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HomeMy WebLinkAboutOcean View School District - 2016-07-08 (2)67—L1(1c RIGHT OF ENTRY AND CONSTRUCTION ENCROACHMENT AGREEMENT This Right of Entry and Construction Encroachment Agreement (the "Agreement") is made and entered into as of June 22, 2016 (the "Effective Date"), by and between (1) the City of Huntington Beach, a California municipal corporation and Charter City ("Grantee") and (2) the Ocean View School District of Orange County ("Grantor" or the "School District"), as the owner of that certain real property commonly known as the Oak View Elementary School and Preschool, located at 17241 Oak Lane, Huntington Beach, California 92647, Assessor's Parcel Numbers 111- 372-24, 111-372-23, 165-241-38 (the "School District Property"). RECITALS A. Grantee is a California municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. Grantee desires to secure the right to temporarily enter and encroach upon a portion of the School District Property for the purpose of constructing the improvements described below (collectively, the "Improvements") and to allow the accommodation of construction equipment, materials and workers necessary for completion of certain items of work (the "Work"), consisting of (1) Planting eight (8) 36-inch-box Incense Cedar trees (collectively, the "Trees") on a portion of the School District Property described in Section 2 below as the "Improvement Area"; (2) replacing certain damaged concrete and asphalt, and (3) placing temporary fence screening on the existing fence in the Improvement Area, and other items as required to complete the Work. C. All of the Improvements and Work contemplated by this Agreement are to be done at the sole cost to the Grantee, with no cost incurring to Grantor. The Grantee seeks to complete these Improvements and Work to improve the quality and aesthetics of the Improvement Area and surrounding areas. Not all of the Improvements will be constructed in the Improvement Area. D. Grantor and Grantee mutually agree that Grantee may enter upon, pass and re -pass on, over, under and across the Improvement Area, as defined below and as depicted on Exhibit "A" hereto, for the purpose of performing the Work under the terms and conditions set forth in this Agreement. E. Except for granting the temporary right to enter and encroach upon the Improvement Area in accordance with the terms and conditions set forth below, nothing in this Agreement is intended to, nor shall, permanently waive, relinquish, transfer, eliminate, or otherwise hinder or prejudice any 16-5198/134712 1 of Grantor's rights or interests in any portion of the School District Property, including, but not limited to, the Improvement Area. NOW, THEREFORE, it is mutually agreed by and between Grantor and Grantee (collectively, the "Parties") as follows: 1. Recitals The Recitals set forth above are true and correct and are hereby incorporated into this Agreement. 2. The Improvement Area of the School District Property 2.1 Grantor is the fee owner of that portion of the School District Property which has been cross -hatched and labelled as the "Improvement Area" on Sheets 1 and 2 of Exhibit "A" to this Agreement. The Improvement Area generally consists of a 25-foot-wide, 660-foot-long, rectangular -shaped area of the School District Property running along the east side of Nichols Lane. 2.2 The Work shall be performed on the Improvement Area of the School District Property as shown on Exhibit "A" hereto. The Trees shall be evenly spaced and planted between the existing trees that are located in the Improvement Area near the rear chain -link fence adjacent to Nichols Lane. The exact location of the Trees shall be determined in the field by Jim Choate of the School District. If Jim Choate directs the placement of the Trees at locations or incremental distances different than those specified in this Agreement, and the Grantee follows Jim Choate's direction in the placement of the Trees, the Grantee will not be deemed to have breached this Agreement, and will not be held in breach, because Grantee followed the direction of Jim Choate of the School District. 3. Right To Enter and Encroach On Improvement Area Subject to the conditions set forth in Section 4 below, Grantor hereby grants to Grantee, for the use and benefit of Grantee and its officers, employees, agents, representatives, contractors, subcontractors, and the employees and suppliers of such contractors and subcontractors (collectively, "Grantee's Related Persons"), a non-exclusive temporary right to enter and encroach on, over, under and across the Improvement Area for the purpose of constructing, installing, repairing and replacing the Work and to allow the accommodation of equipment, materials and workers necessary therefor. 