TEMPORARY CONSTRUCTION LICENSE AND RIGHT OF ENTRY
AGREEMENT
This Temporary Construction License and Right of Entry Agreement (“Agreement”) is made and entered into as of this ______ day of_________ 2024 (“Effective Date”) , by and between the Fontana Public Financing Authority, a California joint powers agency (“FPFA”), and Southern California Gas Comp any, a California corporation (“ SoCalGas”). FPFA and SoCalGas may be individually referred to herein as “Party” or collectively referred to herein as the “Parties.”
RECITALS
A. FPFA is the owner of certain unimproved real property located in the City of Fontana, State of California, identified with Assessor Parcel Number 0194-041-29 consisting of approximately 11.03 acres ( 480,466 square feet) as more particularly described in Exhibit A1 and depicted in Exhibit A2, attached hereto and i ncorporated herein by reference.
B. Assessor Parcel Number 0194-041-29 includes the following locations:
1. Certain unimproved real property consisting of approximately 0.066 acres (2,861 square feet), as more particularly described in Exhibit B1 and depicted in Exhibit B2 (“Area 1”), attached hereto and i ncorporated herein by reference.
2. Certain unimproved real property consisting of approximately 0.004 acres (179 square feet), as more particularly described in Exhibit B1 and depicted in Exhibit B2 (“Area 2”), attached hereto and incorporated herein by reference.
3. Certain unimproved real property consisting of approximately 0.006 acres (266 square feet), as more particularly described in Exhibit B1 and depicted in Exhibit B2 (“Area 3”), attached hereto and incorporated herein by reference (Areas 1 through 3 together maybe referred to herein as the “Property”).
4. Certain unimproved real property consisting of approximately 0.291 acres (12,662 square feet), as more particularly described in Exhibit C1 and depicted in Exhibit C2 (“Abutting Property”) , attached hereto and incorporated herein by reference.
C. SoCalGas has requested from FPFA a temporary construction license to construct a valve station on the Property and a right of entry agreement to access the Abutting Property to bring and temporarily store all necessary veh icles, materials and other construction equipment to construct a valve station on the Property.
D. FPFA wishes to grant SoCalGas a temporary construction license to construct a valve station on the Property and a right of entry agreement to access the Abutting Property to bring and temporarily store all necessary vehicles, materials and other construction equipment to construct a valve station on the Property.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, FPFA and SoCalGas agree as follows:
1. Temporary Construction License . FPFA does hereby grant to SoCalGas and its agents, employees, representatives and workmen, a temporary irrevocable license over, on, under, in, across, along and through the Property for purposes of constructing a valve station.
2. Temporary Right of Entry Agreement. FPFA hereby grants to SoCalGas and its agents, employees, representatives and workmen, permission to enter upon the Abutting Property at all reasonable times for the purpose of bringing and temporarily storing all necessary vehicles, materials and other construction equipment to construct a valve station on the Property. Upon the expiration of this Agreement, SoCalGas will remove or cause to be removed all of it’s personal proper ty, necessary vehicles, materials and other construction equipment from the Abutting Property. If SoCalGas does not remove all of it's personal property, necessary vehicles, materials and other construction equipment from the Abutting Property within ten business days of the Expiration Date, FPFA has the right to remove said personal property, necessary vehicles, materials and other construction equipment from the Abutting Property. In the event of SoCalGas fails to remove it's personal property, necessary vehicles, materials and other construction equipment from the Abutting Property, SoCalGas is responsible for all reasonable costs incurred by FPFA in any such removal by FPFA.
3. Term. The term of this Agreement shall commence on the date contained in a written notice from SoCalGas to FPFA setting forth the date SoCalGas intends to commence utilization of the Property and Abutting Property (“Commencement Date”), where the Commencement Date shall be no sooner than fourteen (14) days from the date that SoCalGas provides written notice to FPFA, and where such written notice shall be given no later than eighteen (18) months from the Effective Date. The Agreement shall expire four (4) months a fter the Commencement Date (“Expiration Date”), provided, however, that FPFA and SoCalGas may mutually agree to amend the Expiration Date prior to the Expiration Date or amended Expiration Date, as applicable.
