HomeMy WebLinkAboutColton Joint Unified School District-2010-31 RIGHT OF ENTRY AGREEMENT
Baseball Field Access Ply
This Right of Entry Agreement ("Agreement") is made and entered into this�T�'rday of
November 2010, by and between the Colton Joint Unified School District ("CJUSD"), and the
City of Grand Terrace and the Community Redevelopment Agency of the City of Grand Terrace
("City"). CJUSD owns the real property identified by Assessor's Parcel Number 1167-151-72
within the City of Grand Terrace, County of San Bernardino, State of California ("District
Property") and the City desires to obtain public access to Assessor's Parcel Numbers 1167-151-
73 and 1167-151-61 ("City Property") by crossing the District Property. CJUSD desires to grant
authority to City and the public to enter a portion of the District Property as identified on Exhibit
"A" attached hereto and incorporated herein by reference("Access Passage").
1. Scope. CJUSD, owner of the District Property, hereby grants permission to the
City and the public to enter the Access Passage for the limited purpose of traveling to and from
City Property. City may also enter the Access Passage the purposes of, at the City's sole
expense, constructing a concrete walkway and lighting on the Access Passage to allow passage
to City Property ("Work"). Attached hereto and incorporated herein as Exhibit"B"are plans and
specifications for the access passage.
2. Term. This Agreement will be effective on the date first written above and shall
terminate only upon termination of the baseball field use by the City, unless earlier terminated as
set forth in this Agreement.
3. Compensation. As compensation for use of the Access Passage, City shall
maintain the Access Passage and perform the Work at City's sole expense.
4. Condition of Premises. During the term of this Agreement, City is to avoid
damaging or contaminating the Access Passage or District Property, including any existing
landscaping or plants, and shall take all reasonable steps to maintain the Access Passage in an
orderly and appealing manner. City shall be responsible for and shall pay for any repairs or
replacements of any character whatsoever which are occasioned or are made necessary because
of the negligence or misuse of the Access Passage by City's employees or invitees. Following
written notice to the City by the District, should the City fail to maintain or repair the Access
Passage, within thirty (30) days of such notice, during the term of the Agreement, CJUSD may,
at CJUSD's sole discretion, undertake any maintenance or repair of the Access Passage and City
shall reimburse CJUSD for the costs of such repairs or maintenance within thirty (30) days of
invoice by CJUSD.
At the termination of the Agreement, City will restore the Access Passage to a condition equal to
or better than its condition at the commencement of the term of this Agreement improvements
associated with the Work and reasonable wear and tear excepted.
1
5. Termination.
A. This Agreement may be terminated by CJUSD immediately if it is determined that City's
actions are unsafe or create potential liability to CJUSD. CJUSD may terminate this Agreement
upon ninety(90)days written notice to City for any reason.
B On or before the date of termination of this Agreement, or upon notice that this
Agreement is revoked, City shall,at its sole expense,clean up and remove all rubbish and debris,
and place Access Passage in the same order and condition as existed at the commencement of
this Agreement, improvements associated with the Work and reasonable wear and tear excepted.
In the event that City fails to clean up the Access Passage, within thirty (30) days of the date of
termination, CJUSD may, at CJUSD's sole discretion, undertake any clean up of the Access
Passage and City shall reimburse CJUSD for the costs of such clean up or maintenance within
thirty(30)days of invoice by CJUSD.
C. Upon termination, expiration or revocation of the Agreement, CJUSD shall retain title to
all improvements associated with the Work on the Access Passage.
6. Access. Both parties shall make every reasonable effort to keep access to the
Access Passage open at all times and shall not interfere the other's activities in any way. Prior to
performing the Work, City shall coordinate with the CJUSD, either telephonically or in writing,
in order to ensure that CJUSD activities are not disrupted.
