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HomeMy WebLinkAboutSCE - Southern California Edison - 2010-11-15 2 7 Q�T,4Ew Council/Agency Meeting Held: Deferred/Continued to: "A.Appr�e$ El Conditionally Approved ❑ Denied �-,400 Citji C14� 86 Signatue Council Meeting Date: November 15, 2010 Department ID Number: CS10-017 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Administrator PREPARED BY: Jim B. Engle, Community Services Director SUBJECT: Approve and authorize a five-year License Agreement for use of 2.48 acres of land southeast of Atlanta Avenue and Brookhurst Street owned by Southern California Edison to be used as a community garden Statement of Issue: The City Council is asked to approve a five-year License Agreement between the City of Huntington Beach and Southern California Edison (SCE) for use of a 2.48 acre area of land for a community garden, southeast of Atlanta Avenue and Brookhurst Street, adjacent to the Santa Ana River. Financial Impact: The license fee will be six hundred dollars, $600, per year for the five- year term. Funds will come from the Park Acquisition and Development Fund, account number 209450101.70300. Recommended Action: Motion to: Approve the License Agreement between the City of Huntington Beach and Southern California Edison for a 2.48 acre parcel for a community garden and authorize the Mayor to execute the agreement. Alternative Action(s): Do not approve the License Agreement between the City of Huntington Beach and Southern California Edison and direct staff how to proceed. HB -223- Item 20. - 1 REQUEST FOR COUNCIL ACTION MEETING DATE: 1 111 5/201 0 DEPARTMENT ID NUMBER: CS10-017 Analysis: On December 21, 2009, Council Member Devin Dwyer requested the City Council approve the concept of a community garden on Southern California Edison property at the end of Atlanta Avenue adjacent to the Santa Ana River. At the June 21, 2010, meeting, City Council approved a Memorandum of Understanding (MOU) with the Huntington Beach Community Garden (HBCG), a 501(c)(3) corporation consisting of volunteers from the community. The garden will be operated by the HBCG with a City liaison from the Community Services Department. Because the 2.48 acre parcel considered for use as a community garden is owned by SCE, a license agreement between the City and SCE is required. Per the conditions set by SCE, the term of the license will be for five years, which can be extended with approval by both parties. The license fee, which will be paid by the City per the conditions of the Memorandum of Understanding with the HBCG will be a total of$600.00 per year for the 2.48 acre site. The MOU states that the "City will fund the License Agreement with SCE for use of the specified property, provided budgetary conditions allow'. The license fee will be funded out of the Park Acquisition and Development Fund. This area has not yet been officially identified as a park site, but a community garden is an appropriate recreation use for a park and it's anticipated the site will be so identified at a future date. Huntington Beach Community Garden will be responsible for funding improvements to the site. They will also be responsible to pay for all operating costs, including water use per the conditions of the MOU. Environmental Status: The proposed project has been reviewed by the City's Building and Planning Department. The garden is considered to be a conforming use since the area is zoned Residential/Agriculture (RA). No specific entitlements, such as a Conditional Use Permit is required. Strategic Plan Goal: Enhance Economic Development by enhancing community amenities available for use by the public. Attachmenys): ® - 1. License Agreement with Exhibits Parcel Map and Site Ma Item 20. - 2 HB -224- ATTACHMENT # 1 LICENSE AGREEMENT THIS AGREEMENT made as of the %S�''` day of c�Vic, 2010, between SOUTHERN CALIFORNIA EDISON COMPANY (SCE) a corporation organized under the laws of the State of California hereafter called"Licensor" and CITY OF HUNTINGTON BEACH hereinafter called "Licensee." WITNESSETH That Lessor, for and in consideration of the faithful performance by Licensee of the terms, covenants and agreements hereinafter set forth to be kept and performed by Licensee, does hereby give to Licensee the license to use that certain real property described below and depicted on Exhibits A and B attached hereto and made a part hereof the (Property) solely for the purpose hereinafter specified upon and subject to the terms, reservations, covenants and conditions hereinafter set forth. The subject