HomeMy WebLinkAboutContracts & Agreements_75-1998_CCv0001.pdf AGREEMENT REGARDING IMPROVEMENTS TO INTERSECTION OF
COLTON AVENUE AND WABASH AVENUE
THIS AGREEMENT REGARDING IMPROVEMENTS TO INTERSECTION OF
COLTON AVENUE AND WABASH AVENUE (this "Agreement") is made and entered
into as of 1998 (the "Effective Date"), by and between Richmond
Technology, Inc., an Illinois Tool Works Company ("Richmond"), and the City of Redlands,
a municipal corporation located within the County of San Bernardino (the "City").
1. Recitals.
1.1. Richmond is the owner of real property located at 1897 East Colton
Avenue in the unincorporated area of the County of San Bernardino (the "Property").
1.2. The Property is bounded on the south side by Colton Avenue. To the
west of the Property Colton Avenue intersects with Wabash Avenue within the boundaries of
the City.
1.3. For approximately the last 51 years, Richmond or its predecessors-in-
interest (referred to hereinafter together as "Richmond") has used the Property to manufacture
and process specialized, flexible plastic tubing and sheeting, plastic/metal foil laminates, and
inks to produce products used in a variety of industries, including aerospace, pharmaceutical,
medical, and electronics/semi-conductors (together, the "Operations"). Richmond conducts
the Operations 24 hours each day, seven (7) days each week, depending on market demand.
1.4. Some of the Operations are sensitive to airborne contaminants, including
without limitation, the manufacture of products which must be produced in Class 100 Clean
Rooms subject to the requirements of Federal Standard 209E: Airborne Particulate
Cleanliness Classes In Clean Rooms and Clean Zones, administered by the General Services
Administration,Federal Supply Service Standardization Division.
1.5. For approximately the last 51 years, except for interruptions caused by
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forces outside of Richmond's control, Richmond has used rail service to obtain delivery of
raw materials used in the Operations. Since December 21, 1979, rail deliveries have been
made by use of a railroad spur which originates southwest of the intersection of Colton
Avenue and Wabash Avenue (the "Intersection"), crosses Wabash Avenue and then Colton
Avenue, and terminates on the Property (the "Spur"). Pursuant to the terms of an agreement
entered into between the State of California and Richmond on December 21, 1979, Richmond
owns a lease of the Spur through the year 2029.
1.6. The City is planning to make improvements to the Intersection. The
planned improvements would require that the railroad crossings over Wabash Avenue and
Colton Avenue be reconstructed.
1.7. The City has requested that Richmond abandon the Spur, to allow the
City and Richmond to avoid the costs which would be incurred if the railroad crossings were
to be reconstructed.
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1.8. If Richmond abandons the Spur: (a) Richmond will incur additional costs
in obtaining the delivery of raw materials used in the Operations; and (b) the number of
overland deliveries of raw materials, including bulk resin, to Richmond by tractor-trailer
trucks of up to 52-feet in length will be increased. Tractor-trailer trucks now enter and exit
the Property from a gate on Colton Avenue.
1.9. Richmond has informed the City that any work which the City performs
on, adjacent to, or in the nearby vicinity of the Property which would increase the number of
airborne contaminants could render Richmond's manufacturing plant inoperable and result in
the City's liability for damages. Richmond has also informed the City that any interruption
in electric, telephone, water, or sewer service to the plant will interrupt the Operations,
including without limitation, to the extent that the Class 100 Clean Room must be
reconditioned and re-certified, causing Richmond to lose operation of the Class 100 Clean
Room for up to 72 hours. Richmond has further informed the City that Richmond is
unwilling to run the risk of losing any portion of the Operations.
1.10. Richmond is willing to abandon the Spur, incur additional costs of
delivery as a consequence of that abandonment, and cooperate with the City as it improves
the Intersection and portions of Wabash Avenue and Colton Avenue which include the
railroad crossings, provided that the City: (a) removes the Spur at its cost; (b) restores the
Property after its removal of the Spur; (c) constructs a left-turn lane on east-bound Colton
Avenue at the Property's existing gate long enough to accommodate a 52-foot long tractor-
trailer truck (the "Left-Turn Lane"); (d) provides for continuous, uninterrupted ingress and
egress to the Property at its existing gates on Colton Avenue and Opal Avenue throughout
the City's construction of improvements to Colton Avenue, improvements to the
Intersection, removal of the Spur, and restoration of the Property; and (e) protects the
Operations from the increased danger of exposure to airborne contaminants as a result of the
activities described in Subsections (a), (b), and (c) of this Subsection 1.10, all upon the terms,
limitations, and conditions of this Agreement.
