San Bernardino County
Real Estate Services Department
385 N. Arrowhead Ave., 3rd Floor
San Bernardino, CA 92415-0180
PROJECT: Street Improvement Plan
in the City of Chino on Merrill
Avenue and East of Euclid
LOCATION: Chino Airport
7000 Merrill Avenue, Chino
RIGHT OF ENTRY AGREEMENT
In consideration of the mutual covenants and agreements herein set forth, San Bernardino County (“Licensor”) and City of Chino ("Licensee") hereby enter into this Right of Entry Agreement ("Agreement ”) effective on the date the last of the parties executes this Agreement (“Effective Date”) on the following terms and conditions:
1. Licensor owns certain real property on which Licensor operates the Chino Airport with an address of 7000 Merrill Avenue in the City of Chino, State of California ("Property").
Licensee desires to enter onto certain portions of the Property to construct certain public street improvements as set forth in Paragraph 2 of this Agreement.
2. Licensor hereby agrees to allow Licensee and its employees, contractors, subcontractors, material suppliers, agents, and consultants (collectively, “Licensee Agents”) to enter onto certain portions of the Property, comprising a total of approximately 106,658 square feet,(“Access Area”), as more particularly described and depicted in Exhibit “A” , which is attached hereto and incorporated herein by reference, for the following specific and limited purpose and for no other purposes than public street improvements along Merrill Avenue, which includes roadway pavement, signing & striping, curb & gutter, ADA ramps, storm drain catch basins, and dry utility conduit (“Licensee’s Work”), as more particularly depicted in Exhibit “ B”, which is attached hereto and incorporated herein by reference.
Licensee Agents may perform Licensee’s Work as described in and reasonably regarded as incidental to such Exhibit “B”, provided that such incidental work shall first be coordinated with and approved by the Licensor’s Director of the Department of Airports . Neither Licensee nor Licensee Agents shall have the right to perform any other activities that involve digging, drilling, cutting, or boring into the ground of the Access Area without the prior written consent of Licensor in its sole and absolute discretion. Licensee acknowledges that, prior to the Effective Date, Licensor installed an existing lighted monument sign along Highway 83 (“County’s Sign”) , which will be removed as part of the Licensee’s Work. The parties acknowledge and agree that, as Licensor’s material consideration for entering into this Agreement, Licensor shall have the right to re-install and operate a digital County Sign at its desired location along Highway 83 but otherwise in substantially the same form as the original County Sign, notwithstanding any changes in land-use restrictions enacted after the original County Sign was installed.
3. The term of this Agreement (“Entry Period”) shall commence on the Effective Date and shall terminate on the earliest to occur of: (a) five (5) years thereafter, (b) the date this Agreement is earlier terminated in accordance with its terms; (c) the day immediately preceding the date Licensor, in its sole and absolute discretion, grants and records one or more easements to the Licensee for the Access A rea or relevant portion(s) thereof for Licensee’s Work, provided that nothing herein or otherwise shall obli gate the Licensor to grant any such easements to the Licensee; or (d) Licensor’s written notice to Licensee, given at least thirty (30) days prior to the effective termination date, that use of the Access Area is required exclusively for aviation purposes or for Licensor’s airport operations.
4. Entry onto the Access Area by Licensee and Licensee Agents during the Entry Period , including but not limited to the time and date of each entry, the requirement for any Licensor escort, and any other logistical requirements, shall be coordinated between Licensee and Licensor. Specifically, Licensee shall give the Licensor at least two (2) business days’ notice prior to its initial entry onto the Access Area to perform the Licensee’s Work , which shall be given orally by telephone at (909) 465 -5201 or electronically to Maureen Snelgrove at [email protected]. At the time such notice of initial entry is given, Licensee shall also provide a written construction schedule to the Licensor, which shall also include the dates of each planned entry onto the Access Area for the duration of the Entry Period. If, during the Entry Period, the construction schedule and any planned entry dates change, Licensee shall provide a revised construction schedule with revised entry dates in writing to the Licensor at least two (2) business days prior to any such changes. Beginning one week after the date of Licensee’s initial entry onto the Access Area, Licensee agrees to attend weekly construction meetings with the Licensor regarding Licensee’s Work, which meetings shall continue weekly thereafter until the Licensee’s Work is completed. Licensor shall have the right to be present during each entry.
