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HomeMy WebLinkAbout18 - Newport Harbor Nautical Museum - Amusement Equipment�� � - -it�� C �•,�i��� it St,.�ft F;.- �i•��•�it Agenda Item No. 18 June 12, 2012 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Stephen G. Badum, Public Works Director 949- 644 -3311, sbadum @newportbeachca.gov PREPARED BY: Socheata Chhouk, Associate Civil Engineer APPROVED:.I.�tnl .0 TITLE: Newport Harbor Nautical Museum - Encroachment Permit and Agreement to Replace Amusement Equipment within the Easement for Sidewalk, Public Utility, and Pedestrian Purposes ABSTRACT: The Newport Harbor Nautical Museum (NHNM), property owner at 600 E. Bay Avenue, is requesting to remove the existing bungee trampoline and replace with a new bungee trampoline and update the Encroachment Agreement to omit a third party concessionaire. RECOMMENDATIONS: 1. Approve the Applicant's request to replace, maintain, and operate the bungee trampoline equipment, stairway, and appurtenances encroaching into the easement for sidewalk, public utility, and pedestrian purposes at 600 E. Bay Avenue. 2. Authorize staff to execute an encroachment permit (N2012 -0109) and encroachment agreement for these improvements. FUNDING REQUIREMENTS: There is no fiscal impact related to this item. DISCUSSION: The bungee trampoline is currently located on the boardwalk adjacent to the bulkhead, more specifically between the existing Fun Zone Boat Company ticket sales booth and seating area. This location encroaches into an easement dedicated for sidewalk, public utility, and pedestrian purposes. Newport Harbor Nautical Museum- Encroachment Permit and Agreement to Replace Amusement Equipment within the Easement for Sidewalk, Public Utility, and Pedestrian Purposes June 12, 2012 Page 2 On April 13, 2010, the City Council approved a relocation of the bungee trampoline from the courtyard (adjacent to the former merry-go -round carousel ride) to the location on the boardwalk at the request of NHNM and Kids at Heart, concessionaire of the bungee trampoline. The City, NHNM, and Kids at Heart entered into a three -party Encroachment Agreement, executed on May 5, 2010, recorded on June 25, 2010, as Official Record No. 2010000300728 in the Office of the County Recorder of Orange County, California (Exhibit B). NHNM and Kids at Heart are requesting the City to terminate this Encroachment Agreement under Section 3. All parties agreed to terminate this Encroachment Agreement, effectively immediately, in lieu of the 60 -day notice as stated in Section 3. In addition, NHNM has terminated its lease with Kids at Heart and proposes to become the owner and operator of the bungee trampoline. NHNM proposes to replace the existing bungee trampoline equipment in the same location with a new one (Exhibit C). If this request is approved, the City and NHNM will enter into an updated Encroachment Agreement to allow the NHNM to become the owner and operator of the bungee trampoline. The City included an amendment clause allowing the City Manager authority to modify the Encroachment Agreement in the future. The updated Encroachment Agreement requires NHNM to provide insurance and indemnify the City. NHNM is required to maintain all proposed improvements in accordance with general prevailing standards of maintenance, and pay all costs and expense. The proposed bungee trampoline equipment, stairway, and appurtenances will continue to be located against the bulkhead and allow for pedestrian access along the boardwalk. Staff believes that the proposed bungee trampoline equipment and related appurtenances within the easement are consistent with the current bungee equipment and other permitted uses within the easement (i.e., Ferris Wheel and ticket sales booth). The Offices of the City Attorney and Risk Manager have reviewed the Encroachment Agreement and are satisfied that it provides adequate protection for the City. The updated Encroachment Agreement is attached as Exhibit D. In the future, NHNM may be requesting additional amusement attractions such as an additional bungee trampoline or a rock - climbing wall within the easement area. Future requests will be reviewed at that time. Conditions of Approval: 1. The winter hours of operation would be limited to 11 A.M. to 7 P.M., daily. The summer hours of operation would be limited to 10 A.M. to 10 P.M., daily. 2 Newport Harbor Nautical Museum- Encroachment Permit and Agreement to Replace Amusement Equipment within the Easement for Sidewalk, Public Utility, and Pedestrian Purposes June 12, 2012 Page 3 2. The bungee trampoline cover and stairs shall be secured to ensure that no access to the equipment is provided during non - working hours. 