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HomeMy WebLinkAbout2018-192LICENSE AND AGREEMENT THIS LICENSE AND AGREEMENT is made and entered into this 5a' day of July 2018, by and between BURRTEC WASTE INDUSTRIES, INC., hereinafter referred to as "Licensee," and the CITY OF SAN BERNARDINO, a municipal corporation hereafter referred to as "City." WITNESSETH: For and in consideration of the mutual promises and covenants herein contained, the parties hereto do hereby agree as follows: 1. City hereby gives permission, removable and terminable as hereinafter provided, to Licensee for encroachment a fence to be located on the south side of Mill Street to the benefit and enjoyment of the commercial property located at 111 E. Mill Street, also known as Assessor's Parcel Number 0136-321-50, as described in the legal description attached hereto and incorporated herein as Exhibit "A" and as shown on the plat attached hereto as Exhibit `B" ("Encroachment Area"). Use of said Encroachment Area shall be for the right to construct, maintain, inspect, operate, protect, repair, replace and retain in place a six foot tubular steel fence ("Improvements"). Licensee agrees to install, use and maintain said Encroachment Areas required by this Agreement. All Improvements 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 the placement of any Improvements 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 Improvements, the LICENSE AGREEMENT FOR ENCROACHMENT OF TUBULAR STEEL FENCE AT 111 E MILL ST; IN THE CITY OF SAN BERNARDINO, CA. 1 of 8 Licensee shall fill all trenches 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. 2. The Encroachment Area 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. 3. 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 Agreement is granted, including the widening, change of grade, construction or reconstruction of such highway, street, alley or other public places or portion thereof, for the 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 LICENSE AGREEMENT FOR ENCROACHMENT OF TUBULAR STEEL FENCE AT III E MILL ST; IN THE CITY OF SAN BERNARDINO, CA. 2 of 8 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. 4. 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. 5. 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 of this 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. 6. 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 LICENSE AGREEMENT FOR ENCROACHMENT OF TUBULAR STEEL FENCE AT 111 E MILL ST; IN THE CITY OF SAN BERNARDINO, CA. 3 of 8 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. 7. This Agreement may be extended for any additional terms by written mutual consent and approval by the Licensee and the Director of Public Works. 8. 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 Area 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. 9. City shall in no way be responsible for loss of or damage to said Encroachment Area or for any property belonging to or leased by Licensee, its officers, servants, agents or employees, that may be stolen, destroyed or in any way damaged during the installation, use or maintenance of said Encroachment. 10. 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 LICENSE AGREEMENT FOR ENCROACHMENT OF TUBULAR STEEL FENCE AT 111 E MILL ST; IN THE CITY OF SAN BERNARDINO, CA. 4 of 8 this Agreement, the construction, installation, use and maintenance of said Encroachment Area, 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. 11. 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 fin-nished. 12. This Agreement is personal to Licensee. It is non -assignable, 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. 13. 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 LICENSE AGREEMENT FOR ENCROACHMENT OF TUBULAR STEEL FENCE AT 111 E MILL ST; IN THE CITY OF SAN BERNARDINO, CA - 5 of 8 California. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 14. 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. 15. 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. 16. 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. 17. All official notices relative to this Agreement shall be in writing and addressed to the following representatives of Licensee and City: LICENSE AGREEMENT FOR ENCROACHMENT OF TUBULAR. STEEL FENCE AT 111 E MILL ST; IN THE CITY OF SAN BERNARDINO, CA. 6 of 8 City: CITY OF SAN BERNARDINO C/O Public Works — Real Property 290 North "D" Street San Bernardino, CA 92401 Licensee: BURRTEC 9890 Cherry Avenue Fontana, CA 92335 18. 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 City Council of City. 19. 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. [Signatures on following page] LICENSE .AGREEMENT FOR ENCROACHMENT OF TUBULAR STEEL FENCE AT 111 E. MILL ST; IN THE CITY OF SAN BERNARDINO, CA - 7 of 8 LICENSE AGREEMENT FOR ENCROACHMENT OF TUBULAR STEEL FENCE AT 111 E MILL ST, IN THE CITY OF SAN BERNARDINO, CA. IN WITNESS, the parties have executed this above. CITY OF SAN BERNARDINO: BU7)W DUSTRIES, INC.: M144 k" k, ANDREX M MILLER, City Manager By: Owett (PRINT NAME) Its: P2 6-3 I D 4F*I T (PRINT TITLE) Approved as to form: GARY D. SAENZ, City Attorney By: �— ATTEST: Georgeann arena, CM . ity Clerk LICENSE AGREEMENT FOR ENCROACHMENT OF TUBULAR STEEL FENCE AT 111 E MILL ST; IN THE CITY OF SAN BERNARDINO, CA. 8 of 8