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HomeMy WebLinkAboutTutor Perini_Zachary_Parsons License and Right of Entry AgreementLICENSE AND RIGHT OF ENTRY AGREEMENT This License and Right of Entry Agreement ("Right of Entry") is entered in this 4th day January,2016 byãnd between the CITY OF ÈRESNo, a óalifornia municipal corporation ("Agency") and Tutor PerinilZachary/Parsons, as a Joínt Venture ("Licensee"). RECITALS A. WHEREAS, the Agency is the owner in fee of that certain real property commonly referred to as the Box Car Lot as more particularly described in Exhibit "4" attached hereto and incorporated herein by reference (the "property") B. WHEREAS, Licensee desires to obtain the Agency's permission to enter'onto the Property, on temporary basis, to perform construction staging. C. WHEREAS, the Pafties wish to enter into this Right of Entry whereby the Agency will allow Licensee to enter the Property on a temporary basis, for the purpose of performing Construction Staging, more particularly described in Exhibit "8" attached hereto and incorporated herein by reference. NOW, THEREFORE, the AGENCY and LICENSEE do hereby agree as follows: AGREEMENT 1. Riqht of Entrv. The AGENCY hereby grants to LICENSEE and its agents, employees, and contractors the temporary right to enter onto the Property for the purpose of performing Construction Staging and for no other purpose. 2. Term. The term of this Right of Entry shall automatically terminate three hundred and five (305) calendar days from the date first herein written above unless earlier terminated as provided herein. The term may be extended by written notice to LICENSEE in the sole and absolute discretion of the AGENCY. Right of Entry is subordinate to all prior or future rights and obligations of the AGENCY in the Property except that the AGENCY shall grant no rights inconsistent with the reasonable exercise by LICENSEE of its rights under this Right of Entry. 3. Liens. LICENSEE shall not permit to be placed against the Property, or any part thereof, any design professionals', mechanics, materialmen's, contractors' or subcontractors' liens with regard to LICENSEE's actions upon the Property. LICENSEE agrees to hold the AGENCY 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. 4. lndemnitlr and lnsurance. LICENSEE agrees to the lndemnification provisions attached hereto as Exhibit C and to the lnsurance provisions attached here to as Exhibit D and incorporated herein. 5. Compliance with Laws/Permits. LICENSEE 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, LICENSEE 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 LICENSEE desires to conduct or have conducted pursuant to this Right of Entry. 6. lnspection. The Agency and its representatives, employees, agents or independent contractors may enter and inspect the Property or any portion there or any improvements thereon at any time and from time to time at reasonable times to verify LICENSEE's compliance with the terms and conditions of this Right of Entry. 7. Restoration of Property. Upon termination of this License for any reason, LICENSEE, at its sole expense, shall vacate and surrender the Property and remove all LICENSEE property in or upon the Property. LICENSEE shall, at its sole expense, restore the Property to the same condition in which the property was at the commencement of this License or a condition reasonably satisfactory to AGENCY. Should LICENSEE fail or refuse to comply with the terms of this section, AGENCY, at its option, may perform any restoration work it deems necessary, and LICENSEE shall reimburse AGENCY for all costs and damages that the AGENCY incurs. 8. Not Real Propertv lnterest. lt 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 LICENSEE. This Right of Entry is not exclusive and the AGENCY specifically reserves the right to grant other rights of entry within the vicinity of the Property. 9. Attorney's Fees. ln the event of a dispute between the parties with respect to the terms or conditions of this Right of Entry, the prevailing party shall be entitled to collect from the other its reasonable attorneys' fees as established by the judge or arbitrator presiding over such dispute. 10. Revocable Licenses and Termination. Notwithstanding any improvements made by LICENSEE to the Property or any sums expended by LICENSEE in furtherance of this Right of Entry, the right of entry granted herein ís revocable and may be terminated by the AGENCY in accordance wíth the terms of this Agreement. This Right of Entry may be terminated at any time by either party upon one (1) business day's prior notice in writing to be served upon the other party. ln cases of any emergency or a breach of this Agreement by LICENSEE, this Right of Entry may be terminated by the AGENCY immediately. 11. Continuing liability. No termination of this Right of Entry shall release LICENSEE from any liability or obligation hereunder resulting from any acts, omissions or events happening prior the termination of this Right of Entry and restoration of the property to its prior condition. 