3. The palm fronds of the City palm tree adjacent to the bungee trampoline equipment shall be trimmed on a regular basis by NHNM to ensure that the fronds do not impact the bungee trampoline operation. 4. The bungee trampoline operation will not impede pedestrian access along the boardwalk (i.e., queue of patrons). ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. 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). Submitted by: Badum s Director A. Area Map B. Staff Report from April 13, 2010 C. Photo Simulations of Proposed Improvements D. Encroachment Agreement N2012 -0109 1J U•� - �h � O � H hu,, � �i 120 91 Map Output EXHIBIT A: AREA MAP 600 E. Bay Ave OMAN @R qyF` cMrpttfYf �04etyo� 41 Q 0 oc�NFp�Tq cP4NFR �YE -- - y` m 0�297ft Page 1 of 1 20032011 Photos provided by Eagle Aerial Imaging www.eagleaerial.com /I IF City kundry http: / /www6.city.newport- beach. ca. us / servlet/ com. esri .esrimap.Esrimap ?ServiceName --1b_ info &ClientVersion =4.0 &Form =Tr... 04/25/2012 '0 ; o h G� oP P @4r EXHIBIT A: AREA MAP 600 E. Bay Ave OMAN @R qyF` cMrpttfYf �04etyo� 41 Q 0 oc�NFp�Tq cP4NFR �YE -- - y` m 0�297ft Page 1 of 1 20032011 Photos provided by Eagle Aerial Imaging www.eagleaerial.com /I IF City kundry http: / /www6.city.newport- beach. ca. us / servlet/ com. esri .esrimap.Esrimap ?ServiceName --1b_ info &ClientVersion =4.0 &Form =Tr... 04/25/2012 I EXHIBIT B CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 14 April 13, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Socheata Chhouk, Associate Civil Engineer 949 - 644 -3346 or schhouk @newportbeachca.gov SUBJECT: NEWPORT HARBOR NAUTICAL MUSEUM — ENCROACHMENT AGREEMENT TO RELOCATE AMUSEMENT EQUIPMENT WITHIN THE EASEMENT FOR SIDEWALK, PUBLIC UTILITY, AND PEDESTRIAN PURPOSES APPLICANT: NEWPORT HARBOR NAUTICAL MUSEUM & KIDS AT HEART- 600 E. BAY AVENUE RECOMMENDATIONS: 1. Approve the Applicant's request to install, maintain and operate bungee trampoline equipment, stairway, and appurtenances encroaching into the easement for sidewalk, public utility, and pedestrian purposes at 600 E. Bay Avenue. 2. Authorize staff to execute an encroachment permit and encroachment agreement for these improvements. DISCUSSION: The bungee trampoline equipment is currently located in the courtyard of the Newport Harbor Nautical Museum (NHNM) adjacent to the merry-go -round carousel ride. The NHNM proposes to relocate the bungee trampoline ride onto the boardwalk adjacent to the bulkhead, more specifically between the existing Fun Zone Boat Company ticket sales booth and seating area. They will add tables, chairs, and umbrella to the courtyard area in the bungee trampoline equipment's place. The bungee trampoline will continue to be maintained and operated by Kids at Heart. The proposed bungee trampoline location will encroach into an easement dedicated for sidewalk, public utility, and pedestrian purposes. At 600 E. Bay Avenue, there are two adjacent and parallel easements dedicated to the City of Newport Beach for sidewalk, public utility, and pedestrian purposes. A 12 -foot wide easement was dedicated to the City on a Grant of Easement and recorded on April 14, 1967. Additionally, a 23 -foot Newport Harbor Nautical Museum Encroachment Agreement to Relocate Amusement Equipment April 13, 2010 Page 2 wide easement was dedicated to the City on Parcel Map 82 -706 and recorded on February 24, 1986. The proposed improvements are shown on Exhibit "A" and include: 1. Relocate the bungee trampoline equipment, stairway, and appurtenances as shown on Exhibit "A ". The bungee trampoline will be located against the bulkhead and would continue to allow for pedestrian access along the boardwalk. 2. Relocate two benches elsewhere within the property and remove one table /stools set from the seating area. 3. Remove a City diseased palm tree located easterly of the Fun Zone Boat Company ticket sales booth. Relocate an existing City palm tree from the proposed bungee trampoline area to the diseased City palm tree location. The City palm tree relocation has been approved by the .General Services Department. The encroachment agreement requires NHNM and Kids at Heart to provide insurance and indemnify the City. It also provides that the NHNM and Kids at Heart must remove all improvements upon 60 days written notice from the City. The NHNM and Kids at Heart are required to maintain all proposed improvements in accordance with the general prevailing standards of maintenance, and pay all costs and expenses. Staff believes that the proposed bungee trampoline equipment and related appurtenances within the easement is consistent with the other permitted uses within the easement (i.e., ferris wheel and ticket sales booth). The Office of the City Attorney and the Risk Manager have reviewed the encroachment agreement and are satisfied that it provides adequate protection for the City. The encroachment agreement is attached as Exhibit "B ". Conditions Of Approval: 1. The winter hours of operation are Wednesday thru Sunday, 11 A.M. to 6 P.M. The summer hours of operation are 11 A.M. to 12 midnight, daily. 