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HomeMy WebLinkAbout2011-282 1 2 RESOLUTION NO. 2011-282 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING EXECUTION OF A 3 LICENSE AGREEMENT WITH AT&T CORPORATE REAL ESTATE FOR AN ENCROACHMENT WITHIN STODDARD A VENUE SOUTH OF 2ND STREET, FOR 4 THE INSTALLATION OF UTILITY SERVICE LINES NECESSARY FOR THE OPERATION OF FUEL CELL UNITS. 5 6 7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 8 9 hereby approves a License Agreement with AT&T Corporate Real Estate for an encroachment 10 11 12 SECTION 1. That the Mayor and Common Council of the City of San Bernardino within Stoddard Avenue south of 2nd Street, in the City of San Bernardino, for the installation of water, data and electrical service lines necessary for the operation of fuel cell units. 13 14 behalf of the City said License Agreement, a copy of which is attached hereto and 15 16 SECTION 2. That the City Manager is hereby authorized and directed to execute on incorporated herein as Exhibit "A". 17 SECTION 3. The authorization to execute the above referenced license agreement is 18 rescinded if the parties fail to execute it within ninety (90) days of the passage of this 19 20 21 22 23 24 25 Resolution. /1/ 1// 26 27 28 2011-282 1 2 3 4 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING EXECUTION OF A LICENSE AGREEMENT WITH AT&T CORPORATE REAL ESTATE FOR AN ENCROACHMENT WITHIN STODDARD AVENUE SOUTH OF 2ND STREET, FOR THE INSTALLATION OF UTILITY SERVICE LINES NECESSARY FOR THE OPERATION OF FUEL CELL UNITS. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 5 and Common Council of the City of San Bernardino at a regular meeting 6 thereof, held on the ~ day of October 7 8 9 , 20 II, by the following vote, to wit: NAYS ABSTAIN ABSENT Council Members: AYES MARQUEZ x 10 JENKINS x 11 12 13 14 x BRINKER x SHORETT x KELLEY JOHNSON x 15 16 MCCAMMACK 17 18 x ~1:J.C4J Ra el G. Clark, CMC, City Clerk 19 I The foregoing resolution is hereby approved this q"fIA day of Ockb~ ,2011. 20 21 ~ 2011-282 LICENSE AGREEMENT THIS LICENSE AGREEMENT ("Agreement") is made and entered into this 17th day of October ,2011, by and between AT&T CORPORATE REAL ESTATE, hereafter referred to as "Licensee," and the CITY OF SAN BERNARDINO, a municipal corporation, hereafter referred to as "City." WITNESSETH: F or and in consideration of the mutual promises and covenants herein contained, the parties hereto agree as follows: 1. City hereby gives permission, removable and terminable as hereinafter provided, to Licensee for an encroachment to install, maintain, inspect, operate, protect, repair, replace and retain in place water, data, and electrical utility service lines and appurtenances thereto, including any facilities necessary for protection thereof (hereafter, "Encroachment"). The utility service lines shall be used for the transportation of water, data, and electrical service, in, under, along and across public streets, within the City as follows: Stoddard Avenue south of 2nd Street as shown on the plat attached hereto as Exhibit" 1" and incorporated herein by reference. In the event that Licensee at any future time desires to expand its facilities to include public streets, highways and/or alleys other than as shown on said Exhibit "1" as authorized by this Agreement, an amendment of this Agreement shall be required before undertaking any such expansion, and subject to any requirements or conditions as may be imposed by the Director of Public Works of the City, or hislher designee. 2. Licensee agrees to install, use and maintain said Encroachment as required by this Agreement. Any utility service lines installed, located or maintained pursuant to this Agreement shall be so placed and maintained as not to interfere with the use of any public streets, highways, alleys or bridges by the traveling public to any greater extent than is reasonably necessary, and 10f8 2011-282 the placement of any utility service lines and appurtenant facilities shall be subject to approval of the Director of Public Works so as not to interfere or conflict with any existing, or future storm drains, sewers, water lines and any other utilities or improvements owned by the City. In installing, replacing, repairing or maintaining said utility service lines, the Licensee shall fill the trench and leave the surface of said streets, highways or alleys in as good condition as it was prior to excavating for said installation, replacement, repair or maintenance to the satisfaction of City, and shall comply with any and all Federal, State and local laws, rules and regulations applicable thereto, including the requirement for obtaining street cutting permits. Street cuts, temporary encroachment permits and restoration of street cuts shall be completed pursuant to City Standard 310 and subject to the requirements as set forth in Chapter 12.03 ofthe City of San Bernardino Municipal Code. 3. The Encroachment shall be maintained at all times in a safe, neat, sightly and good physical condition. City shall be the sole judge of the quality of maintenance, and upon written notice by City, through its Director of Public Works, stating in general terms how and in what manner the maintenance is required, Licensee shall be required to perform such maintenance. If Licensee fails to do so, then City shall have the right to perform this maintenance, the cost of which shall be borne by Licensee. Licensee shall, at its own responsibility and expense, obtain and keep in effect all licenses, bonds, insurance and permits necessary for the installation and existence of said Encroachment. 