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Georgia Capital LLC-2019-02 2019-02 RIGHT OF ENTRY AGREEMENT This RIGHT OF ENTRY AGREEMENT ("Agreement") is dated for reference purposes as of_ rvu- Ae g 22 , 20 /9 and is entered into by the City of Grand Terrace ("City") and Georgia Capital, LLC, a Georgia limited liability company ("Owner"). RECITALS WHEREAS, the City is contemplating a project to extend and widen Commerce Way as shown on the map attached hereto as Exhibit "A" and incorporated herein by this reference (the "Project"); and WHEREAS, Owner is the owner in fee simple of that certain real property located in the City of Grand Terrace, California, and designated by the San Bernardino County Assessor as Assessor's Parcel Nos. 1167-161-33 and 1167-151-79 (the "Property"); and WHEREAS, the City may determine it needs to acquire a portion of the Property in connection with the Project; and WHEREAS, prior to proceeding with the Project, the City wishes to investigate the condition of the Property by conducting a Phase I Environmental Assessment (the "Environmental Assessment"); and WHEREAS, Owner is willing to permit the City and its chosen environmental consultant to enter the property to conduct an Environmental Assessment of the Property. NOW, THEREFORE, the City and Owner agree as follows: 1. RIGHT OF ENTRY. Owner grants to the City and its chosen environmental consultant(s) the non-exclusive right to enter the Property upon and subject to the terms and conditions set forth herein for purposes of performing the Environmental Assessment, The Environmental Assessment may include entry, inspection, surveying, mapping, diagramming, photographing, and the use of ground penetrating radar, of and on all portions of the Property, as well as any buildings, structures or improvements thereon. 2. TERM. The term of this Agreement shall commence on the date that the City first enters the Property pursuant to this Agreement and shall end ninety (90) days thereafter. The City shall give written notice to Owner at least three (3) business days prior to the date on which City will first enter the Property. 01247.0017/526478.3 3. USE. (a) The rights of the City hereunder shall be temporary, and shall be solely for the purpose of conducting an Environmental Assessment of the Property and not for any other purpose. The City shall not permit any waste or damage to be done to the Property. The City shall not deposit any litter or debris on the Property. The City is responsible for obtaining all permits, agreements, and any other governmental authorizations required for its activities on the Property described herein. (b) The City, its consultants and subcontractors shall, at their own cost and expense, comply with all of the requirements of all municipal, state, and federal authorities pertaining to their presence on the Property, including all applicable traffic regulations. The City, its consultants and subcontractors shall not use or permit the use of the Property in any manner that would tend to create a nuisance or which would unreasonably disturb owners or occupants of surrounding properties. (c) The City shall keep the Property free from all liens, taxes and assessments resulting from or caused by its entry onto and activities on the Property. 4. UTILITIES. The City shall pay all charges for electricity and all other utility services, if any, used by the City in or about the Property during the term of this Agreement. 5. REPORTS. Upon completion of the Environmental Assessment, the City shall provide Owner with a copy of all of the results of the Environmental Assessment within fifteen (15) days of the City's receipt of its environmental consultant's report of the Environmental Assessment. Until and unless the City has acquired all real property or interests in real property required for the Project, or has determined it will not proceed with the Project, the City shall limit dissemination of information regarding the Environmental Assessment to Owner, any appraiser retained by the City to appraise the Property, and to the City Council and City agents, employees and consultants involved on the City's behalf in the negotiation of a voluntary acquisition of the Property by the City. If the City adopts a resolution of necessity, the City may use and disclose the Environmental Assessment as reasonably necessary in the course of eminent domain proceedings. If the City receives a request for public records pursuant to the California Public Records Act (Govt. Code §§ 6250 et seq.) ("PRA") that could lead to disclosure of the Environmental Assessment, the City shall notify Owner of its receipt of that request and Owner shall be responsible for taking legal action to enjoin the disclosure of the Environmental Assessment within 10 days following the City's notice to Owner of the request for the information. If Owner takes no action to enjoin disclosure, or if such action is unsuccessful, the City shall not be in violation of this Agreement for disclosing the information pursuant to the PRA. Under no circumstances shall the City be liable for damages to Owner or to the Property due to the disclosure of information regarding the