4. Conditions To Exercising Temporary Right of Entry and Encroachment Grantee's temporary right to enter and encroach on the Improvement Area shall be subject to Grantee and all of Grantee's Related Persons fully and timely complying with each of the following conditions: 16-5198/134712 2 A. Grantee and Grantee's Related Persons shall be entitled to enter the Improvement Area from 7:00 a.m. to 5:00 p.m., Monday through Friday, for the purpose performing the Work. However, given the fact that school children may be present on other portions of the School District Property while the Work is being performed, then, unless otherwise agreed to in writing by Grantor, Grantee and Grantee's Related Persons shall not be allowed to enter onto any portion of the School District Property except for the Improvement Area and all activities associated with the Work shall be confined to the Improvement Area. B. Grantee shall advise Grantor of the date of commencement of the Work not less than seventy-two (72) hours prior to actual commencement of the Work. C. Prior to commencement of the Work, Grantee shall provide Grantor with the names and telephone numbers of each contractor or subcontractor who will be performing Work on the Improvement Area. D. At the conclusion of each work day, Grantee and Grantee's Related Persons shall ensure the cleanup and removal of debris so as to maintain the Improvement Area in as neat and clean a condition as possible, given the remaining Work to be performed. E. The temporary right of entry and encroachment granted herein does not include the right to engage in any material storage, long term parking of vehicles, trailers, or other equipment storage on the Improvement Area. F. At Grantee's sole cost and expense, Grantee shall repair any damages caused by its use, or by the use of any of its Related Persons, of any portion of the Improvement Area and shall restore that Area as nearly as practicable to the condition that it was in prior to the commencement of the Work. 5. Indemnity Grantee shall defend, indemnify, and hold Grantor, and each of Grantor's officers, employees, students, invitees, agents, representatives, contractors, subcontractors, and the employees and suppliers of such contractors and subcontractors (collectively, "Grantor's Related Persons") harmless from and against any and all liabilities, claims, damages, losses, demands, suits, costs, or expenses whatsoever, including reasonable attorney's fees (collectively, "Liabilities"), for any injuries to, or death of, any persons, or for any property damages or losses, that are based upon, arise out of, any of the Work or any activities to be performed under this Agreement, which Liabilities are caused by or result from any acts, errors, or omissions on the part of Grantee or on the part of any of Grantee's Related Persons. 16-5198/134712 6. Insurance The Grantee is self -insured, up to $1,000,000 and carries no primary insurance policy for this coverage. The Grantee's subcontractors, if there are any, shall provide Grantor with proof of insurance policies held by Grantee's subcontractors, as the case may be. Such policies shall have commercial general liability limits in the amount no less than one million dollars ($1,000,000.00) per occurrence, two million dollars ($2,000,000.00) in the general aggregate. The policies required herein shall be provided by an authorized insurance company by the State of California and having a minimum A.M. Best's Guide Rating of A-, Class VII or better. Grantor shall be expressly listed as additional insureds under such insurance policies and the policies shall provide coverage for bodily injury and property damage. For any claims related to the Work, the self-insurance of Grantee and the coverage of Grantee's subcontractors, if there are any, shall be primary insurance as respects Grantor and Grantor's Related Persons. Any insurance or self- insurance maintained by Grantor shall be excess of the self-insurance of Grantee and the coverage of Grantee's subcontractors, if there are any, and shall not contribute to it. Grantee and Grantee's subcontractors, if there are any, shall be responsible to keep these insurance policies in full force and effect until final completion of the Work. The cost of any and all premiums for these insurance policies shall be borne by Grantee and Grantee's subcontractors, if there are any. In the event of claims against any of the policies, Grantee and Grantee's subcontractors, if there are any shall be responsible for payment of any deductible amounts. Prior to the commencement of the Work, Certificates of Insurance and endorsements shall be provided to Grantor evidencing compliance with the requirements herein. 