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HomeMy WebLinkAboutE-8 Staff Report - Right of Entry AgreementCONSTENT ITEM E-8 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL VIA: SERGIO GONZALEZ, CITY MANAGER FROM: MATT MARQUEZ, ECONOMIC & COMMUNITY DEVELOPMENT DIRECTOR DATE: DECEMBER 7, 2020 SUBJECT: REQUEST FOR APPROVAL OF STANDARD FORM TEMPLATE FOR A RIGHT OF ENTRY AGREEMENT AND AUTHORIZE CITY MANAGER TO EXECUTE SUCH AGREEMENTS BACKGROUND & ANALYSIS: From time to time parties need access to City owned property to conduct testing, surveys, and other activities. Often times, access is needed to conduct analysis related to a potential purchase of a site. The City must grant permission for temporary access when appropriate, and a Right of Entry Agreement is the mechanism used to allow for said access. These agreements grant necessary access while simultaneously protecting the City’s property from damage and protecting the City against claims of liability caused by or during activities performed on a property by those who were given right to access. Rather than bring each agreement to the City Council for approval, staff felt it was appropriate to ask the Council to approve a template agreement and authorize the City Manager to execute each agreement on behalf of the City. The City Council has previously approved other template agreements (Ex: Reimbursement Agreement) and the subject request is therefore consistent with previous Council action and City policy. RECOMMENDATION: Staff recommends that the City Council take the following actions: 1. Approve a template for a Right of Entry Agreement; and 2. Authorize the City Manager to execute said agreements on behalf of the City APPROVED CITY COUNCIL 12/7/2020 Right of Entry Agreement December 7, 2020 ENVIRONMENTAL REVIEW: This item (Workshop/Discussion) is exempt from the requirements of the California Environmental Quality Act (“CEQA”) under the State CEQA Guidelines because the proposed action as it is not a “project” and has no potential to result in a direct or reasonably foreseeable indirect physical change to the environment. 14 Cal. Code Regs. §§ 15268, 15378(a). FISCAL IMPACT: There is no fiscal impact associated with the subject matter. Prepared by: Reviewed and Approved: Matt Marquez Sergio Gonzalez Economic & Community Development Director City Manager Reviewed by: Marco A. Martinez City Attorney Attachment: 1) Right of Entry Agreement Template Right of Entry Agreement December 7, 2020 ATTACHMENT 1 – RIGHT OF ENTRY AGREEMENT TEMPLATE RIGHT OF ENTRY AGREEMENT This Right of Entry Agreement ("Right of Entry") is entered in this __ day ______________, 200_ by and between the CITY OF AZUSA (the “CITY”) and [INSERT NAME OF PARTY] ("_____________"). RECITALS A. WHEREAS, the CITY is the owner in fee of that certain real property commonly referred to as [INSERT DESCRIPTION OF PROPERTY], as more particularly described in Exhibit "A" attached hereto and incorporated herein by reference (the "Property"). B. WHEREAS, [INSERT NAME OF PARTY] desires to obtain the CITY's permission to enter onto the Property, on a temporary basis, to perform [INSERT DESCRIPTION OF ACTIVITY]. C. WHEREAS, the Parties wish to enter into this Right of Entry whereby the CITY will allow [INSERT NAME OF PARTY] to enter the Property, on a temporary basis, for the purpose of performing [INSERT DESCRIPTION OF ACTIVITY], more particularly described in Exhibit “B” attached hereto and incorporated herein by reference. NOW, THEREFORE, the CITY and [INSERT NAME OF PARTY] do hereby agree as follows: AGREEMENT 1. Right of Entry. The CITY hereby grants to [INSERT NAME OF PARTY] and its agents, employees and contractors the temporary right to enter onto the Property for the purpose of performing [INSERT DESCRIPTION OF ACTIVITY], and for no other purpose. 2. Term. The term of this Right of Entry shall automatically terminate thirty (30) days from the date first herein written above unless earlier terminated as provided herein. The term may be extended by written notice to [INSERT NAME OF PARTY] in the sole and absolute discretion of the CITY. This Right of Entry is subordinate to all prior or future rights and obligations of the CITY in the Property, except that the CITY shall grant no rights inconsistent with the reasonable exercise by [INSERT NAME OF PARTY] of its rights under this Right of Entry. 3. Liens. [INSERT NAME OF PARTY] shall not permit to be placed against the Property, or any part thereof, any design professionals’, mechanics’, materialmen’s contractors’ or subcontractors’ liens with regard to [INSERT NAME OF PARTY]'s actions upon the Property. The [INSERT NAME OF PARTY] agrees to hold the CITY harmless for any loss or expense, including reasonable attorneys’ fees and costs, arising from any such liens which might be filed against the Property. 4. Indemnification. [INSERT NAME OF PARTY] hereby agrees to indemnify defend, assume all liability for and hold harmless the CITY and its officers, employees, agents and representatives from all actions, claims, suits, penalties, obligations, liabilities, damages to property, environmental claims or injuries to persons, which may be caused by [INSERT NAME OF PARTY]'s Right of Entry Agreement December 7, 2020 activities pursuant to this Right of Entry or arising out of or in connection with such activities, whether such activities or performance therof is by [INSERT NAME OF PARTY] or anyone directly or indirectly employed or under contract with [INSERT NAME OF PARTY], and whether such damage or claim shall accrue or be discovered before or after the termination of this Right of Entry. The [INSERT NAME OF PARTY], specifically, and not by way of limitation agrees that it shall be responsible for the repair, maintenance and cleanup of any [INSERT DESCRIPTION OF ACTIVITY]. The indemnity and other rights afforded to the CITY by this section shall survive the revocation or termination of this Right of Entry. 