7. Indemnification. Except as to sole negligence or willful misconduct of the
CJUSD, City agrees to indemnify, defend and hold the CJUSD, its officers and employees,
harmless from and against all claims, damages, losses, liability, cost or expense, including
attomey's fees, which arises out of or is in any way connected with the performance of Work or
use of the Access Passage under this Agreement by City or any of City's employees, agents,
subcontractors or invitees.
The parties expressly agree that any payment, attomey's fee, costs or expenses the City
incurs or makes to or on behalf of an injured employee of the City under the City's self-
administered workers' compensation is included as a loss,expense or cost for the purpose of this
Section, and that this Section shall survive the expiration or early termination of this Agreement.
8. Workers' Compensation Insurance. By executing this Agreement, City
certifies that it is aware of and will comply with Section 3700 of the Labor Code of the State of
California requiring every employer to be insured against liability for workers' compensation, or
to undertake self-insurance before commencing any of the Work. City shall carry the insurance
or provide for self-insurance required by California law to protect CJUSD from claims under the
Workers' Compensation Act. Prior to CJUSD's execution of this Agreement, City shall file with
CJUSD either a certificate of insurance showing that such insurance is in effect, or that they are
self-insured for such coverage. Any certificate filed with CJUSD shall provide that CJUSD will
be given ten (10) days prior written notice before modification or cancellation thereof.
2
9. General Liability Insurance. Prior to CJUSD's execution of this Agreement,
City shall provide proof of general liability insurance as required to insure CJUSD against
damages for personal injury, including accidental death, as well as from claims for property
damage, which may arise from or which may concern operations by anyone directly or indirectly
employed by, connected with, or acting for or on behalf of City. CJUSD, and its officers,
employees and agents, shall be named as additional insureds under the City's insurance policies.
All liability insurance shall be issued by insurance companies authorized to transact
liability insurance business in the State of California with a policy holder's rating of A or higher
and a Financial Class of VII or higher,or through a Joint Powers Insurance Authority.
General liability insurance policies shall cover both bodily injury (including death) and
property damage (including, but not limited to, premises operations liability, products-completed
operations liability, independent contractor's liability, personal injury liability, and contractual
liability) in an amount not less than $1,000,000 per occurrence and a general aggregate limit in
the amount of not less than $2,000,000, unless otherwise approved or reduced by CJUSD.
These minimum amounts of coverage shall not constitute any limitation or cap on City's
indemnification obligations under Section 7 hereof.
Any policies shall not be canceled unless thirty (30) days prior written notification of
intended cancellation has been given to CJUSD by certified or registered mail, postage prepaid.
10. Hazardous Substances Indemnity. City expressly agrees to and shall
indemnify, defend, release and hold °USD, its officers, officials, directors, agents, servants,
employees, attorneys and contractors harmless from and against any liability, loss, fine, penalty,
fee, charge, lien,judgment, damage,entry, claim, cause of action, suit, proceeding(whether legal
or administrative), remediation, response, removal, or clean-up and all costs and expenses
associated therewith, and all other costs and expenses (including, but not limited to, attorneys'
fees, expert fees, and court costs) in any way related to the disposal, treatment, transportation,
manufacture, or use of any Hazardous Substances on, in, under, or about the Access Passage by
City, or its respective officers, directors, agents, servants, employees or contractors, or by any
other third party acting under the control or request of the City, other than CJUSD and its
respective officers, agents, servants, employees or contractors. This indemnity,defense and hold
harmless obligation shall survive the expiration or termination of this Agreement.