7. Improvements Grantee shall be responsible, at Grantee's own expense, for any and all maintenance, repair and replacement of any concrete, asphalt, or other hardscape Improvements installed in or on the Improvement Area as part of the Work. On the other hand, Grantor shall assume the cost and the responsibility for maintaining the Trees once they have been installed by Grantee, provided, however, that, if despite reasonable maintenance by Grantor, any of the Trees die or otherwise fail to establish during the first twelve (12) months following installation of the Trees, Grantee shall, at its sole expense, replace any such failed Trees with new Incense Cedar trees of the same 36-inch-box size. 8. Term and Termination This Agreement shall commence when executed and delivered by the Parties and the temporary right of entry and encroachment granted hereunder shall, unless earlier terminated in the event of a breach, terminate upon completion of the Work, but in no event later than October 31, 2016, except that Grantee and 16-5198/134712 4 Grantee's Related Persons shall be entitled to enter and encroach on the Improvement Area if any Trees need to be replaced as provided above. 9. Notices Notices, requests or demands by either of the Parties shall be in writing and shall either be personally served or be sent by U.S. Mail and addressed to the following persons: To Grantee: Public Works Department City of Huntington Beach 2000 Main Street P.O. Box 190 Huntington Beach, CA 92648 Ph: 714-374-1628 To Grantor: Ocean View School District 17200 Pinehurst Lane Huntington Beach, CA, 92647 Ph: 714-847-2551 Attention: Jim Choate Ph. 714-847-2551 ext. 3509 Notices, requests and demands, if not personally served, shall be deemed received upon the expiration of forty-eight (48) hours after postmark or deposit in a U. S. post office or mail. Grantor agrees and is responsible for notifying all tenants of all information regarding this Agreement for entry onto the Improvement Area. 10. Attorney's Fees The Parties shall each bear their own attorney's fees and costs incurred in connection with the negotiation and execution of this Agreement. In the event of any dispute, claim, or litigation based upon, arising out of, or relating to, the negotiation, formation, performance, breach, enforcement, or interpretation of any of the provisions of this Agreement, each bear their own attorney's fees and costs. 11. Severability If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 16-5198/134712 12. No Assignment The Parties may not assign any of the respective rights, privileges, duties, or obligations provided for in this Agreement. 13. Controlling Law and Venue The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 14. Integrated Agreement and Modifications This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. This Agreement may not be amended or modified except by written amendment signed by both Parties. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: GRANTEE: CITY ATTORNEY'S OFFICE Date: 131 Miphael E. Gates City Attorney r ATTEST: CITY OF HUNTINGTON BEACH, a California municipal corporation Date: By: 4) Fre ikon City Manager GRANTOR: Date: /1 OCEAN VIEW SCHOOL DISTRICT By: /x� h.- --- Date: 7— Robin Estanislau City Clerk By: v Attachments: Exhibit A - Depiction of Improvement Area 16-5198/134712 6 0 V N N Q MARCH 1951 EXHIBIT "A" SHEET 1 DEPICTION OF ON —SITE IMPROVEMENTS POR. E 112. NW 114. NE 114, SEC. 26, T 5 S. R 11 N ,,,-37 iss-36 N.T.S. LAW = r SOdK d 1 TRAT O 0= 0 0 0© U O 0= O 8 a � • Q M O — - O = EMERALD \l i U NICHOLS 7RAC1 NO. 5326 M.M. 190-7. 8 1 LANE 0 25' O 1 A. J6l AC. (V NO N 25' X 1 ' 36 ® =IMPROVEMENT AREA NOIF - ASSESSOR'$ N O L •S'1:E }50 l'�.nrc; N(A!/fr•F1,t 8:1(M' III YA Aa Ge 37 SIfom Iry ClRC(L.5 COt/NJr OF ().R•NrF EXHIBIT "A" SHEET 2 DEPICTION OF ON —SITE IMPROVEMENTS POR- NE 114, Sy 114- NE 114, SEC. 26, r 5 S. R 11 165-24 22 N.T.S. 04'r 4 4AAr AOL—EY -1 23 'A AUZY wr (D. 10 01 JACOVILYN ZAAe 0 a @i Is, v. NI 21 f ell.CNI— z TR T OAK lwMWv 0' 4 DAiRYWW c/Raf 4 25' 25' "1 s 34 IMPROVEMENT AREA MARCH 1976 TRACT NO. 4091 N.N. 174-10 11 TRACT NO. 8703 M.Af SO-59, 40 NDIE ASSESSOR'S %OCK & ASSESSOR'S MAP PARCELNUWiRS 000x 165 PAu. 24 SHOWN IN cMacs COUNTY Or CRANGi,-