HomeMy WebLinkAbout09 - Landscape & Hardscape Maintenance on West Coast HighwayCITY OF
F NEWPORT REACH
City Council Staff Report
November 12, 2014
Agenda Item No. 9
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director- (949) 644 -3330,
dawebb @newportbeachca.gov
PREPARED BY: David Keely, Senior Civil Engineer
PHONE: (949) 644 -3349
TITLE: Agreements for Landscape and Hardscape Maintenance on West Coast Highway
(Route 1) for the Mariner's Pointe Development Project at 100 — 300 West Coast
Highway
ABSTRACT:
The Mariner's Pointe commercial development project (100 — 300 West Coast Highway) is located at the
northwest corner of West Coast Highway (Route 1) and Dover Drive. The right -of -way for this portion of
West Coast Highway is within the jurisdiction of the State of California Department of Transportation
(Caltrans). The development plan for Mariner's Pointe includes non - standard hardscape and landscape
improvements within Caltrans right -of -way such as decorative precast concrete pavers, colored concrete
and palm trees along West Coast Highway. Caltrans will permit maintenance of the non - standard
improvements by the local jurisdiction and the City intends to assign responsibility for maintenance to the
project developer.
RECOMMENDATION:
a) Approve and authorize the Mayor and City Clerk to execute the "Project Specific Maintenance
Agreement for Route 1 in the City of Newport Beach" between the City of Newport Beach and State of
California Department of Transportation;
b) Approve and authorize the Mayor and City Clerk to execute the "Landscape Maintenance Agreement
within State Highway Right of Way on Route 1 with the City of Newport Beach" between the City of
Newport Beach and State of California Department of Transportation; and
c) Approve and authorize the Mayor and City Clerk to execute the License Agreement between the City
of Newport Beach and VBAS Properties, Inc.
FUNDING REQUIREMENTS:
No City funding is required for the Project Specific
Agreement. The Mariner's Pointe developer will prc
according to the attached License Agreement.
Maintenance Agreement or Landscape Maintenance
vide maintenance of the non - standard improvements
M
DISCUSSION:
The Mariner's Pointe commercial development project, located at 100 — 300 West Coast Highway, was
approved by Resolution No. 2011 -86 and adopted by the City Council on August 9, 2011. The project
consists of a 23,015 square foot, two story commercial building and three -story parking structure. The
project developer has provided additional amenities beyond those that are otherwise required. The
amenities include enhanced hardscape and landscape within the public- right -of -way along West Coast
Highway and Dover Drive. To further improve the streetscape and improve the entrance to the corridor,
the developer has installed decorative grey precast pavers and grey colored concrete within the West
Coast Highway and Dover Drive public right -of -ways. The project has also installed eleven (11)
Washingtonia Robusto 'Hybrid' palms and other landscaping within the West Coast Highway and Dover
Drive public right -of -ways. The maintenance of the hardscape and landscape within the Caltrans right -of-
way will require a Project Specific Maintenance Agreement (Attachment A) and Landscape Maintenance
Agreement (Attachment B) with Caltrans, respectively.
The City will enter into a separate License Agreement (Attachment C) with the project developer requiring
the developer to provide maintenance and liability for the hardscape and landscape improvements along
the West Coast Highway and Dover Drive frontages in perpetuity.
ENVIRONMENTAL REVIEW:
The environmental impacts of the project as a whole were analyzed under the Mitigated Negative
Declaration (MND) that was adopted for the project by the City Council on August 9, 2011. The MND was
prepared in accordance with the implementing guidelines of the California Environmental Quality Act
(CEQA), the State CEQA Guidelines, and City Council Policy K -3. With mitigation measures and standard
conditions of approval indicated in the Initial Study and set forth in the Mitigation Monitoring and Reporting
Program included with the MND, all potential impacts would be mitigated to a less than significant level.
Execution of these agreements to assign maintenance responsibility will not result in changes to the
project that would involve new significant environmental effects or result in additional mitigation measures.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at
which the City Council considers the item).
ATTACHMENTS:
Description
Attachment A - Proiect Specific Maintenance Agreement for Route 1 in Newport Beach
Attachment B - Landscape Maintenance Agreement within State Highway Right of Way on Route 1 with the City of
Newport Beach
Attachment C - License Agreement between the City of Newport Beach and Ridgeway Development Company
Attachment D - Site Exhibit
99
ATTACHMENT A
PROJECT SPECIFIC MAINTENANCE AGREEMENT
FOR ROUTE 1 IN THE CITY OF NEWPORT BEACH
THIS AGREEMENT is made effective this day of, 2014, by and between
the State of California, acting by and through the Department of Transportation, hereinafter
referred to as "STATE" and the City of Newport Beach; hereinafter referred to as "CITY"
and collectively referred to as "PARTIES ".
SECTION I
RECITALS
1. WHEREAS, PARTIES desire to work together to allocate respective obligations relative
to newly constructed or revised improvements which include but not limited to
constructing new curb and gutter, driveway, and removing the sidewalk and replacing it
with precast concrete pavers and colored concrete for new sidewalk, (as part of the
Mariner's Point Development) on State Route 1, hereinafter referred to as "PROJECT ",
as shown on Exhibit "A ", by Permit Numbers 12 -6MC -0100 and 14 -6RW -0172, and
2. WHEREAS, it was agreed by PARTIES that prior to or upon PROJECT completion, CITY and
STATE will enter into a Maintenance Agreement.
3. WHEREAS, the PARTIES hereto mutually desire to clarify the division of maintenance
responsibility as defined in Section 27 of the California Streets and Highways Code and
their respective responsibilities as to PROJECT constructed under the Encroachment
Permit Numbers 12- 6MC -0100 and 14 -6RW -0172.
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
SECTION II
AGREEMENT
4. Exhibit A consists of a plan drawing that delineates the areas within STATE right of way
which are the responsibility of the CITY to maintain in accordance with this Maintenance
Agreement.
The CITY agrees that CITY will construct, maintain, inspect, clean, repair, replace and
rehabilitate the PROJECT at no cost to the STATE. All the work will be performed in a
manner to ensure ADA compliance at all the time.
6. If there is mutual agreement on the change in the maintenance duties between PARTIES,
the PARTIES can revise the Exhibit "A" by a mutual written- execution of the exhibit.
9 -3
7. CITY and CITY's contractors must obtain the necessary Encroachment Permits from
STATE's District 12 Encroachment Permit Office prior to entering STATE right of way
to perform CITY maintenance responsibilities. This permit will be issued at no cost to
CITY. In case of a need for any lane closure, the time frame shall be coordinated with
STATE. Any disturbed pavement due to pressure, operation, maintenance and repair of
the PROJECT will be repaired and restored by CITY to STATE's satisfaction at no cost
to STATE.
8. CITY will maintain, at CITY expense, all facilities constructed by PROJECT within State
right of way, including, but without limitation curbs, sidewalks, drainage system (and
shall perform such work as may be necessary to ensure a safe, and otherwise suitable
surface), lighting installations with the exception of street lights, signs, pavement and
pavement markings that may be required for the benefit or control of traffic using that
roadway or facilities otherwise described in Exhibit "A ".
9. If during the term of this Agreement, CITY should cease to maintain the "PROJECT"
to the satisfaction of STATE as provided by this Agreement, STATE may either
undertake to perform that maintenance on behalf of CITY at CITY's expense or direct
CITY to remove or itself remove PROJECT at CITY's sole expense and restore
STATE's right of way to its prior or safe operable condition. CITY hereby agrees to
pay STATE said expenses, within thirty (30) days of receipt of billing by STATE.
However, prior to STATE performing any maintenance or removing PROJECT,
STATE will provide written notice to CITY to cure the default and CITY will have
thirty (30) days within which to affect that cure.
