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HomeMy WebLinkAboutContracts & Agreements_53-1992_CCv0001.pdf AGREEMENT ESTABLISHING CONDITIONS FOR A STREET CUT PERMIT AND SUBSEQUENT USE, MAINTENANCE AND RESTORATION OF TUNNELS UNDER ORANGE STREET THIS AGREEMENT is made and entered into this day of October, 1992 by and between the CITY OF REDLANDS ("City") , a municipal corporation, and ROBERTSON'S READY MIX, INC. , a California corporation, ("Robertson's"} each sometimes referred to herein individually as a "Party" and collectively as the "Parties. RECITALS WHEREAS, City owns certain real property located in the City of Redlands which is commonly known as Orange Street; and WHEREAS, Robertson's has obtained permission from the San Bernardino Valley Water Conservation District and the Bureau of Land Management to construct, operate and maintain off-road haul routes for transporting aggregate materials from its old Webster Quarry operation to its aggregates processing plant located in the City of Highland; and WHEREAS, as part of the off-road haul route system, Robertson's must construct two tunnels (the "Tunnels") beneath a portion of Orange Street approximately one mile north of Pioneer Avenue where Dishong Road intersects Orange Street at the location more particularly described in Exhibit "All attached hereto and incorporated herein by this reference (the "Easement Property") and WHEREAS, Robertson's has requested City to issue a street cut permit and grant to Robertson' s a subsurface easement (the DJM125963 "Easement") beneath Orange Street and within the Easement Property for the purpose of constructing and using the Tunnels; and WHEREAS, in recognition that Robertson's use of an off- road haul route system will benefit the citizens of Redlands and Highland by eliminating truck traffic carrying aggregate materials from City streets, City is willing to issue the street cut permit and grant an easement to Robertson's for construction of the Tunnels; and WHEREAS, it is the desire of City and Robertson's by this Agreement to set forth the terms and conditions for issuance of the street cut permit and Robertson's use of the Tunnels and the Easement Property; NOW, THEREFORE, in consideration of the mutual promises contained herein, the City of Redlands and Robertson's Ready Mix, Inc. agree as follows: 1. PURPOSE. The purpose of this Agreement is to set forth the terms and conditions upon which a street cut permit will be issued, and the Easement granted, by City for Robertson's construction, maintenance, use and restoration of the Tunnels. 2 . TERM. The term of this Agreement shall commence on the date first written above and shall continue until this Agreement is terminated pursuant to the provisions hereof. DJM125963 -2- 3. GRANT OF EASEMENT - SCOPE OF USE. A. City shall grant to Robertson's a subsurface easement, substantially in the form described in Exhibit IIBII attached hereto and incorporated herein by this reference (the "Easement Deed") , for the sole purposes of construction, use, maintenance and subsequent restoration of the Tunnels by Robertson's, its employees and agents. Except as may otherwise be agreed to in writing by City, any other use of the Easement Property by Robertson's is prohibited. B. The Easement granted to Robertson's pursuant to the Easement Deed and the terms and conditions of this Agreement is not exclusive, and City reserves the right to grant to other persons or entities use of the Tunnels, without Robertson's' consent but consistent with Robertson's ' use of the Tunnels, by additional agreements and easements within the Easement Property. C. City shall have the right at all times during the term of this Agreement to enter upon the Easement Property and inspect the Tunnels. 4 . CONSTRUCTION OF THE TUNNELS. A. Robertson's acknowledges and agrees that Robertson's' construction, maintenance, use and subsequent restoration of the Tunnels is a private project undertaken by Robertson's and does not constitute a "public project" as defined in Sections 20160 et sea. of the Public Contract Code or a "public work" as defined in Sections 1720 et qgq. of the Labor Code. DJM125963 -3- Robertson's shall defend, indemnify and hold harmless City, its elected officials, officers, employees and agents from and against any and all claims, losses, damages and causes of action arising out of or in connection with any claim, challenge, action or proceeding alleging directly or indirectly that the project undertaken by Robertson's pursuant to this Agreement constitutes such a "public work" or "public project. " B. Robertson's shall, at its sole cost, furnish all materials, labor, tools and equipment necessary to construct the Tunnels. Such construction shall be in accordance with any and all specifications of City's engineering department and the plans and specifications prepared by Robertson's and approved by City which are attached hereto as Exhibit 11C11 and incorporated herein by this reference. Any work performed or caused to be performed by Robertson's on the Easement Property shall be done in accordance with any and all applicable laws and regulations, and in a manner which is equal to or greater than the then applicable standards of the industry for such work. 5. MAINTENANCE AND REPAIR. A. Robertson's shall, at its sole cost, maintain the Easement Property and Tunnels in good order and condition during