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HomeMy WebLinkAbout06 TMP LIC SOCAL WATER 05-07-01AGENDA REPORT MEETING DATE: MAY 7, 2001 400-10 NO. 06 05-07-01 TO: WILLIAM A. HUSTON, CITY MANAGER FROM: PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION SUBJECT: AMENDMENT TO 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 City Council approved a Right of Entry and Temporary Construction License with the Southern California Water Company on June 5, 2000. The Southern California Water Company is requesting the City Council approve an amendment for time extension to same. RECOMMENDATION It is recommended that the City Council approve the attached amendment to the previously approved 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 None. DISCUSSION On June 5, 2000 the City Council approved a Right of Entry and Temporary Construction License with the Southern California Water District, which granted them permission to utilize a portion of the City-owned Newport Reservoir property during replacement of their existing bolted steel reservoir. The original term of the license was for twelve (12) months from the day of the agreement or until completion of the new reservoir, whichever is sooner. Construction of the Southern California Water District Reservoir will extend beyond the termination date stated in the Right of Entry and Temporary Construction License and they are requesting a time extension. Approval of the attached amendment to the Right of Entry and Temporary Construction License will modify Section 2 of the license to extend the termination to the date of recordation of the notice of completion for the project. Amendment to Right of Entry and Temporary Construction License with Southern California Water Company over a Portion of the City-Owned Newport Avenue Reservoir Property May 7, 2001 Page 2 Staff has reviewed this request and it is recommended that the City Council approve the attached amendment, subject to approval by the City Attorney. Tim D. Serlet Director of Public Works/City Engineer Associate Engineer TDS:JO:ccg:Amend right of entry Newport Ave. doc. Attachment: Location Map Amendment to Right of Entry and Temporary Construction License Right-of-Entry and Temporary Construction License dated June 30, 2000 ,~ o~ '"-- 0_,.,,o.9. n- ~--._~ ZO UJ I-- Z O. 0 0 Z Z I 0 I 0 0 0 Z AMENDMENT TO RIGHT OF ENTRY AND TEMPORARY CONSTRUCTION LICENSE THIS AMENDMENT to Right of Entry and Temporary Construction License made and entered into this __ day of ,2001 by and between the City of Tustin, a Municipal Corporation, (hereinafter referred to as "CITY") and Southern California Water Company, (hereinafter referred to as the '~NATER COMPANY"). WlTNESSETH WHEREAS, CITY and WATER COMPANY entered into a Right of Entry and Temporary Construction License on June 30, 2000 for the construction of a water reservoir on the WATER COMPANY property; and WHEREAS, the WATER COMPANY desires to amend the original Right of Entry and Temporary Construction License. NOW, THEREFORE, CITY and WATER COMPANY agree to amend Section 2. TERM of the Right of Entry and Temporary Construction License entered into on June 30, 2000, as follows: SECTION 2: TERM. The term of this license shall commence on the effective date, and shall continue, subject to SECTION 9, until the date of recordation of the notice of completion. WATER COMPANY shall diligently pursue obtaining all permits and approvals necessary for the construction of the reservoir. EFFECT OF AMENDMENT. All other terms and conditions of the original agreement shall remain in full force and effect. IN WITNESS WHEREOF, this amendment to Right of Entry and Temporary Construction License was executed by the parties on the day and year first above written. "CITY" CITY OF TUSTIN ATTEST: By Tracy Wills Worley, Mayor Pamela Stoker, City Clerk APPROVED AS TO FORM: Lois E. Jeffrey, City Attorney WATER COMPANY: SOUTHERN CALIFORNIA WATER COMPANY, a California corporation By Title April 4, 2001 Mr. Tim Serlet Director of Public Works City of Tustin 300 Centennial Way Tustin, California 92680 oOUTHERN CALIFORNIA 'VYATER COMPANY /'k S[:I-ISIDI.'M:I.Y OF /'~MEIII(~u~; S'I:~.TE.S ~,¥ATL-;R ORANGE COUNTY DISTRICT 1920 W. CORPORATE WAY · ANAHEIM, CALIFORNIA 92801 · (714) 535-8010 · FAX (714) 535-8664 Re: Right of Entry and Temporary Construction Lease - Newport Reser~'oir Dear Tim: Southern Califomia Water Company ("SCWC") is scheduled to begin construction to replace the water reservoir at 11581 Newport Avenue on April 16, 2001. The estimated duration for this project is seven months, with an approximate completion date of October 30, 2001. The Right of Entry and Temporary, Construction License for the New-port Reservoir dated June 30, 2000 (the "License") between SCWC and the City of Tustin ("City") provides that the term of the License is twelve months, which results in a termination date of June 30: 2001. SCWC is requesting that the term of the License be extended by an additional six months. The revised termination date would be December 30, 2001. As we discussed during our recent telephone conversation, SCWC and tile City have agreed to modify Section 2 of the License to read as follows: "The term of this License shall