11. Hazardous Substances Defined. Hazardous Substances shall mean any (a)
substance, product, waste or other material of any nature whatsoever which is or becomes listed,
regulated, or addressed pursuant to CERCLA, 42 U.S.C. § 9601, et seq.; The Hazardous
Materials Transportation Act, 49 U.S.C. § 1801, et seq.; the Resource Conservation and
Recovery Act, 42 U.S.C. § 6901, et seq. ("RCRA"); The Toxic Substances Control Act, 15
U.S.C. § 2601 et seq.; The Clean Water Act, 33 U.S.C. § 1251, et seq.; The Hazardous Waste
Control Act, California Health and Safety Code ("H. & S.C.") § 25100, et seq.; the Hazardous
Substance Account Act, H. & S.C. § 25330, et seq.; the California Safe Drinking Water and
3
Toxic Enforcement Act, H. & S.C. § 25249.5, et seq.; Underground Storage of Hazardous
Substances H.& S.C. § 25280, et seq.; the Carpenter-Presley-Tanner Hazardous Substance
Account Act (H & S.C. § 25300 et seq.); The Hazardous Waste Management Act, H. & S.C. §§
25170.1, et seq.; Hazardous Materials Response Plans and Inventory H. & S.C. § 25001 et seq.;
or the Potter-Cologne Water Quality Control Act, Water Code § 13000, et seq., all as amended,
or any other federal, state or local statute, law,ordinance,resolution, code,rule, regulation, order
or decree regulating, relating to, or imposing liability or standards of conduct concerning, any
hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in
effect, (b) any substance, product, waste or other material of any nature whatsoever which may
give rise to liability under any of the above statutes, (c) petroleum, crude oil or any substance
which contains gasoline, diesel fuel or other petroleum hydrocarbons other than petroleum and
petroleum products contained within regularly operated motor vehicles, and (d) polychlorinated
biphenyls (PCB), radon gas,urea-formaldehyde, asbestos and lead.
12. Venue and Attorneys' Fees. Any action at law or in equity brought by any of
the parties hereto for the purpose of enforcing a right or rights provided for by this Agreement
shall be tried in a court of competent jurisdiction in the County of San Bernardino, State of
California, and the parties hereby waive all provisions of law proving for a change of venue in
such proceedings to any other county. In the event any party hereto shall bring suit to enforce
any term of this Agreement or to recover any damage for and on account of the breach of any
term or condition of this Agreement, it is mutually agreed that the prevailing party in such action
shall recover all costs thereof, including reasonable attorneys' fees, to be set by the court in such
action.
13. Nondiscrimination. During City's performance of this Agreement, it shall not
discriminate on the grounds of race, religious creed, color, national origin, ancestry, age,
physical disability, mental disability, medical condition, including the medical condition of
Acquired Immune Deficiency Syndrome (AIDS) or any condition related thereto, marital status,
sex, or sexual orientation, in the selection and retention of employees and subcontractors and the
procurement of materials and equipment, except as provided in Section 12940 of the California
Government Code. Further, City agrees to conform to the requirements of the Americans with
Disabilities Act in the performance of this Agreement.
14. Notices. Service of any notices, bills, invoices or other documents required or
permitted under this Agreement shall be sufficient if sent by one party to the other by United
States mail,postage prepaid and addressed as follows.
Colton Joint Unified School District Citv
Colton Joint Unified School District City of Grand Terrace
1212 Valencia Dr. 22795 Barton Road
Colton, CA 92324 Grand Terrace,CA 92313
Ann: Darryl Taylor Attn: City Clerk
4
15. Assignment. It is mutually understood and agreed that this Agreement is
personal to both parties and may not be assigned or transferred in any way. Any transfer shall be
void and of no effect.
16. Authority. The individuals executing this Agreement each represent and warrant
that they have the legal power, right and actual authority to bind their respective entities to the
terms and conditions hereof and thereof.
17. Severability. Each provision, term, condition, covenant, and/or restriction, in
whole and in part, in this Agreement shall be considered severable. In the event any provision,
term, condition, covenant, and/or restriction, in whole and/or in part, in this Agreement is
declared invalid, unconstitutional, or void for any reason, such provision or part thereof shall be
severed from this Agreement and shall not affect any other provision, term, condition, covenant,
and/or restriction, of this Agreement and the remainder of the Agreement shall continue in full
force and effect.
18. Compliance with Law. City shall comply with all laws, ordinances, rules, and
regulations applicable to the Access Passage, and shall be responsible to obtain any and all
permits which may be necessary pertaining to City's activities on or about the Access Passage.