2. The bungee trampoline cover and stairs shall be secured to ensure that no access to the equipment is provided during non - working hours. 3. The palm tree removal and relocation will be performed by a valid State Licensed Contractor Class C -27 under a valid Encroachment Permit. 4. The palm fronds of the City palm tree adjacent to the bungee trampoline equipment shall be trimmed on a regular basis to ensure that the fronds do not impact the bungee trampoline operation. The trimming will be performed by a I Newport Harbor Nautical Museum Encroachment Agreement to Relocate Amusement Equipment April 13, 2010 Page 3 valid State Licensed Contractor Class C -27 with prior approval from the General Services Department. 5. The bungee trampoline operation will not impede the adjacent pedestrian access along the boardwalk (i.e., queue of patrons). Environmental Review: Categorically Exempt under Chapter 3, Article 19, Section 15301, Class 1(c) of Title 14, California Code of Regulations. Exemption is for minor alterations of existing facilities not expanding existing uses. Prepared by: S 6A't � Socheata Chhouk Associate Civil Engineer Submitted by: h n G. Badum Public Works Director Attachments: Exhibit "A" — Site Plan Exhibit Exhibit "B" — Encroachment Agreement i EXISTING NEWPORT HAY �1 FERRIS WHEEL EXISTING _ dt5egsaa TICKET SALES BOOTH p-em NEW BUNGEE � .., •.�• - TRAMPOLINE LOCATION '- co- 6^ BDA-RDW A LK. � Al 565 S.F. i — ! EXISTING BIINGEE A3 TRAMPOLINE 1783 SF • � aw 1 � LOCATION A2 ? 3166 S.F. hI G 10"17 S.F. 1449 .. ! C3 •,• III 1 IQi 74551. I . '" .II I•f-F• I .!,. -n¢o can;I l -LI I O1 -f 1: I' I fff I -�- 1 I li'I'i �•�'ii i i'� t'�_. 0 N •r i•I•I�11 }I.1I- I'- I I Q[/ 2 j:jI• ^ C9 B7 B5 i i 4 462 S.F. 427 S.F. II 1064 S.F. 1949 SF. 605 S.F. C4 � 464 S.F. I 62' 86 77051. 459 S.F. . a'14 5F, N 269 S.F! EAST SAY. AVENUE _ � - Exhibit "A" QQ ' '.; SITE PLAN N2010 -0007 Q 0 I I r .. ,. 4' -0" ,. 2,_6„ o /G a / io I EXISTING PALM TREE, PROTECT IN PLACE - PALM FRONDS SHALL BE TRIMMED REGULARLY SO THEY DO NOT IMPACT BUNGEE OPERATION `EXISTING SIDEWALK RELOCATION OF BUNGEE 600 E. BAY AVENUE NEWPORT BEACH, CA 92661 0 14' -6" 5' -9" BUNGEE STEPS r7 71 i BUNGEE SUPPORT POLE, TYP. RAILING REMOVE BENCHES, STORE ON MUSEUM PROPERTY BULKHEAD ,. 2' -6" ,_ 4 -0 11 ( ^') 1 `l l /�� o %4 ( 1 EXISTING PALM TREE, PROTECT IN PLACE I ( ^1 REMOVE TABLE AND STOOLS PERMANENTLY RELOCATE EXISTING PALM TWDISEASEO PALM LOCA11ON NEAR TICKET SALES BOOTH (SEE PAGE 2) Exhibit "A" N2010 -0007 SCALE: 1/4" = V -0" i u RECORDING REQUESTED AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92658 -1768 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2010 -0007) THIS AGREEMENT is made and entered into this day of 2010, by and between NHNM Property Holdings, LLC, a California Limited Liability Company (hereinafter "Owner'), Richard Baranoski and Carrie Baranoski, doing business as ( "DBA ") Kids at Heart, sole proprietors (hereinafter "Concessionaire ") and the City of Newport Beach, California, a municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California, (hereinafter "CITY "). OWNER is the owner of property located at 600 E. Bay Avenue, Newport Beach, California 92661 and legally described as Parcel 1 of Parcel Map No. 82 -706, as shown on a map recorded in Book 208, Pages 4 through 6 inclusively of Parcel Maps in the office of the County Recorder of Orange County, California Assessor Parcel Number 048 - 112 -20. CONCESSIONAIRE is the owner and operator of the bungee trampoline herein after referred to as the 'Permitted Improvements." WITNESSETH: WHEREAS, OWNER and CONCESSIONAIRE. desire to construct certain non- standard improvements (hereinafter 'PERMITTED IMPROVEMENTS ") within the easement for sidewalk, public utility, and pedestrian purposes that is legally described as a 12 -foot wide easement as shown on the Grant of Easement recorded in Book 8225, Pages 684 through 688 of Official Records in the office of the County Recorder of Orange County and a 23 -foot wide easement as shown on Parcel Map 82 -706 recorded in Book 208, Pages 4 through 6 inclusively of Parcel Maps in the office of the County Recorder of Orange County (hereinafter "EASEMENT ") that is located adjacent to the parcel legally described as Parcel 1 of Parcel Map No. 82 -706, as shown on a map recorded in Book 208, Pages 4 through 6 inclusively of Parcel Maps in the office of the County Recorder