4. Maintenance and R epair of the Property. All of SoCalGas’s obligations for maintenance and repair in Section 3 of the Easement Deed, attached hereto as Exhibit D1 and incorporated herein, for the Property are adopted herein.
5. Maintenance and Repair of the Abutting Property. SoCalGas shall be responsible for any and all damage to the Abutting Property to the extent the damage is caused by or related to SoCalGas or SoCalGas’s agents, employees, guests, invitees, licensees, contractors, and subcontractors. SoCalGas shall, at its own cost and expense, immediately repair any such damage and restore such location to as good a condition as existed before such damage occurred. Such work shall be done under the direction and to the reasonable satisfaction of FPFA.
6. Indemnity. SoCalGas agrees to and does hereby indemnify, defend, protect and hold harmless FPFA and its officials, officers, employees and agents (“FPFA Indemnitees”) from and against any and all claims, actions, liabilities, losses, damages, injuries (including loss of life and other loss, injury or damage to persons or property), costs and expenses (including reasonable a ttorneys' fees) (collectively, “Claims”), liens (including, without limitation, mechanics liens), and encumbrances, to the extent the same arise out of, re sult from, or are related SoCalGas’s rights pursuant to this instrument, except to the extent arising from FPFA’s or any FPFA
Indemnitee’s gross negligence or willful misconduct. The indemnity and defense obligations of SoCalGas under this instrument shall not be affected by the absence or unavailability of insurance covering the same or by failure or refusal by any insurance carrier to perform any obligation on its part under any such policy of insurance. FPFA may, in its discretion, participate in the selection of counsel, where FPFA’s approval shall not be unreasonably withheld, and in its discretion, participate in the defense of any such legal action.
7. No Liens. SoCalGas shall not permit any claim, lien, or other encumbrance arising from its construction, installation, use, maintenance, repairs, operation, or removal of one or more pipelines, conduits, valve and pipeline integrity devices, metering, measuring, regulating, cathodic protection, communications, electrical or other power and appurtenances for the valve station or other work by or conducted on behalf of SoCalGas to accrue against, or attach to, the Property or the interests of FPFA in the Property.
8. Insurance. On commencement of construction or any maintenance, as applicable, on SoCalGas’s or its agents entry on the Property and Abutting Property, such entering parties shall obtain, and naming the FPFA as an additional insured, a policy or policies (which may be a combination of primary coverage and umbrella policies) of commercial general liability insurance. Coverage shall be at least as broad as:
a. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including, limited contract liability, premises, property damage, bodily injury an d personal injury coverage and incidents and claims, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. b. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
c. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
SoCalGas shall obtain a Certificate of Insurance (“COI”) naming the City as additionally insured, and must be filed with the City before the commencement of work. SoCalGas shall have the right to self -insure with respect to any or all of the insurance required to be carried by FPFA, and such self-insurance shall be deemed to have satisfied any and all obligation required under this agreement. So Cal Gas hereby grants to FPFA a waiver of any right to subrogation which any insurer of So Cal Gas, or its contractors, may acquire against FPFA by virtue of the payment of any loss under such insurance. So Cal Gas agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or no t FPFA has received a waiver of subrogation endorsement from the insurer.
9. Assignment. Parties shall not assign their rights and obligations with respect to the Agreement without the written approval of the non -assigning Party, which approval shall not unr easonably be withheld. Any such attempted assignment without the consent of the non-assigning Party shall be null and void and of no force or effect.
10. Governing Law. This Agreement shall be construed and enforced in accordance with the internal laws of the State of California (without regard to conflicts of law).
11. Waiver. No right or remedy under this Agreement will be waived unless the waiver is in writing and signed by the Party claimed to have made the waiver. One waiver will not be interpreted as a continuing waiver.