10. LANDSCAPED AREAS - Responsibility for the maintenance of any plantings or other
types of roadside development lying outside of the area reserved for exclusive freeway
use shall lie with CITY and not with STATE and are the subject of a separate Landscape
Maintenance Agreement.
11. BICYCLE PATHS - Except for bicycle paths constructed as permitted encroachments
within STATE's right of way for which the permittee is solely responsible for all path
improvements, STATE will maintain, at STATE expense, all fences, guard railing,
drainage facilities, slope and structural adequacy of any bicycle path located and
constructed within STATE's right of way. CITY will maintain, at CITY expense, a safe
facility for bicycle travel along the entire length of the path by providing sweeping and
debris removal when necessary; and all signing and striping and pavement markings
required for the direction and operation of that non - motorized facility.
12. LEGAL RELATIONS AND RESPONSIBILITIES
12.1. Nothing within the provisions of this Agreement is intended to create duties or
obligations to or rights in third parties not parties to this Agreement or to affect the
legal liability of a PARTY to the Agreement by imposing any standard of care with
1)
am
respect to the operation and maintenance of STATE highways and local facilities
different from the standard of care imposed by law.
12.2. Neither CITY nor any officer or employee thereof is responsible for any injury,
damage or liability occurring by reason of anything done or omitted to be done by,
under or in connection with any work, authority or jurisdiction conferred upon
STATE under this Agreement. It is understood and agreed that STATE shall fully
defend, indemnify and save harmless CITY and all of their officers and employees
from all claims, suits or actions of every name, kind and description brought forth
under, including, but not limited to, tortious, contractual, inverse condemnation or
other theories or assertions of liability occurring by reason of anything done or
omitted to be done by STATE under this Agreement with the exception of those
actions of STATE necessary to cure a noticed default on the part of CITY.
12.3. Neither STATE nor any officer or employee thereof is responsible for any injury,
damage or liability occurring by reason of anything done or omitted to be done by
CITY under or in connection with any work, authority or jurisdiction conferred upon
CITY under this Agreement. It is understood and agreed that CITY shall fully
defend, indemnify and save harmless STATE and all of its officers and employees
from all claims, suits or actions of every name, kind and description brought forth
under, including section but not limited to, tortious, contractual, inverse
condemnation or other theories or assertions of liability occurring by reason of
anything done or omitted to be done by CITY under this Agreement.
13. PREVAILING WAGES:
13.1. Labor Code Compliance- If the work performed on this Project is done under
contract and falls within the Labor Code section 1720(a)(1) definition of a "public
work" in that it is construction, alteration, demolition, installation, or repair; or
maintenance work under Labor Code section 1771. CITY must conform to the
provisions of Labor Code sections 1720 through 1815, and all applicable provisions
of California Code of Regulations found in Title 8, Chapter 8, Subchapter 3, Articles
1 -7. CITY agrees to include prevailing wage requirements in its contracts for public
work. Work performed by CITY's own forces is exempt from the Labor Code's
Prevailing Wage requirements.
13.2. Requirements in Subcontracts - CITY shall require its contractors to include
prevailing wage requirements in all subcontracts funded by this Agreement when the
work to be performed by the subcontractor is a "public work" as defined in Labor
Code Section 1720(a)(1) and Labor Code Section 1771. Subcontracts shall include
all prevailing wage requirements set forth in CITY contracts.
14. SELF - INSURED - CITY is self insured. CITY agrees to deliver evidence of self - insured
coverage in a form satisfactory to STATE, along with a signed copy of the Agreement.
15. SELF- INSURED, using Contractor - If the work performed on this Project is done under
contract CITY shall require its contractors to maintain in force, during the term of this
agreement, a policy of general liability insurance, including coverage of bodily injury
3
9 -5
liability and property damage liability, naming the STATE, its officers, agents and
employees as the additional insured in an amount of $1 million per occurrence and $2
million in aggregate. Coverage shall be evidenced by a certificate of insurance in a form
satisfactory to the STATE that shall be delivered to the STATE with a signed copy of this
Agreement.
16. TERMINATION - This Agreement may be terminated by timely mutual written consent
by PARTIES, and CITY's failure to comply with the provisions of this Agreement may
be grounds for a Notice of Termination by STATE. Prior to termination of this
agreement, CITY will be required to remove the "PROJECT" and restore the site to the
STATE's standard at no cost to the STATE. The CITY shall perform the task within 120
days of written notice by STATE. In case of CITY's failure to perform the requested
task, STATE will remove the "PROJECT" in behalf of CITY. The CITY shall be solely
responsible to reimburse STATE for all the cost associated with the removal and
restoration of the area in a timely manner.
17. TERM OF AGREEMENT - This Agreement shall become effective on the date first
shown on its face sheet and shall remain in full force and effect until amended or
terminated at any time upon mutual consent of the PARTIES or until terminated by
STATE for cause.
PARTIES are empowered by Streets and Highways Code Section 114 and 130 to enter into
this Agreement and have delegated to the undersigned the authority to execute this
Agreement on behalf of the respective agencies and covenants to have followed all the
necessary legal requirements to validly execute this Agreement.
4
IN WITNESS WHEREOF, the PARTIES hereto have set their hands and seals the day and
year first above written.
THE CITY OF NEWPORT BEACH
A California Municipal Corporation
and Charter City
Rush N. Hill, II Mayor
ATTEST:
M
Leilani Brown, CITY Clerk
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
ByD M
Aaron C. Harp, CITY Attorney I�
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
MALCOLM DOUGHERTY
Director of Transportation
James Pinheiro
Deputy District Director
Maintenance and Operations
District 12
As to Form and Procedure:
Attorney
Department of Transportation
9 -7
0
W
w
F
6T
�oa
mz
u
zaZ.5
Vi
K
ziwo
Z -03
a �
90
uGd�
N3au
a
W
r
�W
0w
o-
�a
Ww
zz
�F
�8
°z 5
g
0
r
m
��
a;
a0
�o
3F
3
o
r
u
a
Z
3
o
ur
a�
z0
°
vZ
uz
o
m 0
3�
r
-
2z
ou
�°
u�
zm
z
°u
F
6T
�oa
mz
u
zaZ.5
Vi
K
ziwo
Z -03
a �
90
uGd�
N3au
a
W
r
�W
0w
o-
�a
Ww
zz
�F
�8
°z 5
g
/_1ir_COI:hrll=Ii!119
LANDSCAPE MAINTENANCE AGREEMENT
WITHIN STATE HIG14WAY 121GHT OF WAY
ON ROUTE 1 WITH THE CITY OF NEWPORT BEACH
THIS AGREEMENT is made effective this day of , 2014, by and
between the State of California, acting by and through the Department of Transportation, hereinafter referred to
as "STATE" and the City of Newport Beach; hereinafter referred to as "CITY" and collectively referred to as
"PARTIES ".
SECTION I
RECITALS
1. PARTIES desire to work together to allocate respective obligations relative to newly constructed or
revised improvements within STATE's right of way by Permit Number 12 -6MC -0100.
2. This Agreement addresses CITY responsibilities which includes but not limited to landscaping, planting,
irrigation systems, mulches, control litter and weed removal, (collectively the "LANDSCAPING ")
placed within State Highway right of way on State Route 1, as shown on Exhibit A, attached to and
made a part of this Agreement.
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
SECTION II
AGREEMENT
3. In consideration of the mutual covenants and promises herein contained, CiTY and STATE agree as
follows:
3.1. PARTIES have agreed to an allocation of maintenance responsibilities that includes, but is not
limited to, inspection, providing emergency repair, replacement, and maintenance, (collectively
hereinafter "MAINTENANCE ") of LANDSCAPING as shown on said Exhibit "A."