2. Removal of Spur. The City will remove all of the Spur, both on and off the
Property, at its sole cost and expense. The City will begin to remove the Spur no later than
March 31, 1999, and complete removal and restoration of the Property pursuant to Section 3,
below, no later than December 31, 1999.
3. Restoration of the Property-. Immediately upon removal of the Spur, the City will
restore the Property to substantially the condition existing prior to the time any portion of
the Spur was constructed, including but not limited to returning that portion of the Property
to a consistent grade, all to Richmond's reasonable satisfaction and all at the City's sole cost
and expense.
4. License Provisions.
4.1. Subject to the provisions of Section 4.2, below, from the date of this
Agreement until December 31, 1999 (the "License Period"), Richmond hereby grants to the
City, its employees, consultants, agents, inspectors, contractors, subcontractors, and designees,
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and each of their respective employees, consultants, agents, inspectors, contractors, and
subcontractors (individually, a "Licensee"; collectively, the "Licensees") a license to enter upon
the Property for the purposes of removing the Spur and restoring the Property according to
the terms of this Agreement (the "Licensed Activities"). Other than as specifically set forth
herein, the City shall have no right to, in, or with respect to the Property and shall have no
right to, interest in, possession of, or title to, the Property.
4.2. The Licensees will conduct the Licensed Activities only in accordance with
the following procedures:
4.2.1. The City will notify Richmond in writing at least two weeks
prior to the date the City intends to cause any of the Licensees to enter upon the Property to
begin to remove the Spur (the "Initial Entry Date"). Richmond will have three business days
from receipt of the City's notification to notify the City in writing of either: (a) Richmond's
approval of the City's intended Initial Entry Date; or (b) Richmond's disapproval of the
City's intended Initial Entry Date and designation of an alternative Initial Entry Date. In the
event Richmond, in its sole discretion, disapproves the City's intended Initial Entry Date,
Richmond shall designate an alternative Initial Entry Date that is as soon as practicable, in
Richmond's sole discretion, after the City's intended Initial Entry Date.
4.2.2. The Licensees will have no authority to do anything that may
result in a lien or encumbrance against the Property in connection with the Licensed
Activities. Without limiting the foregoing, however, the City agrees to pay promptly or cause
to be paid promptly all costs associated with the Licensed Activities and not to cause, permit,
or suffer any lien or encumbrance to be asserted against the Property related to the Licensed
Activities.
4.2.3. The Licensees will comply with all federal, state, and local laws
which might in any way relate to the Licensed Activities.
4.2.4. At all times during the License Period, the City shall: (a) maintain
workers' compensation insurance in accordance with applicable law; and (b) maintain public
liability insurance with limits of at least Two Million Dollars ($2,000,000) for bodily or
personal injury or death, property damage insurance in the amount of at least Two Million
Dollars ($2,000,000), and contractual liability insurance with respect to the City's obligations
under this Agreement. Prior to any Licensee entering upon the Property, the City will
deliver to Richmond a certificate evidencing the public liability, property damage, and
contractual liability insurance. Each such insurance policy shall be written by a reputable
insurance company having a rating of at least "A" by A.M. Best (or a comparable rating by a
successor rating service), and shall otherwise be subject to Richmond's prior approval. Each
such insurance policy shall name the Indemnitees as additional insureds.
5. Construction of Left-Turn Lane. The City will construct the Left-Turn Lane at its
sole cost and expense. The City will begin construction of the Left-Turn Lane no later than
March 31, 1999, and complete construction no later than December 31, 1999.
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6. Liability r Improvements. Richmond will have no responsibility or liability for
the improvements to the Intersection, removal of the Spur, restoration of the Property
following removal of the Spur, or construction of the Left-Turn Lane (together, the "City's
Work").
7. Access to the Property. None of the Licensees will at any time prevent any vehicles
or pedestrians from entering or exiting the Property, prior to, during, or after any of the
City's Work. The City will ensure that at all times during the City's Work, Richmond, its
employees, contractors, agents, guests, customers, materials suppliers (including those
delivering materials in 52-foot long tractor-trailer trucks), and invitees are able to ingress and
egress the Property from both Richmond's gate on Colton Avenue and Richmond's gate on
Opal Avenue.
