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HomeMy WebLinkAboutReso 105-19 Approving an Encroachment Agreement with SFPP, L.P., A Delaware Limited Liability CompanyRESOLUTION NO. 105 - 19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING AN ENCROACHMENT AGREEMENT WITH SFPP, L.P., A DELAWARE LIMITED LIABILITY COMPANY WHEREAS, SFPP, L.P. a Delaware limited liability company (a.k.a. Kinder Morgan), operates a pipeline and valve box within an existing 10-foot wide easement running parallel to Scarlett Drive and adjacent to the Don Biddle Community Park; and WHEREAS, an existing deep anode well, trench for an electric line, and access are located outside of the existing 10-foot wide Kinder Morgan easement, and are required to deliver power and serve the pipeline valve box; and WHEREAS, the City and Kinder Morgan have developed an Encroachment Agreement that will establish the responsibilities of each party, payment, terms and conditions under which licensee must operate and maintain the encroachments within Scarlett Drive right of way and Don Biddle Community Park property. NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve an Encroachment Agreement for Electric Facilities and Appurtenances with SFPP, L.P., a Delaware limited liability company. BE IT FURTHER RESOLVED that the City Manager is authorized to execute the Agreement in substantially the form attached hereto as Exhibit A to this Resolution, and to take such other and further action, as necessary and appropriate, to carry out the intention of this Resolution. PASSED, APPROVED AND ADOPTED this 1st day of October 2019, by the following vote: AYES: Councilmembers Goel, Hernandez, Josey, Kumagai and Mayor Haubert NOES: ABSENT: ABSTAIN: r' r+ - Mayo ATTEST: City Clerk Reso 105-19, Adopted 10/1 /2019, Item 4.4 Page 1 of 1 Recording Requested By: City of Dublin Public Works Department No fee for recording pursuant to Gov't Code Section 27383 When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 \ Lei ► . I1j 104 \ 94, n 2019223995 11 /01 /2019 01:45 PM OFFICIAL RECORDS OF ALAMEDA COUNTY MELISSA WILK Cal �sOpN�► RECORDING FEE: 0.00 SPACE ABOVE THIS LINE FOR RECORDER'S USE BETWEEN CITY OF DUBLIN AND SFPP, L.P, a Delaware limited liability company SCARLETT DRIVE AND PORTIONS OF APN 986-62-2 & 986-1-3-2 DUBLIN, CALIFORNIA THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION (Govt Code 27361.6) Parcel: APNs 986-62-2 & 986-1-3-2 County: Alameda State: California ENCROACHMENT AGREEMENT This Encroachment Agreement ("Agreement") is made and entered on October 1, 2019 ("Effective Date"), by and between SFPP, L.P., a Delaware Limited Liability company ("Licensee") and the City of Dublin, a municipal corporation ("City"). The Licensee and City are collectively referred to herein as the "Parties." 1. Permission is hereby given to Licensee by City for the purpose of operation, maintenance and usage of one (1) deep anodewell and one (1) electrical line with connected appurtenances ("Encroachment") within the boundaries depicted in Exhibit A, attached hereto and incorporated herein by reference (the "Licensed Area"). 2. Togetherwith access ingress and egress to the Licensed Area, Licensee shall operate, maintain, and use the Encroachment in accordance with Licensee's O&M Procedures. 3. This Agreement shall be valid for a period of ten (10) years following the Effective Date ("Initial Term"). Licensee has an option to extend the Initial Term for one (1) additional ten (10) year term by making an Extension Payment to City as defined in Section 4 below. 4. Licensee shall pay City $20,000 upon execution of this Agreement. If Licensee exercises its option to extend this Agreement beyond the Initial Term, Licensee shall remit payment to City of an additional $20,000, adjusted for inflation, prior to the end of the Initial Term ("Extension Payment"). 5. City shall not reduce the depth of cover on, or alter the drainage of the Licensed Area without Licensee's prior courtesy review. 6. Parties agree to not construct any permanent structure, building, or similar permanent obstruction within the Licensed Area, other than the above -referenced authorized Encroachment. If either Party plans to construct any permanent structures, buildings, or obstruction within the Licensed Area, plans shall be subject to a courtesy review by both Parties. 7. City shall not plant shrubs or trees within the Licensed Area, without Licensee's prior courtesy review. 8. City shall not operate or permit the operation of any heavy equipment on or over the Encroachment without Licensee's prior courtesy review. City shall comply with all precautionary measures required by Licensee to protect the Encroachment. 9. Licensee shall not replace or modify the Encroachment without City's prior written consent. 10. Licensee shall be solely responsible for the construction, ownership, operation, maintenance, use, and removal of the Encroachment and for any and all expenses incurred by City and/or damage to City property as a result of Licensee's exercise of its rights under this Agreement. Licensee shall reimburse City fully for any such expense or damage. Licensee agrees to indemnify and hold harmless City, its parent, affiliates, agents, employees, contractors, and subcontractors and their respective successors and assigns (individually and collectively known as the "City Indemnities"), against any claim, demand, loss, cost, liability, expense, or cause of action of any party (including, but not limited to reasonable attorneys fees) in any way arising from or related to (1) the existence of the Encroachment, (2) Licensee's exercise of its rights under this Agreement, (3) Licensee's breach of its obligations underthis Agreement, or (4) any cause of action resulting from damage to City property, except where such loss, cost, liability, or expense was caused solely by the gross negligence or willful misconduct of City or City Indemnitees. Licensee's indemnity obligations will survive the termination of this Agreement for any reason. 