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HomeMy WebLinkAboutC-2744Y RIGHT OF ENTRY AGREEMENT n This Right Entry ht of Ent Agreement ( "Right of Entry") is entered into this y� day of _, 2012 by and between the CITY OF ARCADIA, a California charter city and muni 4alorporation ( "CITY ") and La Salle High School, a not for profit organization ( "La Salle "). CITY and LA SALLE are sometimes individually referred to in this Right of Entry as "Party" and collectively as "Parties." RECITALS A. WHEREAS, CITY is the owner in fee of that certain real property commonly referred to as the Orange Grove Park Tennis Courts, situated on APN 5769- 017 -900 in the City of Arcadia, California ( "Property "); and B. WHEREAS, LA SALLE desires to obtain CITY'S permission and CITY wishes to grant LA SALLE permission to enter onto Property and cause to be provided contracted services to completely repair, resurface, and restripe the tennis courts of Property ( "Improvements "); and C. WHEREAS, LA SALLE desires and intends to retain the services of Pro Courts, Inc. ( "Contractor "), under separate contract, to provide said Improvements. The Improvements are more specifically set forth in Exhibit "A ", attached hereto and incorporated herein by reference; and D. WHEREAS, the Parties desire and intends to enter into this Right of Entry whereby CITY will allow LA SALLE, its officials, employees, agents, and Contractor, to enter Property for the purpose of installing the Improvements in accordance with the terms set forth herein; NOW, THEREFORE, CITY and LA SALLE do hereby agree as follows: AGREEMENT 1. Incorporation of Recitals. The Parties hereby affirm the facts set forth in the Recitals above. Said Recitals are incorporated herein by reference. 2. Right of Entry. CITY hereby grants to LA SALLE and its officials, employees, agents, and Contractor, a permit and temporary right to enter onto Property for the purpose of performing a complete renovation of the Orange Grove Park Tennis Courts and for no other purpose. The right to enter Property shall be subject to the following terms and conditions: a. Any property of CITY damaged or destroyed by LA SALLE, or its officials, employees, agents or Contractor, incident to the exercise of the privileges herein granted, shall be promptly repaired or replaced by LA SALLE, or in lieu of such repair or replacement, LA SALLE shall, if so required by the CITY'S City Manager, pay to CITY money in an amount sufficient to compensate for the loss sustained by CITY or by reason of damage to or destruction of CITY property. b. All tools, equipment, and other property taken onto or placed upon Property by LA SALLE, its officials, employees, agents or Contractor, shall be removed upon expiration of this Right of Entry in accordance with Section 3 below. LA SALLE and Contractor are solely responsible for securing any tools, equipment, and other chattel on Property. c. Improvements shall be made without any cost or expense to CITY, and shall be paid by LA SALLE. LA SALLE shall be responsible for payment of the full amount therefor and any approved change orders. d. LA SALLE shall provide CITY all proposed plans and specifications for the improvements (including colors and products) for CITY approval at least ten (10) business days prior to commencement of work. La Salle shall not commence work on the Improvements unless La Salle has first received CITY'S written approval of such plans and specifications. e. In addition to the works and services provided by Pro Courts, Inc. , LA SALLE shall retain and pay for the work and services of a contractor to install a 9' high closed mesh polypropylene on the chain link fence five (5) tennis courts replacing the existing screen on the north and south sides of the courts. The screen will feature one row of centered, reinforcing tape. The west fence will include the same fencing at a height of 6'. LA SALLE will undertake and complete this work by June 30, 2013 pursuant to a separate RIGHT OF ENTRY AGREEMENT containing essentially the same general terms and provisions as this Right of Entry, which LA SALLE agrees to execute. f. LA SALLE agrees to communicate with CITY's Recreation & Community Services Department ( "Department ") as to all requests to close/lock any portion of Property and to deviate from the plans and specifications for the Improvements, as approved by the CITY. 3. Term. This Right of Entry shall be effective from the date first set forth above and shall expire on November 30, 2012 unless earlier terminated as provided herein. 4. Liens. LA SALLE shall not permit to be placed against Property, or any part thereof, any design professionals', mechanics', materialmen's, laborers' contractors' or subcontractors' liens with regard to LA SALLE'S actions upon Property under this Right of Entry. LA SALLE agrees to hold CITY harmless from and against any loss or expense, including, without limitation, reasonable attorneys' fees and costs, arising from or related to any such liens which might be filed against Property. 5. Compliance with Laws/Permits. LA SALLE shall, in all activities undertaken pursuant to this Right of Entry, comply, and ensure that it's Contractor, agents and employees comply, with all federal, state and local laws, statutes, orders, ordinances, rules, regulations, plans, policies and decrees. Without limiting the generality of the 2 foregoing, LA SALLE, 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 LA SALLE desires to conduct or have conducted pursuant to this Right of Entry. 6. Insurance. LA SALLE shall, prior to any work being performed on Property pursuant to this Right of Entry, obtain for itself, and require Contractor and any consultant entering Property on its behalf to obtain, insurance of the type, containing the provisions and in the amounts described in Exhibit "B" attached hereto and incorporated herein by reference. 