8. Rules of Conduct. Richmond's grant of rights to the City pursuant to Subsection
4.1, above, is subject to the following limitations:
8.1. The City will use its best efforts to ensure that the airborne contaminants
generated by the City's Work are controlled to the maximum extent reasonably feasible,
including but not limited to implementation of all measures required by Rules 403 and 403.1
of the South Coast Air Quality Management District. The City will perform testing of levels
of airborne contaminants in the area of the Property prior to and for the duration of the term
of this Agreement, on a regular basis, but not less than once per week during the period of the
City's Work. The City will use its best efforts to contain the level of airborne contaminants
in the area of the Property to the levels recorded prior to the commencement of the term of
this Agreement.
8.2. The City will use its best efforts to minimize interruption in electric,
telephone, water, and sewer services to the manufacturing plant on the Property resulting
from the City's Work. In the event that an interruption cannot be avoided, the City will use
its best efforts to limit the total period of any interruption to no more than four (4) hours.
The City will provide Richmond with as much notice as reasonably possible, with at least
seven (7) calendar days' notice of the scheduled interruption(s), and will use its best efforts to
schedule interruptions for a Saturday, Sunday, or holiday as late in the day as possible. The
notice(s) to Richmond of any service interruption shall include the names and contact
numbers of persons who will be responsible on behalf of the City for the work causing the
service interruption, and shall include specific information regarding the expected time and
duration of the interruption. The City will use its best efforts to encourage utility service
providers who perform utility relocation or other work resulting from the City's Work to
schedule service interruptions and provide notice of such interruptions in accordance with the
requirements set forth in this Section 8.2, and the City shall pay for any increased costs
incurred by utility providers resulting from the scheduling of service interruptions in a
manner to minimize the impacts on the Operations.
8.3. The City will provide Richmond the names and contact numbers of the
site supervisor(s) whom Richmond may contact at the construction site during all hours of
construction activity. The City will give notice to Richmond in advance of any change(s) in
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name(s) or contact number(s). Such information shall be provided to Richmond through Mr.
Doug Pastoor at 909-794-2111.
8.4. The City shall not allow the storage of soils on the Property during the
term of this Agreement. The City will require that its contractor's dust control plan provide
that the removal and return of excavated soils shall be accomplished utilizing covered trucks.
9. Indemnification. Defense and Hold Harmless. To the extent permitted by law, the
City hereby agrees to absolutely and unconditionally indemnify, defend, and hold harmless
Richmond, its partners, shareholders, officers, employees, agents, contractors, licensees (other
than the Licensees), invitees, guests, in their individual and corporate capacities, and all their
respective successors and assigns (collectively, the "Indemnitees") from and against any and all
obligations, liabilities, claims, demands, actions, causes of action, administrative orders,
consent agreements and orders, injuries, losses, penalties, fines, costs, damages, attorneys' fees,
and other expenses of any kind or character which any of them may at any time suffer,
sustain, or incur, arising directly or indirectly, in whole or in part, out of the City's Work.
The City, immediately upon Richmond's demand, shall absolutely and unconditionally
prosecute or defend any action brought against the Indemnitees, or any of them, arising
directly or indirectly, in whole or in part, out of or in any way connected with the City's
Work, whether or not the City is joined in the action, proceedings, or order, or whether or
not separate actions, proceedings, or orders have been brought against the City. The City
hereby waives any claim it may have to require that the one(s) asserting any claim against the
Indemnitees, or any of them, must make demand, proceed against, or give notice before
proceeding against the City. Richmond shall provide reasonable notice and tender its defense
upon receipt of any claim for which it seeks indemnity pursuant to this Section 9.
Without limiting the foregoing, to the extent permitted by law, the City hereby agrees
to indemnify, defend, and hold harmless the Indemnitees from and against any and all
obligations, liabilities, claims, demands, actions, causes of action, administrative orders,
consent agreements and orders, injuries, losses, penalties, fines, costs, damages, attorneys' fees
and other expenses of any kind or character which any of them may at any time suffer,
sustain, or incur, arising directly or indirectly, in whole or in part, from: (a) any discharges,
releases, or threatened releases of pollutants, contaminants, herbicides, pesticides, insecticides,
or hazardous or toxic wastes, substances, or materials (any of the preceding a "Hazardous
Material" and together, "Hazardous Materials") into ambient air, water, or land by any of the
Licensees; (b) the manufacture, processing, distribution, use, treatment, storage) disposal,
transport, or handling of Hazardous Materials by any of the Licensees; and (c) a violation of
any environmental law on, under, or above the Property by any of the Licensees. (For
purposes hereof, "environmental law" will mean and refer to any federal, state, or local law,
statute, regulation, ordinance, guideline, or common law principal relating to public health or
safety or the use or control of the environment, including without limitation the Federal
Comprehensive Environmental Response, Compensation and Liability Act of 1980, the
Carpenter-Presley-Tanner Hazardous Substance Account Act, the California Hazardous
Waste Control Law, the Federal Clean Air Act, the California Air Resources Act, the Federal
Clean Water Act, the California Porter-Cologne Water Quality Control Act, the Federal
Resource Conservation and Recovery Act, the California Nejedlv-Z'berg-Dills Solid Waste
Management and Recovery Act, and California Health and Safety Code Section 25359.7.) The
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foregoing obligation to indemnify includes without limitation, the obligation to indemnify
against diminution in value of the Property or any portion of the Property, and sums paid in
settlement of claims, attorneys' fees, consultant fees, and expert fees, which arise during or
after the term of this Agreement as a result of any contamination. This indemnification
obligation also includes without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal, or restoration work
reasonably deemed appropriate by Richmond or required by any federal, state, or local
governmental agency or political subdivision because of Hazardous Materials present (or
suspected to be present) in the soil or ground water on or under the Property.
