HomeMy WebLinkAboutCA DEPT TRANSPORTATION 20 - 2005
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RIGHT OF ENTRY AGREEMENT
THIS RIGHT OF ENTRY AGREEMENT ("Agreement") is made and entered into as
of 12th day of October 2005, by and between the CITY OF SANTA ANA, a charter city duly
organized under the Constitution and laws ofthe state of Cali fomi a (the "City") and STATE OF
CALIFORNIA DEPARTMENT OF TRANSPORTATION (CALTRANS) (the "Contractor),
with respect to the following:
RECITALS
A. The Contractor (or its principal) is in the process of negotiating an ingress/egress
easement and temporary construction easement, for the purposes of constructing and maintaining
an overhead guide sign on the 1-5 freeway.
B. The Contractor desires to utilize a portion ofthe Property owned by the City,
commonly known as 1815 E. Chestnut Avenue, Santa Ana and further identified on the Site Map
attached hereto as Exhibit A.
C. To accommodate the Contract and avoid project delays, the City will grant
permission to the Contractor to access the Property for ingress/egress purposes and a temporary
construction area.
NOW, THEREFORE, for good and valuable consideration, Contractor and City do
hereby agree as follows:
1. Right of Entry. Provided that all ofthe terms and conditions of this Agreement
are fully satisfied, the City hereby grants to Contractor and its employees, agents and contractors
the nonexclusive, nonassignable, personal right to enter upon the Property for the construction of
an overhead guide sign on the 1-5 freeway, and for no other purposes without the prior written
approval of the City Manager, for the City. This Agreement shall automatically terminate and
expire on December 31, 2005, or thirty (30) days after written notice of expiration is provided by
City, whichever occurs first. 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 the Property.
2. Agreement. By execution of this Agreement, Contractor agrees for itself and on
the behalf of its employees, agents, consultants and contractors as follows:
(a) That Contractor will not permit a dangerous condition to be created on the
Property.
(b) All acts and things done by Contractor on the Property will be done in a
careful and reasonable manner, in accordance with all federal, state and local laws.
(c) Contractor shall enter the Property entirely at its own cost, risk and
expense.
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(d) Prior to undertaking performance of work under this Agreement,
Contractor shall maintain and shall require its subcontractor, if any, to obtain and maintain
insurance as described below:
i. Commercial General Liability Insurance. Contractor shall
maintain commercial general liability insurance naming the City and its officers, employees,
agents, volunteer and representatives as additional insured(s) and 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
Contractor'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
converge applying to bodily and personal injury, including death resulting therefrom, and
property damage, in the total amount of$l,OOO,OOO.OO per occurrence. Contractor shall supply
City with a fully executed additional insured endorsement in substantially the form attached
hereto as Exhibit B upon execution of this Agreement and shall be approved in form by the City
Attorney.
ii. The following requirement apply to the insurance to be provided
by Contractor pursuant to this section:
. Contractor shall maintain all insurance required above in full force and
for the entire period covered by this Agreement.
. Certificates of insurance shall be furnished to the City upon execution
ofthis 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.
iii. If Contractor fails or refuses to produce or maintain the insurance
required by this section or fails or refuses to furnish the City with required proof that insurance
has been procured and is in force and paid for, the City shall have the right, at its election, to
forthwith terminate this Agreement. '
(e) Contractor shall not permit any mechanics', material men's or other liens
of any kind or nature ("Liens") to be filed or enforced against the Property in connection with the
Construction Staging. Contractor shall indemnify, defend and hold harmless City form all
liability for 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 form time to time, to post and maintain of the Property, or any portion thereof, or
on the improvements on the Property, 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 the Contractor fail, within ten (10) day of
written request from City, either to discharge any Lien or to bond for any Lien, or to defend,
indemnify, and hold harmless City form and against any loss, damage, injury, liability or claim
arising out of a Lien, the City, at its option, may elect to pay such Lien, or settler or discharge
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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 the Contractor upon written demand.