12. No Assignment. This Right of Entry is personal to LICENSEE and shalt 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 LICENSEE by the grant of this Right of Entry. 13. Service of Notice. Except as otheruise provided in this Agreement, any notice requíred or permitted to be given hereunder shall be in wríting and may be giveñ by personal delivery or by certified or registered mail, and shall be deemed sufficienflygiven if delivered or addressed to LICENSEE at the address listed below thó LICENSEE's signature, or to AGENCY at 2600 Fresno Street, Fresno, California 93721, Attention: City Manager, with a copy to 2600 Fresno Street, Fresno, CA 93721, Attention: City Attorney. Mailed notices shall be deemed given upon actual receipt at the address required, or forty-eight hours followíng deposit in the mail, postage prepaid, whichever first occurs. Either party may by notice to the other specify ã different address for notice purposes. 14. Laws. Venues. and Attorneys' Fees. This Agreement shall be interpreted in accordance with the laws of the State of California. lf any action is brought to interpret or enforce any term of thís Agreement, the action shall be brought in a stãte or federal court situated in the County of Fresno, State of California. ln the event of any claim, legal action or proceeding between the parties arising under or concerning thió Right of Entry, or any of the rights and obligations described herein, the prevailing party shall be entitled to reasonable attorneys' fees and expenses. All such fees sñall be deemed to have accrued on commencement of the action and shall be enforceable whether or not such action is prosecuted to judgment. 15. 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 AGENCY and LICENSEE relating to the Right of Entry. Any prior agreements, promises, negotiations, or representations not expressly set fortñ 3 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 AGENCY and LICENSEE. 16. Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability, of any provision in this Agreement will not affect the other provisions. 17. Counterparts. This Right of Entry Agreement may be executed in counterparts, each of which shall be deemed an original. lN WITNESS WHEREOF, the parties have executed this Right of Entry to be effective as of the date fírst above written. CITY OF FRESNO, a California municipal corporation ATTEST: WONNE SPENCE, CMC City Clerk Deputy APPROVED AS TO FORM: City Attorney's Office By: Addresses: CITY: City of Fresno Attention: Randall Morrison, PE, MCE, Deputy City Engineer 2600 Fresno Street, 4th Floor Fresno, CA..93721-3623 Phone: (559) 621-8703 FAX: (559) 457-1277 LICENSEE: TUTOR PERI N I/ZACHARY/PARSONS, a Joint Venture Addresses: LICENSEE: TPZP Attention: Curtis Weltz 1401 Fulton Street Fresno, CA93721 Phone: (559) 385-7025 ruce Rudd, City Manager Title: lz'3¿-15- Raj Sihgh Badhesha Exhibit A PROPERTY DESCRIPTION Right of Entry Agreement between the Gity of Fresno ("clry"l and Tutor Pe¡inilZachary/Parsons, as a Joint Venture (,.Licensee"! 1 The property is located at 1309 "H" Street and partially in Parcel No. FB-10-0125. Its boundaries are "H" Street to the North and East, Tuolumne Street to the South and East, UPRR Line to the South and West, and Stanislaus Street to the North and West. 2. See map in Exhibit B. Exhibít B TEMPORARY USE DESCRIPTION Right of Entry Agreement between the city of Fresno (,.clry',) and rutor PerinilZacharylParsons, as a Joint venture (,,Licensee',) 1- The Staging Area will be fenced at its limits with one double-gated entry and a ïemporary Construction Entrance (TG-1) and used for:a. Construction Operations during the demolition of the existing bridge and its replacement. b. stockpile of soil and debris from construction operations.c. Storage of formwork and falsework materials. 2. See attached map for fencing limits" Site Map I t, Stabilized Gonstruction Entrance/Exit Limitations Standards and Specifications Standad Symbol Bll{lP Objectlves c Soil Stabilization o Sediment Control o Tracking Gontrol r'Wind Erosion Control c Nlû¡ -Stcr Rr !4t¡rËer ii4e rlageirrclrl ,t,- t',¡l;':iliit:1' í,liill'r; r¡i;i;, ;-í:CC:X :S Ci,l-ì:rfd li',' i, tritiiti. ,.,1 l:illr-¿iit-1,,,1,):ii 1il Í; c.onshuctioü site that is stak¡ilized to reduce fhe ira.cking ol nruel a¡d diri ont;c pr-rtrlic I'oads by conshretion vshieles. ¡ Use at construction sites: Where dirt or mud can be tracked onto public roads. Adjacent to water bodies. Where poor soils a¡e encountered. - Where dust is a problem during dry weather oonditions. r This BMP may be implemented on a projeot-by-project basis in addition ûo other BMPs when determined necessary and feasible by the Resident Engineer (RE). E Site oonditions will dictate desigrr and need. r Limit the points of entrance/exit to the oonshuotion site. - Limit speed of vehicles to contol dust. r Properþ grade each consfruction entrance/exit to prevent runoff from leaving the construction site. r Route runofffrom stabilized enEances/exits through a sediment-trapping device before discharge. x Design stabilized entrance/exit to support the heaviest vehicles and equipment that will use it. æ3åir,iË"ìi3irìHE:sifi 'llii'Jì13î?