3.2. When a planned future improvement is constructed and /or a minor revision has been effected with
STATE's consent or initiation within the limits of the STATE's right of way herein described which
affects PARTIES' Division of Maintenance's responsibility as described herein, PARTIES will
agree upon and execute a new dated and revised Exhibit "A" which will be made a part hereof and
will thereafter supersede the attached original Exhibit "A" to thereafter become a part of this
Agreement. The new exhibit can be executed only upon written consent of the PARTIES hereto
acting by and through their authorized representatives. No formal amendment to this Agreement
will be required.
..
4. CITY agrees, at CITY expense, to do the following:
4.1. CITY may install, or contract, authorizing a licensed contractor with appropriate class of license in
the State of California, to install and thereafter will MAINTAIN (Section 27 of the Streets and
Highways Code) LANDSCAPING conforming to those plans and specifications (PS &E) pre -
approved by STATE.
4.2. CITY will submit the final form of the PS &E, prepared, stamped and signed by a licensed
landscape architect, for LANDSCAPING to STATE's District Permit Engineer for review and
approval and will obtain and have in place a valid necessary encroachment permit prior to the start
of any work within STATE'S right of way. All proposed LANDSCAPING must meet STATE's
applicable standards.
4.3. CITY shall ensure that LANDSCAPED areas designated on Exhibit "A" are provided with adequate
scheduled routine MAINTENANCE necessary to MAINTAIN a neat and attractive appearance.
4.4. An encroachment permit rider may be required for any changes to the scope of work allowed by this
Agreement prior to the start of any work within STATE's right of way.
4.5. CITY contractors will be required to obtain an encroachment permit prior to the start of any work
within STATE's right of way.
4.6. To furnish electricity for irrigation system controls, water, and fertilizer necessary to sustain healthy
plant groxvth during the entire life of this Agreement.
4.7. To replace unhealthy or dead plantings when observed or within 30 days when notified in writing
by STATE that plant replacement is required.
4.8. To prune shrubs, tree plantings, and trees to control extraneous growth and ensure STATE standard
lines of sight to signs and corner sight distances are always maintained for the safety of the public.
4.9. To MAINTAIN, repair and operate the irrigation systems in a manner that prevents water from
flooding or spraying onto STATE highway, spraying parked and moving automobiles, spraying
pedestrians on public sidewalks /bike paths, or leaving surface water that becomes a hazard to
vehicular or pedestrian /bicyclist travel. All the above requirements apply to the proposed water
fountain which will be built outside of STATE right of way.
4.10. To control weeds at a level acceptable to the STATE. Any weed control performed by chemical
weed sprays (herbicides) shall comply with all laws, rules, and regulations established by the
California Department of Food and Agriculture. All chemical spray operations shall be reported
quarterly (Form LA17) to the STATE to: Maintenance Manager at District Maintenance, 3347
Michelson Drive, Suite 100, Irvine CA 92612.
4.11. To remove LANDSCAPING and appurtenances and restore STATE owned areas to a safe and
attractive condition acceptable to STATE in the event this Agreement is terminated as set forth
herein.
1)
9 -10
4.12. To furnish electricity and MAINTAIN lighting system and controls for all street lighting systems
installed by and for CITY.
4.13. To inspect LANDSCAPING on a regular monthly or weekly basis to ensure the safe operation
and condition of the LANDSCAPING.
4.14. To expeditiously MAINTAIN, replace, repair or remove from service any LANDSCAPING
system component that has become unsafe or unsightly.
4.15. To MAINTAIN all sidewalks /bike paths within the Agreement limits of the STATE highway
right of way, as shown on Exhibit A, at CITY's expense. MAINTENANCE includes, but is not
limited to, concrete repair, replacement and to grind or patch vertical variations in elevation of
sidewalks /bike paths for an acceptable walking and riding surface, and the removal of dirt, debris,
graffiti, weeds, and any deleterious item or material on or about sidewalks /bike paths or the
LANDSCAPING in an expeditious manner.
4.16. To MAINTAIN all parking or use restrictions signs encompassed within the area of the
LANDSCAPING.
4.17. To allow random inspection of LANDSCAPING, street lighting systems, sidewalks/bike paths
and signs by a STATE representative.
4.18. To keep the entire landscaped area policed and free of litter and deleterious material.
4.19. All work by or on behalf of CITY will be done at no cost to STATE.
5. STATE agrees to do the following:
5.1. May provide CITY with timely written notice of unsatisfactory conditions that require correction by
the CITY. ]-However, the non- receipt of notice does not excuse CITY from maintenance
responsibilities assumed under this Agreement.
5.2. Issue encroachment permits to CITY and CITY contractors at no cost to them.
6. LEGAL RELATIONS AND RESPONSIBILITIES:
6.1. Nothing within the provisions of this Agreement is intended to create duties or obligations to or
rights in third PARTIES not PARTIES to this Agreement, or affect the legal liability-of either
PARTY to this Agreement by imposing any standard of care respecting the design, construction and
maintenance of these STATE highway improvements or CITY facilities different from the standard
of care imposed by law.
6.2. If during the term of this Agreement, CiTY should cease to MAINTAIN the LANDSCAPING to
the satisfaction of STATE as provided by this Agreement, STATE may either undertake to perform
that MAINTENANCE on behalf of CITY at CITY expense or direct CITY to remove or itself
remove LANDSCAPING at CITY sole expense and restore STATE's right of way to its prior or a
safe operable condition. CITY hereby agrees to pay said STATE expenses, within thirty (30) days
3
9 -11
of receipt of billing by STATE. However, prior to STATE performing any MAiNTTENANCE or
removing LANDSCAPING STATE will provide written notice to CiTY to cure the default and
CITY will have thirty (30) days within which to affect that cure.
6.3. Neither CITY nor any officer or employee thereof is responsible for any injury, damage or liability
occurring by reason of anything done or omitted to be done by STATE under or in connection with
any work, authority or jurisdiction arising under this Agreement. It is understood and agreed that
STATE shall fully defend, indemnify and save harmless CiTY and all of its officers and employees
from all claims, suits or actions of every name, kind and description brought forth under, including,
but not limited to, tortious, contractual, inverse condemnation and other theories or assertions of
liability occurring by reason of anything done or omitted to be done by STATE under this
Agreement with the exception of those actions of STATE necessary to cure a noticed default on the
part of CITY.
6.4. Neither STATE nor any officer or employee thereof is responsible for any injury, damage or
liability occurring by reason of anything done or omitted to be done by CITY under or in
connection with any work, authority or jurisdiction arising under this Agreement. It is understood
and agreed that CiTY shall fully defend, indemnify and save harmless STATE and all of its officers
and employees from all claims, suits or actions of every name, kind and description brought forth
under, including, but not limited to, tortious, contractual, inverse condemnation or other theories or
assertions of liability occurring by reason of anything done or omitted to be done by CITY under
this Agreement.
7. PREVAILING WAGES:
7.1. Labor Code Compliance- If the work performed on this Project is done under contract and falls
within the Labor Code section 1720(a)(1) definition of a "public work" in that it is construction,
alteration, demolition, installation, or repair; or maintenance work under Labor Code section 1771.
CITY must conform to the provisions of Labor Code sections 1720 through 1815, and all applicable
provisions of California Code of Regulations found in Title 8, Chapter 8, Subchapter 3, Articles 1 -7.
CITY agrees to include prevailing wage requirements in its contracts for public work. Work
performed by CITY's own forces is exempt from the Labor Code's Prevailing Wage requirements.
7.2. Requirements in Subcontracts - CITY shall require its contractors to include prevailing wage
requirements in all subcontracts funded by this Agreement when the work to be performed by the
subcontractor is a "public work" as defined in Labor Code Section I720(a)(1) and Labor Code
Section 1771. Subcontracts shall include all prevailing wage requirements set forth in CITY's
contracts.