5. Compliance with Laws/Permits. [INSERT NAME OF PARTY] shall, in all activities undertaken pursuant to this Right of Entry, comply and cause its contractors, agents and employees to comply with all federal, state and local laws, statutes, orders, ordinances, rules, regulations, plans, policies and decrees. Without limiting the generality of the foregoing, [INSERT NAME OF PARTY], at its sole cost and expense, shall obtain any and all permits which may be required by any law, regulation or ordinance for any activities [INSERT NAME OF PARTY] desires to conduct or have conducted pursuant to this Right of Entry. 6. Inspection. The CITY and its representatives, employees, agents or independent contractors may enter and inspect the Property or any portion thereof or any improvements thereon at any time and from time to time at reasonable times to verify [INSERT NAME OF PARTY]'s compliance with the terms and conditions of this Right of Entry. 7. Not Real Property Interest. It is expressly understood that this Right of Entry does not in any way whatsoever grant or convey any permanent easement, lease, fee or other interest in the Property to [INSERT NAME OF PARTY]. This Right of Entry is not exclusive and the CITY specifically reserves the right to grant other rights of entry within the vicinity of the Property. 8. Attorneys’ Fees. In the event of a dispute between the parties with respect to the terms or conditions of this Right of Entry, the prevailing party shall be entitled to collect from the other its reasonable attorneys’ fees as established by the judge or arbitrator presiding over such dispute. 9. Revocable Licenses and Termination. Notwithstanding any improvements made by [INSERT NAME OF PARTY] to the Property or any sums expended by [INSERT NAME OF PARTY] in furtherance of this Right of Entry, the right of entry granted herein is revocable and may be terminated by the CITY in accordance with the terms of this Agreement. This Right of Entry may be terminated at any time by either party upon one (1) business day’s prior notice in writing to be served upon the other party. In cases of an emergency or a breach of this Agreement by [INSERT NAME OF PARTY], this Right of Entry may be terminated by the CITY immediately. 10. Restoration of the Property. Upon the termination or revocation of this Right of Entry, [INSERT NAME OF PARTY] shall, at its own cost and expense, restore the Property to the same condition in which it was prior to [INSERT NAME OF PARTY]'s entry. In case [INSERT NAME OF PARTY] shall fail to restore the Property to its prior condition within ten (10) business days after the effective date of the termination, the CITY may proceed with such work at the expense of [INSERT NAME OF PARTY]. 11. Continuing Liability. No termination of this Right of Entry shall release [INSERT NAME OF PARTY] from any liability or obligation hereunder resulting from any acts, omissions or Right of Entry Agreement December 7, 2020 events happening prior the termination of this Right of Entry and restoration of the property to its prior condition. 12. Counterparts. This Right of Entry may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the Parties hereto have executed this Right of Entry on the date first written above. CITY OF AZUSA [INSERT NAME OF PARTY] By: By:_____________________ Sergio Gonzalez, City Manager APPROVED AS TO FORM: By: _______________________________ Best, Best & Krieger, LLP Right of Entry Agreement December 7, 2020 EXHIBIT "A" DESCRIPTION OF PROPERTY Right of Entry Agreement December 7, 2020 EXHIBIT “B” DESCRIPTION OF ACTIVITY Right of Entry Agreement December 7, 2020 EXHIBIT “C” INSURANCE PROVISIONS (ATTACHED IS CERTIFICATE OF INSURANCE) [INSERT NAME OF PARTY] shall obtain, and shall require any consultant or contractor entering the Property on its behalf to obtain insurance of the types and in the amounts described below and satisfactory to the CITY. A. Commercial General Liability Insurance. [INSERT NAME OF PARTY] shall maintain occurrence version commercial general liability insurance or equivalent form with a combined single limit of not less than $1,000,000 per occurrence. If such insurance contains a general aggregate limit, it shall apply separately to this Right of Entry Agreement or be no less than two times the occurrence limit. Such insurance shall: 1. Include the CITY and its officials, officers, employees, agents, and consultants as insureds with respect to the activity to be conducting and shall contain no special limitations on the scope of coverage or the protection afforded to these insureds; 2. Be primary with respect to any insurance or self insurance programs covering the CITY, its officials, officers, employees, agents and consultants; and 3. Contain standard separation of insured provisions. B. Workers' Compensation Insurance. [INSERT NAME OF PARTY] shall maintain workers' compensation insurance with statutory limits and employers' liability insurance with limits of not less than $1,000,000 each accident. C. Certificates of Insurance. [INSERT NAME OF PARTY] shall, prior to entering the Property, furnish the CITY with properly executed certificates of insurance and, if requested by the CITY, certified copies of endorsements and policies, which clearly evidence all insurance required under this Right of Entry Agreement and provide that such insurance shall be not canceled, allowed to expire or be materially reduced in coverage, except on 30 days' prior written notice to the CITY. The certificate shall also evidence the insurer's knowledge of the proximity of the operations of [INSERT NAME OF PARTY] to active railroad tracks. The CITY shall have the sole discretion to determine whether the certificates and endorsements presented comply with the provisions of this Right of Entry Agreement. D. Coverage Maintenance. [INSERT NAME OF PARTY] shall replace certificates, policies and endorsements for any insurance expiring prior to the termination of this Right of Entry Agreement. Unless otherwise provided for in this Right of Entry Agreement, [INSERT NAME OF PARTY] shall maintain such insurance from the execution of this Right of Entry Agreement until the the Property fully restored, except as otherwise provided in this Right of Entry Agreement. Right of Entry Agreement December 7, 2020 E. Licensed Insurer. [INSERT NAME OF PARTY] shall place such insurance with insurers having A.M. Best Company ratings of no less than A:VIII and licensed to do business in California, unless otherwise approved, in writing, by the CITY.