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HomeMy WebLinkAboutSmith, Paul B. & Lorraine M. - License and Right of Entry Agreement - 10.01.23LICENSE AND RIGHT OF ENTRY AGREEMENT 966 NORTH VAN NESS AVENUE FRESNO, CALIFORNIA 93728 APN 452-126-07 This License and Right of Entry Agreement (Right of Entry) is entered on to 1 I Z 3 . 2023 by and between the CITY OF FRESNO, a California municipal corporation (City) and PAUL B. SMITH AND LORRAINE M. SMITH, Trustees of the Paul B. Smith, Jr. and Lorraine M. Smith Revocable Trust dated 12-6-19 (Owner). RECITALS A. Owner is the owner in fee of property located at 966 North Van Ness Avenue, Fresno, California 93728: Assessor Parcel Numbers 452-126-07 (the Property). B. The City has identified the need for repairs to the existing sanitary sewer mainline which runs underground along the eastern edge of the Property. C. City desires to obtain Owner's permission to enter onto the Property to perform necessary repairs to the sanitary sewer mainline. D. City acknowledges that this Right of Entry Agreement is a temporary measure to allow the City to proceed with construction of the sanitary sewer mainline. NOW, THEREFORE, the City and Owner do hereby agree as follows: AGREEMENT 1. Recitals. Each and all of the foregoing recitals of background facts are incorporated herein by this reference as though set forth herein. 2. Ri ht of Ent . Owner hereby grants to City and its agents, employees, and contractors the right to enter onto the portion of the Property specified in Exhibit A for the purpose of completing the sanitary sewer mainline repairs which includes, but is not limited to: a. Cutting and removing ±15 square feet of existing concrete, disposing offsite, replace with concrete, b. Trenching eight (8) linear feet of dirt/landscape to expose City sewer mainline, store onsite, replace to previous/existing grade. The permission granted is in consideration of the benefits that may accrue to the Property through performance of this work. 3. Term. This Right of Entry shall automatically terminate upon the completion of the Sanitary Sewer Mainline Repair (SRM 2455-13 to 2455-12) Project which is expected to take approximately two (2) weeks. The term may be extended by written notice to Owner in the sole and absolute discretion of the City. Right of Entry is subordinate to all prior or future rights and obligations of the Owner in the Property, except that the Owner shall grant no rights inconsistent with the reasonable exercise by City of its rights under this Right of Entry. 4. Owner's Obli_ aq tion. Prior to commencement of the work, Owner shall give written notice to all tenants of the work to be performed and the potential risk it may pose should tenants and their guests not maintain a safe distance from the project. Following completion of the work, Owner agrees to assume full responsibility for maintenance, repair and/or replacement of the improvements installed on the Property, other than the sewer mainline. 5. City's Obligation. At the end of the Project, the City will return the utilized property clean and clear of any construction materials and debris, and in its original condition. 6. Indemnification. To the furthest extent allowed by law, Owner shall indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Owner or any other person, and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees, litigation expenses and cost to enforce this agreement), arising or alleged to have arisen directly or indirectly out of the failure to comply with their obligations under this Agreement. City agrees to indemnify, defend, and hold harmless Owner from and against any and all claims, demands, suits, actions, liabilities, losses, damages, costs, and expenses (including reasonable attorney's fees) arising out of or in connection with any injury, death, property damage, or other harm to any person or entity that is caused by the active negligence or omissions of City or its agents, employees, or contractors during the repairs to the existing sanitary sewer mainline. Owner agrees that this Agreement shall in no way act to abrogate or waive any immunities available to City under the Tort Claims Act of the State of California. 7. Liens. City shall not permit to be placed against the Property, or any part thereof, any design professionals', mechanics, material men's, contractors', or subcontractors' liens with regard to City's actions upon the Property. City agrees to hold the Owner harmless for any loss or expense, including reasonable attorney's fees and costs arising from any such liens, which might be filed against the Property. 8. Compliance with Laws/Permits. City shall in all activities undertaken pursuant to this Right of Entry, comply and cause its contractors, agents, and employees to comply with all federal, state and local laws, statues, orders, ordinances, rules, regulations, plans policies and decrees. Without limiting the generality of the foregoing, City at its sole cost and expense shall obtain any and all permits which may be required by any law, regulation, or ordinance for any activities CITY desires to conduct or have conducted pursuant to this Right of Entry. 9. Inspection. The Owner and its representatives, employees, agents or independent contractors may enter and inspect the Property or any portion there at any time and from time to time at reasonable times to verify City's compliance with the terms and conditions of this Right of Entry. 10. Not Real Property Interest. It is expressly understood that this Right of Entry does not in any way whatsoever grant or convey any permanent easement, lease, fee, or other interest in the Property to City. This Right of Entry is not exclusive, and the 4 Owner specifically reserves the right to grant other rights of entry within the vicinity of the Property. 11. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 12. Revocable Licenses and Termination. Notwithstanding any improvements made by City to the Property or any sums expended by City in furtherance of this Right of Entry, the right of entry granted herein is revocable and may be terminated by the Owner in accordance with the terms of this Agreement. This Right of Entry may be terminated at any time prior to the commencement of the Project by either party upon one (1) business day's prior notice in writing to be served upon the other party. Once the sewer mainline has been opened, it must be repaired and closed before stopping any additional work on the Project. 13, No Assignment. This Right of Entry is personal to City and shall not be assigned. Any attempt to assign this Right of Entry shall automatically terminate it. No legal title or leasehold interest in the Property is created or vested in City by the grant of this Right of Entry. 14. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. Notice served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 15. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, excluding however, any conflicts of laws rule which would apply the law of another jurisdiction. Venue for purposes of filing any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. 16. Entire Agreement. Each of the Exhibits referred to in this Agreement is incorporated into and made a part of this Agreement. This Agreement constitutes the entire agreement between City and Owner relating to the Right of Entry. Any prior agreements, promises, negotiations, or representations not expressly set forth herein are of no force and effect. Any amendment shall be of no force and effect unless it is in writing and signed by the City and Owner. 17. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability, of any provision in this Agreement will not affect the other provisions. 18. Counterparts. This Right of Entry Agreement may be executed in counterparts, each of which shall be deemed an original. 3 [signature page follows] IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, on the day and year first above written. CITY OF FRESNO, PAUL B. SMITH AND LORRAINE M. a California municipal orpor tion SMITH, TRUSTEES OF THE PAUL B. SMITH, JR. AND LORRAINE M. SMITH t R LE TRUST DATED 12-6-19. By: - Scott ier Date DirecP of Public Works Paul B. Smith Date RECOMMENDED FOR APPROVAL Nancy Brn� Date Supervising Real Estate Agent APPROVED AS TO FORM: ANDREW JANZ City At r y 22 By, U r Z_3 �( ate De City Attorney Lorraine M. Smith Date Address for Notices. - Paul B. Smith Lorraine M. Smith 4744 N. Sunset Avenue Fresno, CA 93704 ATTEST: TODD STERMER, CMC City Cler By: 10-_q_Z02_3 Deputy Date 5