CJUSD shall ensure that the Work complies with all applicable federal, state or local laws, rules
or regulations, including compliance with Division of the State Architect ("DSA") building
requirements, if applicable.
19. Background Checks. In the event any portion of the Work or City's activities on
the Access Passage will occur when students are present, City shall conduct criminal background
checks, through the California Department of Justice, of all employees, agents, and contractors
providing services to City upon the Access Passage pursuant to this Agreement, and shall
provide to the CJUSD a list of the names of the employees and/or agents of City who may come
into contact with pupils upon the Access Passage, pursuant to Education Code section 45125.1.
In the alternative, City may elect to ensure the safety of pupils pursuant to Education Code
section 45125.2 by one or more of the following methods: I) the installation of a physical barrier
at the worksite to limit contact with pupils, or 2) continual supervision and monitoring of all
employees or agents of City by an employee or agent of City whom the Department of Justice
has ascertained has not been convicted of a serious felony.
20. Liens and Claims. City will not permit any mechanics' materialmen's, or similar
liens or claims to stand against the Access Passage for labor or material furnished in connection
with any work performed by City under this Agreement. Upon reasonable and timely notice of
any such lien or claim delivered to City by CJUSD, City may bond and contest the validity and
the amount of such lien, but City will immediately pay any judgment rendered, will pay all
proper costs and charges, and will have the lien or claim released at its sole expense.
21. Legal Interpretation of Instrument. The parties expressly understand and agree
that this Agreement constitutes an Agreement for use of the Access Passage, and is neither
5
•
intended by the parties, nor shall it be legally construed to convey, a leasehold, easement, or
other interest in real property. Should either party be compelled to institute arbitration, legal, or
other proceedings against the other for or on account of the other party's failure or refusal to
perform or fulfill any of the covenants or conditions of this Agreement on its part to be
performed or fulfilled, the parties agree that the rules and principles applicable to Agreements
shall govern such actions or proceedings. This Agreement shall be governed by the laws of the
State of California.
22. Entire Agreement: Amendment. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter hereof, superseding all
negotiations, prior discussions and preliminary agreements made prior to the date hereof. This
Agreement may not be changed except in writing executed by both parties.
23. Successors, Assignment. This Agreement shall be binding and inure to the
benefits of the successors of the respective parties. This Agreement may only be assigned upon
the written consent of both parties.
24. Exhibits. The following exhibits which are attached hereto are incorporated
herein and made a part of this Agreement:
Exhibit"A" - Map of Access Passage
Exhibit"B" - Plans and Specifications for Work
25. Recitals. The Recitals are incorporated into this Agreement as though fully set
forth herein.
26. Execution in Counterpart. This Agreement may be executed in several counterparts,
and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding
that all parties are not signatories to the original or the same counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the date and year first written above.
COLTON JOINT UNIFIED SCHOOL CITY AND CITY OF GRAND TERRACE
DISTRICT / COMMUNITY REDEVELOPMENT
/ / AGENCY
By: �,: ' / By: ager\ ��24�r'Pi/ 7
City M
By: /�/ K L,�f/,�i.=/
Agency xecutiv Director
6
ATTEST: ATTEST:
et,
City Clerk
410 0,44-rkZat_ CYL_ca t_
Agency Secretary
Approved as to Form: Approved as to Form:
.W. y 9
City Atto
S r4 w41 a.
Agency Att. V
7
Exhibit
1167-151-61
'CRA Owned
1167-151-73
'CRA Owned
II
-60'
ice— wallcway
36.5' ( width
5.5'
49.5' 120
12
1;
1167-151-72 1167-201-01
CJUSDOwned City Owned
Pico Park
21951
Vacated Pico Street
ul 12710 1 I I 12709 1'
t =_r
4Community Redevelopment Agency.City of Grand Terrace(CRA)
8
Exhibit"B"
Insert Plans and Specifications for the Work
9