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HomeMy WebLinkAboutContracts & Agreements_24-2019AGREEMENT BY AND AMONG THE INLAND VALLEY DEVELOPMENT AGENCY, SAN BERNARDINO INTERNATIONAL .AIRPORT AUTHORITY AND THE CITY OF REDLANDS This AGREEMENT (this "Agreement"), dated as of the 5`i' day of February, 2019, (the "Effective Date") is made by and among the Inland Valley Development Agency a_joint powers authority ("NDA") and the San Bernardino International Airport Authority, a,jomt powers authority ("SBIAA") and the City of Redlands, a general law city ("Redlands") Redlands, SBIAA the IVDA are each sometimes individually referred to herein as a "Party" and, collectively, as the "Parties " The IVDA and SBIAA, acting either together or individually, are sometimes hereinafter referred to as the "Agency " RECITALS WEEREAS, the borderline between the cities of San Bernardino and Redlands is located on the centerline of Mountain View Avenue and NDA and/or SBIAA intend to construct improvements to Mountain View Avenue to widen the street along both the San Bernardino and Redlands side of Mountain View The improvements will also require a widening of the bridge over the Mission Creek at Mountain View, and WHEREAS, Southern California Gas Company has a gas line located within the Mission Creek Bridge and other facilities within the Mountain View public right of way that will need to he relocated as part of widening Mountain View Avenue, and WHEREAS, for purposes of this Agreement, "Gas Company" means Southern California Gas Company and any of its subsidiaries or related entities which own or control facilities located within the Mountain View Avenue right of way or Mission Creek Bridge within Redlands' ,jurisdiction, and WHEREAS, pursuant to Ordinance No 825, the substance of which is codified in Chapter 5 88 of the Redlands Municipal Code, Redlands has granted a franchise to the Gas Company in accordance with the Franchise Act of 1937 (California Public Utilities Code section 6201 et seq) to construct and use pipes and other facilities for the purpose of transmitting and distributing natural gas and products thereof under, across, and along public streets and tights -of -way upon terms and conditions provided in the Act and Ordinance No 825, and WHEREAS, section 5 88 080 of the Redlands Municipal Code expressly provides that the Gas Company shall "Remove of relocate, without expense to the City [Redlands], any facilities installed, used and maintained under the franchise if and when made necessary by any lawful change in grade, alignment or width of any public street, way, alley or place, including the construction of any subway or viaduct by the City, ' and WHEREAS, the phrase "Franchise Rights," for purposes of this Agreement, shall mean all rights Redlands may have under Californta Public Utilities Code section 6297, Redlands Municipal Code Chapter 5 88, and any applicable case law, to require the Gas Company to relocate its Facilities located within the Mountain View Avenue right of way or Mission Creek Bridge within Redlands' .jurisdiction, and L 1ca\djm1A-,r eements\1VDA Agency Agreement.doex WHEREAS, Public Utilities Code section 6297 and various case law fin-ther provide that a public utility that installs facilities within a public street has an obligation to relocate those facilities when made necessary by any lawful change of grade, alignment, or width of the public street, and WHEREAS, the phrase "Franchise Rights," fol purposes of this Agreement, shall mean all rights Redlands may have under California Public Utilities Code section 6297, Redlands Municipal Code Chapter 5 88, and any applicable ease law, to require the Gas Company to relocate facilities located within the Mountain View Avenue right of way or Mission Creek Bridge vaithm Redlands' jurisdiction, and WHEREAS, the Parties have previously detennmed that the construction of full width improvements to Mountain View Avenue will be a benefit to any future development of properties located along or in the vicinity of Mountain View Avenue, and WHEREAS, Redlands desires by this Agreement, to the extent provided for by lain, to authorize Agency to exercise Redlands Franchise Rights foi relocation of a gas line and othei facilities owned by the Gas Company that are located within those portions of Mission Creek Bridge and Mountain View Avcnue (the "Facilities") within Redlands' jurisdiction, and WHEREAS, Agency expressly acknowledges and agrees that Redlands makes no representations to Agency with respect to the authority granted to Agency by this Agreement to request or seeking to enforce the relocation of the Gas Company's Facilities, NOW, THEREFORE, in consideration of the above recitals and the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt of which are hereby acknowledged, the Parties agree as follows AGREEMENT Section 1 Recitals The Parties agree that the foregoing Recitals are true and correct and are hereby incorporated into this Agreement by this reference Section 2 Grant of Authorization Section 2 1 Redlands hereby authorizes Agency to the extent penriitted by law to exercise all Franchise Rights that Redlands may have as to the Gas Company foi the limited and sole purpose to request or require the Gas Company to relocate the Facilities, at the Gas Company's cost, located within the Mission Creek Bridge or Mountain View Avenue right of way Agency shall have the right to initiate contact with the Gas Company and undertake negotiations with the Gas Company to relocate the Gas Company's Facilities under the Franchise Rights Notwithstanding the foregoing, Agency shall not have the right to take any of the following actions without the express, prior written consent of Redlands (a) Comirut Redlands to pay any costs associated with the relocation of the Gas Company's Facilities, (b) Issue any approvals related to the design, planning, or pennitted of the relocation of the Gas Company's Facilities, all