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HomeMy WebLinkAbout25D - INSTALL FIBER OPTIC CABLE IN AUTO MALL DRIVE REQUEST FOR ; COUNCIL ACTION ~ CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: JULY 6, 2010 TITLE: APPROVED AUTHORIZATION TO INSTALL FIBER ? As Recommended OPTIC CABLE IN AUTO MALL DRIVE ? As Amended ? Ordinance on 15' Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER CITY MANAGER RECOMMENDED ACTION Authorize the Executive Director of the Public Works Agency to execute the attached Right of Entry and License Agreement with Santa Ana Properties, LLC, to grant a revocable encroachment permit to install a fiber optic cable across Auto Mall Drive. DISCUSSION Crevier BMW is planning to relocate a portion of its existing dealership in the Santa Ana Auto Mall. Crevier is located at 1500 Auto Mall Drive and is in the process of acquiring ownership of the property across the street at 1455 Auto Mall Drive. The property is vacant and formerly served as the Bauer Jaguar dealership. Crevier plans to use the new location for new car sales and service of its Mini brand. As part of the relocation, Crevier plans to connect the sites to share data, voice and video conferencing, and Intranet network systems. In order to meet its high demand network communication requirements and ensure optimum performance between the two facilities, the applicant is requesting approval to install an underground fiber optic backbone cable across Auto Mall Drive (exhibit 1). Prior to approaching the City with the request, Crevier explored other options to connect the sites, such as wireless technology and public communication utility services. Wireless technology fell short of meeting the desired network's communication speed level. Public communication utility services lack facilities within the proposed area. Since the fiber optic cable in the Auto Mall Drive right of way will be owned and maintained by Crevier (a private party rather than a public utility), an agreement for a revocable encroachment permit is required along with insurance and a surety bond. 25D-1 Authorization to Install Fiber Optic Cable in Auto Mall Drive July 6, 2010 Page 2 ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed project is exempt from further review. Statutory Exemption ER No. 2010-88 will be filed for this project. FISCAL IMPACT There is no fiscal impact associated with this action. r i I Raul Godinez II Executive Director Public Works Agency RG/TH Exhibit 1: Project Location 25D-2 RIGHT OF ENTRY AND LICENSE AGREEMENT THIS RIGHT OF ENTRY AND LICENSE AGREEMENT ("Agreement") is made and entered into this 6th day of July, 2010 by and between the CITY OF SANTA ANA, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California, (hereinafter referred to as the "CITY"), and SANTA ANA PROPERTIES LLC, a California limited liability company (herein referred to as "LICENSEE"), with respect to the following: RECITALS a. LICENSEE owns that certain property located at 1500 Auto Mall Drive, Santa Ana, CA (hereinafter "Premises 1"), on which LICENSEE operates an auto dealership. b. LICENSEE owns, or has the right to use, that certain property located at 1455 Auto Mall Drive, Santa Ana, CA (hereinafter "Premises2"), on which LICENSEE proposes to operate an auto dealership. c. CITY owns or has an easement for public utility purposes along, above and under the public street commonly known as Auto Mall Drive, which abuts the premises owned by LICENSEE. d. LICENSEE desires a license to install, maintain and repair a fiber optic cable from Premises 1 to Premises 2 below the surface of a portion of Auto Mall Drive (hereinafter referred to as "License Area"), 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 enter upon said License Area for the purpose of installing an underground conduit with the capacity to run a fiber optic cable from Premises 1 to Premises 2. 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 Property. Said License shall include the right to install, maintain and repair said fiber optic cable. 2. Agreement. By execution of this Agreement, LICENSEE agrees for itself and on behalf of its employees, agents, consultants and contractors as follows: (a) All work shall comply with the current edition of the Standard Specifications for Public Works Construction (Green Books 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 1 25D-3 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 from private property owned by LICENSEE, if practical. Any maintenance or repair of the conduit or its contents via Auto Mall Drive right of way would 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. Failure to pay any bills due under any permission issued by CITY may result in rendering LICENSEE ineligible for any additional Public Works Agency permit until such bill is paid. (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. 1125F 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. 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, rubble, gravel, dirt or unused materials at LICENSEE's expense, including the current call-out charge. (h) UTILITY MARKINGS. Upon completion of the project, LICENSEE shall require that its contractor shall remove all painted 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. 2 25D-4 3. General Terms and Conditions (a.) i. 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 (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. ii. 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. iii. 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. (b) LICENSEE shall not permit any mechanics', materialmen's or other liens of any kind or nature ("Liens") to be filed or enforced against the Property 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 Property, or any portion thereof, or on the improvements on the Property, any notices of non- responsibility or other notice as maybe 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. 3 25D-5 (c) LICENSEE 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. (d) LICENSEE may not encroach upon the License Area 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. (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 Property pursuant to this Agreement. All use of and entry upon the Property 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. 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. 6. Revocation. CITY may revoke this License, at will, upon thirty days notice in writing to the License. 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 LICENSEE: Santa Ana Properties, LLC City of Santa Ana 1500 Auto Mall Drive 20 Civic Center Plaza (M-30) Santa Ana, CA 92705 P.O. Box 1988 4 25D-6 Santa Ana, California 92702 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 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 by LICENSEE and surrender possession of the License Area 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. b. In the event LICENSEE fails, neglects or refuses to remove said improvements and restore the License Area, such removal and restorations maybe 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 maybe 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 maybe 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. 5 25D-7 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: CITY OF SANTA ANA Maria D. Huizar DAVID N. REAM Clerk of the Council City Manager Approved as to form: SANTA ANA PROPERTIES, LLC Joseph W. Fletcher City Attorney DONALD CREVIER Owner 6 25D-8 25D-9 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: 25D-10 EXHIBIT "A" LEGAL DESCRIPTION FOR LICENSE AREA BEING THAT PORTION OF AUTO MALL DRIVE ABUTTING PARCELS 6 AND 8 IN THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON MAP FILED IN BOOK 210, PAGE 45, OF PARCEL MAPS fN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. DEPICTED AS "LICENSE AREA" ON EXHIBIT "B". 7 25D-11 EXHIBIT "B" SKETCH TO ACCOMPANY LEGAL DESCRIPTION FOR LICENSE AREA %y o PROPOSED CREVIER ~ til~.~ MINI ~ ~Q DEALERSHIP o~i~~r ~1,9~` 1455 AUTO ~ ExISTING \ ~ O,Q MALL DRIVE f BUILDING LICENSE ~ ~ \ . AREA \ . ? ~ PARCEL 8 PARCEL 6 P. M. 210-45 ~ P.M. 210-45 I~ ~ ~ ~~i EXISTING tt BUILDING fr t / CREVIER C BMW DEALERSHIP 150 AUTO ~ FREEWAY MALL DRIVE p HONDA D ~ ~ ~ / ~ EXISTING BUILDING EDINGER AV