Loading...
CONTRACT 3102 License Agreement3102. � •s LICENSE AGREEMENT BETWEEN THE CITY OF EL SEGUNDO AND XEROX CORPORATION *fire.%z- THIS LICENSE is made and executed this _a— day of 2002, between the CITY OF EL SEGUNDO, a municipal corporation ( "CITY "), and XEROX CORPORATION, a New York Corporation ( "XEROX "). 1. LICENSE; DESCRIPTION OF PROPERTY. CITY licenses XEROX to use, on the terms and conditions below, a portion of real property situated at Utah Avenue, within CITY's jurisdiction, that is more particularly depicted in attached Exhibit "A" and incorporated by reference ( "Property "). CITY's action is not, and should not be construed to be, a conveyance of a property interest or a lease; it is a nonexclusive license to use the Property only. 2. USE OF PROPERTY. A. XEROX may use the Property to lay, construct, maintain, operate, repair and remove communications conduits and cables in, under, over, along and across the Property. Specifically, XEROX may install and maintain four 4" Schedule 40 PVC communications conduits and associated cable ( "Facilities ") under the Property. B. XEROX's Facilities must be installed in the general locations shown on attached Exhibit A and as specifically shown on maps to be filed with the City's Public Works Director subject to the City's approval. These maps will be incorporated into this License upon the City's approval. C. XEROX, its employees, and agents, at any and all times when necessary, will have reasonable access to the Facilities. However, XEROX must comply with all applicable laws including, without limitation, the El Segundo Municipal Code and ensure that all materials furnished and used in installation of its Facilities conform to CITY standards for such type of work and improvement. All designs, materials, and work are subject to CITY's approval and satisfaction. D. CITY may change, amend, or terminate XEROX's use of the Property at any time, and in its sole discretion verbally or in writing. 3. XEROX'S RESPONSIBILITIES. A. XEROX will submit engineering plans and specifications to CITY for the installation of conduits. These plans must be prepared by a California licensed professional engineer. Page 1 of 8 ()53 B. All work within the public right -of -way must comply with City Standards, the Standard Specifications for Public Works Construction, and require a City Excavation permit. C. XEROX will pay an annual fee to CITY payable in advance every year on the anniversary date of this License. The fee will for the first year be Twenty -Four Dollars ($24.00). This fee has been computed on a unit fee rate of $0.10 /foot/year of each separate conduit and a total estimated installation of 240 linear feet of conduit. This fee will be adjusted each year (from the effective date of this License) based on the change in the Consumer Price Index for All Urban Consumers, Los Angeles- Riverside -Orange County, California, All Items, 1982- 84 = 100, published by the United States Department of Labor, Bureau of Labor Statistics, but in no event will be less than $24.00 per year. D. XEROX bears all costs or expenses in connection with the construction, maintenance, operation or repair of the Facilities installed pursuant to this License. E. XEROX will not unreasonably interfere with or obstruct the public use of CITY'S rights -of -way and must promptly and properly backfill any excavations made by or for XEROX as a part of installing the Facilities. Both parties will use their best efforts to cooperate in the construction, maintenance, operation or repair of the communications conduits and cables. F. CITY may change the grade of any street or road affected by this License; locate or relocate municipal water pipes, sewer lines or any other city owned subsurface installations; and XEROX must within thirty (30) days after demand by CITY, commence relocation of its Facilities (at its own cost) to conform to such changes and proceed diligently to complete such relocation. Should XEROX fail to comply with CITY's instructions, CITY may cause the work required to be done by others and will charge XEROX for the cost. XEROX will immediately reimburse CITY upon being presented with an accounting. G. If any public property is damaged by XEROX's construction or use of its Facilities, or for any other cause arising from XEROX's operation of its Facilities, XEROX will, at its own cost and expense, immediately repair any and all such damage and restore said street or portion to as good condition as before such usage or cause of damage occurred. All such repair and restoration must be completed under the direction and satisfaction of CITY's Public Works Director. 