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CC SR 20151201 G - License Agmt for Construction at 2443 Sunnyside Ridge RdCrTYOF RANCHO PALOS VERDES MEMORANDUM TO: FROM: DATE: HONORABLE MAYOR & CITY COUNCIL MEMBERS SJo"MICHAEL THRONE, DIRECTOR OF PUBLIC WORKS ry\?J DECEMBER 1, 2015 SUBJECT: APPROVE LICENSE AGREEMENT RELATED TO CONSTRUCTION OF THE SUNNYSIDE RIDGE TRAIL SEGMENT PROJECT (SUPPORTS 2014 CITY COUNCIL GOAL #2, INFRASTRUCTURE) DOUG WILLMORE, CITY MANAGER i&' Andy Winje, Senior Engineer A~ REVIEWED: Project Manager: RECOMMENDATION 1. Approve a License Agreement with the property owner at 2443 Sunnyside Ridge Road to provide access to construct a portion of the project on that property; transfer ownership and maintenance obligations of the wall in perpetuity to the owner of the property at that address; and include provisions for a privacy fence along the trail easement boundary adjoining subject property. 2. Authorize the Mayor and City Clerk to execute the agreement. FISCAL IMPACT No new funding is requested. Budgeted Amount: Encumbered to Date: Contingency Fund Balance $ 465,000 $ 431,314 $ 30,000 $ 3,686 Account Number(s): 330-3033-461 -73 -00 1 Approve License Agreement for Sunnyside Ridge Trail Project December 1, 2015 Page 2 of 3 EXECUTIVE SUMMARY The License Agreement is necessary to allow the City to construct a portion of the Sunnyside Ridge Trail Project on private property at 2443 Sunnyside Ridge Road. Building a portion of one retaining wall (about 45 linear feet) on that property allows use of the full 10-foot width of the easement between the homes for the trail surface. The property owner has agreed to the agreement and accepted responsibility of wall ownership and maintenance after the project is completed. In addition, the License Agreement includes a privacy fence to protect the property owner from trespassing. The costs of the fence will be shared by the City and the property owner. BACKGROUND On July 7, 2015 the City Council approved the design of the project (including this wall) and authorized the advertisement for construction bids. A construction contract was awarded by City Council on November 4, 2015 that included this particular wall along the boundary of the trail easement at this location. A discussion of the need for the license agreement was included in the November 4, 2015 staff report; however, the license agreement had not yet been finalized. In addition, on July 15, 2014, the City Council provided direction to Public Works to provide solutions to neighborhood concerns regarding privacy, trespassing and security, including the use of City Funds if necessary. Subsequently, a privacy fence was found to be a satisfactory resolution to the private property owner's concerns. DISCUSSION The license agreement provides temporary permission for the City to enter private property for the purpose of building the wall. It also affirms that ownership of the wall will transfer to the property owner at the conclusion of the project. The new wall will replace an existing wall built by that property owner that is structurally insufficient to support the new trail at its proposed elevation. Because the project will replace an existing wall, and because the wall is on private property, staff recommends ownership of the wall transfer to the property owner who will be required to maintain it. The City will be able to ensure the wall is adequately maintained through the municipal code articles on property maintenance and prohibition and abatement of public nuisances (Section 8.24 ). The balance of the project will be maintained by the City and visual inspection of the wall will be possible from the trail and the right of way. If the City Attorney determines that an additional agreement is necessary to maintain the integrity of the wall, Staff will be authorized to execute an additional agreement to that effect. The provision of the privacy fence is not included in the formal project plans and will be built by a contractor selected by the property owner. Staff is proposing to reimburse the property owner $6,000 (roughly half of the estimates received) after the fence is installed utilizing funds authorized for project contingencies. 2 Approve License Agreement for Sunnyside Ridge Trail Project December 1, 2015 Page 3 of 3 CONCLUSION Adopting Staff's recommendations will authorize the Mayor and City Clerk to execute a License Agreement to complete an essential element of the Sunnyside Ridge Trail Project, provide for future ownership and maintenance of that element and address a neighborhood safety and security concerns without an additional funding authorization. Attachments License Agreement (page 4) 3 LICENSE AGREEMENT CONFERRING PERMISSION TO ENTER PRIVATE PROPERTY FOR THE PURPOSE OF DEMOLITION OF AN EXISTING WALL AND INSTALLATION OF A NEW RETAINING WALL AND OTHER RELATED WORK This License Agreement is dated for reference December 1, 2015, and is made by and between the City of Rancho Palo Verdes, a California municipal corporation (hereinafter referred to as "Licensee") and John J. Degirolamo, an individual (hereinafter referred to as "Licensor"). RECITALS WHEREAS, Licensor is the record owner of that certain real property described as Los Angeles County Assessor's Parcel No. 7554-011-001, located at 2443 Sunnyside Ridge Road, Rancho Palos Verdes, California (hereinafter referred to as "the Property"); and WHEREAS, Licensee intends to improve the public trail located adjacent to the Property, which project is known as the Sunnyside Ridge Trail Segment Project (the "Project"); and WHEREAS, Licensee seeks to perform certain work on the Project at its own cost and expense using a state licensed and properly insured general contractor, which will benefit adjacent residential properties, including the Property, and the City's trail network; and WHEREAS, Licensee has consulted with Licensor about improvement design to find the most satisfactory way to complete the improvements in consideration of other constraints; and WHEREAS, the Project includes the construction of a retaining wall (hereinafter referred to as "the Work") on the Property, along the southwesterly 60 feet (approximate) of the Property's westerly property line; and WHEREAS, the Work is located on the Licensor's property and ownership of the Work will revert to the Licensor upon its completion. The Licensee and the Licensor desire that Licensor and any successor owner of the Property maintain the Work in perpetuity, and desire to enter into this Agreement to establish entry permission to construct the Work and ownership considerations of the Work upon its completion. NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows: 1. TEMPORARY LICENSE Permission for Entry. Licensors by this instrument grant to Licensee, and to Licensee's agents, permittees, and employees, including Licensee's contractors, the temporary right, privilege, and permission to enter the Property from the future trail, for 4 the sole and exclusive purpose to perform demolition of an existing wall owned by Licensor, preparation of site, and installation of a new retaining wall on the Property (the "Work"). The Work will include, but may not be limited to, clearing trees and interfering brush in the vicinity of the Work, demolition of portions of an existing block wall, regrading in the vicinity of the new wall, construction of a masonry and concrete pilaster, retaining wall and railing per Project plans. In connection with conducting the construction, Licensor hereby agrees that Licensee and its agents may bring onto the Property such equipment as may be reasonably necessary to conduct the construction. Hours of Construction. Unless other mutually agreed upon arrangements are made, Licensee and its agents, permittees, employees and contractors shall perform the construction between 8 a.m. and 5 p.m., Monday to Friday. Exhibit A, which is attached hereto and incorporated herein by this reference, is a map showing the general area of the Work on the Property. The portion of the Property where the Work will occur (the "Work Area") is a strip approximately 8-foot wide along the southwesterly 60 feet of the Property's westerly property line. Licensee shall also have the right to erect a temporary fence around the perimeter of the Work Area, within the 8- foot strip. The precise location of the Work is depicted in the construction documents issued for construction of the project, which are on file with the Public Works office of the Licensee and are incorporated herein by reference. Access to the Work via the Licensor's driveway is strictly precluded. Should Licensee access the project through the driveway, Licensee is trespassing and this Agreement will be materially breached. 2. TERM Time is of the essence for the Licensee's contractor, who has 60 working days, weather permitting, to complete the project after the Licensee issues a notice to proceed. The temporary license created by this License Agreement shall expire upon recordation of the Notice of Completion for the Project by Licensee. The obligations set out in Section 3, entitled Liability, shall survive the expiration or termination of this License Agreement. 3. LIABILITY Licensee shall exercise the privilege granted in this instrument at Licensee's sole and exclusive risk. Licensee hereby agrees to hold Licensor harmless from any injury or damage suffered by Licensee, its agents, permittees, employees, or contractors on account of the exercise of such privilege. Licensee further agrees to indemnify and defend Licensor against any and all liability for damages and expenses resulting from, arising out of, or in any way connected with, the exercise of this privilege by Licensee, its agents, permittees, employees, or contractors. Licensee further agrees to warrant that the Work will be done in a workmanlike manner and to the standards described in the construction documents. The Licensee will require a one year warranty on the entire Project, including the Work, from the date of the Licensee's acceptance of the project. That warranty will be secured by a surety bond provided prior to Licensee's acceptance of the Project. The standard of performance for labor and materials will also be secured by a performance 5 bond. The Licensee will provide copies of the warranty provision of the contract, the performance bond and the contractor's insurance certificates to the Licensor, prior to the commencement of work. The Licensee will provide a copy of the surety bond upon receipt of it from the contractor. 