of which rights are reserved to Redlands, (c) Bind Redlands to any agreement with the Gas Company or any other person, entity, or organization, or 2 L 1caldjm\A=eementsl1VDA Agency Agreement doer (d) File any action against the Gas Company seeking to enforce the Franchise Rights The foregoing restnctions shall not prevent Agency, in its individual capacity (as opposed to exercising its authority rights as Agency hereunder) from entering into any agreement with the Gas Company to relocate the Facilities or pay any cost thereof so long as (i) such agreement is executed by Agency (ii) contains provisions protecting the interests of Redlands in satisfaction of section 2 3 hereof, and substantially in the form set forth in section 2 4 hereof, and (in) no obligation or responsibility is imposed upon Redlands Section 2 2 Agency shall pay all costs and expenses associated with exercising any Franchise Rights of Redlands, and Redlands shall not be liable or responsible for any cost or expense in connection therewith Section 2 3 In the event the Gas Company undertakes the relocation of its Facilities pursuant to this Agreement, Agency shall be responsible and liable to Redlands for ensuring the Gas Company's compliance with section 5 88 080 of the Redlands Municipal Code which requires the Gas Company to "Pay to the City, on demand, the cost of all repairs to public property made necessary by any operations of the grantee [the Gas Company] under the franchise " Section 2 4 Unless waived by Redlands at the request of Agency, in writing, Agency shall cause to be incorporated into any agreement between the Gas Company and Agency provisions relating to insurance and defense and indemnity obligations in substantially the form as follows (a) Insurance (i) Insurance to be, Primary All insurance required by this Agreement is to he maintained by [Gas Company] for the term of this Agreement and shall be primary with respect to [Redlands] and non-contributing to any insurance or self-insurance maintained by [Redlands] [Gas Company] shall provide [Redlands] with Certificates of Insurance evidencing such insurance concurrent with [Gas Company's] execution and delivery of this Agreement to [Redlands], for [Redlands'] approval (ii) Worker's Compensation and Employer's Liabili [Gas Company] shall have Worker's Compensation and Employer's Liability insurance in an amount which meets the statutory requirement with an insurance carrier acceptable to [Redlands] [Gas Company] shall execute and provide [Redlands] with Exhibit " " entitled "Workers' Compensation Insurance Certification," which is attached hereto and incorporated herein by this reference prior to the relocation a of any Facilities pursuant to this Agreement (in) Comprehensive General Liability Insurance [Gas Company] shall secure comprehensive general liability insurance covering all work under this Agreement, including work done by its subcontractors, with carriers reasonably acceptable to [Redlands] Minimum coverage of one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) aggregate for public liability, property damage, and personal injury is required [Redlands] shall be named as an additional insured and the insurance policy shall include a provision prohibiting modification of the coverage limits or cancellation of said policy except upon thirty (30) days prior written notice to [Redlands] L 1ca%djm1Agreements\IVDA Agency Agreement.docx (iv) Business Auto Liability Insurance [Gas Company] shall secure business auto liability coverage, with mimmum limits of one million dollars ($1,000,000) per occurrence, combined single limit for bodily injury liability and property damage liability Such coverage shall include all [Gas Company] owned vehicles used in connection with the work performed pursuant to this Agreement, hired and non -owned vehicles, and employee non -ownership vehicles [Redlands] shall be named as an additional insured and the insurance policy shall include a provision prohibiting modification of the coverage Iimits or cancellation of said policy except upon thirty (30) days prior written notice to [Redlands] (b ) Indemnification [Gas Company] shall defend, indemnify and hold harmless [Redlands], and its elected and appointed officials, officers, employees and agents, from and against any and all claims, damages, suits, losses or liability, including attorneys' fees, arising from injury or death to any persons or damage to any property occasioned by any negligent act or omission by, or the willful misconduct of, [Gas Company], or its officers, employees, and agents, in performing the [relocation work] Section 3 Term and Termination The term of this Agreement shall be for three (3) years from and after the Effective Date, unless otherwise terminated or extended by mutual agreement of the Parties Notwithstanding the foregoing, if any Parry breaches in any material respect any of its material obligations under this Agreement, in addition to any other right or remedy, the non -breaching Party may immediately terminate this Agreement in the event that the breach is not cured within thirty (30) days after receipt by that Party of written notice of the breach Section 4 No Partnership, Joint Venture, or Agent Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between Redlands and Agency, or cause Agency to be deemed the agent of Redlands, nor authorize Agency to make or enter into any commitments for or on behalf of Redlands Section 5 Reimbursement of Costs and Expenses Agency shall reimburse Redlands for all reasonable and actual costs and expenses incurred by Redlands in performing any services requested, or made necessary by, Agency or the Gas Company in connection the activities of Agency and the Gas Company in connection with the relocation of the Gas Company's Facilities Section 6 Indemnity NDA and SBIAA, jointly and severally, hereby each agree to indemnify, defend (with counsel reasonably approved by Redlands) and hold