(f) Contractor shall not have any interest in the Property or be entitled to any
reimbursement or repayment for any work performed upon the Property pursuant to this
Agreement.
(g) The Contractor shall take all necessary precautions to prevent the import
and/or release into the environment of any hazardous materials, which are imported to, in, on or
under the Property during the Construction Staging. If hazardous materials are imported onto the
Property as a result of the Construction Staging, the Contractor shall be solely responsible for
removing such imported hazardous materials in conformance with all governmental
requirements. The Contractor shall report to the City, as soon as possible after each incident, any
unusual or potentially important incidents with respect to the environment condition of the
Property.
3. Indemnity. Contractor hereby agrees to defend, indemnify and hold the City and
its officers, officials, members, employees, agents and representative, 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 Contractor or any of its employees, agents, consultants or
contractors upon the Property pursuant to this Agreement. All use of and entry upon the Property
shall be at the sole cost, risk and expense of the Contractor.
4. License Payment/Security Deposit. Upon execution of this Agreement, and on
the first day of each month so long as this Agreement is in effect, Contractor shall pay to City a
monthly license fee of $450. First and last month's license payment may be prorated, iffor a
partial month. Contractor shall pay to the City a $900 security deposit to secure Contractor's full
compliance with the terms hereof, and Contractor may not use this deposit to pay monthly
license fee. The security deposit will be returned to Contractor within 30 days oftermination of
this Agreement, minus any amounts expended for clean-up or repair ofthe Property.
5. Equipment and Construction Hours. The proposed construction will entail
only the use of a crane, concrete truck and pile drilling equipment. No access routes will be
blocked during normal business hours ofthe Santa Ana Zoo. The paved road will be fully
accessible during construction, except for three hours a day, for four non-consecutive days, but
only after normal business hours (after 5 PM). Ifthe provisions of this paragraph are violated by
Contractor, and such violation is not remedied within five (5) days after written notice to
Contractor, the City shall have the right, at its sole election, to forthwith terminate this
Agreement.
6. Miscellaneous.
(a) Choice of Law. This Agreement is to be governed by, and construed in
accordance with, the laws ofthe State ofCalifomia.
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(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 anyone 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 which together shall constitute
once and the same instrument.
(d) Non-Liability of Public Officials. No officer, employee, member, agent,
or representative of the City shall be personally liable to Contractor, or any successor in interest,
in the event of any default or breach by the City, or for any amount which may become due to
Contractor or its successor, or for any breach of any obligation of the terms of this Agreement.
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IN WITNESS WHERE OF, the parties hereto have entered into this Agreement as of the date
first set forth above.
ATTEST:
-
PATRICIA E. HEALY
Clerk of the Council
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
BY:~'<-- [ ~
Lisa E. Storck
Assistant City Attorney
CITY:
CITY OF SANTA ANA
/t2I};a
DAVID N. REAM
City Manager
CONTRACTOR:
CALTRANS
Title:
5
EXHIBIT B
ADDITIONAL INSURED ENDORSEMENT
Insurance Company
This endorsement modifies such insurance as is afforded by the provisions of Policy
# relating to the following:
1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California
92702; its officers, employees, agents and volunteers are named as additional insureds
("additional insureds") with regard to liability and defense of suits arising from the
operations and uses performed by or on behalf of the named insured.
2. With respect to claims arising out of the operations and uses performed by
or on behalf of the named insured, such insurance as is afforded by this policy is
primary and is not additional to or contributing with any other insurance carried by or for
the benefit of the additional insureds.
3. This insurance applies separately to each insured against whom claim is
made or suit is brought except with respect to the company's limits of liability. The
inclusion of any person or organization as an insured shall not affect any right which
such person or organization would have as a claimant if not so included.
4. With respect to the additional insureds, this insurance shall not be
canceled, or materially reduced in coverage or limits except after thirty (30) days written
notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana,
California 92702.
(Completion of the following, including countersignature, is required to make this
endorsement effective.)
Effective
Policy #
Issued to
, this endorsement form as a part of
Named Insured
Countersigned by
Authorized Representative
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