5. Licensee shall pay Licensor a fee in the amount of five thousand dollars ($ 5,000) monthly (“Monthly Fee”) for use of the Access Area for the Licensee’s Work. If the period from the Effective Date through the end of the calendar month in which the Effective Date occurs is not a full calendar month, Licensee shall pay a pro-rated Monthly Fee based on the number of days in said period to the number of days in sai d calendar month. Thereafter, the Monthly Fee shall be due on or before the first of the calendar month during the Entry Period (including any extension permitted pursuant to Paragraph 8). If the period from the first of the month through the date this Agreement expires or is earlier terminated is not a full calendar month, Licensee shall pay a pro -rated Monthly Fee based on the number of days in said period to the number of days in said calendar month.
6. The Licensee’s Work shall be performed at Licensee’s sole cost and expense and in a good and workmanlike manner by licensed and insured Licensee employees or Licensee Agents.
Licensee shall provide Licensor with a certificate of insurance from Licensee and Licensee Agents meeting the requirements of Paragraph 10 prior to their respective initial entry of the Access Area.
7. Notwithstanding anything to the contrary in this Agreement, Licensee acknowledges and agrees that the Licensee’s Work contemplated herein shall be performed at Licensee’s sole risk and there is no guarantee whatsoever that any easements will be granted by Licensor to the Licensee for the Access Area or relevant portion(s) thereof for Licensee’s Work nor shall there be any obligation whatsoever by Licensor to grant any easements. The election to grant any easements and the terms and conditions of such easement, if any, shall be at Licensor’s sole and absolute discretion.
8. In the event this Agreement expires or is earlier terminated without the grant of an y easements to the Licensee, Licensor shall notify Licensee whether it elects , in its sole and absolute discretion, to: (i) accept a conveyance of a ll then existing Licensee’s Work (“Installed Work”), which shall be at no cost to Licensor, or (ii) require that Licensee remove all such Installed Work. If Licensor elects that the Installed Work be removed, then : (a) Licensee shall, at its sole cost and expense, remove or ensure Licensee’s Agents remove all Installed Work, promptly repair any and all damage to the Access Area , and restore the Access Area to substantially the same condition as existed on the Effective Date, reasonable wear and tear excluded , and leave the Access Area free of all trash and debris ; and (b) complete such removal work on or prior to the expiration or earlier termination of the Agreement, provided that should Licensee have commenced such removal work and diligently pursued such work to completion but reasonably requires additional tim e to complete such removal work, upon Licensee’s written request, Licensor, through its Board of Supervisors, may, in its sole and absolute discretion, extend the Entry Period solely for the limited purpose of removing the Installed work by the amount of Licensor deems reasonably necessary for Licensee and Licensee Agents to diligently complete such removal. If Licensor elects to accept a conveyance of the Installed Work at no cost to Licensor, then Licensee shall promptly execute a bill of sale conveying the same to Licensor on a form acceptable to Licensor. This provisions of this Paragraph 8 shall survive the expiration or earlier termination of this Agreement.
9. Licensee shall indemnify, defend (with counsel approved by Licensor) and hold harmless the Licensor and its authorized officers, employees, agents and volunteers from any and all claims, actions, losses, damages, and/or liability arising out of this Agreement from any cause whatsoever, and including the acts, errors or omissions of any person and for any costs or expenses incurred by the Licensor on account of any claim except where such indemnification is prohibited by law. This indemnification provision shall apply rega rdless of the existence or degree of fault of indemnitees. The Licensee’s indemnification obligation applies to the Licensor’s “active” as well as “passive” negligence but does not apply to the Licensor’s “sole negligence” or “willful misconduct” within the meaning of Civil Code Section 2782. This indemnity shall survive the expiration or earlier termination of this Agreement.