Property is located in the City of Huntington Beach, County of Orange, State of California, further described as follows: a 2.48 acre lot in the J. A. Day Tract as more clearly shown and depicted in Exhibits A and B, attached hereto. l. Use: Licensee will use the Property for agriculture/horticulture purposes only. Licensor makes no representation, covenant, warranty or promise that the Property is fit for any particular use, including the use for which this Agreement is made and Licensee is not relying on any such representation, covenant, warranty or promise. Licensee's failure to make such use of the Property as determined by the Licensor in its sole discretion will be grounds for immediate termination of this Agreement in accordance with Article 28. 2. Term: Unless otherwise terminated as provided herein, this Agreement will be in effect for a term of five (5) years commencing on the first day of and ending on the last day ofJn '`c�/, /S� Licensee acknowledges that this Agreement does not entitle Licensee to any subsequent agreement, for any reason whatsoever regardless of the use Licensee makes of the Property,the improvements Licensee places on or makes to the Property, or for any other reason. 3. Consideration: Licensee will pay to Licensor the sum of Six Hundred and 00/100 Dollars ($600.00) upon the execution and delivery of this Agreement for the first year. Yearly Payment Due Term Year Due Amount First Day of First Year 2010 $600.00 December Second Year 2011 $600.00 December Third Year 2012 $600.00 December Fourth Year 2013 $600.00 December Fifth Year 2014 $600.00 December Page 1 of 9 10-2525.001/54612 All payments subsequent to the initial payment will be paid to the Southern California Edison Company, Post Office Box 800, Rosemead, California 91770, Attention: Corporate Accounting Department, Accounts Receivable. All accounts not paid within 30 days of the agreed-upon due date will be charged a late fee equal to ten percent(10%) of the amount due. 3 4. Insurance: During the term of this Agreement, Licensee shall maintain the following insurance: (a) Workers' Compensation with statutory limits, in accordance with the laws of the State of California and Employer's Liability with limits of not less than $1,000,000.00. Licensee shall require its insurer to waive all rights of subrogation against Licensor, its officers, agents and employees, except for any liability resulting from the willful or grossly negligent acts of the Licensor. (b) Commercial General Liability Insurance, including contractual liability and products liability with a combined single limit of$2,000,000.00. Such insurance shall (i) name Licensor, its officers, agents and employees as additional insureds, but only for Licensee's acts or omissions, (ii) be primary for all purposes, and (iii) contain standard cross-liability provisions. (c) Commercial Automobile Insurance with a combined single limit of $1,000,000.00. Such insurance shall, (1) cover the use of owned, non-owned, and hired vehicles on the Property, and (ii) name Licensor, its officers, agents and employees as additional insureds. Licensee shall provide Licensor with proof of such insurance by submission of certificates of insurance, pursuant to Section 35 "Notices," at least ten days prior to the effective date of this Agreement. Such insurance shall not be canceled, nor allowed to expire, nor be materially reduced without thirty days' prior written notice to Licensor, or provide a certificate of self-insurance. 5. Licensor's Use of the Property: Licensee agrees that Licensor, its successors and assigns, have the right to enter upon the Property, at any time, for any purpose, and the right to conduct any activity on the property. Exercise of these rights by Licensor, its successors and assigns will not result in compensation to Licensee for any damages whatsoever to personal property and/or crops located on the Property. 6. Licensee's Improvements: Licensee must submit for Licensor's prior written approval complete improvement plans, including grading plans, identifying all existing and proposed improvements a minimum of sixty(60) days prior to making any use of the Property. Licensee must submit, for Licensor's prior written approval, plans for any modifications to such improvements. Written approval may be modified and/or rescinded by Licensor for any reason whatsoever. At any time, Licensee may be required to modify and/or remove any or all such previously approved improvements at Licensee's Page 2 of 9 10-2525.001/54612 risk and expense and without any compensation from Licensor. Licensor is not required at any time to make any improvements, alterations, changes or additions of any nature whatsoever to the Property. Licensee expressly acknowledges that any expenditures or improvements will in no way alter Licensor's right to terminate in accordance with Article 27. 