ENCROACHMENT LICENSE
LICENSE NO. ENC2025-00267
THIS ENCROACHMENT LICENSE AGREEMENT is made and entered into by and between the
CITY OF ANAHEIM, a chartered city and municipal corporation, hereinafter referred to as "ANAHEIM,"
A
N
D
ORANGE COUNTY TRANSPORTATION AUTHORITY, a public entity, hereinafter referred to as “LICENSEE.”
W I T N E S S E T H:
WHEREAS, LICENSEE acknowledges that ANAHEIM owns an easement, right- of-way, or fee title to the Tustin Avenue Bridge and that property is shown on Exhibit “A” attached hereto and incorporated herein by reference (“PROPERTY”); and WHEREAS, LICENSEE wishes to utilize that certain portion of PROPERTY for the purposes of bat mitigation measures particularly described in Exhibit “B” attached hereto and incorporated herein by reference (hereinafter "ENCROACHMENT"); and WHEREAS, the proposed ENCROACHMENT will not interfere with the present use of PROPERTY by ANAHEIM.
NOW, THEREFORE, in co nsideration of the covenants and promises herein contained and the payment of the required fee by, ANAHEIM does hereby grant to LICENSEE a license (hereinafter “LICENSE”) to enter upon and use PROPERTY of ANAHEIM for the purpose of constructing and maintaining ENCROACHMENT on that portion of PROPERTY in the manner and location herein described.
This LICENSE is granted by ANAHEIM to LICENSEE upon the following express conditions, to wit:
1. LICENSEE hereby agrees to, and do es hereby, indemnify and hold ANAHEIM, its officers, employees and agents, harmless from and against any liability or responsibility whatsoever for any damage or injury of any kind whatsoever, regardless of fault, to any person or property by reason of said ENCROACHMENT by LICENSEE upon P ROPERTY and for any damage which might occur to said ENCROACHMENT by reason of any use of PROPERTY by ANAHEIM or the public.
2 2. LICENSEE agrees to so install and maintain ENCROACHMENT so as not to cause any interference whatsoever with the use of the PROPERTY by ANAHEIM. LICENSEE shall be solely responsible for any damage to the PROPERTY caused by the ENCROACHMENT.
In addition, at least five (5) days prior to the commencement of construction of the ENCROACHMENT, LICENSEE shall post notice of the construct ion to take place on the PROPERTY and said notice shall remain posted on the PROPERTY throughout the duration of the construction of the ENCROACHMENT.
3. In partial consideration of the benefit LICENSEE derives from having been granted this Encroachment Pe rmit, LICENSEE hereby irrevocably agrees to the following: (i) LICENSEE understands and acknowledges that ANAHEIM may, at some future time, need to work on ANAHEIM’s PROPERTY under or/and around the area occupied by the ENCROACHMENT; (ii) such work may cau se damage to ENCROACHMENT and/or may require temporary removal (by ANAHEIM or LICENSEE) of all or part of the ENCROACHMENT; (iii) i f time and circumstances permit, ANAHEIM shall consult with LICENSEE prior to any temporary removal of all or part of the ENCROACHMENT as to whether or not such work should be performed, or attempted to be performed, without removal of all or part of the ENCROACHMENT, provided that the decision whether to work around the ENCROACHMENT or require the removal of all or part of ENCR OACHMENT shall be made solely by ANAHEIM; (iv) LICENSEE hereby agrees to be responsible for and bear all expenses related to demolishing, repairing and replacing the ENCROACHMENT, and under no circumstances shall ANAHEIM be required to replace or repair th e ENCROACHMENT or to compensate LICENSEE for any expenses related to the demolition, repair, or replacement of the ENCROACHMENT; and (v) should ANAHEIM attempt to work around ENCROACHMENT instead of requiring temporary removal of ENCROACHMENT, LICENSEE sh all release, hold harmless, and covenant not to sue ANAHEIM, or anyone working on ANAHEIM’S behalf, for any damage that may be caused to ENCROACHMENT by such work; (vi) in the event that, after consultation with LICENSEE, LICENSEE prefers that the work be attempted without removing the ENCROACHMENT (i.e. attempt to work around the ENCROACHMENT), LICENSEE agrees to reimburse ANAHEIM, for any additional costs ANAHEIM may reasonably incur to enable the work to be attempted, and damage to ENCROACHMENT to be min imized, without removal of the ENCROACHMENT; provided that such costs shall not include any costs, including but not limited to labor, equipment, materials, contractors, or subcontractors, which ANAHEIM would have incurred to perform the necessary work in the absence of the ENCROACHMENT.
4. The LICENSE shall be for a term of five (5) years commencing on the date this LICENSE AGREEMENT is executed by ANAHEIM (“Effective Date”).
5. LICENSEE agrees that the use of the portion of PROPERTY for ENCROACHMENT will in no way create any right whatsoever in LICENSEE which is adverse to any rights of ANAHEIM, and that the rights of LICENSEE are the rights herein given by this LICENSE and no other rights in the property whatsoever accrue hereunder.