4. City reserves the right to improve, widen, vacate or relocate any highway, street, alley or other public places, or portion thereof, over and within which this License is granted, including the widening, change of grade, construction or reconstruction of such highway, street, alley or other public places or portion thereof, the installation, repair or maintenance of storm drains, sewers, water lines and any other utilities or improvements owned by the City for the 20f8 2011-282 purpose of any public improvements. If notice is given by City to Licensee that work is to be done pursuant to the rights reserved herein, which notice shall specify the general nature of the work in the area in which the same is to be performed, Licensee shall at its expense, do all things reasonably necessary to protect, disconnect, relocate or remove its property during the progress of such work at the required time in order to accommodate such work. All such things to be done and work to be performed by Licensee shall be at the sole cost and expense of the Licensee. In the event that City shall hereafter construct, install, reconstruct or repair any bridge or artificial support in, on, over or underlying any highway, street, alley or other public place or improvement in which the Licensee's property is located pursuant to this Agreement, and in the event that the cost of such work as may reasonably be required is increased in order to provide for the installation, maintenance or operation of Licensee's property in, on, over or under the area covered by such project, then Licensee shall pay to City the full amount of such increase of cost, upon completion of such construction, installation or repair. Any damage done directly or indirectly to any public street, highway, alley or other public place or improvement by the Licensee, in exercising directly or indirectly any right, power or privilege under this Agreement, or in performing any duty under or pursuant to the provisions of this Agreement, shall be promptly repaired by Licensee at its sole cost and expense, to the reasonable satisfaction of City. 5. This permission is given to Licensee as an accommodation to Licensee and shall be subject to the requirement that the Licensee maintain the applicable surface areas in a condition acceptable to the Director of Public Works of the City. 6. Licensee hereby acknowledges the title or paramount interest of City to the public right-of-way and agrees never to assail or resist said title or interest and to observe present or future set-back requirements relating thereto while this Agreement is in force and effect. 30f8 <:f - 2011-282 7. Licensee shall, as and for the consideration for the granting of this License, pay to the City of San Bernardino, forthwith, the sum of $625.00 due immediately upon approval ofthis Agreement by the City. This Agreement shall not take effect until such payment has been made by the Licensee to the City. Licensee shall also make an annual payment of $150.00 to the City which shall be due and payable on January 1 of each year while this Agreement is in effect. 8. City reserves the right to terminate this License Agreement at any time for any reason by giving Licensee at least thirty (30) days written notice of such termination, except that City may, at its election, terminate said permission forthwith at any time if Licensee shall fail to comply with or abide by each and all of the provisions hereof or keep each and all of the Licensee's promises herein. Waiver by City of any breach of any term or provision hereof shall not be deemed a waiver of any subsequent breach of the same or any other term or provision hereof. If not otherwise terminated, this Agreement shall be for a period of five (5) years commencing on the latest date of execution of this Agreement by the parties hereto and ending five (5) years from that date. 9. This Agreement may be extended for any additional terms by written mutual consent and approval by the Licensee and the Director of Public Works. 10. Upon termination of this Agreement, Licensee agrees to immediately remove said Encroachment from the public right-of-way and to restore the public right-of-way to the satisfaction of the Director of Public Works. If Licensee fails to exercise its duties under this paragraph, City shall have the right to remove said Encroachment and to restore the premises at no cost or liability to the City. Licensee covenants and agrees to reimburse City for such cost of removal and/or restoration. 