Environmental Assessment pursuant to the PRA. 6. INDEMNIFICATION. The City shall indemnify, defend and hold harmless Owner, its employees, officers, directors, principals, shareholders, customers, 01247.0017/526478.3 2 contractors and agents from and against any all claims, judgments, damages, liabilities and losses, including but not limited to consultant, expert, and attorney's fees, damages and losses (collectively, "Claims") to Owner, its employees, contractors, agents, and customers, which directly arise from the Environmental Assessment performed by City, its employees, contractors, agents, invitees or other representatives, from the failure of City, its employees, contractors, agents, invitees or other representatives to comply with the terms and conditions of this Agreement, from any bodily injury, including death, which occurs as a result of the Environmental Assessment and/or the presence of City, its employees, contractors, agents, invitees or other representatives on or about the Property, except Claims arising out of the sole negligence or willful misconduct of Owner, its officers, agents, contractors and/or employees. The foregoing indemnification shall not be deemed to include Claims arising from any discharge, leakage, spillage, emission, or pollution of any type, caused by Hazardous Materials in existence or present in, on, beneath or under the Property prior to the time of the City's entry to the Property pursuant to this Agreement. The City shall not be held responsible for managing, monitoring, or abating any pre-existing Hazardous Materials. Notwithstanding the foregoing, the City is not indemnifying Owner against the effect of the presence of Hazardous Materials on or under the Property on the market value or fair market value of the Property and the City shall not be precluded from taking the position, in negotiations or litigation, that the value of the Property is adversely affected by the presence of Hazardous Materials on or under the Property. The indemnification obligations contained in this Section 6 shall survive the termination of this Agreement. 7. INSURANCE. LOR Geotechnical Group, Inc., the City's contractor that will perform the Environmental Assessment, has provided information to Owner regarding its insurance applicable to entry onto the Property and performance of the Environmental Assessment. A copy of the information provided is attached hereto as Exhibit "B". Owner has informed the City and its contractor the insurance is acceptable. 8. SURRENDER. Upon the termination of this Agreement, all right, title, and interest of the City in and to this Agreement shall be surrendered peaceably to Owner and the City shall remove any personal property of the City and its respective agents, employees, contractors and/or invitees. 9. SECURITY MEASURES. The City hereby acknowledges that Owner is not obligated to provide any security measures, and Owner shall not be liable for any defects or negligence in the implementation of any security measures that Owner may, in fact, provide. The City assumes all responsibility for the protection of any vehicles that are the subject of the City's bailment, or are otherwise the property of the City, its agents, employees, construction workers or invitees, and their property, from the acts of third parties. 10. NUISANCE AND WASTE. The City shall not commit, suffer or permit any nuisance or waste damage or destruction to occur in or about the Property as a result of the City's activities or the activities of the City's respective agents, employees, contractors and/or invitees, and the City shall not permit the use of the Property for any illegal or immoral purpose. When this Agreement terminates, upon such termination, the 01247.0017/526478.3 3 City, at its sole expense, shall repair any waste, damage or destruction resulting from the City's activities or the activities of the City's respective agents, employees, contractors and/or invitees, and the City shall restore the Property to that condition existing prior to the City's use of the Property, normal wear and tear consistent with industry standards for conducting the Environmental Assessment excepted. Should the City fail to vacate the Property in a clean and undamaged condition, Owner shall provide written notice of any deficiencies to the City and shall provide the City a reasonable amount of time to correct any deficiencies (which time shall not exceed thirty (30) days). If, after providing the City reasonable notice and an opportunity to correct any deficiencies, Owner may arrange for the correction of any deficiencies to the Property, the reasonable costs of which will be reimbursed by the City within thirty (30) days of such correction of deficiencies. 11. WAIVER. The waiver by any part to this Agreement, or the failure on the part of a party to this Agreement to enforce any right it may have hereunder, shall not constitute a waiver of any other or subsequent, similar, or different breaches, or a waiver of such party's power to enforce such rights. 