6. This Agreement may be recorded in the office of the Orange County Recorder. The rights and obligations of this LICENSE shall inure to the benefit of, and be binding upon, LICENSEE’s and ANAHEIM’s successors and assigns; the provisions of this LICENSE shall run with the land.
3 7. This LICENSE is signed on behalf of ANAHEIM by the Director of Public Works pursuant to, and limited by, the authority granted by Chapter 12.02 of the Anaheim Municipal Code. The original LICENSE shall, upon recordation, be filed in the Office of the City Clerk.
8. Unless a different date is provided in this Agreement, the effective date of this Agreement shall be the date this Agreement is executed by ANAHEIM.
9. This Agreement constitutes the entire understanding between ANAHEIM and LICENSEE with respect to the subject matter herein and supersedes any prior ENCROACHMENT between the parties. Any such prior ENCROACHMENT is hereby de emed null and void as of the Effective Date of this Agreement.
(Remainder of page intentionally left blank; signatures on next page)
4 IN WITNESS WHEREOF, the Parties hereto have caused this Encroachment License to be executed on the dates set forth below.
DATE OF EXECUTION:
CITY OF ANAHEIM
By:
Rudy Emami, Director of Public Works
“ANAHEIM”
ATTEST:
By:
Theresa Bass, City Clerk
DATE OF EXECUTION:
ORANGE COUNTY TRANSPORTATION
AUTHORITY, a public entity,
By:
Name: James G. Beil
Its: Executive Director, Capital Programs
“LICENSEE”
APPROVED AS TO FORM:
ROBERT FABELA, CITY ATTORNEY
By
Bryn M. Morley
Deputy City Attorney
Date
156938.2
APPROVED AS TO FORM:
By
James Donich
General Counsel
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^^_
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^^_
La Palma Avenue Bridge
over Carbon Canyon
Diversion Channel
(Bridge 55C-0319)
SR-91 Bridge over Carbon
Canyon Diversion Channel
(Bridge 55-0396)
SR-91 Bridge over
the Santa Ana River
(Bridge 55-0106)
Tustin Avenue Bridge
over the Santa Ana
River (Bridge 55C-0111)
ÃÃ55
ÃÃ91
RAINIER AV
JACKSON AV
VA
LLEYFORGE
DR
RIVERDALE AV
VIA FERRARI
SUNVIEW DR
SANTA AN
ITA ST
CORONADO ST
BALDWIN AV
ORANGE OLIVE RD
RAMO
NA
ST
OCEANVIEW ST
GAYLE ST
SANTA LUCIA ST
HARTMAN ST
ASHWOOD ST
HEARTHSIDE ST
PINEWOOD ST
SANTA ANA CANYON RD
SUNSET ST
ILA DR
VIA PORTO
KENNEBEC DR
SAN ALTO AV
SAN CARLOS AV
NEWKIRK RD
CARPENTER AV
HEARTHS
IDEDR
MILLER ST
SHEPARD ST
RIVERVIEW AV
MEADOWBROOK ST
MERRIMAC DR
JEFFERSON
FRONTAGE
RD
OCEAN CIR
FRONTERA ST
ARMANDO ST
MEADOWBROOK AV
KRAEMER PL
GROVE ST
KODIAK STGLASSELL ST
KRAEMER BLVD
TUSTIN AV
LA PALMA AV
SOURCE: Google Imagery (2022)
J:\WKE2001\Pro\SR-91 Impro
vement Project.aprx (1/16/2023)
FIGURE 1
SR-91 Improvements Project
between SR-57 and SR-55 (EA 12-0K9821)
Bat Mitigation and Protection Plan
Project and Bridge Locations
LEGEND
Project Location
^^_
Bridge Locations
0 300 600
FEET
O R A N G E
C O U N T Y
ÃÃ55
ÃÃ91
ÃÃ57
§¨¦5
Project Vicinity
Exhibit "A"
EXHIBIT “B”
SCOPE OF WORK
Bat Mitigation Measures
In conjunction with the SR 91 Project, LICENSEE will install and monitor approximately seventy- five (75) precast bat panel housings (“Bat Panels”) on the Tustin Ave . Bridge’s south easterly interior girders over two spans of the Santa Ana River for bat mitigation. The Bat Panels measure a total length of 224 feet. LICENSEE will submit a permit package that includes a work plan to access and install the bat panels to the City and OCFCD (who hold easements from OCWD, as the underlying fee owner) for approval.
The Bat Panels must be installed six ( 6) months prior to the bat maturity season and before bats can be excluded and evicted from the SR-91 Santa Ana River Bridge.
The Bat Panels will remain on the PREMISES until the widening of the SR-91 Santa Ana River Bridge widening is complete and the bat exclusion eviction process is reversed [approximately five (5) years].
LICENSEE will remove the Bat P anels and patch the b ridge girders after the bats have been excluded and evicted from the PREMISES and after the bat maturity season.
Prior to the termination of the LICENSE AGREEMENT , LICENSEE will remove from the PROPERTY and PREMISES all construction equipment and materials, any temporary improvements, and all construction-related debris.