Redlands free and harmless from and against any and all costs, expenses (including attorneys' fees), liability, damages, judgments or awards arising out of Agency's requesting, or seeking to enforce, Redlands' Franchise Rights as to the Gas Company with respect to improvements to Mission Creek Bridge or Mountain View Avenue and the relocation of the Gas Company's Facilities Section 7 Notices Demands and Communications between the Parties Section 7 1 Formal notices, demands and communications between the Parties shall be deemed sufficiently given if (i) dispatched by registered or certified mail via the United States Postal Service, postage prepaid, return receipt requested, as designated in this section, or (n) by messenger service for immediate personal delivery, or (in) by electronic transmittal, including fax transmissions with telephonic verification receipt Such written notices, demands and communications maybe sent in the same 4 L Icaldjm\Agreements\IVDA Agency Agreement.docx manner to such other addresses as the Parties may from time to time designate by written notice to the other Parties Section 7.2 All notices, demands and communications shall be sent, as follows To Redlands City of Redlands Attn City Manager 35 Capon Street, Suite 200 Redlands, CA 92373 To Agency Inland Valley Development Agency Attn Executive Director 1601 E Third Street, Suite 100 San Bernardino, CA 92408 Section 8 Amendment This Agreement may be amended at any time by the mutual consent of the Parties by an instrument in writing signed by all of the Parties Section 9 Further Actions and Instruments Each of the Parties shall cooperate with and provide reasonable assistance to the other Parties to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement Section 10 Counterparts This Agreement may be signed in counterparts, each of which shall constitute an original Section 11 Time is of the Essence For each provision of this Agreement which states a specific amount of time within which the requirements thereof are to be satisfied, time shall be deemed of the essence Section 12 Goveming Law This Agreement shall be governed by the laws of the State of California without regard to conflicts of laws principles This Agreement shall be deemed to have been made in the County of San Bernardino, State of California, regardless of the order of the signatures of the Parties affixed hereto Any litigation or other legal proceedings which anse under or in connection with this Agreement shall be conducted in a federal or state court located within or for the County, in the State Section 13 Construction, References, Captions Because the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party Any term referencing time, days or period for performance shall be deemed calendar days and not work days All references to Redlands and to Agency include all elected and appointed officials, officers, employees, personnel, agents, volunteers, contractors and subcontractors of Redlands and Agency, except as otherwise specified in this Agreement The captions of the various articles and paragraphs of this Agreement are for convenience and ease of reference only, and do not define, limit, augment or describe the scope, the content, or the intent of this Agreement L 1cUjm\AgreementslNDA Agency Agreement.docx Section 14 Waiver No delay or omission in the exercise of any right or remedy of a non - defaulting Party or Parties on any default shall impair such nght or remedy or be construed as a waiver Any Party's consent or approval of any act by the other Party requiring its consent or approval shall not be deemed to waive or to render unnecessary its consent to or approval of any subsequent act of the other Party Any waiver by any Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement Section 15 Severability In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder Section 16 Binding Effect The terms of this Agreement shall inure to the benefit of, and shall be binding upon, each of the Parties and their respective successors and assigns Section 17 Authorized Representatives The person or persons executing this Agreement on behalf of the Agency and Redlands warrant and represent that he/she has the authority to execute this Agreement on behalf of that Party and that they have the authority to bind that Party to the performance of its obligations hereunder Section 18 Attorneys' Fees In the event any action is commenced to enforce or interpret any of the terns, provisions, or conditions of this Agreement, the prevailing Party in such action, in addition to costs and any other relief, shall be entitled to the recovery of its reasonable attomeys fees, including fees incurred by a Party for the use of "in-house" counsel Section 19. No Third Earty Beneficiaries. The provisions of this Agreement are for the sole benefit of the Partiers and their successors and permitted assigns, and they shall not be construed as conferring any right to any third party, including any third party beneficiary rights Section 20 Entire Agreement This Agreement constitutes the entire and integrated agreement of the Agency and Redlands with respect to the subject matter hereof and supersedes any and all prior and contemporaneous oral or written negotiations, representations or agreements regarding the same [SIGNATURES ON THE FOLLOWING PAGE] b L Icald)m\AgreementsUVDA Agency Agreement.docx AGENCY Inland Valley Developme ency By' Michael B ows, Executive Director San Bernardino International Airport Authority, a joint powers authority ;4 By Michael B s, Executive Director APPROVED AS TO LEGAL FORM By Mrrau, Edwards, Cannon, Lewin & Tooke Agency Counsel By f Michael Lewin ATTEST By Jennifek F s, Clerk of the Board L 1ca\djm\Agreements\ VDA Agency Agreement.docx REDLANDS City of Redlands By & l/V l Paul W Foster, Mayor APPROVED AS TO LEGAL FORM By Dani -en SkUugh, City Attorney ATTEST By anne Donaldson, City Clerk L•Icald)m\Agreements\IVDA Agency Agreement.doex