the term of this Agreement. If any portion of the Easement Property or Tunnels suffers damage for any reason, Robertson's shall immediately cause the repair of such damage and restore the Easement Property or Tunnels to as good a condition as before such DJM125963 -4- damage occurred. In the event City determines that the Easement Property or Tunnels are in such condition that maintenance or repair is necessary, and Robertson' s fails to undertake the necessary maintenance or repair after ten (10) days' written notice to Robertson's by City, City may enter upon the Easement Property and cause such maintenance work or repair to the Easement Property or Tunnels as it reasonably determines necessary. In such event, City may also reasonably determine that the public safety requires Robertson's' temporary cessation of use of the Tunnels. . B. Robertson's shall reimburse City for any and all expenses incurred by City in performing such maintenance work or repairs. If Robertson's fails to reimburse City for such expenses within twenty (20) days after the date of City's written invoice to Robertson's for such work, in addition to any other remedies it may have, City shall have the right to proceed against the performance bond furnished by Robertson's pursuant to the provisions of this Agreement to recover City's expenses in performing the maintenance or repair work. 6. TERMINATION. This Agreement may be terminated for any of the following reasons: A. Default. If Robertson's defaults in the performance of any term or condition of this Agreement, Robertson's shall, within fifteen (15) days of the date of City's written notice to Robertson's of the default, cure that default by satisfactory performance or provide evidence satisfactory to City that it has commenced cure of the default and will complete satisfactory ©JM 125963 5 performance within a time period acceptable to City. if Robertson's fails to cure the default within the required time, City may terminate this Agreement without further notice. B. Abandonment. If City reasonably determines that Robertson's has abandoned the Easement Property, City may terminate this Agreement fifteen (15) days after the date of City's written notice of the same to Robertson's. C. Public Emergency. City may terminate or temporarily suspend this Agreement immediately without prior n0tiLce to Robertson's upon the occurrence of a public emergency affecting the use of the Tunnels or Orange Street and which City reasonably believes threatens the health, safety and welfare of its citizens. D. Mutual Agreement. By written agreement of the Parties. Upon termination of this Agreement, Robertson's shall execute and deliver to City a quitclaim deed conveying the Easement Property to City. The termination of this Agreement shall not release Robertson's from any liability or obligation hereunder, whether of indemnity or otherwise, arising out of or resulting from any acts, omissions or events happening prior to the date of termination. 7 . RESTORATION. Upon Robertson's' cessation of use of the Tunnels, or at the time of termination of this Agreement, City may require Robertson's to remove the Tunnels and restore the Easement Property. If so instructed, Robertson's shall, at its sole cost, immediately commence work for removal of the Tunnels and restoration of the Easement Property as nearly as possible to the DJM125963 "6" same state and condition as existed prior to the construction. If Robertson's fails to do so, City may cause the same to be performed at Robertson's' expense, which costs Robertson's shall pay to City on written demand. If Robertson's fails to pay City for such costs within twenty (20) days of the date of City's written demand, in addition to any other remedies it may have, City shall be entitled to reimbursement for such expenses from the proceeds of the maintenance and guaranty bond or other security furnished by Robertson's pursuant to this Agreement. 8 . INSURANCE. Prior to commencing any work under the street cut permit or this Agreement, Robertson's shall furnish to City satisfactory evidence of Robertson's' compliance with all required insurance provisions hereof. A. Robertson's shall, at its own cost, maintain during the term of this Agreement comprehensive general liability and vehicle liability insurance coverage insuring Robertson's for all claims for personal injury, including sickness and death, and all claims for destruction of or damage to property, including loss of use, arising out of or in connection with any operation under this Agreement. Such insurance shall be written with a limit of liability of not less than $2 , 000, 000. 00 for all damages arising out of bodily injury, including sickness and death sustained by any one person in any one accident, and a limit of liability of not less than $5,000, 000.00 aggregate for any such damages sustained by two or more persons in any one accident, and with a limit of liability of not less than $1, 000, 000. 