of Orange County, California; also known as 600 E. Bay Avenue, Newport Beach, California; and t2 WHEREAS, said PERMITTED IMPROVEMENTS may interfere in the future with CITY's ability to construct, operate, maintain, and replace CITY and other public facilities and improvements within EASEMENT; and WHEREAS, the parties hereto desire to execute an agreement providing for fulfillment of the conditions required by .CITY . to permit OWNER and CONCESSIONAIRE to construct and maintain said PERMITTED IMPROVEMENTS. NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as: a. Bungee trampoline equipment, stairway, and appurtenances encroaching into the easement for sidewalk, public utility, and pedestrian purposes as shown on EXHIBIT "A" attached hereto and as approved by the Public Works Department. In addition, if any of the PERMITTED IMPROVEMENTS actually built or installed during the time of construction vary from the PERMITTED IMPROVEMENTS approved herein, such variations or changes must be approved in advance by the Public Works Department and shall be shown on the "As Built" plans. 2. CITY will permit OWNER and CONCESSIONAIRE to construct, reconstruct, install, maintain, use, operate, repair and replace said PERMITTED IMPROVEMENTS and appurtenances incidental thereto,' within a portion of EASEMENT, If in substantial conformance with the plans and specifications on file in the CITY. CITY will further allow OWNER and CONCESSIONAIRE to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 3. Rights granted under this Agreement may be terminated by CITY at any time by giving 60 -day notice, specifying in said notice the date of termination. CITY shall incur no liability whatsoever in the event of the termination of this Agreement, or subsequent removal of improvements by CITY. 4. OWNER, CONCESSIONAIRE and CITY further agree as follows: a. OWNER and CONCESSIONAIRE may construct and install PERMITTED IMPROVEMENTS and appurtenances incidental thereto, in substantial conformance with the plans and specifications on file in the CITY's Public Works Department, and as described on Exhibit "A" attached hereto. Encroachment Agreement Page 12 0 b. OWNER and CONCESSIONAIRE shall maintain the PERMITTED IMPROVEMENTS in accordance with generally prevailing standards of maintenance, and pay all costs and expenses incurred in doing so. However, nothing herein shall be construed to require OWNER and CONCESSIONAIRE to maintain, replace or repair any CITY -owned pipeline, conduit or cable located in or under said PERMITTED IMPROVEMENTS, except as otherwise provided herein. C. If City or other public facilities or improvements are damaged by the installation or presence of PERMITTED IMPROVEMENTS, OWNER and CONCESSIONAIRE shall be responsible for the cost of repairs. d. That should CITY be required to enter onto said EASEMENT to exercise its primary rights associated with said EASEMENT, including but not limited to, the maintenance, removal, repair, renewal, replacement or enlargement of existing or future public facilities or improvements, CITY may remove portions of the PERMITTED IMPROVEMENTS, as required, and in such event: (i) CITY shall notify OWNER and CONCESSIONAIRE in advance of its intention to accomplish such work, provided that an emergency situation does not exist. (ii) OWNER and CONCESSIONAIRE shall be responsible for arranging for any renewal, replacement, or restoration of the PERMITTED IMPROVEMENTS affected by such work by CITY. (iii) CITY agrees to bear only the cost of any removal of the PERMITTED IMPROVEMENTS affected by such work by CITY. (iv) OWNER and CONCESSIONAIRE agree to pay all costs for the renewal, replacement, or restoration of the PERMITTED IMPROVEMENTS. 5. In the event either party breaches any material provision of this Agreement, the other party at its option may, in addition to the other legal remedies available to it, terminate this Agreement, and, in the event the breaching party is OWNER or CONCESSIONAIRE, CITY may enter upon the EASEMENT and remove all or part of the improvements installed by OWNER and CONCESSIONAIRE. Termination because of breach shall be upon a minimum of ten (10) day notice, with the notice specifying the Encroachment Agreement Page 13 t N, date of termination. In the event of litigation, commenced with respect to any term of condition of this Agreement, the prevailing party shall be entitled to reasonable attorneys fees and costs incurred. 6. OWNER and CONCESSIONAIRE shall defend, indemnify and hold harmless CITY, its City Council, boards and commissions, officers and employees from and against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees (when outside attorneys are so utilized), regardless of the merit or outcome of any such claim or suit arising from or in any manner connected with the design, construction, maintenance, or continued existence of the PERMITTED IMPROVEMENTS. 