7. Release. LA SALLE hereby releases and waives, and shall be deemed to have released and waived, on behalf of itself and all permitees, any and all present or future claims, causes of action, or demands against CITY, its officials, officers, employees, volunteers and agents, that LA SALLE and /or permitees now have or may hereafter accrue on account of, or in any way growing out of or in connection with, any and all known and unknown, or seen and unforeseen, bodily and personal injuries, including death, or property damage and the consequences thereof, resulting or which may result from any acts or omissions of LA SALLE and /or permitees upon Property or the use of any equipment or procedures while on, entering, or leaving Property. With respect to the release and waivers set forth in this paragraph, LA SALLE, on behalf of itself and all permitees, hereby expressly waives the provisions of Section 1542 of the California Civil Code, which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED THE SETTLEMENT WITH THE DEBTOR 8. Indemnification. a. LA SALLE hereby agrees to indemnify, defend, assume all liability for and hold harmless CITY and its officials, officers, employees, agents and representatives from all actions, claims, suits, penalties, obligations, liabilities, damages to property, environmental claims or injuries to persons, which may be caused by LA SALLE'S activities pursuant to this Right of Entry or arising out of or in connection with such activities, whether such activities or performance thereof is by LA SALLE, Contractor or anyone directly or indirectly employed or anyone else under contract with LA SALLE, and whether such damage or claim shall accrue or be discovered before or after the termination of this Right of Entry. LA SALLE specifically, and not by way of limitation, agrees that it shall be responsible for the clean up of Property upon completion of Improvements pursuant to this Right of Entry. The indemnity and other rights afforded to CITY by this section shall survive the revocation or termination of this Right of Entry. b. LA SALLE shall require that Contractor agree to indemnify defend, assume all liability for and hold harmless CITY and its officials, officers, employees, agents and representatives from all actions, claims, suits, penalties, obligations, liabilities, damages to property, environmental claims or injuries to persons, which may be caused by Contractor's activities pursuant to this Right of Entry or arising out of or in connection with such activities, whether such activities or performance thereof is by Contractor, or anyone directly or indirectly employed or under subcontract with Contractor, and whether such damage or claim shall accrue or be discovered before or after the termination of this Right of Entry. LA SALLE shall also require that Contractor agree that the indemnity and other rights afforded to CITY by this section as against Contractor shall also survive the revocation or termination of this Right of Entry. 9. Maintenance and Repair. CITY shall, at its own cost, exercise reasonable measures to repair and maintain Improvements on Property at all times Property is used for purposes consistent with said Improvements. CITY does not guarantee, warrant or represent that Property will continue to be used for purposes described in this Right of Entry. lo. Inspection. CITY and its representatives, employees, agents or contractors may enter and inspect Property or any portion thereof or any Improvements made thereon at any reasonable time to verify LA SALLE'S compliance with the terms and conditions of this Right of Entry. 11. No 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 Property to LA SALLE or Contractor. This Right of Entry is not exclusive and CITY specifically reserves the right to grant other rights of entry on and within the vicinity of Property. 12. Attorneys' Fees. In 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. 13. Revocable License and Termination. Notwithstanding any improvements made by LA SALLE or Contractor to Property or any sums expended by LA SALLE or Contractor in furtherance of this Right of Entry, the right of entry granted herein is revocable and may be terminated by CITY in accordance with the terms herein. a. This Right of Entry shall terminate pursuant to its expiration date, or may be terminated at any time by CITY upon 48 hours written notice provided to LA SALLE. b. In cases of an emergency or a breach of this Right of Entry by LA SALLE, this Right of Entry may be terminated by CITY immediately. C. This Right of Entry may only be extended, modified or amended by mutual agreement of the Parties expressed in writing and signed by a duly authorized representative of each of the respective Parties hereto. CI 14. Notice. Any notice hereunder to be given by LA SALLE to CITY shall be deemed to be properly served on the date it is deposited in the United States Mail, postage prepaid, addressed to City Manager, City of Arcadia, 240 W. Huntington Dr., Arcadia, California 91007. Any notice to be given hereunder by CITY to LA SALLE shall be deemed to be properly served on the date it is deposited in the United States Mail, postage prepaid, addressed to 3880 E. Sierra Madre Blvd. Pasadena CA 91107 -0275. 15. Independent Contractor. It is expressly understood that Contractor shall not be an employee of CITY, but shall instead be an independent contractor under separate contract with LA SALLE. LA SALLE assumes all responsibility for supervision of Contractor and warrants that Improvements shall be performed competently and professionally, in accordance with the standards prevalent in Contractor's industry. 16. Continuing Liability. No termination or expiration of this Right of Entry shall release LA SALLE from any liability or obligation hereunder resulting from any acts, omissions or events happening prior to the termination or expiration of this Right of Entry. 