4. NO RELEASE Notwithstanding any other provision contained, neither the fact of this License Agreement nor anything herein shall be construed to release, hold harmless, indemnify or otherwise relieve Licensee of any obligation, responsibility, duty, cost, or obligation respecting the Property and arising under the law, whether known or unknown and including those causes of action that may not yet have arisen. 5. RESTORATION OF PROPERTY At the conclusion of the performance of the Work, Licensee shall, at its own expense, remove any equipment and excess materials from the Property and restore the Property, to the extent reasonably possible, and to Licensors' reasonable satisfaction, to its original condition at the beginning of the Work. Licensee will secure photo documentation of the potentially impacted areas prior to the beginning of Work. Licensor will identify any areas of special concern prior to the beginning of Work, so that the appropriate standard of care can be taken to protect, preserve or restore these areas. 6. PROVISION OF PRIVACY FENCE Pursuant to the desires of the Licensee and Licensor to maintain the security and privacy of the Licensor upon completion of the Project, Licensee agrees to reimburse Licensee for a share of the costs to install a 6-foot high chain link privacy fence along a portion of the Property's westerly and northerly property lines. Payment shall be processed upon provision of a receipt for the work to install the fence, and shall not exceed $6,000. 7. TERMINATION Licensor acknowledges that Licensee is entering into a public works contract with a contractor to complete the Project, that the Work is a component of the Project, and that this License Agreement is required in order to complete the Work. Licensor agrees not to terminate this License, for any reason, unless Licensee is in breach of this License Agreement. Licensor may terminate this Licensee Agreement if Licensee is in breach of this License Agreement and has failed to correct the breach within fifteen (15) days after written notice from Licensor. 8. MISCELLANEOUS a. Limitations. Licensor does not hereby convey to Licensee any right, title or interest in or to the Property, but merely grants the specific rights and privileges set forth herein. 6 b. Notices. Communication regarding day to day logistics pertaining to the Work shall be handled informally between the Licensor and the Licensee's construction manager. This informal communication may take place in person, by phone or by email. Licensee and Licensor shall reply to concerns from the other party as quickly as possible but not less than 24-hours after the informal communication is received. If the 24-hour period is exceeded parties may proceed with more formal communication as follows. Whenever any notice, demand, or request is delivered under or in connection with this License, such notice, demand, or request shall be in writing and shall be delivered by hand; registered or certified mail, postage prepaid, return receipt requested; or nationally recognized commercial courier for next business day delivery, to the addresses set forth below the respective executions of the parties hereof, or to such other addresses as are specified by written notice given in accordance herewith. All notices, demands, or requests delivered by hand shall be deemed given upon the date so delivered; those given by mailing as hereinabove provided shall be deemed given on the date of deposit in the United States Mail; those given by commercial courier as hereinabove provided shall be deemed given on the date that is one (1) day after deposit with the commercial courier. Any notice, demand, or request not received because of changed address of which no notice was given as hereinabove provided or because of refusal to accept delivery shall be deemed received by the party to whom addressed on the date of hand delivery, on the date of facsimile transmittal, on the first calendar day after deposit with commercial courier, or on the third calendar day following deposit in the United States Mail, as the case may be. c. Governing Law. This License shall be construed, enforced and interpreted in accordance with the laws of the State of California, excluding California's choice of law rules. Venue for any lawsuit regarding this License shall be in Los Angeles County. d. Counterparts. This License may be executed in several counterparts, each of which shall be deemed an original, and all of such counterparts together shall constitute one and the same instrument. e. Compliance with Law. All of the Work shall be performed in compliance with applicable law. IN WITNESS OF THIS AGREEMENT, THE PARTIES HAVE EXECUTED THIS AGREEMENT BY AFFIXING THEIR SIGNATURES BELOW: CITY OF RANCHO PALOS VERDES By:~~~~~~~~~~~~ Mayor PROPERTY OWNER By:~~~~~~~~~~~~ John J. Degirolamo, Owner Date: 7 EXHIBIT A WORK AREA 8