8. INSURANCE:
8.1. CITY is self insured. CITY agrees to deliver evidence of self - insured coverage in a form
satisfactory to STATE, along with a signed copy of the Agreement.
8.2. If the work performed on this Project is done under contract CITY shall require its contractors to
maintain in force, during the term of this agreement, a policy of general liability insurance,
including coverage of bodily injury liability and property damage liability, naming the STATE, its
officers, agents and employees as the additional insured in an amount of $1 million per occurrence
4
9 -12
and $2 million in aggregate. Coverage shall be evidenced by a certificate of insurance in a form
satisfactory to the STATE that shall be delivered to the STATE with a signed copy of this
Agreement.
9. TERMINATION - This Agreement may be terminated by timely mutual written consent by PARTIES,
and CITY failure to comply with the provisions of this Agreement may be grounds for a Notice of
Termination by STATE.
10. TERM OF AGREEMENT -This Agreement shall become effective on the date first shown on its face
sheet and shall remain in full force and effect until amended or terminated at any time upon mutual
consent of the PARTIES or until terminated by STATE for cause.
PARTIES are empowered by Streets and Highways Code Section 114 & 130 to enter into this Agreement and
have delegated to the undersigned the authority to execute this Agreement on behalf of the respective agencies
and covenants to have followed all the necessary legal requirements to validly execute this Agreement.
5
9 -13
IN WITNESS WHEREOF, the PARTIES hereto have set their hands and seals the day and year first above
written.
THE CITY OF NEWPORT BEACH
A California Municipal Corporation
and Charter City
Rush N. Hill, II Mayor
ATTEST:
By:
Leilani Brown, CITY Clerk
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By0`f V vwVL-'
Aaron C. Harp, CITY Attorney
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
MALCOLM DOUGHERTY
Director of Transportation
By: Aga
James$inheiro a
Deputy District Director
Operations and Maintenance
District 12
9 -14
t
E
QO�
U %Wx
V
oz
0
LO
m
0
a
3x x
om
z
E
Go
z�
a
ffi
u
w
x
p
Z
Z
�m
p
z€V
p�
iL
o
O
3
oZ
e
3p
a z
lu/1
pw
Fw
ZZ
o
u
J
U&
Lu
m
'
O
W
ZOn
t
E
QO�
U %Wx
V
oz
0
LO
ATTACHMENT C
RECORDING REQUESTED BY:
CITY OF NEWPORT BEACH
WHEN RECORDED MAIL TO:
City Clerk
City of Newport Beach
P.O. Box 1768 / 100 Civic Center Drive
Newport Beach, CA 92658
Fee exempt per Govemment Code § 6103
LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH
AND VBAS PROPERTIES, INC.
TO PROVIDE INSTALLATION AND MAINTENANCE OF LANDSCAPING AND
HARDSCAPING IMPROVEMENTS IN THE PUBLIC RIGHT -OF -WAY
This License Agreement (the "Agreement') is made and entered into by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city, hereinafter
referred to as "CITY," and VBAS PROPERTIES, INC., a California corporation, hereinafter
referred to as "LICENSEE."
WHEREAS, LICENSEE is the owner of certain real property located in the City of Newport
Beach, County of Orange, State of California, which is a commercial development commonly
known as Mariner's Pointe and more particularly described in the legal description included in
Exhibit "A" and incorporated by this reference (the "Property "); and
WHEREAS, CITY is the owner of certain public rights -of -way and other property in the
immediate vicinity of the Property (the "Improvement Areas "), which Improvement Areas are
more particularly described and depicted in Exhibit "B" attached hereto and incorporated herein
by this reference; and
WHEREAS, California Department of Transportation, hereinafter referred to as
" CALTRANS," is the owner of certain public rights -of -way and other property in the
Improvement Areas, and the CITY has or will enter into a maintenance agreement with
CALTRANS to maintain the Improvement Areas; and
WHEREAS, in connection with and as a condition of development of the Property, CITY
desires to assign responsibility for the installation and maintenance of landscaping and
hardscaping within the hnprovement Areas, as defined below in Section 5, and the costs
associated herewith in accordance with plans and specifications submitted by LICENSEE and as
reasonably approved by CITY; and
By this Agreement, CITY desires to clarify and specifically delineate the LICENSEE's
obligations with respect to the installation and maintenance of landscaping and hardscaping
within the Improvement Areas,
A14 -00193
9 -16
NOW, THEREFORE, in consideration of the promises and agreements hereinafter made and
exchanged, CITY and LICENSEE covenant and agree as follows:
1. GRANT OF LICENSE. Subject to terms and conditions hereinafter set forth, CITY
hereby grants to LICENSEE a non - exclusive, revocable license ( "License ") to install and
maintain landscaping and hardscaping within the Improvement Areas pursuant to the
terns as set forth in this Agreement.
2. TERM. The term of the License (the "Term ") granted herein shall be perpetual, provided
that CITY may terminate the License and this Agreement upon thirty (30) days written
notice to LICENSEE. LICENSEE (for itself, and its successors and assigns) agrees that
this Agreement and the rights and obligations contained herein run with the land, and are
binding upon and shall inure to the benefit of the owner of the Property, as the burdened
parcel, and the rights, and obligations contained herein shall bind and inure to the
LICENSEE'S successors in interest, assigns, heirs, executors, and /or personal
representatives. This Agreement and the covenants contained herein inures to the benefit
of CITY as the owner of the Improvement Areas, as the benefited parcel.
TERMINATION. In the event of any such termination and upon request by CITY,
LICENSEE and its successors and assigns shall be obligated to deliver the Improvement
Areas in compliance with the maintenance provisions set forth in this Agreement. At the
CITY's request the LICENSEE or its successors and assigns may be required to
disconnect existing water and electrical supply sources to the Improvement Areas from
the Property, and construct and reconnect alternative water and electrical supply sources
to the Improvement Areas to the satisfaction of CITY.
4. DESCRIPTION OF IMPROVEMENTS. All improvements installed within the
Improvement Areas shall be as depicted on those certain plans and specifications as
approved by the CITY relative to the Property and the subject development thereof The
landscaping, hardscaping, and other improvements within the Improvement Areas for
which LICENSEE, at its sole cost at no expense to the CITY, shall install, repair,
maintain, and/or replace in accordance with the terms of this License shall be collectively
referred to as the "LICENSEE'S Improvements" and includes the following:
(a) Landscaping. Irrigation Systems and Plant Material: Plants and trees in
accordance with the Landscaping Plans relative to the Property and the subject
development thereof submitted by LICENSEE and approved by the CITY and the
irrigation systems serving the same.
(b) Hardscaping: Enhanced and concrete paving including sidewalks, driveways,
access ramps and stairs in accordance with the precise grading plans relative to the
Property and the subject development thereof submitted by LICENSEE and
approved by the CITY.
5. MAINTENANCE RESPONSIBILITIES. At LICENSEE'S sole cost and expense,
LICENSEE agrees to construct, inspect, clean, repair, replace, and rehabilitate the
Improvement Areas at its own cost, and perform all maintenance responsibilities for the
A14 -00193
2
9 -17
Improvement Areas, including, but not limited to: sidewalk cleaning; trash disposal; signs;
watering; repairing and /or adjusting irrigation systems when failures occur; fertilizing;
cultivating; edging; performing general planting and trimming or other corrective
gardening; spraying grass and plants with both insecticides and herbicides; and, generally
keeping the Improvement Areas in a clean, secure and attractive condition, taking into
consideration normal growth of the landscape materials and a continuation of the aesthetic
quality of the area. All work shall be performed in a manner to ensure ADA compliance at
all times. LICENSEE agrees to maintain and keep the Improvement Areas in good
condition and repair, free and clear of litter and debris and free from any nuisances and to
comply with all health and police regulations, in all respects at all times. LICENSEE
agrees to dispose of litter and debris in a sanitary and legal manner and location. All of
the responsibilities listed in this Section 5 (including subparts) shall collectively be
referred to as "Maintenance Responsibilities."