12. Attorney’s Fees. If an action is commenced to enforce or interpret any provision of this License, each Party shall be responsible for its own attorney ’s fees and costs incurred in the action.
13. Exhibits. All Exhibits attached and referred to in this Agreement are hereby incorporated herein as though fully set forth herein (and shall be deemed to be a part of this Agreement).
14. Notices. Any notice, request, demand, consent, approval or other communication (collectively, “Notices”) required or per mitted hereunder or by law shall be validly given or made only if in writing and delivered in person to an officer or duly authorized representative of the other party or deposited in the United States mail, duly certified or registered (return receipt requested), postage prepaid or delivered by Express Mail or the U.S. Postal Service or Federal Express or any other courier guaranteeing overnight delivery, charges prepaid. Any Notice may also be transmitted by telecopy. All Notices shall be addressed to t he Party for whom intended, as follows:
FPFA: Fontana Public Financing Authority
8353 Sierra Avenue
Fontana, Ca 92335
SoCalGas: Southern California Gas Company
Land Services
8101 Rosemead Blvd.,SC722K
Pico Rivera, CA 90660-5100
Any Party may from time to time, by written notice to the other, designate a different address which shall be substituted for that specified above. If any notice or other document is sent by mail as aforesaid, the same shall be deemed fully del ivered and received forty-eight (48) hours after mailing as provided above. Any notice or other document sent by overnight service shall be deemed delivered one (1) business day after delivery of the same, charges prepaid, to the U.S. Postal Service or pr ivate courier. If any notice is sent by telecopy, the same shall be deemed served or delivered one (1) business day after confirmation of transmission thereof. Any notice or other document sent by any other manner shall be effective only upon actual receipt thereof.
15. Amendments. No amendment, alteration, modification of or addition to this Agreement shall be valid or binding unless expressed in writing and signed by the Parties to be bound thereby.
16. Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the reaming provisions shall continue in full force and effect.
17. Entire Agreement. This Agreement contains the entire agreement and understanding between the Parties and there are no terms, covenants or conditions which exist other than those contained herein.
18. Construction. The rule of strict construction does not apply to this Agreement. The language of this grant shall be construed simply, according to its fair meaning, so that the intention of the Parties is carried out.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which shall constitute one agreement.
20. Survival. The provisions of Section 4 shall survive the termination of this Agreement.
21. Authority to Execute . The individuals executing this Agreement referenced herein each represent and warrant that they have the legal power, right and actual authority to bind their respective Parties to the terms and conditions hereof and thereof. (Signature Provisions on Following Page)
IN WITNESS WHEREOF, the Parties hereto have caused their duly authorized representatives to execute this Agreement on the date and year first written above.
Fontana Public Financing Authority
By:______________________________________
Name: ___________________________________
Title:____________________________________
Attest:
_______________________________________
Secretary of the Fontana Public Financing Authority
APPROVED AS TO FORM :
By: ____________________________________
Authority Special Counsel
Southern California Gas Company
By:____________________________________
Name Cynthia Munoz
Title: Land & Right of-way Team Lead
EXHIBIT "A1"
PARCEL A:THE EAST 165 FEET OF THE WEST 1/2 OF FARM LOT 537, IN THE CITY OF FONTANA, COUNTY OF SANBERNARDINO, STATE OF CALIFORNIA, AS PER MAP SHOWING LANDS BELONGING TO THE SEMI-TROPIC LANDAND WATER COMPANY RECORDED IN BOOK 11, PAGE 12, OF MAPS, IN THE OFFICE OF THE COUNTYRECORDER OF SAID COUNTY.NOTE: AREA AND DISTANCES ARE COMPUTED FROM THE CENTER OF ADJOINING STREETS AND ROADS.PARCEL B:THE EAST 1/2 OF FARM LOT 557, ACCORDING TO THE MAP OF SUBDIVISION OF LANDS BELONGING TO THESEMI-TROPIC LAND AND WATER COMPANY, IN THE CITY OF FONTANA, COUNTY OF SAN BERNARDINO, STATEOF CALIFORNIA, AS PER MAP RECORDED IN BOOK 11, PAGE 12, OF MAPS, IN THE OFFICE OF THE COUNTYRECORDER OF SAID COUNTY.EXCEPT THEREFROM THE SOUTH 199 FEET OF THE NORTH 499 FEET OF THE EAST 180 FEET OF SAID LOT557.AREAS AND DISTANCES ARE COMPUTED TO STREET CENTERS.