10. Insurance Requirements.
A. Licensee shall comply and shall ensure that Licensee Agents comply with the insurance requirements set forth below. If Licensee or Licensee Agents use existing coverage to comply with these requirements and that coverage does not meet the specified requirements of this Agreement, Licensee shall ensure that Licensee Agents shall amend, supplement, or endorse their respective existing coverage to do so. Without in anyway affecting the indemnity herein provided and in addition thereto, Licensee shall secure and maintain and shall ensure that Licensee Agents secure and maintain throughout the Agreement the following types of insurance with limits as shown below.
(1) Workers' Compensation/Employers Liability - A program of Workers' Compensation insurance or a state -approved Self -Insurance Program in an amount and form to meet all applicable requirements of the Labor Code of the State of California, including Employer's Liability with $250,000 limits covering all persons including volunteers providing services on behalf of Licensee and all risks to such persons under this Agreement.
If Licensee has no employees, it may certify or warrant to the Licensor that is does not currently have any employees or individuals who are defined as “employees” under the Labor Code and the requirement for Workers’ Compensation coverage will be waived b y the Licensor’s Director of Risk Management.
If, Licensee is a non -profit corporation, organized under California or Federal law, volunteers for Licensee are required to be covered by Workers’ Compensation insurance.
(2) Commercial/General Liability Insurance – The Licensee shall carry General Liability Insurance covering all operations performed by or on behalf of the Licensee providing coverage for bodily injury and property damage with a combined single limit of not less than one million dollars ($1,000,000), per occurrence. The policy coverage shall include:
(a) Premises operations and mobile equipment.
(b) Products and completed operations.
(c) Broad form property damage (including completed operations). (d) Explosion, collapse and underground hazards.
(e) Personal injury
(f) Contractual liability.
(g) $2,000,000 general aggregate limit.
(3) Commercial Property Insurance providing all risk coverage for the Access Area, building, fixtures, equipment and all property constituting a part of the Access Area. Coverage shall be sufficient to insure One Hundred percent (100%) of the replacement cost.
(4) Automobile Liability Insurance – Primary insurance coverage shall be written on ISO Business Auto coverage form for all owned, hired and non -owned automobiles or symbol 1 (any auto). The policy shall have a combined single limit of not less than one million dollars ($1,000,000) for bodily injury and property damage, per occurrence.
If the Licensee is transporting one or more non -employee passengers for this Agreement, the automobile liability policy shall have a combined single limit of two million dollars ($2,000,000) for bodily injury and property damage per occurrence.
If the Licensee owns no autos, a non -owned auto endorsement to the General Liability policy described above is acceptable.
(5) Umbrella Liability Insurance - An umbrella (over primary) or excess policy may be used to comply with limits or other primary coverage requirements. When used, the umbrella policy shall apply to bodily injury/property damage, personal injury/advertising injury and shall include a “d ropdown” provision providing primary coverage for any liability not covered by the primary policy. The coverage shall also apply to automobile liability.
(6) Environmental Liability Insurance. Environmental liability insurance with a combined single limit of not less than Two Million and 00/100 Dollars ($ 2,000,000.00) per occurrence and Four Million and 00/100 Dollars ($4,000,000.00) aggregate.
B. Additional Insured – All policies, except for the Workers’ Compensation, shall contain endorsements naming the Licensor and its officers, employees, agents and volunteers as additional insureds with respect to liabilities arising out of this Agreement. The additional insured endorsements shall not limit the scope of coverage for the Licensor to vicarious liability but shall allow coverage for the Licensor to the full extent provided by the policy. Such additional insured coverage shall be at least as broad as Additional Insured (Form B) endorsement form ISO, CG 2010.11
85. C. Waiver of Subrogation Rights – The Licensee shall require the carriers of required coverages to waive all rights of subrogation against the Licensor, its officers, employees, agents, volunteers, contractors and subcontractors. All general or auto liability insurance coverage provided shall not prohibit the Licensee and Licensee’s employees or agents from waiving the right of subrogation prior to a loss or claim. The Licensee hereby waives all rights of subrogation against the Licensor.
