively hereinafter referred to as
· HazardOUs Wastes") shall be placed or used or allowed to be placed or used on the
Property. In the event any such Hazardous Waste is discovered or known to exist on thc
Property or in the gxoundwater beneath the Property or otherwise to have escaped o~
emanated from the Property as a result of the activities el' Permittee or P~rmittee's
Representatives, Pennittee shall at les cost diligently arrange for and comple~ thc
immediate removal thereof and all clean-up and remedial measures ordered by any
applicable governmental agency. Pcrmittee shall promptly report to Company in writi.ug
any unusual or potentially important "incidents' involving Hazaxdous Wastes, including
0I;~:£9L~ ~0~ $,II, ,-~D'$~4I)I,LVht ~ ~i'~Ll, lrl: I~'IO:OI-' I~3-9I-6 :iii Lk~.:
.X.
spills, rims, revocation of permits ~nfl receipts of notices of violation. In pa~ular.
"incidents" include (a) all required reports o[ spills, storage, usc or existence of
H~zardous Wastes, including notices of any release of I-l'~7~rdous Wastes required by
Supeffund, EPCRA, California Health & Safety Code 25359.7, or any other npplicable
law or regulation (b) all £n'es, (c) all notices of suspension of'any permits, (d) all notic~
of violation from Federal, state or local environmental authorities, (e) all orders under
the Hazardous Waste Control. Act anti the Haw~rflous Sub--ce and Account Act, ar~ t~e
corresponding Feder~ statutes, conccmin§ investigations, compliance scheclules, cle~u-up
or other remedial action, (f) all orders undcr thc Porter-Colo. gnc Act, including t:on't~tivc
~cfion orders, e.e~se and des/st orders, and clean-up and abatcr~ent orders, (g) ant noticc,s
of viohtion from OSHA or Cal-OiI-IA eoneernir~g employees' exposure to Haznrdou.~
Wastes, and (h) all e~mphints and other pleadings filed against Permittee rehted to the
use, storage, disposal or release of' ~7.~rdous Waste on or from the Property. PerrniUee
shall defend, indemnify and bold Company and its property and Company's employee.%
officers, directors, shareholders, agents, representatives, divisions, subsidiaries, panners
and affiliated companies and its and their respective successors and assigns, hamfless
from all losses, liabilities, damages, fines, penalties, costs (including cleanup costs) and
expenses (Lucluding atrnrneys' fees)arising from or caused by Permittee's failure to
comply with thc provisions of this paragraph anti sur. h obligation to de~'er~, indemni~
and hold h~rmless shall sarvive the termfi'~tion or expiration of this ?ermit~*~
GRADING ACTrVITY/STORM WATER l~~. ?ermit~ee shall comply with all
· federal and state .requirements respecting storm water discharges-in connection with all
· grading performed on the Property, including f'fl[ng a NO1 a~ Storm Water Pollutior
Prevention Plan with the C,alifomia State Water Resourc~ Comro! Board prior tc
LI]$NS. ~ shall not suffer or permit to be enforced against r. he Property,-or an),
part thereo~', any mechanic', materialmen's, contractors' or subcontractors liens or an),
claim ~'or clamage aris~ from the work of any ennstruct~on, ex~vatiou, survey, tests,
grad~~.air, restoration, replacement~,~m~v~ement, or any other work, performed
by Y~.,~V~'~or its Represematives, but ~~'~ll pay or cause to be paid ail of said
liens, cla~n~tor t~w. ands before any action ~s brought to en~brce ~he same ~a~ajnst ~e
Property. I~pressly agrees to indemnif'),, defend ~r hold hannl~~
~he-Pr6perty 'free from all liability for nny and all sucl~ liens, claims and dema~s,
together with reasonable attorneys' fees and all cost~ and e×pense~,~n~.~.~ection
~herewith. Notwithstanding anything to the contrary set forth above, if ~shall in
good [aith contest the validity c~ ~h lien, claim or demand, then ~h~hall, at
its expense, dcrcnU i~sel~ a~~ ~ the same and shall pay and satisfy any
.adv.~e_~ud~ment that my be rendere~l thereon be[ore any ~nf~cen~ent_th~ .ereof ag'amst
· o
~~~ Property, but only upon the condition that if"~ require,
t;~e~~shall procure ~nd. rec. ortt or furnish to h'vine a surety bond or other aca:~ptable
security satisfactory tg~~'~ount a~ lea.~t equal to tach contested lien, claim or
demand inUemnifyin~ .~~)Iiabilit~L~ l~:.~au~.,_ a~_hgl, d~n~ !he Property free
~ruua the effect o~ any s~ch lien or claLrn. ~~2~'rv~he~"~('~ a~ time and fi'om
time to timc to post m~d maintain ou said property, or an), portion thereof o~: improvement
e.reo~sporu;ibility or otherwise may be necessary to protec~
~again~qt Iiability for all such liem and claire. ~'~