(a) Maintenance of Trees and Plants. LICENSEE's maintenance obligations shall
include watering, repairing, maintaining, adjusting and monitoring irrigation
systems when failures occur, fertilizing, edging, performing general planting and
trimming or other corrective maintenance, spraying with insecticides and
herbicides, and generally keeping the Improvement Areas in a clean, secure and
attractive condition, taking into consideration normal growth of the landscape
materials and a continuation of the aesthetic quality of the Improvement Areas,
including but not limited to the following:
LICENSEE may install, or contract, authorizing a licensed contractor with
appropriate class of license in the State of California, to install and
thereafter will MAINTAIN (Section 27 of the Streets and Highways Code)
LANDSCAPING conforming to those plans and specifications (PS &E)
preapproved by STATE.
ii. LICENSEE will submit the final form of the PS &E, prepared, stamped and
signed by a licensed landscape architect, for LANDSCAPING to STATE's
District Permit Engineer for review and approval and will obtain and have
in place a valid necessary encroachment pen-nit prior to the start of any
work within STATE'S right of way. All proposed LANDSCAPING must
meet STATE's applicable standards.
iii. LICENSEE shall ensure that LANDSCAPED areas designated on Exhibit
"A" are provided with adequate scheduled routine MAINTENANCE
necessary to MAINTAIN a neat and attractive appearance.
iv. An encroachment permit rider may be required for any changes to the
scope of work allowed by this Agreement prior to the start of any work
within CITY's right of way. CITY and CITY's contractors must obtain the
necessary Encroachment Permits from STATE's District 12 Encroachment
Permit Office prior to entering STATE right of way to perform CITY
maintenance responsibilities. This permit will be issued at no cost to CITY.
In case of a need for any lane closure, the time frame shall be coordinated
A14 -00193
on
A14 -00193
with STATE. Any disturbed pavement due to pressure, operation,
maintenance and repair of the PROJECT will be repaired and restored by
CITY to STATE's satisfaction at no cost to STATE.
V. LICENSEE's contractors will be required to obtain an encroachment
permit prior to the start of any work within STATE's right of way.
vi. To fumish electricity for irrigation system controls, water, and fertilizer
necessary to sustain healthy plant growth during the entire life of this
Agreement.
vii. To replace unhealthy or dead plantings when observed or within thirty (30)
days when notified in writing by CITY and/or CALTRANS that plant
replacement is required.
viii. To prune shrubs, tree plantings, and trees to control extraneous growth and
ensure CITY and/or CALTRANTS standard lines of sight to signs and
corner sight distances are always maintained for the safety of the public.
ix. To MAINTAIN, repair and operate the irrigation systems in a manner that
prevents water from flooding or spraying onto the CALTRANS highway,
spraying parked and moving automobiles, spraying pedestrians on public
sidewalksibike paths, or leaving surface water that becomes a hazard to
vehicular or pedestrian/bicyclist travel. All the above requirements apply to
the proposed water fountain which will be built outside of the CALTRANS
right of way.
X. To control weeds at a level acceptable to the CITY and /or CALTRANS.
Any weed control performed by chemical weed sprays (herbicides) shall
comply with all laws, rules, and regulations established by the California
Department of Food and Agriculture. All chemical spray operations shall
be reported quarterly (Form LA 17) to the CITY and /or CALTRANS to:
Maintenance Manager at District Maintenance, 3347 Michelson Drive,
Suite 100, Irvine CA 92612.
xi. To remove LANDSCAPING and appurtenances and restore The
Improvement Areas owned areas to a safe and attractive condition
acceptable to CITY in the event this Agreement is terminated as set forth
herein.
xii. To famish electricity and MAINTAIN lighting system and controls for all
street lighting systems installed by and for LICENSEE.
xiii. To inspect LANDSCAPING on a regular monthly or weekly basis to
ensure the safe operation and condition of the LANDSCAPING.
0
9 -19
xiv. To expeditiously MAINTAIN, replace, repair or remove from service any
LANDSCAPING system component that has become unsafe or unsightly.
xv. To MAINTAIN all sidewalks/bike paths within the Agreement limits of the
CALTRANS highway right of way, as shown on Exhibit A, at
LICENSEE's expense. MAINTENANCE includes, but is not limited to,
concrete repair, replacement and to grind or patch vertical variations in
elevation of sidewalksibike paths for an acceptable walking and riding
surface, and the removal of dirt, debris, graffiti, weeds, and any deleterious
item or material on or about sidewalks/bike paths or the LANDSCAPING
in an expeditious manner.
xvi. To MAINTAIN all parking or use restrictions signs encompassed within
the area of the LANDSCAPING.
xvii. To allow random inspection of LANDSCAPING, street lighting systems,
sidewalks/bike paths and signs by a CITY representative.
xviii. To keep the entire landscaped area policed and free of litter and deleterious
material.
xix. All work by or on behalf of LICENSEE will be done at no cost to CITY.
xx. Provide and apply fertilizer as necessary to sustain healthy growth.
Maintain a separate irrigation system and pay all repairs, water and
electrical cost.
xxi. Maintain the Improvement Areas to allow access by CITY personnel to
CITY facilities and in a condition that is substantially free from weeds,
debris, and harmful insects at all times.
xxii. Keep plantings trimmed to eye pleasing appearance.
xxiii. Remove and replace unhealthy, dead, invasive or unplanned plantings as
they are observed.
xxiv. Keep the entire area policed and free of litter and deleterious material.
LICENSEE shall provide trash pick -up, sweeping, and clean-up as required
to ensure no offensive odors, gum, wax, litter, liquids or other materials are
allowed to remain on or stain paving, planters, containers, decorative
features, artwork or other surfaces.
xxv. Maintain, repair and operate irrigation system in a manner that prevents
water from flooding onto the right -of -ways.
xxvi. All tree trimming shall be done by an I.S.A. Certified Arborist or an I.S.A.
Certified tree worker under the direct supervision of an I.S.A. Certified
A14 -00193
9 -20
Arborist. Said trimming shall be per the International Society of Arborist,
A.N.S.I. 300A standards. Any tree work not conforming to these
requirements shall be subject to damage assessment by the CITY. Damages
may potentially lead to penalties which can involve removing and
replacing the damaged tree with an approved replacement of the same size
that was originally planted, and payment of fines equal to the value of the
original (damaged) tree. Any fines shall be payable by LICENSEE to the
CITY.
xxvii. If for any reason LICENSEE is unable to maintain the Improvement Areas
in a manner satisfactory to the CITY, LICENSEE shall re- landscape the
Improvement Areas to a condition acceptable to the CITY at LICENSEE's
sole cost and expense.
xxviii. If during the term of this Agreement, CITY should cease to maintain the
"PROJECT" to the satisfaction of STATE as provided by this Agreement,
STATE may either undertake to perform that maintenance on behalf of
CITY at CITY's expense or direct CITY to remove or itself remove
PROJECT at CITY's sole expense and restore STATE's right of way to its
prior or safe operable condition. CITY hereby agrees to pay STATE said
expenses, within thirty (30) days of receipt of billing by STATE. However,
prior to STATE performing any maintenance or removing PROJECT,
STATE will provide written notice to CITY to cure the default and CITY
will have thirty (30) days within which to affect that cure.
xxix. Control and maintain the Improvement Areas such that no landscaping or
plant materials growth, or irrigation water spray, obstructs or hinders
vehicular or pedestrian traffic, or encroaches across or onto any bicycle
path, sidewalk, public access area, the street right -of -way from the edge of
the curb /gutter to the center of any street right -of -way.
xxx. Conform to all applicable standards set forth in the CITY'S.