The City's obligations pursuant to this Section 9 shall survive the expiration of the
License and the termination of this Agreement.
10. Damage Claims. Richmond may, but is not required to, submit a claim(s) to the
City for any damage Richmond suffers as a result, either directly or indirectly, in whole or in
part, from the City's Work, provided that Richmond submits any such claim(s) within one (1)
year of the termination of this Agreement. Any claim(s) must be accompanied by supporting
documentation to allow the City to fully consider the claim(s). the City shall have ninety (90)
days within which to negotiate and approve a settlement of each claim(s) with Richmond. If a
claim is not settled to Richmond's satisfaction within the 90-day period, Richmond shall be
entitled without further delay, to elect its remedy(ies) under Section 11, below.
It. Dispute Resolution. The parties to this Agreement expressly retain all remedies
and rights available to them at law and in equity for the other party's breach or default of this
Agreement. In the event that the parties to this Agreement agree to arbitrate any dispute or
controversy concerning this Agreement or the rights of the parties under this Agreement, the
parties hereby agree that in that event arbitration will constitute the sole and exclusive remedy
for the settlement of the dispute which the parties have agreed to arbitrate, including without
limitation, whether such dispute or controversy is arbitrable. Any election to arbitrate shall
not be construed as an agreement by either party to arbitrate any subsequent dispute or
controversy. Any such arbitration proceeding will be accomplished in accordance with the
following:
11.1. Upon the occurrence of a dispute or controversy, either party to this
Agreement may request an arbitration under this Section 11 by delivering a request for
arbitration to the other party, as well as to the American Arbitration Association in Los
Angeles County, California. If the other party fails to agree to the request by delivering an
agreement in writing within ten (10) business days of receipt of the request for arbitration, the
request shall be deemed denied.
11.2. Any arbitration proceeding relative to this Agreement will be conducted
under the Commercial Arbitration Rules of the American Arbitration Association in effect at
the time demand for arbitration is made. To the extent that there is any conflict between the
rules of the American Arbitration Association and this arbitration clause, this arbitration
clause will govern and determine the rights of the parties.
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11.3. The arbitration will take place in San Bernardino County, California,
before a single arbitrator.
11.4. The arbitrator is hereby vested with the broadest powers and authority
permitted under California law including the right to injunctive and other equitable relief.
The arbitrator may additionally make any order concerning severance or bifurcation of issues
and/or claims to be presented at the arbitration and may additionally make an interim order,
decision, determination, or award which such arbitrator deems necessary to preserve the status
quo until a final order, decision, determination, or award is made.
11.5. The decision of the arbitrator, including the determination of the amount
of any damages suffered, will be exclusive, final, and binding on all parties, their heirs,
executors, administrators, successors, and assigns, as applicable.
11.6. The costs of arbitration, including administrative fees, fees for a record
and transcript, and the arbitrator's fees, as well as actual attorneys' fees, will be awarded to the
party determined by the arbitrator to be the prevailing party (which for purposes of this
Agreement will mean the party who most closely obtained the result sought).
12. Miscellaneous Provisions.
12.1. Modification. This Agreement may not be altered in whole or in part
except by a written modification executed by all the parties to this Agreement.
12.2. No-joint Venture. Nothing in this Agreement is intended to create a joint
venture, partnership, or common enterprise relationship of any kind between or among the
parties to this Agreement. The obligations of each of the parties to this Agreement are the
sole and several obligations of such party.