4. TERM. Except as provided in Section 5, the term of this license will run from the date of execution for fifteen (15) years. The term may be extended by written amendment to this License. Page 2 of 8 S:\ CTYCLRK\ DOCLTMENT.CPY\CONTRACT\L.icense Agreement xerox.doc 054 5. TERMINATION. A. As stated above, CITY may terminate this License at any time with or without cause, upon providing one (1) year written notice. Termination will be effective upon notification, unless CITY specifies otherwise. B. By executing this document, XEROX waives any and all claims for damages that might otherwise arise from CITY's termination under this Section. C. Should this license be terminated, XEROX will at its own cost and expense promptly remove its Facilities from the Property at CITY's direction. Upon removal, the Property from which the conduit is removed must be restored to the condition which it was in before removal, or to a better condition when required to meet CITY's current standards. 6. CONDEMNATION. If all or part of the Property is acquired by eminent domain or purchase in lieu thereof, XEROX acknowledges that it will have no claim to any compensation awarded for the taking of the Property or any portion thereof or for loss of or damage to XEROX's improvements. 7. RELOCATION BENEFITS. XEROX acknowledges that it has been informed that CITY is a public entity and that the Property has previously been acquired by CITY for a public purpose. XEROX further acknowledges that any rights acquired under this License arose after the date of acquisition of the Property and that said rights are subject to termination when the Property is needed by CITY. XEROX hereby acknowledges that at the time of said termination of this License by CITY, it will not be a "displaced person" entitled to any of the relocation assistance or benefits offered to displaced persons under State or Federal law. 8. ALTERATIONS. XEROX will not make, or cause to be made, any alterations to the property, or any part thereof, without CITY's prior written consent. 9. HAZARDOUS /TOXIC WASTE. CITY has not, nor, to CITY's knowledge, has any third party used, generated, stored or disposed of, or permitted the use, generation, storage or disposal of, any Hazardous Material (as defined below) on, under, about or within the Property in violation of any law or regulation. XEROX agrees that it will not use, generate, store or dispose of any Hazardous Material (as defined below) on, under, about or within the Property in violation of any law or regulation. XEROX agrees to defend and indemnify CITY, to the extent stated in Section 11, against any and all losses, liabilities, claims or costs arising from any breach of any warranty or agreement contained in this Section. As used in this Section, "Hazardous Material" means any substance, chemical or waste that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation (including petroleum and asbestos). Page 3 of 8 S:\ CTYCLRK \DOCUMENT.CPY\CONTRACT',License Agreernmt xerox.doc 055 10. ASSIGNMENT. This License is personal to XEROX and will not be assigned, in whole or in part, without CITY's prior written consent. CITY's prior consent is not required for XEROX's assignment of this license to any parent, subsidiary, or affiliate of XEROX. No written consent by CITY will be deemed a waiver of any provision of this License, except to the extent of such consent. 11. INDENINIFICATION. A. XEROX will hold CITY harmless and free from aliy and all liability arising out of this License, or its performance. Should CITY be named in any suit, or should any claim be against it, by suit or otherwise, whether the same be groundless or not, arising out of this License, or its performance, pursuant to this License, XEROX will defend CITY (at CITY's request and with counsel satisfactory to CITY) and will indemnify it for any judgment rendered against it or any sums paid out in settlement or otherwise. B. For purposes of this section "CITY" includes CITY's officers, officials, employees, agents, representatives, and certified volunteers. C. XEROX expressly agrees that this release, waiver, and indemnity agreement is intended to be as broad and inclusive as is permitted by the law of the State of California and that if any portion is held invalid, it is agreed that the balance will, notwithstanding, continue in full legal force and effect. D. It is expressly understood and agreed that the foregoing provisions will survive termination of this License. E. The requirements as to the types and limits of insurance coverage to be maintained by XEROX as required by Section 12 below, and any approval of said insurance by CITY, are not intended to and will not in any manner limit or qualify the liabilities and obligations otherwise assumed by XEROX pursuant to this License, including but not limited to the provisions concerning indemnification. 