00 for all damages arising DJM125963 -7- out of injury to or destruction of property of others, arising directly or indirectly out of or in connection with the construction, use and maintenance of the Tunnels under this Agreement in any one occurrence. City shall be an additional insured with respect to such insurance and the coverage shall be primary with respect to City and non-contributing to any insurance or self-insurance program maintained by City. B. Robertson's, and any contractor performing work on the Easement Property, shall take out and during the period of construction of the Tunnels maintain in full force and effect, workers' compensation insurance with an insurance carrier approved by City, under an insurance policy and in an amount satisfactory to City covering Robertson's ' and the contractors ' full liability under the "Worker' s Compensation Insurance and Safety Act" of the State of California. 9. BONDS. A. Prior to commencing any work under the street cut permit or this Agreement, Robertson's shall furnish performance and payment bonds to City as security for the faithful performance of all of Robertson's ' obligations under this Agreement and any other agreements for construction of the Tunnels. The bonds shall each be in an amount of Five Hundred Thousand Dollars ($500, 000. 00) which Robertson's has represented to City is sufficient to complete construction of the Tunnels and pay all obligations of labor and materials relating thereto. Unless earlier released by City, the DJM125963 -8- bonds shall remain in effect for six (6) months after the date City determines construction of the Tunnels is complete. B. Within thirty (30) days of the execution of this Agreement Robertson's shall furnish a maintenance and guaranty bond as security for Robertson's' faithful performance in maintaining and repairing the Easement Property and Tunnels as required by this Agreement and in restoring the Easement Property upon termination of this Agreement. The maintenance and guaranty bond shall be in an amount of Eighty Thousand Dollars ($80, 000.00) and shall remain in effect for one-year after the termination of this Agreement. C. All bonds shall be in the forms prescribed by City and be executed by sureties which are acceptable to City. If the surety on any bond furnished by Robertson' s is declared a bankrupt or becomes insolvent, or its right to do business is terminated, Robertson's shall, within twenty (20) days thereafter, substitute another bond and surety, both of which must be acceptable to City. D. In lieu of the performance bond and maintenance and guaranty bond required by this Agreement, Robertson's may furnish other security to guarantee its obligations to City provided such security is in a form and amount satisfactory to City. 10. INDEMNITY. Robertson's shall defend, indemnify, and hold harmless City, its elected officials, officers, employees and agents from and against any and all liability, expense, claims, losses, suits and actions of whatever kind, including court costs and attorneys' fees, for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal DJM125963 -9- injury or property damage arising from or connected with Robertson's, ' its employees' and agents' acts or omissions under this Agreement and the use of the Easement Property and Tunnels. 11. ASSIGNMENT. This Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the Parties. Robertson's shall not assign or transfer this Agreement in whole or part, or permit any other person or entity to use the rights or privileges hereby conveyed, without the prior written consent of City. Any attempted assignment in violation of the foregoing shall be void and without force or effect and shall give City the right to immediately terminate this Agreement. 12. APPLICABLE LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Robertson's shall comply with all applicable federal, state and local laws, regulations, rules and orders in its use of the Tunnels and the Easement Property and shall furnish satisfactory written evidence of such compliance promptly upon request of City. Robertson's shall obtain all required permits or licenses required by any governmental authority for use of the Easement Property and the Tunnels at Robertson's' sole cost and expense. 13. WAIVER. The waiver by one Party of the performance of any covenant or condition under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by such Party of any other covenant or condition under this Agreement. Failure of DJM125963 -10- a Party to enforce a covenant or condition shall not constitute a waiver. 14. SEVERABILITY. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions, or provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 15. ATTORNEYS' FEES. In the event any action is commenced to enforce or interpret the terms or conditions of this Agreement, the prevailing Party shall, in addition to any costs or other relief, be entitled to recover its reasonable attorneys ' fees. 16. NOTICES. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: ROBERTSON'S READY MIX, INC. CITY OF REDLANDS P.O. Box 33140 30 Cajon Street Riverside, CA 92519 P.O. Box 3005 Redlands, CA 92373 ATTN: City Clerk Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in DJM125963 -11- the U. S. Mail, first class postage prepaid and addressed to the party at its applicable address. f 17 . ENTIRE AGREEMENT. This Agreement contains the entire agreement of the Parties hereto with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements whether oral or written. This Agreement may only be modified by a writing signed by the Parties. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first written above. CITY: ROBERTSON'S: THE CITY OF REDLANDS ROBERTSON'S READY MIX, INC. , .� Mayor, -Cit of Re s President ATTEST: ATTEST: Cs.t Ierti Secretary i DJM125963 -12-