EXHIBIT "A2"
EXHIBIT B1
BEING A DIVISION OF A PORTION OF THE NORTH ONE HALF OF THE WEST ONE HALF OF THE WEST ONE HALFOF LOT 557 SEMI TROPIC LAND AND WATER COMPANY SUBDIVISION AS RECORDED IN BOOK 11 PAGE 12 OFMAPS RECORDS OF THE COUNTY OF SAN BERNARDINO STATE OF CALIFORNIA.AREA 1EXCLUSIVE RIGHTS EASEMENTCOMMENCING AT THE POINT OF INTERSECTION OF THE CENTERLINE OF MERRILL AVENUE, 44 FEET IN WIDTHAND MANGO AVENUE, 32 FEET IN HALF WIDTH;THENCE ALONG THE CENTERLINE OF MERRILL AVENUE NORTH 89°28'01" EAST 761.80 FEET; THENCE LEAVINGSAID CENTERLINE PERPENDICULAR SOUTH 00°31'59" EAST 30.00 FEET TO THE SOUTHERLY RIGHT OF WAY OFMERRILL AVENUE;THENCE CONTINUING SOUTH 0°31'59" EAST 8.50 FEET TO THE POINT OF BEGINNING;THENCE NORTH 89°28'01" EAST 86.70 FEET PARALLEL TO THE SOUTHERLY RIGHT OF WAY OF MERRILLAVENUE;THENCE SOUTH 00°31'59" EAST 33.00 FEET;THENCE SOUTH 89°28'01" WEST 86.70 FEET;THENCE NORTH 00°31'59" WEST 33.00 FEET TO THE POINT OF BEGINNING;CONTAINING 2,861 SQUARE FEET MORE OR LESSAREA 2NON-EXCLUSIVE RIGHTS EASEMENTCOMMENCING AT THE POINT OF INTERSECTION OF THE CENTERLINE OF MERRILL AVENUE, 44 FEET IN WIDTHAND MANGO AVENUE, 32 FEET IN HALF WIDTH;THENCE ALONG CENTERLINE OF MERRILL AVENUE NORTH 89°28'01" EAST 761.80 FEET;THENCE LEAVING SAID CENTERLINE PERPENDICULAR SOUTH 00°31'59" EAST 30.00 FEET TO THE SOUTHERLYRIGHT OF WAY OF MERRILL AVENUE TO THE POINT OF BEGINNING ALSO BEING A POINT IDENTIFIED ASPOINT 'A'THENCE SOUTH 45°17'59" EAST 11.97 FEET;THENCE PARALLEL WITH THE RIGHT OF WAY OF MERRILL AVENUE NORTH 89°28'01" EAST 21.10 FEET;THENCE NORTH 45°17'59" WEST 11.97 FEET TO THE SOUTHERLY RIGHT OF WAY OF MERRILL AVENUE;THENCE ALONG THE SOUTHERLY RIGHT OF WAY OF MERRILL AVENUE SOUTH 89°28'01" WEST 21.10 FEET TOTHE POINT OF BEGINNING;CONTAINING 179 SQUARE FEET MORE OR LESS AREA 3NON-EXCLUSIVE RIGHTS EASEMENTPARCEL 3 COMMENCING AT AFOREMENTIONED POINT 'A';THENCE ALONG SOUTHERLY RIGHT OF WAY OF MERRILL AVENUE NORTH 89°28'01" EAST 86.70 FEET TO THEPOINT OF BEGINNING;THENCE LEAVING SAID RIGHT OF WAY SOUTH 44°42'01" WEST 12.07 FEET;THENCE NORTH 89°28'01" EAST 8.53 FEET;THENCE SOUTH 00°31'59" EAST 12.86 FEET;THENCE NORTH 44°42'01" EAST 30.33 FEET TO SOUTHERLY RIGHT OF WAY OF MERRILL AVENUE;THENCE ALONG MERRILL AVENUE SOUTH 89°28'01" WEST 21.50 FEET TO THE POINT OF BEGINNING;CONTAINING 266 SQUARE FEET MORE OR LESSSEE PLAT ATTACHED AS EXHIBIT "B" AND BY THIS REFERENCE MADE A PART HEREOF.APN:0194-041-29
