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HomeMy WebLinkAboutC-2773C zq -73 1 ao —q o RIGHT OF ENTRY AGREEMENT This Right of Entry Agreement ( "Right of Entry") is entered into this Z 3 day of FX , 2012 by and between the CITY OF ARCADIA, a California charter city and municip I corporation ( "CITY ") and SANTA ANITA LITTLE LEAGUE, a not for profit organization ( "SALL "). CITY and SALL 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 Eisenhower Park, situated on APN 5772 - 011 -900 and APN 5772 - 010 -905 in the City of Arcadia, California ( "Property "); and B. WHEREAS, SANTA ANITA LITTLE LEAGUE desires to obtain CITY'S permission and CITY wishes to grant SANTA ANITA LITTLE LEAGUE permission to enter onto Property and cause to be provided contracted services to completely modify, renovate, and restore the baseball fields of Property ( "Improvements "); and C. WHEREAS, SANTA ANITA LITTLE LEAGUE desires and intends to retain the services of Athletic Field Specialists. ( "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 intend to enter into this Right of Entry whereby CITY will allow SANTA ANITA LITTLE LEAGUE, 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 SANTA ANITA LITTLE LEAGUE 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 SANTA ANITA LITTLE LEAGUE 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 Eisenhower Park baseball fields 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 SANTA ANITA LITTLE LEAGUE, or its officials, employees, agents or Contractor, incident to the exercise of the privileges herein granted, shall be promptly repaired or replaced by SANTA ANITA LITTLE LEAGUE, or in lieu of such repair or replacement, SANTA ANITA LITTLE LEAGUE 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 SANTA ANITA LITTLE LEAGUE, its officials, employees, agents or Contractor, shall be removed upon expiration of this Right of Entry in accordance with Section 3 below. SANTA ANITA LITTLE LEAGUE 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 SANTA ANITA LITTLE LEAGUE. SANTA ANITA LITTLE LEAGUE shall be responsible for payment of the full amount therefor and any approved change orders. d. SANTA ANITA LITTLE LEAGUE 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. SANTA ANITA LITTLE LEAGUE shall not commence work on the Improvements unless SANTA ANITA LITTLE LEAGUE has first received CITY'S written approval of such plans and specifications. e. In addition to the works and services provided by Athletic Field Specialists, SANTA ANITA LITTLE LEAGUE shall retain and pay for the work and services of a contractor to modify and repair the three baseball fields at Eisenhower Park per the specifications, including the modification of the west t -ball field to include a dirt infield, pitching mound, and improved chain link back stop to provide adequate safety for youth baseball. f. SANTA ANITA LITTLE LEAGUE 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 March 1, 2013 unless earlier terminated as provided herein. 4. Liens. SANTA ANITA LITTLE LEAGUE 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 SANTA ANITA LITTLE LEAGUE'S actions upon Property under this Right of Entry. SANTA ANITA LITTLE LEAGUE 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. SANTA ANITA LITTLE LEAGUE shall, in all activities undertaken pursuant to this Right of Entry, comply, and ensure that its 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 foregoing, SANTA ANITA LITTLE LEAGUE, 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 SANTA ANITA LITTLE LEAGUE desires to conduct or have conducted pursuant to this Right of Entry. 6. Insurance. SANTA ANITA LITTLE LEAGUE 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. SANTA ANITA LITTLE LEAGUE 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 SANTA ANITA LITTLE LEAGUE 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 SANTA ANITA LITTLE LEAGUE 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, SANTA ANITA LITTLE LEAGUE, 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. SANTA ANITA LITTLE LEAGUE 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 SANTA ANITA LITTLE LEAGUE'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 SANTA ANITA LITTLE LEAGUE, Contractor or anyone directly or indirectly employed or anyone else under contract with SANTA ANITA LITTLE LEAGUE, and whether such damage or claim shall accrue or be discovered before or after the termination of this Right of Entry. SANTA ANITA LITTLE LEAGUE 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. SANTA ANITA LITTLE LEAGUE 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. SANTA ANITA LITTLE LEAGUE 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. 10. 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 SANTA ANITA LITTLE LEAGUE'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 SANTA ANITA LITTLE LEAGUE 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 SANTA ANITA LITTLE LEAGUE or Contractor to Property or any sums expended by SANTA ANITA LITTLE LEAGUE 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 SANTA ANITA LITTLE LEAGUE. 