(b) Maintenance of Hardscape Material. LICENSEE's maintenance obligations shall
include all concrete and enhanced handscaping material including all sidewalks,
driveways, access ramps and stairs. Maintenance includes, but is not limited to,
linear root barriers, concrete repair and replacement, grinding or patching
variations in elevation of sidewalks and driveways for an acceptable riding
surface, and the removal of dirt, debris, graffiti, weeds, and any other deleterious
items or material on or about the sidewalks or driveways in an expeditious
manner.
(c) Bicycle Paths. As to any bicycle paths constructed as permitted encroachments
within the Improvement Areas, LICENSEE will maintain, at LICENSEE expense,
a safe facility for bicycle travel along the entire length of the path by providing
sweeping and debris removal when necessary; and all signing and striping and
A14 -00193
ri
9 -21
pavement markings required for the direction and operation of that non- motorized
facility.
(d) Utilities Serving the Improvement Areas. LICENSEE shall bear the expense of
electricity and any other utility necessary to serve the Improvement Areas.
LICENSEE shall be responsible for using such utilities in a secure and hazardless
manner, complying in all respects with applicable codes and ordinances.
(e) Signage. LICENSEE shall repair and maintain during the Tenn any signage
constricted and installed on the Improvement Areas by LICENSEE.
6. PLANS AND SPECIFICATIONS. Throughout the Term, LICENSEE shall perform, at
its sole cost and expense, any and all repairs, replacements or refurbishing to the
Improvements which LICENSEE constructs in the Improvement Areas as necessary to
bring the Improvements into an operating condition, all in accordance with plans and
specifications as submitted by LICENSEE to CITY, which plans and specifications shall
be subject to the prior written approval of CITY. No changes, modifications, or
alterations may be made to the Improvement Areas without the prior written consent of
CITY.
MATERIAL ALTERATIONS. After the approval of the plans and specifications and the
installation of the Improvements in the Improvement Areas in accordance with the plans
and specifications, no material changes, modifications or alterations may be made to the
Improvement Areas without the prior written consent of CITY.
8. CITY REQUIREMENTS. LICENSEE, or anyone performing work on behalf of
LICENSEE, shall be properly licensed by CITY for any work perfornied on the
Improvement Areas. Furthermore, LICENSEE, or anyone performing work on behalf of
LICENSEE, shall acquire the proper encroachment permit and comply with all other
CITY requirements prior to performing any work on Improvement Areas in the public
right -of -way.
9. PREVAILING WAGE REQUIREMENTS. If the work performed on the Improvement
Areas is done under contract and falls within the Labor Code section 1720(a)(1) definition
of a "public work" in that it is construction, alteration, demolition, installation, repair or
maintenance, LICENSEE must conform to the provisions of Labor Code sections 1720
through 1815, all applicable regulations and coverage determinations issued by the
Director of Industrial Relations. LICENSEE agrees to include prevailing wage
requirements in its contracts for public work.
10. PREVAILING WAGE REQUIREMENTS IN SUBCONTRACTS. LICENSEE shall
require its contractors to include prevailing wage requirements in all subcontracts funded
by this Agreement when the work to be performed by the subcontractor is a "public work"
as defined in Labor Code Section 1720(a)(1). Subcontracts for public works shall include
all prevailing wage requirements set forth in CITY's contracts.
A14 -00193
9 -22
11. CITY RIGHT TO INSPECT. CITY shall have the right to inspect the hmprovement Areas
at any time to ensure that LICENSEE is performing its obligations hereunder. CITY and
LICENSEE shall negotiate in good faith to come -to a mutual agreement -as to the time and
date for such inspections.
12. DAMAGE TO IMPROVEMENT AREAS. In the event any damage is caused to any
pathways, sidewalks, curbs, gutters, street furniture, street lights, medians, streets or
utilities as a result of the installation of the landscaped and /or hardscaped material
installed on the Improvement Areas and /or the performance of the maintenance
responsibilities of the Improvement Areas, LICENSEE agrees to repair same at its own
expense. In the event that damage is caused by the acts of any person to any portion of
the landscaped or hardscaped area or in the event any equipment is broken or breaks or is
destroyed or in the event vegetation rots or dies, said equipment or vegetation shall be
replaced or restored within ten (10) calendar days of the date of the breakage or
destruction. Stolen items will be considered destroyed for purposes of this Section 12.
13. REPAIR BY CITY. Except as otherwise provided for in this License, in the event any
damage is caused to any of the LICENSEE's Improvements within the Improvement
Areas as a result of the installation, maintenance and /or repair work performed by the
CITY or its contractors, agents or employees within the Improvement Areas, CITY shall
promptly repair the same at its own expense.
14. COOPERATION. In the event both LICENSEE and CITY are required to repair damage
to the improvements the parties shall cooperate with each other so as to minimize the costs
incurred by each of them. To the extent maintenance of any of the LICENSEE'S
Improvements require access to any real property owned by CALTRANS, rather than
CITY, CITY shall cooperate with LICENSEE by contacting CALTRANS on behalf of
LICENSEE and assist in obtaining the necessary permits, approvals and /or agreements
required to pennit LICENSEE such access.
15. MECHANICS' LIENS. LICENSEE agrees not to suffer any mechanics' lien(s) to be filed
against the Improvement Areas by reason of any work, labor, services or material
performed at or furnished to the Improvement Areas, by or through LICENSEE.
LICENSEE shall, at its sole cost and expense, cause any mechanics' lien(s) which maybe
filed against the Improvement Areas to be released or bonded or affirmatively insured
within sixty (60) days after the date of filing of such mechanics' lien(s). Nothing in this
Agreement shall be construed as consent on the part of the CITY to subject the CITY's
estate in the Improvement Areas to any mechanics' lien(s) or liability under the mechanics'
lien laws of the State of California.
16. ASSIGNMENT. The License herein granted is personal to LICENSEE and any attempt
to assign the License to any entity shall require the prior approval of CITY and is subject
to the provisions set forth in Section 37 below. Other than the License granted hereunder,
LICENSEE hereby expressly waives any claim to or interest or estate of any kind or
extent whatsoever in the Improvement Areas arising out of the License or out of
LICENSEE'S use or occupancy of the hmprovement Areas, whether now existing or
arising at any future time. This License is appurtenant to the Property and may not be
A14- 00193
9 -23
separately assigned apart from the Property or the interests therein. In the event that CITY
has approved an assignment or delegation, LICENSEE shall give notice in writing to
CITY of any such assignment and delegation; such notice shall include the mailing
address of the delegee, and will become the delegee's address for service of notices.
LICENSEE hereby covenants for itself and its successors and assigns, that conveyance of
any interest in the Property shall constitute an assumption by any successors, assigns or
transferees of LICENSEE, of the obligations under this License, and upon such
conveyance, the predecessor in interest of such assuming party shall be deemed relieved
fi-om any further obligations or responsibilities under this License.
17. WORKERS COMPENSATION INSURANCE. Pursuant to California Labor Code
§1861, LICENSEE and its successors or assigns acknowledges awareness of Section 3700
et seq. of said California Labor Code, which requires every employer to be insured against
liability for workers' compensation. LICENSEE covenants that it will comply with such
laws and provisions prior to conducting any activity pursuant to this license. LICENSEE
shall maintain such Workers' Compensation Insurance in an amount of not less than One
Million Dollars ($1,000,000) bodily injury by accident, each occurrence, One Million
Dollars ($1,000,000) bodily injury by disease, each employee, and One Million Dollars
($1,000,000) bodily injury by disease, policy limit, at all times incident hereto, in forms
and underwritten by insurance companies reasonably satisfactory to CITY. LICENSEE
shall require all subcontractors retained by LICENSEE to perform work hereunder to
provide such workers' compensation insurance for all of the subcontractors' employees.