7. Licensee's Personal Property: All approved equipment and other property brought, placed or erected on the Property by Licensee shall be and remain the Property of Licensee, except as otherwise set forth herein. If Licensee is not in default hereunder, Licensee shall have the right to remove the same from the Property at any time prior to the expiration or earlier termination of this Agreement, provided, however, that Licensee shall promptly restore any damage to the Property caused by the removal. If Licensee is in default, however, such equipment or other property shall not be removed by Licensee without Licensor's written consent until Licensee has cured such default and Licensor shall have a lien thereon to the extent thereof. 8. Height Limitations: Any equipment used by Licensee or its agents, employees, or contractors, on and/or adjacent to the Property, will be used and operated so as to maintain a minimum clearance of twenty-seven (27) feet from all overhead electrical conductors. All trees and plants on the Property will be maintained by Licensee at a maximum height of fifteen (15) feet. If requested by Licensor, Licensee will remove, at Licensee's expense, any tree and/or other planting. 9. Access and Clearances: Licensee will provide Licensor with adequate access to all of Licensor's facilities on the Property and at no time will there be any interference with the free movement of Licensor's equipment and materials over the Property. Licensor may require Licensee to provide and maintain access roads within the Property, at a minimum usable width of sixteen(16) feet together with commercial driveway aprons and curb depressions capable of supporting a gross load of forty (40) tons on a three-axle vehicle. The minimum width of all roads shall be increased on curves by a distance equal to 400/inside radius of curvature. All curves shall have a radius of not less than 50 feet measured at the inside edge of the usable road surface. Unless otherwise specified in writing by Licensor, Licensee will make no use of the area directly underneath Licensor's towers and will maintain the following minimum clearances at all times: a. A 50-foot radius around suspension tower legs and 100-foot radius around dead-end tower legs. b. A 10-foot radius around all steel and wood poles. NOTE: Additional clearance may be required for structures. Page 3 of 9 10-2525.001/54612 10. Parking: Licensee will not park, store, repair or refuel any motor vehicles or allow parking storage, repairing or refueling of any motor vehicles on the Property unless specifically approved in writing by Licensor. 11. Flammables, Waste and Nuisances: Licensee will not, nor allow others to, place or store any flammable or waste materials on the Property or commit any waste or damage to the Property or allow any to be done. Licensee will keep the Property clean, free from weeds, rubbish and debris, and in a condition satisfactory to Licensor. Licensee will be responsible for the control of and will be liable for any damage or disturbance caused by dust, odor, flammable or waste materials, noise or other nuisance disturbances. Licensee will not permit dogs on the Property. 12. Pesticides and Herbicides: Any pesticide or herbicide applications and disposals will be made in accordance with all federal, state, county and local laws. Licensee will dispose of all pesticides, herbicides and any other toxic substances declared to be either a health or environmental hazard as well as all materials contaminated by such substances, including, but not limited to, containers, clothing and equipment,in the manner prescribed by law. 13. Hazardous Waste: Licensee will not engage in, or permit any other party to engage in, any activity on the Property that violates federal, state or local laws,rules or regulations pertaining to hazardous, toxic or infectious materials and/or waste. Licensee will indemnify and hold Licensor, its directors, officers, agents and employees and its successors and assigns, harmless from any and all claims, loss, damage, actions, causes of action, expenses and/or liability arising from leaks of, spills of, and/or contamination by or from hazardous materials as defined by applicable laws or regulations, which may occur during and after the Agreement term, and are attributable to the actions of, or failure to act by, Licensee or any person claiming under Licensee. 