12. INSURANCE. A. 'Before commencing performance under this License, and at all other times this License is effective, XEROX will procure and maintain the following types of insurance with coverage limits complying, at a minimum, with the limits set forth below: Type of In Limits (combined single) Commercial general liability: $1,000,000 Page 4of8 S:\ CTYCLRK \DOCUMENT.CPY\CC,NTRACT\License Agreement xerox.doc 656 1,n B. Commercial general liability insurance will meet or exceed the requirements of ISO -CGL Form No. CG 00 01 11 85 or 88. The amount of insurance set forth above will be a combined single limit per occurrence for bodily injury, personal injury, and property damage for the policy coverage. Liability policies will be endorsed to name CITY, its officials, and employees as "additional insureds" under said insurance coverage and to state that such insurance will be deemed "primary" such that any other insurance that may be carried by CITY will be excess thereto. Such insurance will be on an "occurrence," not a "claims made," basis and will not be cancelable except upon thirty" (30) days prior written notice to CITY. XEROX will require its insurer to modify its insurance certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, and to delete the word "endeavor" with regard to any notice provisions. C. Automobile coverage will be written on ISO Business Auto Coverage Form CA 00 0106 92, or similar form for XEROX owned Autos D. XEROX will furnish to CITY duly authenticated Certificates of Insurance and Endorsements evidencing maintenance of the insurance required under this License and such other evidence of insurance or copies of policies as may be reasonably required by CITY from time to time. Insurance must be placed with insurers with a current A.M. Best Company Rating equivalent to at least a Rating of "A:VII." E. Should XEROX, for any reason, fail to obtain and maintain the insurance required by this License, CITY may obtain such coverage at XEROX's expense and deduct the cost of such insurance from payments due to XEROX under this License or terminate pursuant to Section 5. 13. COMPLIANCE WITH LAW. XEROX will, at its sole cost and expense, comply with all of the requirements of all federal, state, and local authorities now in force, or which may subsequently be in force, pertaining to the Property and will faithfully observe in the use of the Property all applicable laws. The judgment of any court of competent jurisdiction, or the admission of XEROX in any action or proceeding against XEROX, whether CITY be a party thereto or not, that XEROX has violated any such ordinance or statute in the use of the Property will be conclusive of that fact as between CITY and XEROX. 14. BREACH OF AGREEMENT. The violation of any of the provisions of this License will constitute a breach of this License by XEROX, and in such event said License will automatically cease and terminate. 15. WAIVER OF BREACH. Any express or implied waiver of a breach of any term of this License will not constitute a waiver of any further breach of the same or other term of this License. Page 5 of 8 S:\ CTYCLRK \DOCUMENT.CPY\CONTRACT\License Agreement xerox.doc 05! Al �!° 1 In 2 i � uunn 16. ENTRY BY CITY AND PUBLIC. This License does not convey any property interest to XEROX. Except for areas restricted because of safety concerns, CITY and the general public will have unrestricted access upon the Property for all lawful acts. 17. INSOLVENCY; RECEIVER. Either the appointment of a receiver to take possession of all or substantially all of the assets of XEROX, or a general assignment by the XEROX for the benefit of creditors, or any action taken or offered by XEROX under any insolvency or bankruptcy action, will constitute a breach of this License by XEROX, and in such event said License will automatically cease and terminate. 