HomeMy WebLinkAboutFoundation of Grand Terrace-2012-19 RIGHT OF ENTRY AND MAINTENANCE AGREEMENT
This Right of Entry Agreement ("Agreement") is made and entered into this 24th day of
July, 2012, by and between the City of Grand Terrace ("City") and the Foundation of Grand
Terrace ("Foundation").
RECITALS
WHEREAS, the City owns the real property identified by Assessor's Parcel Number 1167-
201-01 ("City Property");
WHEREAS, the City desires to provide access to City Property to Foundation for the
purposes of constructing a Veteran's Memorial on a portion of the City Property ("Memorial
Property"), further described in Exhibit"A";
WHEREAS, the Foundation desires to construct a Veteran's Memorial on the Memorial
Property;
NOW THEREFORE, in consideration of the mutual covenants herein set forth and the
mutual benefits to be derived there from,the parties agree as follows:
1. Scope. City, the owner of the real property identified as Assessor's Parcel Number
1167-201-01 ("City Property"), hereby grants permission to the Foundation to enter upon a portion
of the Property ("Memorial Property") as identified on Exhibit "A" attached hereto and
incorporated herein by reference. Use of the Memorial Property is for construction of a Veteran's
Memorial, further depicted in Exhibit`B," ("Memorial Concept").
2. Term. This Agreement will be effective on the date first written above and shall
terminate only upon termination of the Foundation's use of the Memorial Property as the Memorial
unless earlier terminated as set forth in this Agreement.
3. Compensation. As compensation for use of the portion of the Property described in
Exhibit "A" of this Agreement, Foundation shall maintain the Memorial in a manner as shown on
Exhibits"A" and`B".
4. Condition of Premises. During the term of this Agreement, Foundation shall not
cause physical damage, contaminate with Hazardous Substances, or otherwise cause any other
damage to the City Property, including any existing landscaping or plants, and shall take all
reasonable steps to maintain the Memorial Property in an orderly and appealing manner. At the
completion of construction of the Memorial, the Foundation will continue to maintain the Memorial
in a condition equal to or better than its condition at the commencement of the term of this
Agreement. Determination of whether the Memorial Property or the Memorial has been maintained
in compliance with this Agreement shall be made by the City using its sole discretion.
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Agreement. Determination of whether the Memorial Property or the Memorial has been maintained
in compliance with this Agreement shall be made by the City using its sole discretion.
5. Termination. This Agreement may be terminated by City if the City determines
using its sole discretion that Foundation's use of the City Property is in violation of this Agreement,
creates any kind of health and safety hazard,or would impose any liability upon the City.
6. Access to the Property. The City shall make a reasonable effort to keep access to
the City Property open to Foundation at all times and shall not unreasonably interfere with
Foundation's access to the City Property. Foundation shall not interfere with the City's access to or
use of the Memorial Property. The City shall have the right to close any portion, or the entirety, of
the City Property if City officials determine that such a closure is reasonably necessary. In the event
of such a closure,the City will provide notice to the Foundation of the closure.
7. Indemnification. Except as to sole negligence or willful misconduct of the City,
Foundation agrees to indemnify, defend, and hold the City, its officers and employees, harmless
from and against all claims, damages, losses, liability, cost or expense, including attorney's fees and
costs, which arises out of or is in any way connected with the performance of work or use of the
Property under this Agreement by Foundation, any of Foundation's volunteers (including, but not
limited to, the Boy Scouts of America), employees, agents, contractors, or subcontractors.
Foundation shall also be responsible for any attorneys' fees and costs the City may incur in the
event the City has to file any action in connection with this Agreement.
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 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, Foundation
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. Foundation shall carry the insurance
or provide for self-insurance required by California law to protect City from claims under the
Workers' Compensation Act. Prior to City's execution of this Agreement, Foundation shall file
with City 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 City shall provide that City will be given
thirty(30) days prior written notice before modification or cancellation thereof
9. General Liability Insurance. Prior to the City's execution of this Agreement,
Foundation shall provide proof of general liability insurance as required to insure the City 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 Foundation. The City, and its officers,
employees and agents, shall be named as additional insureds under the Foundation's insurance
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policies. Said policies shall be in the usual form of commercial general liability insurance policies,
but shall include the following provisions:
It is agreed that the City of Grand Terrace, and its officers, employees and agents,
are added as additional insureds under this policy, solely for work done by and on
behalf of the named insured.
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.
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 the City.
These minimum amounts of coverage shall not constitute any limitation or cap on
Foundation'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 the City by certified or registered mail, postage prepaid.
Any policies shall include an endorsement stating that any applicable insurance coverage
maintained by the City shall be excess in relation to Foundation's insurance policies.
10. Hazardous Substances Indemnity. Foundation expressly agrees to and shall
indemnify, defend, release, and hold the City, its officers, officials, directors, agents, 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 Property by Foundation, or its
respective officers, directors, agents, volunteers, employees or contractors, or by any other third
party acting under the control or request of Foundation, other than the City 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.
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& S.C. § 25330, et seq.; the California Safe Drinking Water and Toxic Enforcement Act, H. & S.C.
§ 25249.5, et seq.; Underground Storage of Hazardous Substances HA 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 Porter-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 providing 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 Foundation'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, Foundation agrees to conform to the requirements of the Americans
with Disabilities Act and any other relevant law in the performance of this Agreement.
14. Compliance with Law. Foundation's performance under this Agreement shall
comply with all applicable local, state, and federal laws,regulations, and ordinances.
15. 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:
City Foundation
City of Grand Terrace Foundation of Grand Terrace
22795 Barton Road
Grand Terrace,CA 92313
Attn: City Clerk
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16. 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.
17. 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.
18. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on
the date and year first written above.
CITY OF GRAND TERRACE FOUNDATION OF GRAND TERRACE
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City Clerk() L� Vice President for the Veteran's Memorial
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City Attorney
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Exhibit"A"
Memorial Property
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Memorial Property- Continued
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Exhibit"B"
Memorial Concept Drawing
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POLICY NUMBER: 605049461 BUSINESSOWNERS
BP 04 48 01 97
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - DESIGNATED PERSON
OR ORGANIZATION
This endorsement modifies insurance provided under the following:
BUSINESSOWNERS POLICY
SCHEDULE*
Name Of Person Or Organization: THE CITY OF GRAND TERRACE
22795 BARTON ROAD
GRAND TERRACE,CA 92313
' Information required to complete this Schedule, N not shown on this endorsement,will be shown in the Decla-
rations.
The following is added to Paragraph C. Who Is An
Insured in the Businessowners Liability Coverage
Form:
4. Any person or organization shown in the Schedule
Is also an insured, but only with respect to liability
arising out of your ongoing operations or premises
owned by or rented to you.
BP 04 48 01 97 Copyright, Insurance Services Office, Inc., 1997 Page 1 of 1 0