7. Without limiting OWNER and CONCESSIONAIRE's indemnification of City, and prior to commencement of the work for the PERMITTED IMPROVEMENTSOWNER and CONCESSIONAIRE shall obtain, provide and maintain at their own expense at all times while the PERMITTED IMPROVEMENTS are located, maintained or operated within the EASEMENT, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. a. Certificates of Insurance. OWNER and CONCESSIONAIRE shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. b. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. ,c. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. d. Coverage Requirements. (i) Workers' Compensation Coverage. OWNER and CONCESSIONAIRE shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of Encroachment Agreement Page 14 i I`� California. In addition, OWNER and CONCESSIONAIRE shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractors employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. (ii) General Liability Coverage. OWNER and CONCESSIONAIRE shall maintain commercial general liability insurance in an amount not less than three million dollars ($3,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. e. Endorsements. Each general liability insurance policy shall be endorsed with the following specific language: (i) The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of the PERMITTED IMPROVEMENTS in the EASEMENT. (ii) This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. (iii) This insurance shall act for each insured and additional insured as though a separate policy had been written for Encroachment Agreement Page 15 �L each, except with respect to the limits of liability of the insuring company. (iv) The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. (v) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. (vi) The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. Additional Insurance. OWNER and CONCESSIONAIRE shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection of the PERMITTED IMPROVEMENTS in the EASEMENT. 8. OWNER agrees that this Agreement shall remain in full force and effect from execution thereof; shall run with the land; shall be binding upon the heirs, successors, and assigns of OWNER and /or CONCESSIONAIRE'S interest in the land and PERMITTED IMPROVEMENTS, whether fee or otherwise, and shall be recorded in the Office of the County Recorder of Orange County, California. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 10. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 11. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. Encroachment Agreement Page 16 %I 12. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 13. OWNER and CONCESSIONAIRE shall at OWNER and CONCESSIONAIRE own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 14. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 15. When notice is to be given pursuant to this Agreement, it shall be as follows: CITY: Public Works Director City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 OWNER: NHNM Property Holdings, LLC Newport Harbor Nautical Museum 600 E. Bay Ave. Newport Beach, CA 92661 CONCESSIONAIRE: Kids at Heart Richard and Carrie Baranoski 2033 Newport Blvd. Costa Mesa, CA 92627 Encroachment Agreement Page 17 I9 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY "N Leonie Mulvihill Assistant City Attorney ATTEST: By: Leilani I. Brown, City Clerk ATTACHMENTS: Encroachment Agreement CITY OF NEWPORT BEACH, a Municipal corporation By: David A. Kiff, City Manager OWNER: NHNM Property Holdings, LLC Matthew W. Paskerian, Managing Member CONCESSIONAIRE: KIDS AT HEART By: Richard Baranoski By: Carrie Baranoski EXHIBIT A —Plans as approved by Public Works Page 18 A STATE OF CALIFORNIA) COUNTY OF ORANGE ) On 1 2010, before me, Notary Public, personally appeared DAVID A. KIFF, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they has executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s) or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State (This area for official notarial seal) STATE OF CALIFORNIA) COUNTY OF ORANGE ) On , 2010, before me, Notary Public, personally appeared MATTHEW W. PASKERIAN, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they has executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s) or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State seal) Encroachment Agreement (This area for official notarial Page 19 2U STATE OF CALIFORNIA) COUNTY OF ORANGE ) On , 2010, before me, Notary Public, personally appeared RICHARD BARANOSKI, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they has executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s) or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State (This area for official notarial seal) STATE OF CALIFORNIA ) COUNTY OF ORANGE ) On , 2010, before me, Notary Public, personally appeared CARRIE BARANOSKI, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they has executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s) or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State seal) Encroachment Agreement (This area for official notarial Page 110 ZI EXISTING FERRIS WHEEL EXISTING NEWPORT SAY FUN ZONE Co 41se� TICKET SALE BOOTH S Boo ' NEW BUNGEF PGVDZ TRAMPOLINE LOCATION 1.0 Al 565 S.F. A2 1017 S.F. Bl' 1064 S.F. 112' A3 1782 SF eb 8�DPM" A UY- �j.-1 co EXISTING BUNGEE TRAMPOLINE LOCATION 2fT6 S.F. A 7 1449 LU C3 745 S.F. EAST 3A.r AVENUE SITE PLAN C 9 'SF. 462;5-F. 142 194499 605 S.F. o C5 10M Q .F. 484 S.F. C6 O . -� B6 730 S.F. 814 SF. EAST 3A.r AVENUE SITE PLAN 0 o 10M Q .F. O . -� C7 269 S.14 Exhibit N2010-0007 . .. ...... ..... ... . .. 0 _I a r N �v 4' -0" , 2' -6" o G I EXISTING PALM TREE, d' PROTECT IN PLACE - PALM FRONDS SHALL BE TRIMMED REGULARLY SO THEY DO NOT IMPACT BUNGEE OPERATION m — EXISTING SIDEWALK RELOCATION OF BUNGEE 600 E. BAY AVENUE NEWPORT BEACH, CA 92661 14' -6" 5' -9., BUNGEE STEPS 17 '7 7 T 7 '�,L j O V> W I. \� T I iv BUNGEE SUPPORT POLE, TYP. RAILING REMOVE BENCHES, STORE ON MUSEUM PROPERTY BULKHEAD , 2' -6" , 4'-0" , `i EXISTING PALM TREE, PROTECT IN PLACE ! — REMOVE TABLE AND \ STOOLS PERMANENTLY RELOCATE EXISTING PALM TO DISEASED PALM LOCATION NEAR TICKET SALES BOOTH (SEE PAGE 2) Exhibit "A" SCALE: 1/4" = 1' -0" N2010 -0007 24* /1 J y. J Zb RECORDING REQUESTED AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92658 -1768 (Exempt From Recording Fees Pursuant to Government Code § 6103) (Space above this line for Recorder's use only.) ENCROACHMENT AGREEMENT (EPN2012 -0109) THIS AGREEMENT is made and entered into this day of 2012, by and between NHNM Property Holdings, LLC, a California Limited Liability Company (hereinafter "Owner ") and the City of Newport Beach, California, a municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California, (hereinafter "City "). Owner is the owner of property located at 600 E. Bay Avenue, Newport Beach, California 92661 and legally described as Parcel 1 of Parcel Map No. 82 -706, as shown on a map recorded in Book 208, Pages 4 through 6 inclusively of Parcel Maps in the office of the County Recorder of Orange County, California Assessor Parcel Number 048 - 112 -20. WITNESSETH: WHEREAS THIS ENCROACHMENT AGREEMENT supersedes and terminates the Encroachment Agreement executed on May 5, 2010, recorded on June 25; 2010 as Official Record No. 2010000300728 in the Office of the County Recorder of Orange County, California. WHEREAS, Owner desires to install or have installed a bungee trampoline, operated by either Owner or a third party (defined as "Owner's agent "), within the easement for sidewalk, public utility, and pedestrian purposes that is legally described as a 12 -foot wide easement as shown on the Grant of Easement recorded in Book 8225, Pages 684 through 688 of Official Records in the office of the County Recorder of Orange County and a 23 -foot wide easement as shown on Parcel Map 82 -706 recorded in Book 208, Pages 4 through 6 inclusively of Parcel Maps in the office of the County Recorder of Orange County ( "Easement ") that is located adjacent to the parcel legally described as Parcel 1 of Parcel Map No. 82 -706, as shown on a map recorded in Book 208, Pages 4 through 6 inclusively of Parcel Maps in the office of the County Recorder of Orange County, California; also known as 600 E. Bay Avenue, Newport Beach, California; and WHEREAS, Owner may subcontract the concession or operation of the Permitted Improvements to Owner's agent with the written consent of the City Manager; and WHEREAS, said Permitted Improvements may interfere in the future with City's ability to construct, operate, maintain, and replace City and other public facilities and improvements within the Easement; and WHEREAS, the parties hereto desire to execute an agreement providing for fulfillment of the conditions required by City to permit Owner or Owner's agent to construct and maintain said Permitted Improvements. NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1. It is mutually agreed that Permitted Improvements shall be defined as: a. Bungee trampoline equipment, stairway, and appurtenances encroaching into the easement for sidewalk, public utility, and pedestrian purposes as approved by the Public Works Department and shown on Exhibit "A" attached hereto and incorporated by reference. b. In addition, if any of the Permitted Improvements actually built or installed during the time of construction vary from the Permitted Improvements approved herein, such variations or changes must be approved in advance in writing by the Public Works Department and shall be shown on the "As Built" plans. 