18. NOTICES. Except as otherwise expressly provided by law, all notices or other communications required or permitted by this License or by law to be served on or given to either party to this License by the other party will be in writing and will be deemed served when personally delivered to the party to whom they are directed, or in lieu of the personal service, upon deposit in the United States Mail, certified or registered mail, return receipt requested, postage prepaid, addressed to XEROX at: To XEROX at: Manager, Construction & Engineering Xerox Corporation 555 So. Aviation Blvd. El Segundo, CA 90245 or to CITY at: Public Works Department Attn: Andy Santamaria 350 Main Street El Segundo, CA 90245 -3895 Either party may change its address for the purpose of this Section by giving written notice of the change to the other party. 19. ACCEPTANCE OF FACSIMILE SIGNATURES. The Parties agree that agreements ancillary to this License and related documents to be entered into in connection with this License will be considered signed when the signature of a party is delivered by facsimile transmission. Such facsimile signature will be treated in all respects as having the same effect as an original signature. 20. GOVERNING LAW. This License has been made in and will be construed in accordance with the laws of the State of California and exclusive venue for any action involving this License will be in Los Angeles County. Page 6of8 S:\ CTYCLRK \DOCUMENT.CPY\COT?TRACT\License Agreement xerox.doc 058 1n2. .. 21. PARTIAL INVALIDITY. Should any provision of this License be held by a court of competent jurisdiction to be either invalid or unenforceable, the remaining provisions of this License will remain in effect, unimpaired by the holding. 22. ENTIRE AGREEMENT. This instrument and its Attachments (including those referenced in Section 2) constitute the sole agreement between CITY and XEROX respecting the Property, the use of the Property by XEROX, and the specified License term, and correctly sets forth the obligations of CITY and XEROX. Any agreement or representations respecting the Property or its licensing by CITY to XEROX not expressly set forth in this instrument are void. 23. CONSTRUCTION. The language of each part of this License will be construed simply and according to its fair meaning, and this License will never be construed either for or against either Ply 24. AUTHORITY/MODIFICATION. The Parties represent and warrant that all necessary action has been taken by the Parties to authorize the undersigned to execute this License and to engage in the actions described herein. This License may be modified by written agreement. CITY's city manager, or designee, may execute any such amendment on behalf of CITY. 25. COUNTERPARTS. This License may be executed in any number or counterparts, each of which will be an original, but all of which together will constitute one instrument executed on the same date. [SIGNATURES ON NEX PAGE] Page 7 of 8 S:\ CTYCLRK \DOCUMENT.CPY\CONTRACT\License Agreement xerox.doc r;�y u 3102. IN WITNESS WHEREOF the parties hereto have executed this contract the day and year first hereinabove written. CITY OF EL SEGUNDO a general law: city and municipal corporation. City Manager ATTEST: G W( Cindy Mort4sen, City Clerk APPROVED AS TO FORM: Mark D. Hensley, City Attorney By: Karl H. Berger, Assistant City Attorney XEROX CORPORATION, a New York orporati LA - jAVv\rzs P Qvi--JaLU -7o r 5. AV IArvn/ C3 zI-10 VVI r4l t_ ST-op C 5 r►'I — v z2- Ct, / C� goat 5 310 - 333 - 72.5- 9 Page 8 of 8 S:\ CTYCLRK \DOMAENT.CPY\CONTRACT\License Agreement xerox.doc 060 3102. ' • e f+w1 IcnnNIA Al L.PURPOSE ACKNOWLEDGMENT State of California ss. County of &UAtii6 P On:riY%Z (v,�C�J2 before me,ff31 Date / Name and Title of Officer (e.g., Doe, Note ublic ") personally appeared i—, & r�./���"� ' Name(s) of Signer(s) HARLAN T SCHUBERT Commission S 1328692 Z Notary Public - Califomia Z Orange county %My comm. Expires Nov 6, 2005 personally known to me k proved to me on the basis of satisfactory evidence to be the personal whose nameX) is /00 subscribed to the within instrument and acknowledged to me that he /s(e /thXy executed the s�a�n�e_ in hisi4r /theX authorized capacity(,i���c), and that by his /t /their signatureVon the instrument the person,, or the entity up ,pp behalf of which the personV acted, exeg6ted the instrument. WITNE my did and off I al Signature o Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Capacity(ies) Clai ed by Signer Signer's Name: Number of Pages: /Attorney-iinoFFact Top of thumb here fficer — Title(s): Limited ❑ Gener Trustee ❑ Guardian or Consery r Other: ' Signer Is Representing: © 1999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313 -2402 • www.nationainotary.org Nroa. NO. baui 1.11 -- — , -,