4 b. In cases of an emergency or a breach of this Right of Entry by SANTA ANITA LITTLE LEAGUE, 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. 14. Notice. Any notice hereunder to be given by SANTA ANITA LITTLE LEAGUE 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 SANTA ANITA LITTLE LEAGUE shall be deemed to be properly served on the date it is deposited in the United States Mail, postage prepaid, addressed to P.O. Box 660661, Arcadia, CA 91066. 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 SANTA ANITA LITTLE LEAGUE. SANTA ANITA LITTLE LEAGUE 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 SANTA ANITA LITTLE LEAGUE 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] 5 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 �Domin�icLaz�tto� City Manager Date ATTEST: APPROVED AS TO FORM: By: 4a" Stephen P. Deitsch City Attorney SANTA ANITA LITTLE LEAGUE Name: Title: P e Date Name: Title: Treasurer /Z /5//2 Date EXHIBIT "A" IMPROVEMENTS [ATTACHED BEHIND THIS PAGE] November 9, 2012 Mr. Greg Burns Santa Anita Little League Arcadia, Ca. Dear Greg, Here is the proposal you requested for the field renovation procedures at Eisenhower Park at Lojeski Field and in Arcadia For the baseball field at Lojeski Field, Athletic Field Specialists proposes to: • Survey the infield reset the field as needed back to its original specifications. We will replace the base peg on first base and check the second and third base pegs. • Conduct an irrigation audit on the outfield and infield. We will advise of any repairs and the cost involved. • Sod cut and remove the lip along the arc. We will remove 31/2' of turf around the arc. The area will be regraded and prepped for sod. The debris will be hauled off site. • Provide and install hybrid bermudagrass in "big roll" format. The sod will be fertilized and rolled to expedite the establishment period. • Reinforce the wear areas of the pitcher's mound, batters boxes and catcher's box with Hilltopper mound mix. • Provide and incorporate 12 %2 tons of infield mix onto the infield and baselines. The areas will be compacted and laser leveled. The cost for the field renovation on the main field at Lojeski Field procedure detailed above is $5,850.00. It includes the sod, all material, labor and equipment required for the procedure detailed above. It does not include any irrigation parts that may be needed. For the Machine Pitch field, Athletic Field Specialists proposes to: • Build new pitching mound at 43' • Rebuild the home plate area with hilltopper mound mix. The cost for the work to be performed on the Machine Pitch field detailed above is $2300.00. It includes all material, labor and equipment required for the procedure detailed above. It does not include any irrigation parts that may be needed. 3094 E. Shauna Drive • Highland, CA 92346.Office (909) 864 -2530 • Fax (909) 425 -2648 I look forward to working with you and the Santa Anita community again this year. Thank you for your consideration. Please call me if you have any questions. Sincerely, Jeff Kuenuman Athletic Field Specialists 3094 E. Shauna Drive • Highland, CA 92346.Office (909) 864 -2530 • Fax (909) 425 -2648 2652 N. Fair Oaks Ave. * Altadena, CA 91001 * Phone 626- 791 -6934 * Fax 626- 794 -2707 * Lic. No. 818532 CONTRACT SUBMITTED TO: JOB LOCATION: SANTA ANITA LITTLE LEAGUE ATTN: GREG BURNS MP Field Back Stop PHONE 233 -2773 FAX CONDITIONS: All material is guaranteed to be as specified. All work to be completed in a workman like manner according to standard practices. Any alteration or deviation from written specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate. All agreements contingent upon strikes, accidents or delays beyond our control. Owner to carry fire and other necessary insurance. Our workers are fully covered by Workman's Compensation Insurance. If buyers desire a bank loan, this contract is conditional upon the loan approval. The undersigned buyers hereby agree to furnish the correct property lines and to hold the seller harmless from any claims of damages which might arise from line location or the use of adjoining property in the construction. In the event it becomes necessary to enforce collection of any sum due hereunder by legal action, the undersigned buyer agrees to pay all costs of collection, including a reasonable attorney's fee. Interest will be charged to the maximum rates set by the state on any payment not paid within the specified remittal date. Clerical errors subject to correction. Customs and usage of the industry shall prevail in performance of this contract unless otherwise stated. Footing excavation will be left beside trench unless otherwise specified. Removal to be an additional cost to the buyer. PLEASE NOTE that under California Mechanics' Lien Law, if full payment is not