D. Policies Primary and Non-Contributory – All policies required herein are to be primary and non-contributory with any insurance or self-insurance programs carried or administered by the Licensor.
E. Deductibles and Self -Insurance Retention – Any and all deductibles or self -insured retentions in excess of $10,000 shall be declared to and approved by Licensor’s Risk Management.
F. Severability of Interests – The Licensee agrees to ensure that coverage provided to meet these requirements is applicable separately to each insured and there will be no cross liability exclusions that preclude coverage for suits between the Licensee and the Licensor or between th e Licensor and any other insured or additional insured under the policy.
G. Proof of Coverage – The Licensee shall furnish Certificates of Insurance to the Licensor evidencing the insurance coverage, including endorsements, as required, prior to any entry of the Access Area, which certificates shall provide that such insurance shall not be termina ted or expire without thirty (30) days written notice to Licensor, and Licensee shall maintain such insurance from the time the Agreement commences until the expiration or earlier termination of the Agreement.
Prior to its initial entry hereunder, the Licensee shall furnish a copy of the Declaration page for all applicable policies and will provide complete certified copies of the policies and endorsements immediately upon request.
H. Acceptability of Insurance Carrier – Unless otherwise approved by the Licensor’s Department of Risk Management, insurance shall be written by insurers authorized to do business in the State of California and with a minimum “Best” Insurance Guide rating of “A- VII”.
I. Insurance Review – Insurance requirements are subject to periodic review by the Licensor. The Licensor’s Director of Risk Management or designee is authorized, but not required, to reduce, waive or suspend any insurance requirements whenever the Licensor’s Department of Risk Management determines that any of the required insurance is not ava ilable, is unreasonably priced, or is not needed to protect the interests of the Licensor. .
Any failure, actual or alleged, on the part of Licensor to monitor or enforce compliance with any of the insurance and indemnification requirements will not be deemed as a waiver of any rights on the part of the Licensor.
J. Failure to Procure Insurance. All insurance required must be maintained in force at all times by Licensee. Failure to maintain said insurance, due to expiration, cancellation, etc., shall be cause for the Licensor to give notice to immediately suspend all Licensee’s ingress and egres s of the Access Area or any Drainage Work . Failure to reinstate said insurance within ten (10) days of notice by Licensor to do so shall be cause for termination and for forfeiture of this Agreement, and/or Licensor, at its di scretion, may procure or renew such insurance and pay any and all premiums in connection therewith, and all monies so paid by Licensor shall be repaid by Licensee to Licensor upon demand.
K. Licensor shall have no liability for any premiums charged for such coverage(s). The inclusion of Licensor as additional named insured is not intended to and shall not make Licensor a partner or joint venturer with Licensee in Licensee's activities.
L. Licensee agrees to require all parties or subcontractors, or others it hires or contracts with related to this Agreement, including Licensee Agents, to provide the insurance coverages as required in this Agreement and naming the Licensor as additional insu red. Licensee agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided as required herein.
M. All of the indemnity and insurance provisions set forth in Paragraphs 9 and 10 of this Agreement, respectively, are hereby deemed to be material provisions of this Agreement. However, any failure, actual or alleged, on the part of Licensor to monitor or enforce compliance with any of the insurance and indemnification requirements will not be deemed as a waiver of any rights on part of Licensor.
11. Licensee and Licensee Agents must abide by all pertinent laws, rules, and regulations of the United States of America, State of California, County of San Bernardino, or any other duly constituted public authority having jurisdiction for the Access Area and Licensee’s Work .
Licensee shall, at its sole cost and expense, obtain all necessary permits and authorizations from all relevant authorities prior to the performance of Licensee’s Work at the Access Area.
