HomeMy WebLinkAboutOcean View School District of Orange County - 2019-08-13 RIGHT OF ENTRY AND CONSTRUCTION ENCROACHMENT AGREEMENT
This Right of Entry and Construction Encroachment Agreement(the
"Agreement") is made and entered into as of "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 Harbour View Elementary School, located at 4343 Pickwick Circle,
Huntington Beach,California 92649,Assessor's Parcel Numbers 178-761-02 (the
"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
po Ition 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 removing and
replacing existing damaged concrete and asphalt on a portion of the School
District Property described in Section 2 below as 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
repass 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 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 Granter and
Grantee(collectively,the "Parties")as follows:
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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 labeled as the"Improvement Area"on Exhibit"A"to
this Agreement.The Improvement Area generally consists of a 20-foot-wide,630-
footlong,rectangular-shaped area of the School District Property running along the west
side of the Algonquin Street pavement area.
2.2 The Work shall be performed on the Improvement Area of the School
District Property as shown on Exhibit"A" hereto.
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 nonexclusive
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 all ow
the accommodation of equipment,materials and workers necessary therefor,
4. Conditions To Exercisinrs Temporary Right of Entry and Encroachment
Grantee's temporary right to enter and encroach on the Jmprovernent Area shall
be subject to Grantee and all of Grantee's Related Persons fully and timely complying
with each of the following conditions:
A. Grantee and Grantee's Related Persons s hall 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 Granter,Grantee and Grantee's Related Persons s
hall 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 s hall 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
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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 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.
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 minin.ium
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 ally 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
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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 asphalt,or other improvements installed in or on
the Improvement Area as part of the Work.
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 December 31,2019.
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: 714-536-5431
To Grantor: Ocean View School District
17200 Pinehurst Lane Huntington
Beach,CA,92647 Ph: 714-847-
2551
Attention: Jim Choate
Ph. 714-847-708 3 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.
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12, No Assi nMent
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: CITY OF HUNTINGTON BEACH,
a California municipal corporation
Date: Date:
all3
13Y.
Michael E.Gates / ! City Manager
City Attorney
ATTEST: •••jjj 'l GRANTOR: OCEAN VIEW SCHOOL DISTRICT
OF ORANGE COUNTY
Date: Date:
14
obin Estanislau _
City Clerk Deputy Superintende4t
Attachments: Exhibit"A"—Depiction of On-Sits Improvements
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