2. If Owner desires to allow Owner's agent to construct, reconstruct, install, maintain, use, operate, repair and replace said Permitted Improvements Owner shall first receive City Manager's written consent to such agent. City will permit Owner or Owner's agent to construct, reconstruct, install, maintain, use, operate, repair and replace said Permitted Improvements and appurtenances incidental thereto, within a portion of Easement, if in substantial conformance with the plans and specifications on file in the City. City will further allow Owner or Owner's agent to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 3. Rights granted under this Agreement may be terminated by City at any time without cause by giving sixty (60) day notice, specifying in said notice the date of termination. City shall incur no liability whatsoever to Owner or Owner's agent in the event of the termination of this Agreement, or subsequent removal of improvements by City. 4. Owner and City further agree as follows: Encroachment Agreement Page 12 a. Owner or Owner's agent may construct and install Permitted Improvements and appurtenances incidental thereto, in substantial conformance with the plans and specifications on file in the City's Public Works Department, and as described on Exhibit "A" attached hereto. b. Owner or Owner's agent shall maintain the Permitted Improvements in accordance with generally prevailing standards of maintenance, and pay all costs and expenses incurred in doing so. However, nothing herein shall be construed to require Owner or Owner's agent to maintain, replace or repair any City -owned pipeline, conduit or cable located in or under said Permitted Improvements, except as otherwise provided herein. C. If City or other public facilities or improvements are damaged by the installation or presence of Permitted Improvements, Owner shall be responsible for the cost of repairs. d. That should City be required to enter onto said Easement to exercise its primary rights associated with said Easement, including but not limited to, the maintenance, removal, repair, renewal, replacement or enlargement of existing or future public facilities or improvements, City may remove portions of the Permitted Improvements, as required, and in such event: (i) City shall notify Owner in advance of its intention to accomplish such work, provided that an emergency situation does not exist. (ii) Owner shall be responsible for arranging for any renewal, replacement, or restoration of the Permitted Improvements affected by such work by City. (iii) City agrees to bear only the cost of any removal of the Permitted Improvements affected by such work by City. .(iv) Owner agrees to pay all costs for the renewal, replacement, or restoration of the Permitted Improvements. e. If Owner allows an agent to operate the Permitted Improvements, Owner shall ensure the agent agrees to be bound by the terms in this Agreement, including but not limited to the requirement to indemnify the City and maintain insurance for the benefits of the City. Encroachment Agreement Page 13 5. In the event either party (or Owner's agent) breaches any material provision of this Agreement, the other party at its option may, in addition to the other legal remedies available to it, terminate this Agreement, and, in the event the breaching party is Owner or Owner's agent, City may enter upon the Easement and remove all or part of the installed improvements without any compensation due to Owner or Owner's agent. Termination because of breach shall be upon a minimum of ten (10) day notice, with the notice specifying the date of termination. 6. Owner., and Owner's agent, if any, shall defend, indemnify and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees (when outside attorneys are so utilized), regardless of the merit or outcome of any such claim or suit arising from or in any manner connected with the use, design, construction, maintenance, or continued existence of the Permitted Improvements. 7. Without limiting Owner's or Owner's agent indemnification of City, and prior to commencement of the work for the Permitted Improvements, Owner or Owner's agent shall obtain, provide and maintain at their own expense at all times while the Permitted Improvements are located, maintained or operated within the Easement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. a. Certificates of Insurance. Owner or Owner's agent shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. b. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. d. Coverage Requirements. Encroachment Agreement Page 14 (i) Workers' Compensation Coverage. Owner or Owner's agent shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Owner or Owner's agent shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. (ii) General Liability Coverage. Owner or Owner's agent shall maintain commercial general liability insurance in an amount not less than three million. dollars ($3,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. e. Endorsements. Each general liability insurance policy shall be endorsed with the following specific language: (i) The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of the Permitted Improvements in the Easement. (ii) This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. Encroachment Agreement Page 15 (iii) This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. (iv) The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. (v) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. (vi) The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either. party except after thirty (30) calendar days (ten (10) calendar days written notice of non - payment of premium) written notice has been received by City. f. Additional Insurance. Owner or Owner's agent shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection of the Permitted Improvements in the Easement. 8. Owner agrees that this Agreement shall remain in full force and effect from execution thereof; shall run with the land; shall be binding upon the heirs, successors, and assigns of Owner's interest in the land and Permitted Improvements, whether fee or otherwise, and shall be recorded in the Office of the County Recorder of Orange County, California. 9. This Agreement may be modified or amended only by a written document executed by both Owner and City's City Manager and approved as to form by the City Attorney. 10. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 11. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. Encroachment Agreement Page 16 12. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 13. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 14. Owner and Owner's agent shall at Owner's and Owner's agent's own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 15. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 16. When notice is to be given pursuant to this Agreement, it shall be as follows: CITY: Public Works Director City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 OWNER: NHNM Property Holdings, LLC Newport Harbor Nautical Museum 600 E. Bay Ave. Newport Beach, CA 92661 17. In the event of any dispute or legal action arising under this Agreement the prevailing party shall not be entitled to attorneys' fees. 18. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [Signatures on Next Page] Encroachment Agreement Page 17 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. APPROVED AS TO FORM: OFFICE OF THE MY ATTORNEY r By: 6, Aaron C-.-Harp, City Attorney ATTEST: A Leilani L Brown, City Clerk CITY OF NEWPORT BEACH, a Municipal corporation M David A. Kiff, City Manager OWNER: NHNM Property Holdings, LLC Owners must sign in the presence of notary public ATTACHMENTS: EXHIBIT A —Plans as approved by Public Works Encroachment Agreement 1 18 ACKNOWLEDGMENT State of California County of } ss. On �/`/ILo iZ before me, if—/\AV1J)vt .7 Cpfvo. \c,L Notary Public, personally appeared 12.,4A Qea�f 1t'i S1-r?n 1vn`'a who proved to me on the basis of satisfactory evidence to be the person <whose nameM is /ay6 subscribed to the within instrument and acknowledged to me that Wshe/th4E�y executed the same in VOher /tKeir authorized capacity(iK, and that by hj8 /her /thdir signaturesk4on the instrument the person(6j, 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. MARVIN JOVANI CARVAJAL WITNESS my hand and official seal. y commission # 1917523 <`� Notary z Z :. ., ° y Public - California z /J Orange county n My Comm. Expires Dec 17, 2014 Y /f vc I_ Signature J (seal) ACKNOWLEDGMENT State of California County of ss. J On C /'2 O I z before me, Notary Public, personally appeared vYNek -6o (Z6�� who proved to me on the basis of satisfactory evidence to be the person(whose names) is /a /e subscribed to the within instrument and acknowledged to me that he/ a /th'ey executed the same in his /hIir /t"ir authorized capacity(), and that by his /I;I6r /t,feir signatures(s) on the instrument the person(, or the entity upon behalf of which the person( 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. @My MARVIN JOVANI CARVAJAL Commission # 1917523 Notary Public - Calnuinla z Orange County Comm. Expires Dec 17, 2014' Signature (seal) Encroachment Agreement Page 19