B-3.1 CIC Lic Agmnt

COVINA IRRIGATING COMPANY
June 4, 2009
RECEIVED
jUN () 4IGQ9
AZU~
Joseph Hsu
Director of Light and Water
UGHT&WAiER
729 North Azusa Ave.
Azusa, CA. 91702
Dear Joe,
Per our email exchange and conversation, enclosed you will find the relative documentation for the
Rosedale development pipeline licensing agreement. Per our mutual understanding the City will
execute a (fee free) licensing agreement for the pipeline installed by ALP in exchange for the quit claim
to the easements held for the open canal except for those portions still in use which are covered in a
temporary easement. Once our pipeline project is complete the remaining temporary easement will no
longer be required and relinquished. Copies of all of the executed quit claims and temporary easements
will be provided to you as soon as they are signed by ALP and recorded. Please have the licensing
agreement request included for your board or city council approval at your earliest convenience.
Thank you for assisting us in completing this transaction. Should you have any questions please do not
hesitate to call.
146 E. COLLEGE STREET· POST OFFICE BOX 306 • COVINA, CA 91723
(626) 332-1502· FAX (626) 967-5942
LICENSE AGREEMENT
between
THE CITY OF AZUSA
a California municipal corporation
and
THE COVINA IRRIGATING COMPANY
a California corporation
ORANGE\MMART1NEZ\34376.2
LICENSE AGREEMENT
This License Agreement ("Agreement") is entered into as of this 22nd day of June, 2009, by
and between the City of Azusa, a California municipal corporation ("City") and Covina Irrigating
Company, a California corporation ("ClCo") (hereinafter referred to as a "Licensee"). All parties are
at times referred to collectively as "Parties" and individually as "Party" herein as the context may
indicate
RECITALS
A.
An underground forty-two inch (42") ductile iron pipeline has been or is being
constructed for ClCo, a portion of which will be placed under a street in the City of Azusa,
Cali fornia, as is more specifically depicted in Exhibit "A" attached hereto and incorporated herein by
reference ("Pipeline").
B.
The Pipeline IS being constructed as part of the Rosedale development project
("Project") in the City.
C.
The Parties desire to enter into this Agreement in order to provide for the right of
Licensee to install, operate, repair and maintain that portion of the Pipeline under the City'S street as
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, promises, and conditions set
forth in this Agreement, and for other good, valuable, and adequate consideration, the Parties hereto
agree as follows:
1.
License.
(a) City hereby grants to Licensee a license under that portion of the street/property
as depicted in Exhibit "A" for the purposes of installing, operating, repairing and maintaining the
Pipeline. Licensee and its respective contractors, subcontractors, employees and agents shall each
have the right to enter upon and cross over the City's street/property for the purposes for which the
above license is granted. Nothing herein shall be deemed or construed to be (i) a limitation upon
City's right to use its street/property for a proper governmental use, (ii) an acceptance of ownership
or control of all or any portion of the City's street/property for any reason whatsoever, including but
not limited to, liability or maintenance of the street/property or (iii) a grant to Licensee of any
possessory interest whatsoever in the City's street/property. Licensee and its contractors,
subcontractors, employees and agents shall not damage the City's street/property or commit waste
thereon except as may be reasonably necessary on a temporary basis for carrying out the
construction, installation, operation, repair and/or maintenance of the Pipeline. City shall not
damage the Pipeline, shall make reasonable efforts to prevent others from doing the same and shall
not unreasonably interfere with or impede Licensee's exercise of its rights under this Agreement.
- 1­
Ol~f\ NG E\M MA RTI NEZ\343762
(b) ClCo understands and agrees that access to the Pipeline for repairs and
maintenance will be subject to City's issuance of an excavation and/or encroachment penllit. City
shall have the right to impose reasonable time, place and manner restrictions on such permits i.n order
to protect the public health and safety. Upon completion of any such repairs and/or maintenance,
ClCo shall restore the condition of the street in accordance with established City standards and
policies.
2.
Term.
(a) This Agreement shall become effective when the street, under which the Pipeline
is located, is accepted by the City into the City Street System and shall remain in effect until
terminated by the Parties, as provided herein. However, the indemnification and attorneys' fees
provisions of this Agreement shall survive its termination.
(b) In the event the City determines, in its sole and absolute discretion, that the
Pipeline conflicts with a proper governmental use of the street(s) under whkh the Pipeline is located,
ClCo shall, at its sole expense, relocate the Pipeline to a mutually-agreeable location providing
gravity flow through the ClCo water system. "Proper governmental use of a street" as provided in
this Agreement shall be limited to abandonment, realignment or physical improvements to the street
itself, or to installation or expansion of underground utilities operated by the City; provided,
however, that in the event the relocation of the Pipeline is necessitated to accommodate future
private development within the City, the cost of relocating the Pipeline shall be borne by the private
development and not by CICo. Further, should the relocation of the Pipeline require that other
subsurface structures or facilities be modified or relocated, City shall exercise all rights available to
City by law and/or contract to require that the owner or operator of the subsudace structures or
facilities bear the cost of relocating or modifying their structures or facilities.