12. This Agreement is subject to any easements, rights, and restrictions affecting the Access Area that exist as of the Effective Date (whether recorded or not). Licensee acknowledges, and understands that the Access Area is provided in its "AS IS" condition without any representations or warranties by Licensor. Licensee and Licensee Agents assume all risk of loss, damage, or injury in its use of the Access Area. Licensee, on behalf of itself and for Licensee Agents, waives all claims, actions, losses, damages, and/or liability of any kind or nature against Licensor arising out of the condition of the Access Area or Licensee’s use of the Access Area. Licensee acknowledges that, in the event Licensor has provided any documentation related to the condition of the Access Area or the Property, Licensor has not made and does not make any warranty or representation regarding the truth, accuracy, or completeness of said documents and Licensee shall rely on its own inspections of the Access Area.
13. This Agreement is intended by the parties as a final expression of their understanding with respect to the matters herein and is a complete and exclusive statement of the terms and conditions thereof and supersedes all other prior agreement or understanding pertaining to the matters covered in this Agreement.
14. This Agreement shall not be changed, modified, or amended except as agreed in a written amendment to this Agreement executed by the parties.
15. Licensee shall be in default of this Agreement if the Licensee or Licensee Agents fail to perform any of its obligations in this Agreement. Any time Licensee is in default and does not remedy such default within (3) business days after written notice to Licensee, or sooner in the case of an emergency, Licensor may, in its sole discretion, terminate this Agreement immediately upon written notice to Licensee.
16. If any legal action is instituted to enforce or declare any party's rights hereunder, each party in such action, including the prevailing party, must bear its own costs and attorneys' fees.
This paragraph shall not apply to those costs and attorneys' fees arising from any third - party legal action against Licensor, including such costs and attorneys’ fees payable pursuant to the indemnification set forth in Paragraph 9 of this Agreement.
17. Licensee agrees that it does not have and will not claim at any time any interest or estate of any kind or extent whatsoever in the Access Area or the Property by virtue of this Agreement.
18. Licensee shall not have the right to assign or transfer this Agreement or the rights herein to any other person or entity. Any attempt to do so shall be deemed ineffective and shall be deemed a default under this Agreement.
19. Licensee recognizes and understands that this Agreement may create a possessory interest subject to property taxation and that Licensee may be subject to payment of property taxes levied on such interest.
20. Each party hereby represents and acknowledges on behalf of itself that it has been provided with the opportunity to discuss and review the terms of this Agreement with its respective attorneys before signing it and that each party is freely and voluntarily signing this Agreement in exchange for the benefits provided herein. Each individual executing this Agreement on behalf of a party represents and warrants that he or she is duly authorized to execute this Agreement on behalf of its respective party and that such execution will bind the respective party to the terms of this Agreement.
21. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute one and the same agreement. For purposes of this Agreement, the parties shall be entitled to sign and transmit an electronic signature of this Agreement (whether by facsimile , PDF, or email transmission), which signature shall be binding on the party whose name is contained therein. Each party providing an electronic signature agrees to execute and deliver to the other party an original signed Agreement promptly upon request . Unless expressly otherwise set forth in an amendment, any subsequent am endments to the Agreement shall be executed by original signatures only.
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LICENSOR:
SAN BERNARDINO COUNTY
By_______________________________________________
Name: Terry Thompson
Title: Director of Real Estate Services
Department
Dated:___________________________
Licensor Notice Address:
San Bernardino County
Real Estate Services Department
385 North Arrowhead Avenue, Third
Floor
San Bernardino, CA 92415-0180
APPROVED AS TO LEGAL FORM:
TOM BUNTON,
County Counsel
By: ______________________
Name: Agnes Cheng
Title: Deputy County Counsel
Dated: ___________
LICENSEE:
By:
Name: Linda Reich
Title: City Manager
Dated:___________________________
Licensee Notice Address:
City of Chino
Development Services Department
13220 Central Avenue,
Chino CA 91710
Exhibit “A” – ACCESS AREA
(Legal Description and Depiction)
Exhibit “B” – LICENSEE’S WORK