11. City shall in no way be responsible for loss of or damage to said Encroachment or for any property belonging to or leased by Licensee, its officers, servants, agents or employees, 40f8 2011-282 that may be stolen, destroyed or in any way damaged during the installation, use or maintenance of said Encroachment. 12. Licensee shall exerCIse its privileges under this Agreement at its own risk. Licensee shall indemnify, defend and hold harmless City, its elective and appointive boards, commissions, officers, agents and employees from any costs, claims, damages, injuries, and liability resulting from, arising out of, or in any way connected with, the City's approval of this Agreement, the construction, installation, use and maintenance of said Encroachment, the occupation or use of the public areas of such structure, both during and after the installation thereof, and including but not limited to any costs, claims, damages, injuries, and liability resulting from the conduct of Licensee or the employees, invitees, guests or agents of Licensee, or Licensee's failure to perform its promises in connection herewith. 13. While not restricting or limiting the foregoing, during the term of this Agreement, Licensee shall maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory worker's compensation coverage, and shall file copies of said policies with the City's Director of Public Works prior to undertaking any work under this Agreement. City shall be set forth as an additional named insured in each policy of insurance provided hereunder. The Certificate of Insurance furnished to the City shall require the insurer to notify City of any change or termination in the policy. If the Licensee is self-insured, a Certificate of Self-Insurance, in a form acceptable by the City, may be furnished. 14. This Agreement is personal to Licensee. It is nonassignable, except with prior written consent of the City. Any attempt to assign this Agreement without consent will terminate the privileges granted to Licensee under this Agreement. The City will not unreasonably withhold consent. 50f8 l'jiT~:ir~~,;,"""N_",,",,,,~,,-,,,,';-o<,,,,"~-",,'d>"".-"'~"~""~ 2011-282 15. This guarantee shall be governed by and construed and interpreted in accordance with the laws of the State of California without regard to principles of conflicts of law. The parties hereto further agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Eastern Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 16. In the performance of this Agreement and in the hiring and recruitment of employees, Licensee shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law, except as permitted pursuant to Section 12940 of the California Government Code. 17. Licensee shall hold City, its authorized officers, agents and employees, harmless from and against any and all liability or loss resulting from claims or damages by any person arising out of the acts or omissions of Licensee, its agents or employees in the performance of any work authorized hereunder. 18. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the City shall be considered as "attorneys' fees" for the purposes of this paragraph. 60f8 2011-282 19. All official notices relative to this Agreement shall be in writing and addressed to the following representatives of Licensee and City: City Licensee CITY OF SAN BERNARDINO Public Works Department/Real Property 300 North "D" Street San Bernardino, CA 92418 Ph: (909) 384-5111 Fax: (909) 384-5190 AT&T CORPORATE REAL ESTATE Planning Design and Construction 7701 Artesia Blvd., Rm 100 Buena Park, CA 90621 Ph: (909) 382-4000 Fax: (909) 382-0116 20. This Agreement may be modified only in a writing signed by the parties in interest at the time of the modification. No modification shall be binding upon City unless formally approved by a vote of the Mayor and Common Council of the City. 21. This Agreement constitutes the entire Agreement between the parties with respect to any matter referred to in this Agreement, and supersedes any and all other writings and oral negotiations with respect to any matter referred to in this Agreement. The terms of this Agreement shall prevail over any inconsistent provision in any other document relating to this Agreement, including exhibits to this Agreement. /II Signatures to follow on next page 70f8 ,,~:. ~..\~lj'l ...l 2011-282 LICENSE AGREEMENT FOR ENCROACHMENT OF UTILITY SERVICE LINES WITHIN STODDARD AVENUE SOUTH OF 2ND STREET; IN THE CITY OF SAN BERNARDINO, CA. IN WITNESS, the parties have executed this Agreement on date first written above. AT&T CORPORATE REAL ESTATE rJf{( f Senior Project Manager // jr~1 , / CITY OF SAN BERNARDINO ATTEST: ~~h.~ RA L CLARK, City Clerk Approved as to form: :;..~ ES F. PENMAN, ity Attorney 80f8 v L_-, I I 1 I I I I n n ~i lw ~l I I T "1" EXHIBI. . :dZI!'!!!!!!!: w.o") ...-.':,.'-..=:;. -- -..------ ---..._-~ ........--.....