(c) In the event ClCo must relocate the Pipeline, CICo will abandon the Pipeline in
place and shall take appropriate steps to ensure that the abandoned pipeline does not present a hazard
with respect to underground collapse.
(d) 11' any Party believes that another Party has failed to perform any obligation of
that Pa.r.ty in accordance with the terms of this Agreement ("Default"), the Party alleging the Default
shaIJ provide written notice ("Default Notice") to the other Pa.r.ty, setting forth the nature of the
alleged Default. Unless otherwise provided by a specific term of this Agreement, the Palty claimed
to be in default shall have: (i) with respect to a Default involving the payment of money, ten (10)
days after its receipt of the Default Notice to completely cure such Default, and (ii) with respect to
any other type of Default, thirty (30) days from the receipt of the Default Notice to completely cure
such Default or, if such Default cannot reasonably be cured within such thilty (30) day period, to
commence the cure of such Default within the thirty (30) day peliod and diligently prosecute the cure
to completion thereafter.
(e) In the event ClCo determines that the Pipeline is no longer of use to CICo's
operations, ClCo shall give the City one hundred eighty (180) days' written notice of its intent to
abandon the Pipeline in place. ClCo shall take appropriate steps to ensure that the abandoned
-2­
ORANGE\MMART1NIc::7:\343i6.2
Pipeline does not present a hazard with respect to underground collapse. This Agreement shall
terminate at the expiration of said one hundred eighty (180) day notice period.
3.
Insurance. Licensee shall obtain and keep in full force and effect at all times it is
occupying or using the City'S street/property pursuant to the license granted hereund'~r either: (a) a
comprehensive public liability and property damage insurance policy from an insurance association
authorized to do business in California with a policy limit of not less than One Million Dollars
($1,000,000) per occurrence, or self-insurance which provides the same level of coverage, and (b)
adequate workers' compensation insurance to the full requirements of the State of California for it's
employees.
4.
Indemnification. Licensee shall individually indemnify. defend and hold harmless
City, its elected officials, board members, officers. agents, employees and authorized volunteers from
and against any and all claims, damages, demands, liability, costs; losses and expenses, including,
without limitation, court costs, reasonable attorneys' fees, and expert witness fees, arising out of, in
connection with, or in any way related to, any act or failure to act by Licensee pursuant to this
Agreement, except such claims, damages, demands, liability, cost, losses and expenses caused by the
negligence or willful misconduct of City.
5.
Attorneys' Fees. If any legal action, or any arbitration or other proceeding is initiated
for the enforcement/interpretation of this Agreement or because of any alleged dispute, breach,
default or misrepresentation in connection with any of the provisions of this Agreement, the
successful or prevailing Party shall be entitled to recover reasonable attorneys' fees, witness fees and
other costs incurred in that action or proceeding, in addition to any other relief to which it may be
entitled.
6.
General Provisions.
(a) Amendment. The terms and conditions of this License may be altered, changed
or amended only by written agreement of the Parties hereto which are to be bound by such alteration,
change or amendment.
(b) Notices. All notices to be given hereunder shall be in writing and may be made
either by personal delivery or by registered or certified mail, postage prepaid, retUTI1 receipt
requested. Mailed notices shall be addressed to the Parties at the addresses listed below, but each
Party may change the address by written notice in accordance with this paragraph. Notices delivered
personally will be deemed communicated as of actual receipt; mailed notices will be deemed
communicated as of two (2) business days after mailing.
City:
City of Azusa
213 E. Foothill Blvd.
Azusa, CA 91702-1295
Attn: Director of Utilities
-3­
ORANGE\MMARTINEZ\34376.2
ClCo:
Covina Irrigating Company
146 E. College St.
Covina, CA 91723
(c) Successors and Assigns. This Agreement shall be binding on the successors
and assigns of the Parties.
(d) Entire Agreement. This Agreement contains the entire agreement of the Parties
with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or
agreements, written or oral, express or implied. The invalidity in whole or in palt of any provision of
this Agreement shall not void or affect the validity of any other provision.
(e) Waiver. Any Party's failure to insist upon strict compliance with any provision
of this Agreement or to exercise any right or privilege provided herein, or any Party's waiver of any
breach hereunder, shall not relieve the other Parties of any of their obligations hereunder. whether of
the same or similar type.