[',".,,*"i'enua, Æ Mantr 1,20oO Seclion I Stabilized Con8trudion EnFance/Exil TC-l i of4 Stabilized Gonstruction Entrance/Exit ¡ Select construction access stabilization (aggregate, asphaltic concrete, ooncrete) based on longevity, required performance, and site conditions. The use of asphalt concrete (AC) grindings for stabilized construction accesVroadway is not allowed. r Use of constructed/manufastured steel plates with ribs for entrance/exit access is allowed with written approval fiom the RE. r Ifaggregate is selected, place crushed aggregate over geotextile fabric to at least 300 mm (12 in) depth, or place aggregate to a depth recommended by the RE. Crushed ag$eELtE greater than 75 mm (3 inches) and smalle¡ than 150 mm (6 inches) shall be used. r Designate oombination or single pur?ose entrances and exits to the construclion sile. r i_lirli tl i. Require all employees, subcontractors, and suppliers to utilize the siabilized eonstruction acoess. ¡ All exit looations intended to be used continuously and for a period of time shall have stabilized consfuction entrance,/exit BMPs (TC-l ,,stabilized Construction EnfranceÆxif' or TC-3 "Entrance/Outlet Tire Wash"). Maintenance and I Inspect routinely for damage and assess effectiveness ofthe BMP. Remove lnspection a9gle9ate, separate and dispose of sediment if construction entrance/exit is clogged with sediment o¡ as directed by the RE. r Keep all temporary roadway ditches clear. r Inspeot for darnage and repair as needed. æ Caltransslorm WabrQualily Handbooks soclion 6 æ, fi:Liicztßlt¡þ BeBttlsnagenrent Pract¡coE Manuãl slabilized construc{¡on enrance/ExirrTf,rf 10 Stahilized Gonstruction Entrance/Exit Crushed oggregote (3 in) but smoller greoter thon 75 mm thon 150 rnm (0 in) .500 mm specified Filter fcbric (tZ in) Min, unless otherwise by o soils engineer (: l-. 'l i¡-l Ëfol NOTT: Construct sedirrlerrt bqrrierond chonnelize runoff to sedîment tropplnq device '-l<t =lol orEr olldl>l<l älZ.t -lU'IXI'l culvert Motch Existíng Grode or four times the circumferenceof the lorgest construction vehicle tÍre. whichever is greoter PLANTTT Stabilized Contraction Entrance/Exit (Type .!) &nüï::,:3',r.ff E:s,l,i':T jl".H:ll5'oa¡"""u"nu"r ã, Merch t, 2oo3 Seclion 6 Stabilized Construdion Enlrance/Exit TG.i 3of,l 11 Stabilized Gonstruction Entrance/Exit Crushed oqgregote greoter thon 75 mm 5 in) but smoller thon 150 mm (6 in) Crushed ogqregote greoter thon 75 mm(3 in) but smoller thon 150 mm (6 ln) Filter I'obrÌc 15 m Min Originol grode Corrugoted steel ponels Filler fobric Orloinol gro.-de ì.JÔTË: Construct sediment borrier ond chonnelize runoff to sediment Lroppîng devîce Match Existing Grode Sediment tropping devtceH -clo!#iol I =o oÉ. ot/ TL (9 z.trvl =l.¡l ,\ or four times the circumferenceof the lorgest construction vehîcle tire, whichever is greoter Stabillzed Construction Entrance/Exit (Type 2) úItst 12 Callrans Stonn Waler Ouality Handbooks Con¡truclion Sib Be¡t ttlanagemant Preclicts Manurl Msrch I, 2003 Seclion 6 Stabilized Conslruction Enl¡ance/Édt TC.l 4of4 Exhibit C INDEMNIFICATION AND INSURANCE PROVISIONS Right of Entry Agreement between the City of Fresno ("C|TY") and Tutor PerlnllZachary/Parsons, as a Joint Venture ("Licensee"). 1. lndemnification. (a) Licensee, as a material part of the consideration to be rendered to CITY under this agreement, waives all claims against CITY for damages to all personal property in, on, or about the Propefty, and for injuries to persons in or about the Property, from any cause arising at any time. (b) To the furthest extent allowed by law, Licensee 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 propefiy damage) incurred by CITY, Licensee or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Licensee obligations under the preceding sentence shall apply regardless of whether CITY or any of its officers, officials, employees, agents or volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of Clry or any of its officers, officials, employees, agents or volunteers. lf Licensee should subcontract all or any portion of the work to be performed under this Agreement, Licensee shall require each subcontractor to indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. (c) This section shall survive expiration or termination of this Agreement. 2. Insurance. (a) Throughout the life of this Agreement, Licensee shall pay for and maintain in full force and effect all insurance as required in Exhibit D or as may be authorized, and any additional insurance as may be reasonably required, in writing by CITY'S Risk Manager or his/her designee at any time and in his/her sole discretion. (b) lf at any time during the life of the Agreement or any extension, Licensee fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, until notice is received by t3 CITY that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a perÍod satisfactory to CITY. Any failure to maintain the required insurance shall be sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this section shall in any way relieve Licensee of its responsibilities under this Agreement. The phrase "fail to maintain any required insurance" shall include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by Licensee shall not be deemed to release or diminish the liability of Licensee, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Licensee. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Licensee, its principals, officers, agents, employees, persons under the supervision of Licensee, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone enrployed directly or indirectly by any of them. (d) Upon request of CITY, Licensee shall immediately furnish CITY with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the broker of record to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. t4 EXHIBIT D INSURANCE REQUIREMENTS Right of Entry Agreement between the City of Fresno ("C|TY") and Tutor PerinilZachary/Parsons, as a Joint Venture (.,Licensee") I. MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 1. The most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under "Minimum Limits of lnsurance." 2. The most current version of ISO *Commercial Auto Coverage Form CA O0 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto). lf personal automobile coverage is used, the CITY, its officers, officials, employees, agents and volunteers are to be listed as additional insureds. 3. Workers' Compensation insurance as required by the State of California and Employer's Liability lnsurance. A. MINIMUM LIMITS OF INSURANCE Licensee, or any party the Licensee subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to ClTy, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY: (¡) $1,000,000 per occurrence for bodily injury and property damage; 15 (¡i) $1,000,000 per occurrence for personal and advertising injury;(¡ii) $2,000,000 aggregate for products and completed operations; and,(¡v) $2,000,000 general aggregate applying separately to the work performed under the Agreement. COMMERCIAL AUTOMOBILE LIABILITY: $1,000,000 per accident for bodily injury and property damage. WORKERS' COMPENSATION INSURANCE as required by the State of California with statutory limits. EMPLOYER'S LIABILITY: (i) $1,000,000 each accident for bodily injury;(ii) $1,000,000 disease each employee; and,(iii) $1,000,000 disease policy limit. 1. UMBRELLA OR EXCESS INSURANCE ln the event Licensee purchases an Umbrella or Excess insurance policy(ies) to meet the "Minimum Limits of lnsurance," this insurance policy(ies) shall "follow form" and afford no less coverage than the primary insurance policy(ies). ln addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non- contributory basis for the benefit of the CITY, its officers, officials, employees, agents and volunteers. II. DEDUCTIBLES AND SELF-INSURED RETENTIONS Licensee shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and Licensee shall also be responsible for payment of any self-insured retentions. il|. OTHER INSURANCE PROVISIONS/ENDORSEMENTS are to contain, or be endorsed to contain, the following provisions: 1. CITY, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. Licensee shall establish additional insured status for the CITY and for all ongoing and completed operations for General Liability coverage. 2. 3. 4. t6 The coverage shall contain no special limitations on the scope of protection afforded to CITY, its officers, officials, employees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional lnsured as their interests may appear in a loss. For any claims relating to this Agreement, Licensee insurance coverage shall be primary insurance with respect to the CITY, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees, agents and volunteers shall be excess of Licensee insurance and shall not contribute with it. The Workers' Compensation insurance policv is to contain, or be endorsed to contain, the following provision: Licensee and its insurer shall waive any right of subrogation against CITY, its officers, officials, employees, agents and volunteers. All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice has been given to CITY. Licensee is also responsible for providing written notice to the CITY under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, Licensee shall furnish CITY with a new certificate and applicable endorsements for such policy(ies). ln the event any policy is due to expire during the work to be performed for CITY, Licensee shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy prior to the expiration date of the expiring policy. 1. These requirements shall survive expiration or termination of the Agreement. VERIFICATION OF COVERAGE Licensee shall furnish CITY with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CITY'S Risk Manager or his/her designee prior to CITY'S execution of the Agreement and before work commences. All non-lSO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CITY, Licensee shall immediately furnish CITY with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the broker of record to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. t7 2. ,T ENTERED