LICENSEE shall firmish to CITY a certificate of waiver of subrogation under the terns of
the workers' compensation insurance and LICENSEE shall similarly require all
subcontractors to waive subrogation.
18. OTHER INSURANCE. In addition to the workers' compensation insurance in Section 17
above and LICENSEE's covenant to indemnify CITY in Section 20 below, LICENSEE or
its successors or assigns shall obtain and furnish to the CITY and carry at all times
incident hereto, on all activities to be performed in the Improvement Areas as
contemplated herein, general liability insurance including coverage for bodily injury,
property damage and motor vehicle coverage. All insurance shall be underwritten by
insurance companies reasonably satisfactory to CITY. Said insurance shall name the
CITY as Additional Insureds and shall specifically provide that any other insurance which
may be applicable to all activities to be undertaken by LICENSEE concerning the
Improvement Areas shall be deemed excess coverage and that LICENSEE's insurance
shall be primary. Said policy of insurance shall pay on behalf of LICENSEE, its officers,
agents, and employees, while acting within the scope of their duties, against any and all
claims of liability arising out of or in connection with all activities to be undertaken by
LICENSEE concerning the Improvement Areas affected by the license. LICENSEE shall
subscribe for and maintain said insurance policies in full force and effect during the life of
this Agreement, in an amount not less than the following amount: combined single limit
bodily injury and property damage, including products /completed operations liability and
blanket contractual liability, of One Million Dollars ($1,000,000) per occurrence. If
coverage is provided under a form which includes a designated general aggregate limit,
such limit shall be not less than Two Million Dollars ($2,000,000). In the event of
aggregate coverage, LICENSEE shall immediately notify CITY of any known depletion
A14 -00193
9
9 -24
of limits. LICENSEE shall require its insurer to waive its subrogation rights against
CITY.
19. CERTIFICATE OF INSURANCE; ADDITIONAL INSURED ENDORSEMENTS. Prior
to conducting any activity pursuant to this Agreement, LICENSEE shall furnish to CITY
certificates of insurance evidencing the foregoing insurance coverage as required by this
Agreement; said certificates shall provide the name and policy number of each carrier and
policy; and shall state that the policy is currently in force; and shall promise to provide
that such policies will not be canceled or modified without providing notice to CITY in
accordance with policy provisions. LICENSEE shall maintain the foregoing insurance
coverage in force until the Term of this Agreement has expired or this Agreement is
terminated. The requirement for carrying the foregoing insurance coverage shall not
derogate the obligations of LICENSEE under this Agreement. CITY or its representative
shall at all times have the right to demand a copy of all said policies of insurance.
LICENSEE shall pay, in a prompt and timely manner, the premiums on all insurance
hereinabove required. A separate copy of the additional insured endorsement to
LICENSEE's liability policy as required hereunder, naming the CITY as Additional
Insureds, shall be provided to the CITY Attorney for approval prior to the commencement
of any work by LICENSEE pursuant to this Agreement.
20. INDEMNIFICATION AND HOLD HARMLESS. LICENSEE hereby agrees to protect,
defend, indemnify and hold and save harmless CITY, CALTRANS, and /or the State of
California, its officers, and employees, and assigns (hereinafter collectively called
"Indemnified Parties ") against any and all liability, claims, judgments, penalties, damages,
expenses, costs and demands, including without limitation reasonable attorneys' fees,
however caused, including those resulting from death or injury to any person (including
without limitation any Indemnified Party), and damage to any property, real or personal,
of any kind wherever located and by whomever owned (including, without limitation,
property owned by an Indemnified Party), which injury, death or physical damages arises
directly or indirectly out of the grant of license herein contained or the activities to be
undertaken by LICENSEE (or LICENSEE's officers, employees, agents, contractors,
licensees, or invitees) concerning the Improvement Areas, caused in who]- or in part by
any negligent act or omission of the LICENSEE, any of its contractors, subcontractors, or
anyone directly or indirectly employed by any of them or anyone for whose acts any of
them may be liable (collectively, the "LICENSEE Parties "), including but not limited to
concurrent active or passive negligence of the LICENSEE Parties, except to the extent
caused by the negligence or willful misconduct of CITY or any of its agents, contractors,
subcontractors, officers, or employees. City shall provide immediate notice to LICENSEE
whereupon LICENSEE shall conduct any defense required hereunder at its sole cost and
expense.
21. INDEPENDENT CONTRACTOR. LICENSEE agrees that all work done or undertaken
by it on the Improvement Areas shall be for its sole account and not as an agent, servant or
contractor for CITY.
22. RULES AND REGULATIONS. LICENSEE agrees to obey and observe (and cause its
officers, employees, contractors, licensees, invitees and all others doing business with
A14 -00193
l[lI
9 -25
LICENSEE to obey and observe) all rules and regulations of general applicability
regarding the Improvement Areas as may be reasonably established by CITY at any time
and from time to time during the Term of this Agreement.
23. DEFAULT. In the event LICENSEE does not perform, or cause to be performed, any of
the Maintenance Responsibilities as contemplated by this Agreement, CITY shall first
provide written notice to LICENSEE in the manner and at the address for notices provided
in Section 25, describing the alleged default by LICENSEE. If LICENSEE fails to cure
said default within thirty (30) calendar days following the date of delivery of such notice
of default, CITY may thereafter cause such maintenance to be performed, and all actual
and reasonable costs incurred shall be assessed to and billed directly to the LICENSEE.
Any invoice for such costs incurred shall include copies of paid invoices evidencing the
costs incurred. Payment from LICENSEE shall be due within thirty (30) calendar days
following the date of receipt of invoice. In addition, one and a half (1 -1/2 %) interest per
month shall be added for each month payment hereunder is due but unpaid.
24. APPLICABLE LAW. LICENSEE shall, at its sole cost and expense, faithfully observe in
the use and occupation of the Improvement Areas all municipal ordinances, and all state
and federal statutes now in force and which may hereafter be in force, and shall fully
comply, at its sole expense, with all regulations, orders, and other requirements issued or
made pursuant to any such ordinances and statutes. All building permits, business
licenses and other applicable permits and licenses shall be secured and paid for by
LICENSEE.
25. NOTICES. Any notice or special instructions required to be given in writing render this
Agreement shall be given either by personal delivery to LICENSEE (as designated herein)
or to CITY as the situation shall warrant, or by enclosing the same in a sealed envelope
and sent (i) postage prepaid, and depositing the same in the United States Postal Service,
via certified or registered mail, or (ii) using nationally recognized overnight courier
service, or (iii) via facsimile transmission (with a copy to also be placed in the United
States Mail), and addressed as follows:
TO CITY:
TO LICENSEE:
City of Newport Beach
VBAS PROPERTIES, INC.
100 Civic Center Drive
c/o Glenn Verdult, President
P.O. Box: 1768
100 W. Coast Hwy., Suite R -101
Newport Beach, CA 92658
Newport Beach, CA 92660
Attn: Director of Public Works
Tel: (949) 644 -3330
with copy to:
Pax: (949) 644 -3308
Tod W. Ridgeway
Ridgeway Development Company
2804 Lafayette Avenue
Newport Beach, CA 92663
Any mailing address or telefacsimile number may be changed at any time by giving
A14 -00193
11
9 -26
written notice of such change in the manner provided above at least ten (10) days prior to
the effective date of the change. All notices under this Agreement shall be deemed given,
received, made or communicated on the date personal receipt actually occurs or, if mailed,
on the delivery date or attempted delivery date shown on the return receipt. A person may
not give official or binding notice by facsimile. The effective time of a notice shall not be
affected by the receipt, prior to the receipt of the original, of a facsimile copy of the
notice.