No Agency/EmploYment. In performing the terms of this Agreement, the City
and Licensee each remain an autonomous and separate entity, solely responsible for its own actions
and those of its officers, employees, agents and volunteers. No relationship of employment, agency,
partnership or joint venture is to be created by or implied from this Agreement.
(f)
(g) No Third Party Rights. This Agreement is entered into between and solely for
the benefit of City and Licensee. No other person shall have any right to enforce the terms of this
Agreement.
(h) Recitals. The recitals set forth above are incorporated herein and made an
operative pmt of this Agreement.
(i) Counterparts. This Agreement may be signed in counterparts, each of which
shall constitute an original.
[Balance of this page intentionally left blank]
-4­
ORANGEIMMARTINEZ\34376.2
IN WITNESS WHEREOF, this Agreement bas been executed by the Parties on the day
and year first above written.
CITY OF AZUSA
COVINA IRRIGATING COMPANY
By:
By:
Francis Delach
City Manager
-5 ­
ORANGE\MMARTINEZ\J4376.2
EXHIBIT "A"
Pipeline and City Street/Property Description
ORANGE\MMARTINEZ\34376.2
CALIFORNIA ALL·PURPOSE ACKNOWLEDGMENT
State of
Co IJ-k2( OKA
County of
On ~Ho...i
2007
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Los
before me,
Lindo.
G. ~n, bJohr-d ~bi IU
NAME. TInE 0
DATE
personally appeared
ACER - E.G.. JANE DOE. NOTARY PUBUC'
'Doua be:k3.l5
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NAME(S) OF SIGNER(S)
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personally known to me - OR -
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proved to me on the basi> of satjsfactory-e'fieeree
to be the person(.81 whose name~ (fi/are
subscribed to the within instrument and ac­
knowledged to me that~/shQ/they executed
the same in ~hor/thQir authorized
capacity(-fes-), and that by @/her/their
signature~ on the instrument the person{$),
or the entity upon behalf of which the
person~ acted, executed the instrument.
I
.-.-­
WITNESS my hand and official seal.
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SI
. AcE OF NOTARY
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent'
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
o
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DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
TITLE OR TYPE OF DOCUMENT
1TT1..E(S)
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PARTNER(S)
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LIMITED
GENERAL
ATTORNEY·iN·FACT
NUMBER OF PAGES
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER:
DATE OF DOCUMENT
SIGNER IS REPRESEtlT1NG:
NMlE OF PERSON(S) OA ENTTTY(lES)
SIGNER(S) OTHER THAN NAMED ABOVE
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AZUSA lAND PARTNERS. LLC.
42" PROPOSED CANAl REPLACEMENT AUGNMENT
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COVINA IRRIGA liNG COMPAIfY EASEMENT LfG£ND
72
EASEMENT FeR IGR£SS~GR£SS AND IYA T£R CONWIT PLRPOS£S RECORDED IN BOOK
108, PAGE 437 CF DfIDS. l.JtIABLE TO LOCA7f.
71
EASEJENT FOR 10 INCH CEJ£t{( PIF£ LINE MPOS£S RECORDED..u. Y 2B, 7f! 75
IN BOOK 6091, PAGE BJ, OF D££DS. UNA81.£ TO LOCA TE.
,*'7
PERMISSION A/'l) LIC£NS£ FOR C£A£NT DITCH PER ABR£EM£NTS RECORDED' IN 800K
607, PAGE 138 OF DEEDS; JAMJARY J(J, 1917 IN 600K.~, PAGE 45 OF
~ JNWRy_.3{); . 19-1-7-/N-SOt!JIf-6J99, PAGE 27ftiF' DttDs,; AJl) FFiJRuARy
6, 1917 IN 8()(J( 6417, PAGt 241 ot [)££[)S. l..NABLE TO LOCATE.
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EASEMENT FCR CANAL PURPOSES RECORDED .OCTOBER ie, 1964 AS INSTRUI£NT
NO. 5108, (flICIAi. RECORDS. A PORTION tF SAID £AS£M£NT WAS QUITa.AlMEO
BY D£ED RECOPlJ£D MARCH 8, 7967 AS INSTRUENT NO. 769J, CNICIAL
RECORDS.
AN £ASfJENT FCR WATER PIPE LINE PiRPOS£S RECORDED MARCH 8, 7967 AS
INSTRUM£NT NO. 7694. OFFICIAL RECORDS.
.
EASEJENT FfR PIPFJ...INE Pt.RPOS£S RfCORDED JAM)ARY 27, 1926 IN BOOK 4564,
PAGE 754, CFFICIAL RECORDS.
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MONRO~NURSaJ
EASEMENT
AMRCH '5. 2004
EXHIBIT A