received, JC.Western Fence Co. Inc. reserves the right to place a lien on your home, land, or property where the work was performed, and to sue you in court to obtain payment. All previous payments to be forfeited as rental charges. PLEASE NOTE: We will not honor verbal commitments made or supposedly made by our personnel. DO NOT ACCEPT this contract unless it is complete and in writing and completely satisfactory. Payment not received with in 5 days of terms will be subject to 1.5% monthly interest charge. DRAWING NOT TO SCALE: SPECIFICATIONS: Lin Ft High, Style Lin Ft High, Style Raise Existing Backstop 8' $1 541 00 Contine uLusing existing back stop using 2 3/8 posts reinforce the two corners with additional posts Tie project together with 7/19 galvanzied cable TOTAL ERECTED PRICE COMPLETE ---------- > $1,541.00 TERMS: 1/2 DOWN ON START, BALANCE DUE UPON COMPLETION ADD AN ADDITIONAL 3% CHARGE IF PAID BY CREDIT CARD. The above contract is not subject to cancellation when signed by both parties. DATE: REVISED 1 -3 -2013 CONTRACT ACCEPTED BY: X (PLEASE SIGN ON ABOVE LINE) SUBMITTED BY: JC WILCOX COMMENTS: DOES NOT INCLUDE CITY PERMIT(S) OR FEES: JC WESTERN FENCE CO. INC. IS NOT RESPONSIBLE FOR ANY UNDERGROUND UTILITIES,PIPES,CABLES ETC 2652 N. Fair Oaks Ave. * Altadena, CA 91001 * Phone 626- 791 -6934 * Fax 626- 794 -2707 * Lic. No. 818532 CONTRACT SUBMITTED TO: JOB LOCATION: SANTA ANITA LITTLE LEAGUE ATTN: GREG BURNS EXISTING BATTING CAGES PRONE 233 -2773 FAX CONDITIONS: All material is guaranteed to be as specified. All work to be completed in a workman like manner according to standard practices. Any alteration or deviation from written specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate. All agreements contingent upon strikes, accidents or delays beyond our control. Owner to carry fire and other necessary insurance. Our workers are fully covered by Workman's Compensation Insurance. If buyers desire a bank loan, this contract is conditional upon the loan approval. The undersigned buyers hereby agree to furnish the correct property lines and to hold the seller harmless from any claims of damages which might arise from line location or the use of adjoining property in the construction. In the event it becomes necessary to enforce collection of any sum due hereunder by legal action, the undersigned buyer agrees to pay all costs of collection, including a reasonable attorney's fee. Interest will be charged to the maximum rates set by the state on any payment not paid within the specified remittal date. Clerical errors subject to correction. Customs and usage of the industry shall prevail in performance of this contract unless otherwise stated. Footing excavation will be left beside trench unless otherwise specified. Removal to be an additional cost to the buyer. PLEASE NOTE that under California Mechanics' Lien Law, if full payment is not received, JC.Western Fence Co. Inc. reserves the right to place a lien on your home, land, or property where the work was performed, and to sue you in court to obtain payment. All previous payments to be forfeited as rental charges. PLEASE NOTE: We will not honor verbal commitments made or supposedly made by our personnel. DO NOT ACCEPT this contract unless it is complete and in writing and completely satisfactory. Payment not received with in 5 days of terms will be subject to 1.5% monthly interest charge. DRAWING NOT TO SCALE: SPECIFICATIONS: Lin Ft High, Style Lin Ft High, Style Remove existing chain link around batting cages $9 875 00 Replace with new 11 gua a black vinyl coated chain link Use black gloss to paint exisiting posts to match TOTAL ERECTED PRICE COMPLETE ---------- > $9,875.00 TERMS: 1/2 DOWN ON START, BALANCE DUE UPON COMPLETION ADD AN ADDITIONAL 3% CHARGE IF PAID BY CREDIT CARD. The above contract is not subject to cancellation when signed by both parties. DATE: REVISED 1 -3 -2013 CONTRACT ACCEPTED BY: (PLEASE SIGN ON ABOVE LINE) SUBMITTED BY: JC WILCOX COMMENTS: DOES NOT INCLUDE CITY PERMIT(S) OR FEES: JC WESTERN FENCE CO. INC. IS NOT RESPONSIBLE FOR ANY UNDERGROUND UTILITIES, PIPES, CABLES ETC EXHIBIT "B" INSURANCE PROVISIONS SANTA ANITA LITTLE LEAGUE 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. SANTA ANITA LITTLE LEAGUE 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. SANTA ANITA LITTLE LEAGUE 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. SANTA ANITA LITTLE LEAGUE 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. SANTA ANITA LITTLE LEAGUE 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, SANTA ANITA LITTLE LEAGUE shall maintain such insurance from the execution of this Right of Entry Agreement until the construction of Improvements are complete. E. Licensed Insurer. SANTA ANITA LITTLE LEAGUE shall place such insurance with insurers having A.M. Best Company ratings of no less than A:VII and licensed to do business in California, unless otherwise approved, in writing, by CITY. I