L5L6L7L8L9L12L10L13L11L1L2L3L4
EXHIBIT "B"
PLAT TO ACCOMPANY LEGAL DESCRIPTION
Line TableLine #
L5L6L7L8
Length
12.07'8.53'12.86'30.33'
Direction
S44° 42'01"WN89° 28' 01"ES00° 31' 59"EN44° 42' 01"E
L1L2L3L433.00'86.70'33.00'86.70'N00° 31'59"WS89° 28' 01"WS00° 31' 59"EN89° 28' 01"E Line TableLine #
L12L13L10L11L9Length
11.97'21.10'11.97'21.10'21.50'Direction
S45° 17' 59"EN89° 28' 01"EN45° 17' 59"WN89° 28' 01"ES89° 28' 01"WLegendINDICATES PROPOSEDNON-EXCLUSIVEEASEMENT EXHIBIT B2
EXHIBIT C1
BEING A DIVISION OF A PORTION OF THE NORTH ONE HALF OF THE WEST ONE HALF OF THE WEST ONE HALF OF LOT 557SEMI TROPIC LAND AND WATER COMPANY SUBDIVISION AS RECORDED IN BOOK 11 PAGE 12 OF MAPS RECORDS OF THECOUNTY OF SAN BERNARDINO STATE OF CALIFORNIA.+COMMENCING AT THE POINT OF INTERSECTION OF THE CENTERLINE OF MERRILL AVENUE, 44 FEET IN WIDTH AND MANGOAVENUE, 32 FEET IN HALF WIDTH;THENCE ALONG THE CENTERLINE OF MERRILL AVENUE NORTH 89°28'01" EAST 629.96 FEET; THENCE LEAVING SAIDCENTERLINE PERPENDICULAR SOUTH 00°31'59" EAST 30.00 FEET TO THE SOUTHERLY RIGHT OF WAY OF MERRILL AVENUEALSO BEING THE POINT OF BEGINNING;THENCE NORTH 89°28'01" EAST 295.54 FEET ALONG THE SOUTHERLY RIGHT OF WAY OF MERRILL AVENUE;THENCE SOUTH 00°31'59" EAST 50.00 FEET LEAVING SAID SOUTHERLY RIGHT OF WAY;THENCE SOUTH 89°28'01" WEST 225.22 FEET PARALLEL TO SAID SOUTHERLY RIGHT OF WAY;THENCE SOUTH 00°31'59" EAST 32.75 FEET;THENCE SOUTH 89°28'01" WEST 40.00 FEET;THENCE NORTH 00°31'59" WEST 32.75 FEET;THENCE SOUTH 89°28'01" WEST 30.75 FEET;THENCE NORTH 00°31'59" WEST 50.00 FEET TO THE POINT OF BEGINNING;EXCEPTING THE AREA1, AREA2 AND AREA3 DESCRIBED AS FOLLOWS.BEING A DIVISION OF A PORTION OF THE NORTH ONE HALF OF THE WEST ONE HALF OF THE WEST ONE HALFOF LOT 557 SEMI TROPIC LAND AND WATER COMPANY SUBDIVISION AS RECORDED IN BOOK 11 PAGE 12 OFMAPS RECORDS OF THE COUNTY OF SAN BERNARDINO STATE OF CALIFORNIA.AREA 1EXCLUSIVE