commence on the Effective Date, and shall continue, subject to Section 9 below, until the date that is eighteen (18) months after the date of this Agre,z'.ment, or until the construction of the Reservoir has been completed, whichever ,.'s sooner. Water Company shall diligently pursue obtaining all permits and approvals necessary for the construction of the Reservoir." Except as modified by this letter, all other terms and conditions of the License remain unmodified, and the License is in full force and effect. If tile above revision is acceptable, please sign a copy of this letter to evidence thc City's a~eement and return to my attention at the address indicated above. Page 2 Mr. Tim Serlet April 4, 20001 Please feel free to contact me at 714/535-8010, extension 300 if you have any questions or require additional information. Thank you ve~ much for your cooperation. Sincerely, Southern California Water Company Patrick Scanlon District Manager The foregoing is accepted and agreed to: The City of Tustin By: Its: Attest: LA3:963654.1 i RIGHT OF E1VrRY AND TEMPORARY CONSTRUCTION LICENSE THIS RIGHT OF ENTRY AND TEMPORARY CONSTRUCTION LICENSE (the "License") is made and entered into as &the ,Y~' day of ~/,~,,.-, 2000 (the "Effective Date"), by and between City of Tustin, hereinafter referred to as the "City", and Southern California 'Crater Company, hereinafter referred to as the "Water Company". RECITALS: WHEREAS, the City is the owner of certain property located at 11301 Nexx.port Avenue, in the City ofTustin, Count3' 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 shown on the map attached hereto as Exhibit "A" (the "License Area"), for purposes o[' storing construction materials and providing vehicular and other ingress and egress to and from the Water Company Property. NO%'. 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. GRANT 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 thc payment of any fee, a tempora~ license to enter upon the License Area for the purpose or'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 tenn of tlfis 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 Agreement, 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 wlfich is being utilized by the Water Company, and maintain such fencing tbr 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 TIlE 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 rights 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 m~der no circmnstances 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 m~.x., loss of life, personal injury and/or damage to property arising from or out of the use by the Water Company Persons of the I,icense Area or any part thereof (except that Water Company shall have no obligation to indemnify, defend or hold the Ci9, harmless against any such matter resulting from the gross negligence or willful misconduct of the Cit-3, 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 an3: Water Compm~y Person commences any work in, on or around the License Area, Water Company shall deliver to Cit-3., reasonably satisfactoD~ 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 Property 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 construction, repair, restoration, replacement or improx'ement 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 2 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 pan to be kept or performed and should such default or breach continue m~cured 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 CiB, may exercise an): 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: Governin~ 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 an)' right or remedy accruing upon the compliance or failure of performance by the other party shall impair any such right 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 pany 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 part),, 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 unentbrceable, 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 Aereements 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 x~xitten, 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 ma>: desire to give to the other party must be in 'exiting and may bc 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 sen:ed 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: Southern California Water Company Orange County District 1920 West Corporate Wa)' Anaheim, California 92801 Attention: Patrick Scanlon [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 4 IN WITNESS WHEREOF, the parties hereto have executed this License as of the day and year first above written. AT_TEST: , ~." Pamela Stoker(~W Clerk APPROVED AS TO FORM: Lois E. Jeffi'ey, Gi6' JX~6mey/fi "CITY" CITY OF TUSTIN J~t~ot~?~[/l. ~homas, Mayor Water Company: SOUTHE1LN CALIFORNIA WATER COMPANY, a California corporation · // EXHIBIT A FOR INGRESS / EGRESS ONLY NO STORAGE OF EQUIPMENT/MATERIALS PERMITTED IN THIS PROPOSED CONSTRUCTION EASEMENT APPROX. LOCATION OF UNDERGROUND VAULT. DO NOT BLOCK ACCESS MAINTAIN A MINIMUM 2' CLEARANCE ON ALL SIDES. SCWC. PROPERTY COWAN HEIGHTS SYSTEM CITY OF TUSTIN PROPERTY SCALE: NTS - NEWPORT RESERVOIR CAD_REF= CONS TRUC TI ON EA SEMEN T FROM Cl TY OF TUS TIN A-1 J.N. 27/+00121