17. Entire Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter contained in it, and supersedes all prior and contemporaneous agreements, representations, and understanding of the Parties with respect to such subject matter and with respect to any other agreements relating to Property. 18. Authority. The persons signing below represent and warrant that they have the requisite authority to bind the entities on whose behalf they are signing. 19. Severability of Provisions. If any one or more of the provisions of this Right of Entry shall be held by court of competent jurisdiction to be void, voidable, or unenforceable, such provision(s) shall be deemed severable from the remaining provisions of this Right of Entry and shall not affect the validity of the remaining portions of this Right of Entry. 20. Counterparts. This Right of Entry may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. [Signatures on following page] EXHIBIT "A" IMPROVEMENTS [ATTACHED BEHIND THIS PAGE] SIGNATURE PAGE TO RIGHT OF ENTRY AGREEMENT IN WITNESS WHEREOF, the Parties hereto have executed this Right of Entry on the date first written above. THE CITY OF ARCADIA Dominic Lazzar City Manager gIzct Date ATTEST: By: Ci y rk APPROVED AS TO FORM: By: gu-at4. " 0. [444666;�j Stephen P. Deitsch City Attorney 0 LA SALLE HIGH SCHOOL Name: Title. P 2 8'%117 - Date Na Titl ' �lSsot A-T•-w l 'foA Date 08/1012012 12:56 6263515163 PRO- COURTS INC 3817 Calle Joaquin Calabasas, CA 91302 Phone/Fax 310 - 3915255 Contr. Lic. 739492 August 10, 2012 La Salle High School 3880 E. Sierra Madre Blvd Pasadena, CA 91107 Orange Grove Park The following are specifications and cost for the repair and surfacing of five tennis courts located at the above address: 1) Wash thoroughly clean court surface 2) Repair cracks and damaged areas with court patch binder 3) Application of two textured coats of Sport Master Color System 4) Application of white line primer before applying white lines 5) Stripe tennis court surface with white line paint All imperfections in the concrete surface, such as spalls, pop -outs, broken areas, and chipping, shall be repaired. We cannot guarantee against the occurrence of any new spalls. Cracks can be repaired and, where they do not penetrate the slab, will not reappear. Cracks that do penetrate the slab usually will reappear due to expansion and contraction of the slab. Cost: All material, labor, and insurance upgrade for the preceding cost of...$12,700.00 08/10/2012 12:56 6263515163 Note: • Owner shall supply water for construction purposes. • Owner shall supply access to courts. • All sprinklers are to be turned off while work is in progress and 24 hours after completion of work. Payment terms: Please initial payment terms as stated. Thank you Payment in full upon completion of work. Tennis court coating to be guaranteed for one year under normal conditions, excluding mechanical damage or stains from vehicles or other sources. All material is guaranteed to be as specified. All work to be completed in a workmanlike manner according to standard practices. Any alteration or deviation from above specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate. ACCEPTANCE OF PROPOSAL: The above prices, specifications, and conditions are satisfactory and are hereby accepted. You are authorized to do the work as specified. A . n ."f Date of Acceptance: /° rZ Signature; Signature: I/ EXHIBIT "B" INSURANCE PROVISIONS LA SALLE shall, prior to any work being performed on Property pursuant to this Right of Entry, obtain and shall require any consultant or contractor entering Property on its behalf to obtain insurance of the type, containing the provisions and in the amounts described below and satisfactory to CITY. A. Commercial General Liability and Indemnity Insurance. LA SALLE shall maintain occurrence version commercial general liability insurance or equivalent form with a combined single limit of not less than $1,000,000 per occurrence. If such insurance contains a general aggregate limit, it shall apply separately to this Right of Entry Agreement or be no less than two times the occurrence limit. Such insurance shall: 1. Include CITY and its officials, officers, employees, agents, and consultants as additional insureds with respect to the construction of Improvements and Property and shall contain no special limitations on the scope of coverage or the protection afforded to these insureds; 2. Be primary with respect to any insurance or self- insurance programs covering CITY, its officials, officers, employees, agents and consultants; and 3. Contain standard separation of insured provisions. B. Workers' Compensation Insurance. LA SALLE shall maintain workers' compensation insurance with statutory limits and employers' liability insurance with limits of not less than $1,000,000 each accident. C. Certificates of Insurance. LA SALLE shall, prior to entering Property, furnish CITY with properly executed certificates of insurance and, if requested by CITY, certified copies of endorsements and policies, which clearly evidence all insurance required under this Right of Entry Agreement and provide that such insurance shall be not canceled, allowed to expire or be materially reduced in coverage, except on 30 days' prior written notice to CITY. CITY shall have the sole discretion to determine whether the certificates and endorsements presented comply with the provisions of this Right of Entry. D. Coverage Maintenance. LA SALLE shall replace certificates, policies and endorsements for any insurance expiring prior to the termination of this Right of Entry Agreement. Unless otherwise provided for in this Right of Entry Agreement, LA SALLE shall maintain such insurance from the execution of this Right of Entry Agreement until the construction of Improvements are complete. E. Licensed Insurer. LA SALLE shall place such insurance with insurers having A.M. Best Company ratings of no less than A:VIII and licensed to do business in California, unless otherwise approved, in writing, by CITY.