14. Sins: Licensee must obtain written approval from Licensor prior to the construction or placement of any sign, signboard or other form of outdoor advertising. 15. Fencing: Licensee may install fencing on the Property with prior written approval from Licensor. Such fencing will include double drive gates, a minimum of sixteen (16) feet in width, designed to accommodate Licensor's locks, in locations specified by Licensor. Licensee will ground and maintain all fencing. 16. Parkways and Landscaping: Licensee will keep parkway and sidewalk areas adjacent to the Property free of weeds and trash. Licensee will maintain parkways and provide landscaping that is compatible with adjoining properties and that is satisfactory to Licensor. 17. Irrigation Equipment: Any irrigation equipment located on the Property prior to the commencement of this Agreement, including but not limited to pipelines, well-pumping equipment and other structures, is the property of Licensor and will remain on and be surrendered with the Property upon termination of this Agreement. Licensee Page 4 of 9 10-2525.001/54612 will maintain, operate, repair and replace, if necessary, all irrigation equipment at its own expense. 18. Underground and Above Ground Tanks: Licensee will not install underground or above ground storage tanks, as defined by any and all applicable laws or regulations without Licensor's prior written approval. 19. Underground Facilities: Any underground facilities installed or maintained by Licensee on the Property must have a minimum cover of three feet from the top of the facility and be capable of withstanding a gross load of forty (40) tons on a three-axle vehicle. Licensee will compact any earth excavated to a compaction of ninety percent(90%). Licensee will relocate its facilities at its own expense so as not to interfere with Licensor's proposed facilities. 20. Utilities: Licensee will pay all charges and assessments for, or in connection with, water, electric current or other utilities which may be furnished to or used on the Property. 21. Taxes Assessments and Liens: Licensee will pay all taxes and assessments which may be levied upon any crops, personal property, and improvements, including but not limited to, buildings, structures, and fixtures on the Property. Licensee will keep the Property free from all liens, including but not limited to, mechanics liens and encumbrances by reason of use or occupancy by Licensee or any person claiming under Licensee. If Licensee fails to pay the above-mentioned taxes, assessments or liens when due, Licensor will have the right to pay the same and charge the amount to the Licensee. All accounts not paid within 30 days of the agreed-upon due date will be charged a"late fee" on all amounts outstanding up to the maximum rate allowed by law. 22. Expense: Licensee will perform and pay all obligations of Licensee under this Agreement. All matters or things herein required on the part of Licensee will be performed and paid for at the sole cost and expense of Licensee, without obligation on the part of Licensor to make payment or incur cost or expense for any such matters or things. 23. Assignments: This Agreement is personal to Licensee, and Licensee will not assign, transfer or sell this Agreement or any privilege hereunder in whole or in part, and any attempt to do so will be void and confer no right on any third party. 24. Compliance with Law: Licensee will comply with all applicable federal, state, county and local laws, all covenants, conditions and restrictions of record and all applicable ordinances, zoning restrictions, rules, regulations, orders and any requirement of any duly constituted public authorities now or hereafter in any manner affecting the Property or the streets and ways adjacent thereto. Licensee will obtain all permits and other governmental approvals required in connection with Licensee's activities hereunder. Page 5 of 9 10-2525.001/54612 25. Governing Law: The existence, validity, construction, operation and effect of this Agreement and all of its terms and provisions will be determined in accordance with the laws of the State of California. 