RIGHTS EASEMENTCOMMENCING AT THE POINT OF INTERSECTION OF THE CENTERLINE OF MERRILL AVENUE, 44 FEET IN WIDTHAND MANGO AVENUE, 32 FEET IN HALF WIDTH;THENCE ALONG THE CENTERLINE OF MERRILL AVENUE NORTH 89°28'01" EAST 761.80 FEET; THENCE LEAVINGSAID CENTERLINE PERPENDICULAR SOUTH 00°31'59" EAST 30.00 FEET TO THE SOUTHERLY RIGHT OF WAY OFMERRILL AVENUE;THENCE CONTINUING SOUTH 0°31'59" EAST 8.50 FEET TO THE POINT OF BEGINNING;THENCE NORTH 89°28'01" EAST 86.70 FEET PARALLEL TO THE SOUTHERLY RIGHT OF WAY OF MERRILLAVENUE; EXHIBIT C1
THENCE SOUTH 00°31'59" EAST 33.00 FEET;THENCE SOUTH 89°28'01" WEST 86.70 FEET;THENCE NORTH 00°31'59" WEST 33.00 FEET TO THE POINT OF BEGINNING;AREA 2NON-EXCLUSIVE RIGHTS EASEMENTCOMMENCING AT THE POINT OF INTERSECTION OF THE CENTERLINE OF MERRILL AVENUE, 44 FEET IN WIDTHAND MANGO AVENUE, 32 FEET IN HALF WIDTH;THENCE ALONG CENTERLINE OF MERRILL AVENUE NORTH 89°28'01" EAST 761.80 FEET;THENCE LEAVING SAID CENTERLINE PERPENDICULAR SOUTH 00°31'59" EAST 30.00 FEET TO THE SOUTHERLYRIGHT OF WAY OF MERRILL AVENUE TO THE POINT OF BEGINNING ALSO BEING A POINT IDENTIFIED ASPOINT 'A'THENCE SOUTH 45°17'59" EAST 11.97 FEET;THENCE PARALLEL WITH THE RIGHT OF WAY OF MERRILL AVENUE NORTH 89°28'01" EAST 21.10 FEET;THENCE NORTH 45°17'59" WEST 11.97 FEET TO THE SOUTHERLY RIGHT OF WAY OF MERRILL AVENUE;THENCE ALONG THE SOUTHERLY RIGHT OF WAY OF MERRILL AVENUE SOUTH 89°28'01" WEST 21.10 FEET TOTHE POINT OF BEGINNING;AREA 3NON-EXCLUSIVE RIGHTS EASEMENTPARCEL 3 COMMENCING AT AFOREMENTIONED POINT 'A';THENCE ALONG SOUTHERLY RIGHT OF WAY OF MERRILL AVENUE NORTH 89°28'01" EAST 86.70 FEET TO THEPOINT OF BEGINNING;THENCE LEAVING SAID RIGHT OF WAY SOUTH 44°42'01" WEST 12.07 FEET;THENCE NORTH 89°28'01" EAST 8.53 FEET;THENCE SOUTH 00°31'59" EAST 12.86 FEET; THENCE NORTH 44°42'01" EAST 30.33 FEET TO SOUTHERLY RIGHT OF WAY OF MERRILL AVENUE;THENCE ALONG MERRILL AVENUE SOUTH 89°28'01" WEST 21.50 FEET TO THE POINT OF BEGINNING;APPROXIMATE AREA 12,662 SQ. FT/ 0.29 ACRESEE PLAT ATTACHED AS EXHIBIT "C2" AND BY THIS REFERENCE MADE A PART HEREOF.APN:0194-041-29
EXHIBIT C2
LegendINDICATES CELL TOWER ACCESSEASEMENTINDICATES TEMPORARY RIGHT OFENTRY