26. CAPTIONS AND TERMS. The captions and section numbers appearing in the
Agreement are for convenience only and are not a part of the Agreement and do not in any
way limit, amplify, define, construe or describe the scope of intent of the terms and
provisions of this Agreement, or in any way affect this Agreement.
27. RECORDATION. LICENSEE shall record this Agreement in the Official Records of the
County of Orange, State of California.
28. NON - EXCLUSIVITY. This License is non- exclusive, and the Improvement Areas shall
at all times be open to use by the general public.
29. NONDISCRIMINATION. LICENSEE agrees that in the performance of this Agreement
and use of the Improvement Areas it will not engage in, discrimination against any person
because of race, religious creed, color, national origin, ancestry, physical handicap,
medical condition, marital status or sex.
30. COOPERATION. LICENSEE shall in good faith cooperate in connection with its
respective rights and obligations under this Agreement, including, but not limited to,
performing any acts and executing any further documents that may be reasonably
necessary to effectuate the purposes of or rights conferred under this Agreement.
31. SEVERABILITY. If any provision of this Agreement shall to any extent be deemed to be
invalid or unenforceable, the remainder of this Agreement shall not be affected thereby.
Each provision of this Agreement, unless specifically conditioned upon such invalid or
unenforceable provision, shall be valid and enforceable to the fullest extent permitted by
law.
32. ENTIRE AGREEMENT, This Agreement, together with any attachments hereto or
inclusions by reference, constitutes the entire agreement between the parties hereto
relating to the rights herein granted and the obligations herein assumed, and this
Agreement supersedes and cancels any and all previous negotiations, arrangements,
agreements, and understandings, if any, between the parties hereto with respect to the
rights and obligations contained herein. Any oral representations or modifications
concerning this instrument shall be of no force or effect except a subsequent modification
in writing, approved by the CITY and signed by the parties to be charged.
33. ATTORNEY'S FEES. If any action or proceeding is brought by either party against the
other under this Agreement, whether for interpretation, enforcement or otherwise, each
A14 -00193
12
9 -27
party shall bear its own attorneys' fees. The prevailing party shall not be entitled to
recover its attorneys' fees from the non - prevailing party.
34. CITY RIGHT TO ENFORCE. Notwithstanding the provisions of Section 33 above,
LICENSEE acknowledges and agrees that CITY has the right and standing, but not the
obligation, to enforce any of the terms of this Agreement by any appropriate legal or
equitable means and shall be entitled to reimbursement for any costs incurred in enforcing
this Agreement. LICENSEE shall provide CITY with, and at all times keep current,
contact information for LICENSEE and any property manager acting on its behalf.
35. GOVERNING LAW. This Agreement shall be governed, construed, interpreted, and
enforced under and in accordance with and governed by the laws of the State of California
and any action brought relating to this Agreement shall be adjudicated in a court of
competent jurisdiction in the County of Orange, State of California.
36. AMENDMENTS. This Agreement may be amended, modified, and /or supplemented only
by the written agreement of LICENSEE and CITY, or the successors and assigns of each.
37. COVENANTS. Each of the covenants set forth in this Agreement (i) shall run with the
land; (ii) shall be binding upon, and shall inure to the benefit of, any person or entity
having or acquiring any interest in any portion of any property benefited or burdened
thereby, during the period of such person's or entity's ownership, and all of their
respective successive owners and assigns; and (iii) shall be binding upon, and shall inure
to the benefit of, the property benefited or burdened thereby and every portion thereof and
interest therein. The License granted by this Agreement is subject to all matters of record
as of the effective date of this Agreement.
38. DELEGATION OF AUTHORITY. CITY hereby delegates to its City Manager or his or
her designee the authority to implement all provisions of this Agreement.
39. EXCLUSIVE BENEFIT OF PARTIES. The provisions of this Agreement are for the
exclusive benefit of CITY and LICENSEE and their successors and assigns, subject to the
provisions hereof, and neither for the benefit of nor give rise to any claim or cause of
action by any other person.
40. SURVIVAL. All representations, warranties, waivers, and indemnities given or made
hereunder . shall survive termination of this Agreement.
41. AUTHORITY TO SIGN. LICENSEE hereby represents that the individual executing this
Agreement on behalf of LICENSEE has full authority to do so and to bind LICENSEE to
perform pursuant to the terms and conditions of this Agreement.
A14 -00193
[SIGNATURES ON NEXT PAGE]
13
9M
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the dates written below.
APPROVED AS TO FORM:
CITY ATTO EY'S OFFICE
MAN
By��� V �
Aaron C. Harp
City Attorney
ATTEST:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
M
Dave Kiff
City Manager
LICENSEE: VBAS
California corporation
Properties, Inc., a
ida Verdult
e President/Assistant Secretary
[END OF SIGNAT REST CALIFORNIA NOTARY
ACK. / JL4W ATTACHED
10 1,2} MO lit
(ar Gr 9-hn RVJ
kAaa vent
A14 -00193 14
9 -29
ACKNOWLEDGMENT
State of California
County of ORANGE
On t7( 2a 114 before me,
T
R.H. BADANI, Notary Public
(insert name and title of the officer)
personally appeared G(e-nn V-e-A Jjj- z t-j KGA14Q VP.JtoUJJ
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) isiare
subscribed to the within instrument and acknowledged to me that he/shekhey executed the same in
his/her /their authorized capacity(1142p, and that by his/her /their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) 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. R. DADS fw
COMM.1977059 C
U ,'� t NOTARY PUBLIGCA!IFOANIA -{
U] ORANGE COUNTY W
if') J r d 6ty Term E:p. May 31, 2016 1
Signature I was— (Seal)
OPTIONAL
though the information helow is not required by law. it may prove valuable w parsons relying on the drxumenI and could pmvem 1:0Udn1eal removal and
rcattachmant of this form to another documcIll.
Description of Attached Document
Title or Type of Document: Lj cx/rv�,2 (A C1 L¢U , 01 N
.iP2r� }� 3P m }
tn-a c AY4 V Q A S P roPfAb e/3 n i n e.
Document Date:
Number of Pages: (Not including this page)
Signer(s) Other Than Named Above:
9 -30
EXIMIT "A"
LEGAL DESCRIPTION OF PROPERTY
Parcel 1 of Parcel Map No. 2010 -133, in the City of Newport Beach, County of Orange, State of
California as shown on Map Recorded in Book 375, Pages 1 through 4 of Miscellaneous Maps,
records of said County, California.
9 -31
I 1 2
0
uZ
94100 usnou
k, �.,.3
r
I
�I,, I S
s
�i
FTT i�
1 t7 j illi� ;� _II r oar_ Lei
;I
13
CR
E
`! � �
0
V�
�Y
EXHIBIT B 9 -32
3AItl0 tl3AOQ
� r a■e■e■nuua■a■ —�
O L �
,.�'. r3 _
:.
F—
Z
W
V
H
F-
Q
Y
O
u
3
d 1A-
oil
e
r
�
pp
y
22
4
� zz S
m� 93
�'��
i'
�s6 • J
,e
lc
1y@y
?S
pj
jp�
i$
i 1
3AItl0 tl3AOQ
� r a■e■e■nuua■a■ —�
O L �
,.�'. r3 _
:.
F—
Z
W
V
H
F-
Q
Y
O
u
3
d 1A-
oil
e
r
�
pp
y
22
1y@y
?S
pj
jp�
i$
i 1
@i
@7
1®
iii
@@qq 99
oil
e
jjj flS�9 jS SY} �E i �s` t�g
�
pp
22
iii
@@qq 99
e
fE}E
r
r
�I s.
egsg@
#l2;j
u
pill
1lsz9'
]1111
W