26. Indemnification: Licensee shall hold harmless, defend and indemnify Licensor, its officers, agents and employees and its successors and assigns from and against all claims of loss, damage, actions, causes of actions, expense and/or liability arising from or growing out of loss or damage to property, including that of Licensor, or injury to or death of persons, including employees of Licensor resulting in any manner whatsoever, directly or indirectly, by reason of this Agreement or the use or occupancy of the Property by Licensee or any person claiming under Licensee, except that the Licensee shall not be required to indemnify the Licensor from any claims arising from the sole negligence or willful misconduct of the Licensor, its officers, agents or employees. 27. Termination: This Agreement may be canceled and terminated by either Licensor or Licensee, at any time, for any reason, upon thirty (30) days notice in writing. Licensee will peaceably quit, surrender and, prior to termination date, restore the Property to a condition satisfactory to the Licensor. Termination, cancellation or expiration does not release Licensee from any liability or obligation(indemnity or otherwise) which Licensee may have incurred. Licensee's continued presence after termination shall be deemed a trespass. 28. Events of Default: The occurrence of any of the following shall constitute a material default and breach of this Agreement by Licensee: (a) Any failure by Licensee to pay the consideration due in accordance with Article 3, or to make any other payment required to be made by Licensee hereunder when due. (b) The abandonment or vacating of the Property by Licensee. (c) Any attempted assignment or subletting of this Agreement by Licensee in violation of Article 23. (d) The violation by Licensee of any resolution,ordinance, statute, code,regulation or other rule of any governmental agency in connection with Licensee's activities pursuant to this Agreement. (e) A failure by Licensee to observe and perform any other provision of this Agreement to be observed or performed by Licensee where such failure continues for the time period specified in a written notice thereof by Licensor to Licensee. (f) Any attempt to exclude Licensor from the licensed premises. (g) The making by Licensee of any general assignment for the benefit of creditors; the appointment of a receiver to take possession of substantially all of Page 6 of 9 10-2525.001/54612 Licensee's assets located on the Property or of Licensee's privileges hereunder where possession is not restored to Licensee within five (5) days, the attachment, execution or other judicial seizure of substantially all of Licensee's assets located on the Property or of Licensee's privileges hereunder where such seizure is not discharged within five (5) days. (h) Any case, proceeding or other action brought against Licensee seeking any of the relief mentioned in"clause g" of this Article which has not been stayed or dismissed within thirty (30) days after the commencement thereof. 29. Remedies: In the event of any default by Licensee, then, in addition to any other remedies available to Licensor at law or in equity, Licensor shall have the immediate option to terminate this Agreement and all rights of Licensee hereunder by giving written notice of termination to Licensee. Upon termination, Licensor will have the right to remove Licensee's personal property from the Property, including but not limited to, buildings, structures and fixtures. In addition, Licensor may immediately recover from Licensee all amounts due and owing hereunder, plus interest at the maximum rate permitted by law on such amounts until paid, as well as any other amount necessary to compensate Licensor for all the detriment proximately caused by Licensee's failure to perform its obligations under this Agreement. 30. Non-Possessory Interest: Licensor retains full possession of the Property and Licensee will not acquire any interest temporary, permanent, irrevocable, possessory or otherwise by reason of this Agreement, or by the exercise of the permission given herein. Licensee will make no claim to any such interest. Any violation of this provision will immediately void and terminate this Agreement. 31. Waiver: No waiver by Licensor of any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach by Licensee of the same or any other provision. Licensor's consent to or approval of any act shall be deemed to render unnecessary the obtaining of Licensor's consent to or approval of any subsequent act by Licensee. 32. Authority: This Agreement is pursuant to the authority of and upon, and is subject to the conditions prescribed by General Order No. 69-C of the Public Utilities Commission of the State of California dated and effective July 10, 1985, which General Order No. 69-C, by this reference, is hereby incorporated herein and made a part hereof. 