12.3. Attorneys' Fees. In the event any action or proceeding is initiated to
challenge, invalidate, enforce, or interpret any of the terms of this Agreement, the prevailing
party shall be entitled to all reasonable attorneys' fees and litigation fees, costs, and expenses in
addition to any other relief granted by law. This provision shall apply to this entire
Agreement.
12.4. Entire Agreement. This Agreement contains all representations and the
entire understanding among the parties with respect to the subject matter of this Agreement.
Any prior correspondence, memoranda, or agreements, whether or not such correspondence,
memoranda, or agreements are in conflict with this Agreement, are intended to be replaced in
total by this Agreement. Each party to this Agreement warrants and represents that no
representative of any party to this Agreement has made any oral representations or oral
agreements not contained in this Agreement. Each party to this Agreement further warrants
and represents that it has not relied upon any oral statements or promises made by any
representative of any party to this Agreement in executing this Agreement.
12.5. Binding Effect. This Agreement shall inure to the benefit of and be
binding upon the parties and their respective purchasers, successors, heirs, and assigns.
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12.6. Unenforceable Provisions. The terms, conditions, and covenants of this
Agreement shall be construed whenever possible as consistent with all applicable laws and
regulations. To the extent that any provision of this Agreement, as so interpreted, is held to
violate any applicable law or regulation, the remaining provisions shall nevertheless be carried
into full force and effect and remain enforceable.
12.7. Representation of Capacity to Contract. Each party to this Agreement
represents and warrants that it has the authority to execute this Agreement on behalf of the
entity represented by that individual.
12.8. 01212ortunily to be Represented by Independent Counsel. Each of the
parties to this Agreement warrant and represent that they have been advised to consult
independent legal counsel of their own choosing and have had a reasonable opportunity to do
so prior to executing this Agreement.
12.9. No Waiver. The failure of any party to enforce any term, covenant, or
condition of this Agreement on the date it is to be performed shall not be construed as a
waiver of that party's right to enforce this, or any other, term, covenant, or condition of this
Agreement at any later date or as a waiver of any term, covenant, or condition of this
Agreement.
12.10. Notices. All letters, statements, or notices required pursuant to this
Agreement shall be deemed effective upon receipt when personally served, transmitted by
facsimile machine, or sent certified mail, return receipt requested, to the following addresses:
To Richmond: Richmond Technology, Inc.
Post Office Box 1129
Redlands, CA 92373
Attn: Mr. Peter Willis
With a Copy to: Cynthia L. Eldred, Esq.
Solomon Ward Seldenwurm & Smith, LLP
401 "B" Street, Suite 1200
San Diego, CA 92101
To the City: City of Redlands
Post Office Box 3005
Redlands, CA 921373
Attn: City Manager
Richmond or the City may change its address by giving notice in writing to the other.
Thereafter, notices, demands, and correspondence shall be addressed and transmitted to the
new address. Notice shall be deemed given upon personal delivery, or, if mailed, two (2)
business days following deposit in the United States mail.
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12.11. Counterparts. This Agreement may be executed in counterpart, each of
which shall be deemed an original and all of which together shall constitute one and the same
instrument.
12.12. Incorporation of Recitals. The recitals set forth in Section 1, above, are
part of this Agreement.
12.13. 'Captions. The captions of this Agreement are for convenience and
reference only and shall not define, explain, modify, construe, limit, amplify, or aid in the
interpretation, construction, or meaning of any of the provisions of this Agreement.
12.14. Consent. Where the consent or approval of the City or Richmond is
required or necessary under this Agreement, the consent or approval shall not be
unreasonably withheld, delayed, or conditioned.
12.15. Covenant of Cooperation. The City and Richmond shall cooperate and
deal with each other in good faith, and assist each other in the performance of the provisions
of this Agreement.
12.16. Covenant of Good Faith and Fair Dealing. No party shall do anything
which shall have the effect of harming or injuring the right of the other parties to receive the
benefits of this Agreement; each party shall refrain from doing anything which would render
its performance under this Agreement impossible; and each party shall do everything which
this Agreement contemplates that such party shall do in order to accomplish the objectives
and purposes of this Agreement.
12.17. Time of Essence. Time is of the essence in the performance of the
provisions of this Agreement as to which time is an element.
"RICHMOND" "CITY"
RICHMOND TECHNOLOGY, INC. CITY OF REDLANDS
an Illinois Tool Works Company
f
By: tBy:
Peter Willis, General Mana�-,��--- \J
Its: William E. Gunnin Karn, Mayor
ATTEST.-
B
Its: Lorrie Povzo ity Clerk
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