11. In the event Licensee shall, at any time, desire to abandon or remove; or if, in the judgment of City, it is necessary that the Encroachment shall be relocated or altered in any way; or if, for any other reason, City deems it necessary for Licensee to relocate or alter the Encroachment, City shall notify Licensee of the necessity for such relocation and use reasonable efforts to minimize the distance of said relocation and Licensee shall alter or relocate the Encroachment, at its sole cost and expense, as shall be deemed necessary in the judgment of the Parties. In the event of such alteration or relocation, Licensee agrees to restore the Licensed Area and any other impacted area, as nearly as practicable, to a condition acceptable to the City Engineer. 12. In the event Licensee deems the Encroachment is no longer necessary, Licensee will notify the City of this intent to abandon. Parties agree to commence a courtesy review upon formal notification and will not reasonably withhold acceptance of abandonment. In the event that both Parties reasonably agree that acceptance of abandonment is unfeasible, Licensee agrees to remove the Encroachment solely at its own cost. 13. Should Licensee remove the Encroachment, in its entirety, from the Licensed Area for a term of one hundred twenty (120) consecutive days, this Agreement shall be deemed null and void. 14. Should Licensee fail to adhere to the provisions of this Agreement, City may have no adequate remedy at law and Licensee agrees that monetary damages may not be sufficient. Licensee, therefore, consents to City seeking injunctive relief or an emergency order to enforce the provisions, or prevent breach of, this Agreement without the necessity to post a bond. 15. During the life of this Agreement, should Licensee require City to pay for engineering and/or inspection costs related to City work near Licensee's pipeline anywhere within the City, Licensee agrees to meet in good faith with the City to waive, reduce and/or negotiate said costs prior to invoicing the City. 16. Limitation of Liability. Notwithstanding any other provision of this Agreement, neither Party shall be liable to the other hereunder for any indirect, consequential, special or punitive damages, whether sounding in contract or in tort. 17. Insurance. If reasonably available, Licensee shall obtain and maintain in effect a combined single limit policy of liability insurance in an amount not less than Two Million Dollars ($2,000,000) covering Licensee's use of the Encroachment and name the City as an additional insured. 18. Nothing contained herein shall be deemed to constitute any warranty or representation by City as to its authority to permit the Encroachment as proposed by Licensee. 19. If any part, term or provision of this Agreement is, by a court of competent jurisdiction or regulatory authority having jurisdiction over the Licensed Area held to be illegal, void or unenforceable, or to be in conflict with the law of the state which the Licensed Area lies, the validity of the remaining provisions or portion hereof shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if this Agreement did not contain the particular part, term, or provision held to be invalid. 20. The terms and conditions of this Agreement shall be binding on the Parties hereto, their heirs, successors and assigns. IN WITNESS WHEREOF, the Parties hereunto subscribed their names as of the date first above written. LICENSEE SFPP, L.P., a Delaware Limited Liability company By: Kinder Morgan Operating L.P. "D", its general partner, By: Kinder Morgan G.P., Inc., its general partner C Floy C. Robe Attorney -in -fact CITY City of Dublin 3351278.1 ACKNOWLEDGEMENT STATE OF COLORADO ) ) SS COUNTY OF EL PASO ) On the�day o w , 2019, before me the undersigned authority, appeared Floyd C. Robertson to me personally known, who, being sworn did say that he is an Attorney -in -Fact for SFPP, L.P., a Delaware limited liability company, and that the foregoing instrument was signed in behalf of said partnership and Appeared acknowledged to me that said instrument to be the free act and deed of the partnership. 'un I sp O-Lj Notary Public C My Commission Expires:DENISE M TONEYNOTARY PUBLICSTATE OF COLORADOTARY ID # 20034035390ISSION EXPIRES OCTOBER 17. 2019 IN WITNESS WHEREOF, the Parties hereunto subscribed their names as of the date first above written. LICENSEE SFPP, L.P., a Delaware Limited Liability company By: Kinder Morgan Operating L.P. "D", its general partner, By: Kinder Morgan G.P., Inc., its general partner Floyd C. Robertson Attorney -in -fact CITY City of Dublin ristopher L. Foss City Manager 3351278.1 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 ................................................................................................................................................................................... A notary public or other officer completing this certificate ':. verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. ..................................................................................................................................................................................: State of California County of Alameda On October 30, 2019 before me, Anastasia Nelson, Notary Public, personally appeared Christopher L. Foss, who proved to me on the basis of satisfactory evidence to be the person) whose name(.5) is/afe subscribed to the within instrument and acknowledged to me that he/she/the executed the same in his/herfthei authorized capacity(ies), and that by his/her/their signatures) on the instrument the person{sy, or the entity upon behalf of which the persons) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signatu 1. ,�,� A' ANASTASIA NELSON Notary Public - California Alameda County Commission 0 2193245 (Seal)i W My Comm. Expires May 20, 2021 _ KINDER MORGAN VALVE 6OX LOCATION EXHIBIT CITY OF DUBLIN, ALAMEDA COUNTY. CALIFORNIA BOULEVARD - ~~'