33. Attorneys' Fees: In the event of any action, suit or proceeding against the other, related to this Agreement, or any of the matters contained herein, the successful party in such action, suit or proceeding shall be entitled to recover from the other party reasonable attorney fees incurred. 34. Electric and Magnetic Fields ("EMF"): There are numerous sources of power frequency electric and magnetic field ("EMF"), including household or building wiring, electrical appliances and electric power transmission and distribution facilities. There have been numerous scientific studies about the potential health effects of EMF. Page 7 of 9 10-2525.001/54612 Interest in a potential link between long-term exposures to EMF and certain diseases is based on the combination of this scientific research and public concerns. While some 30 years of research have not established EMF as a health hazard, some health authorities have identified magnetic field exposures as a possible human carcinogen. Many of the questions about specific diseases have been successfully resolved due to an aggressive international research program. However, potentially important public health questions remain about whether there is a link between EMF exposures in homes or work and some diseases including childhood leukemia and a variety of other adult diseases (e.g., adult cancers and miscarriages). While scientific research is continuing on a wide range of questions relating to exposures at both work and in our communities, a quick resolution of the remaining scientific uncertainties is not expected. Since Licensee plans to license or otherwise enter SCE's property that is in close proximity to SCE's electric facilities, SCE wants to share with Licensee and those who may enter the property under this agreement, the information available about EMF. Accordingly, SCE has attached to this document a brochure that explains some basic facts about EMF and that describes SCE's policy on EMF. SCE also encourages Licensee to obtain other information as needed to assist in understanding the EMF with respect to the planned use of this property. 35_ Notices: All notices required to be given by either party will be made in writing and deposited in the United States mail, first class, postage prepaid, addressed as follows: To Licensor: Southern California Edison Company Real Properties Department Land Asset Management, Real Estate Revenue 2131 Walnut Grove Avenue Rosemead, CA 91770 To Licensee: City of Huntington Beach P. O. Box 190 Huntington Beach, CA 92648 Attn: Tina Krause Business Telephone No.: (714) 536-6551 Licensee will immediately notify Licensor of any address change. 36. Recordinz: Licensee will not record this Agreement. 37. Complete Agreement: Licensor and Licensee acknowledge that the foregoing provisions and any addenda and exhibits attached hereto constitute the entire Agreement between the parties. Page 8 of 9 10-2525.001/54612 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate as of the day and year herein first above written. SOUTHERN L QI EYISON COMPANY Bv:— Ac> LIC NS'OR RICHARD M. FUJJKAWA Right of Way Agent Land Asset Management, Metro Real Estate Revenue CITY 0 H UN TINGTON BEACH By: a'VF�LICENSEE Print Name: --.Cathv GreenT Mayor APPROVED AS TO FORM: Jenni- McGrath, City Attorney BY� f�� 1 Deput City —Attorney Page 9 of 9 10-2525.001/54612 EXHIBIT A -------- ------ 0 cl) POR tvzl 114, NW 114, NW 114, SEC 17, T 6 S, R./0 W 156-24 155-20 2 -J-1 ATIANrA AVENUE AWNIVE AAR.I A.aAr to 27 J.A OAY -M;7t0,6 J.A ll:l?A*'T 26 -igt 1,48'Ga 4 3 Wr 8 09 3 TRACT OR/Vf 37 Na 65Z,5�, 14 MARCH 1967 l A.OAY TRACT MV 4 - 50 NOTE-ASSESSOR'S UQOK 5 TRACT NO.6575 4,0,1?46- 1014 PARCEL Numom AORCrL MAP P. 38-- 42 $MOWN IN 0AWS EXHIBIT B L t ! ' T i � l QA - At hog +a _. � 4. a City of Huntington Beach _ 2000 Main Street . Huntington Beach, CA 92648 ® OFFICE OF THE CITY CLERK ® JOAN L. FLYNN CITY CLERIC November 23, 2010 Southern California Edison Company Real Properties Department Land Asset Management, Real Estate Revenue 2131 Walnut Grove Avenue Rosemead, CA 91770 To Whom It May Concern: Enclosed for your records is a fully executed copy of the License Agreement between the City of Huntington Beach, and Southern California Edison Company for use of a 2.43 acre area of land for a community garden, southeast of Atlanta Avenue and Brookhurst Street. Sincerely, t'nL. Flynn, CMClerk JF:pe Enclosure G:fo11owup:agrmt1tr Sister Cities: Anjo, Japan 0 Waitakere, New Zealand (Telephone- 714-536-5227)