12. TERMINOLOGY. (a) "City" as used herein shall include the City's employees, officers, elected officials, consultants, contractors and subcontractors. (b) "Hazardous Materials" as used herein means any substance, material, pollutants, contaminants, or waste, which is regulated by any local governmental authority, the State of California or the United States Government, and any hazardous substance or material as otherwise defined by applicable federal, regional, state, county, and local environmental laws, regulations and ordinances, including but not limited to the following laws, as amended, and rules and regulations promulgated thereunder: the Comprehensive Environmental Response, Compensation and Liability Act, the Resources Conservation and Recovery Act, the Occupational Safety and Health Act, the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, and the Toxic Substance Control Act. 13. ASSIGNMENT. This Agreement is personal to the City. The City agrees not to assign, sell, transfer, encumber, pledge or otherwise hypothecate any part of the Agreement or the Property or the City's interest herein to any entity without the prior written consent of Owner, which consent may be withheld in Owner's sole and absolute discretion. Any purported assignment by the City of this Agreement shall be void ab initio and a basis for immediate termination of this Agreement. 14. ATTORNEYS' FEES. If any party named herein brings an action to enforce the terms herein or to declare its rights hereunder, the prevailing party in any such action, on trial and appeal, shall be entitled to recover its costs and reasonable attorneys' fees including those of in-house counsel. 01247.0017/526478.3 4 15. NOTICE. All notices, consents, requests, demands, approvals, waivers, and other communications desired or required to be given hereunder (collectively, "notices") shall be in writing and signed by the party so giving the notice, and shall be effectively given or served: (i) on the date of personal service upon the person to whom it is directed; (ii) on the date the notice is received or rejected provided it is sent U.S. first class registered or certified mail, postage prepaid, return receipt requested; or (iii) on the date the notice is delivered by a nationally recognized courier service to the address of the person to whom it is directed provided it is sent postage prepaid to the address of the person to whom it is directed. The addresses of the parties are: If to the City: City of Grand Terrace 22795 Barton Road Grand Terrace, California 92313 Attn: Alan French, Public Works Director Phone: (909) 824-6621 With a copy to: Aleshire & Wynder, LLP 18881 Von Karman Avenue, Suite 1700 Irvine, CA 92612 Attn: Adrian Guerra, Esq. Phone: (949) 223-1170 If to Owner: Georgia Capital, LLC 4279 Roswell Road Atlanta, GA 30342 Attn: Whit Marshall and Kendall King With a copy to: Transtech David Mlynarski, Principal 13367 Benson Ave Chino, CA 91710 Either party may, from time to time, change its address by giving written notice therein in the manner outlined above. 01247.0017/526478.3 5 16. GOVERNING LAW. This Agreement shall be interpreted, enforced and governed by the laws of the State of California. 17. AMENDMENTS. No provisions of this Agreement may be amended or modified except by an agreement in writing executed by both parties hereto. 18. SEVERABILITY. In the event that any one or more of the provisions contained in this Agreement shall for any reason be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision herein, and the remainder of the provisions of this Agreement shall continue in full force and effect without impairment. 19. SOLE AGREEMENT. This Agreement constitutes the sole agreement by the parties with respect to access to the Property for purposes of the Environmental Assessment and supersedes all other written and oral agreements or understandings. 20. NO RECORDING. Neither this Agreement nor any memorandum of Agreement shall be recorded in the Official Records of San Bernardino County. 21. CONSENTS OF PARTIES. The execution and delivery of this Agreement by the City and Owner, and the performance of this Agreement by the City and Owner, have been duly authorized by the City and Owner in accordance with applicable ordinances, rules and regulations and the laws of the State of California (as to the City) and in accordance with applicable management agreements, bylaws, formation documents and the laws of the State of Georgia (as to Owner), including the authorization of the persons executing this Agreement on behalf of the City and Owner. This Agreement is binding on the City and Owner and is enforceable against the City and Owner in accordance with its terms as of the Effective Date. 01247.0017/526478.3 6 IN WITNESS WHEREIN, the City has caused its authorized representative to execute duplicate original counterparts of this Agreement. "THE CITY" "OWNER" The City of Grand Terrace Georgia Capital, LLC By: By: G. Harold y ATTEST: By: City Clerk APPROVED AS TO FORM: APPROVED AS TO FORM: Aleshire &Wynder, LLP By. a`--- ler By. City Attorney 01247.0017/526478.3 7 Exhibit "A" 1 ram, 1 r �i• I I , ��� \�1 - ,t C Lr1 `;J i � C LEGEND: xae rw awn N a �y E GRANDCROSSING CITY OF GRAND TERRACE w S PRELJMINARY ROAD ALIGNMENT AND OWNERSHIP EXHIBIT r•�zoo• mr- d wo o zoo •.....r.. r rni)ree-izx 9 o