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Home My WebLink AboutC-8063-2 - Encroachment Agreement EPN N2010-0007 for 600 East Bay AvenueN t� 0 RECORDING REQUESTED AND WHEN RECORDED RETURN TO: 1 V Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92658-1768 Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder Illllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll 39.00 2010000300728 12*07 pm 06/25/10 47 412 Al 12 0.00 0.00 0.00 0.00 33.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2010-0007) THIS AGREEMENT is made and entered into this S "- day of 1" A'1, 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 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 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 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 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 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 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 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. f. 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. 9. 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 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 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 '6M A I I � il'I uto Leonie Mulvihill Assistant City Attorney ATTEST: Leilani I. Brown, Cify Clerk ATTACHMENTS: V' CITY OF NEWPORT BEACH, a Municipal corporation BY. �c_� Davi A. Kiff, City Manager OWNER: NHNM PROPERTY HOLDINGS, LLC By: S��&CZ_ James D. Reed PresidenUChairman Board of Trustees, Newport Harbor Nautical Museum, a California non-profit Corporation, as managing member CONCESSIONAIRE: KIDS AT HEART By: Richard Baranoski A By: Carrie Baranoski EXHIBIT A —Plans as approved by Public Works Encroachment Agreement Page 18 STATE OF CALIFORNIA) COUNTY OF ORANGE )) I /J w� I On �l)n� ! 2010, before me, Liul," 14 Notary Public, personally appeared DAVID A. KIFF, who proved to me on the basis of satisfactory evidence to be the person(s) whose name is/a� subscribed to the within instrument and acknowledged to me that he/�G/tey has executed the same in his/hV/t*r authorized capacity�y�s), upon that by his/hAr/i?fair signature on the instrument the erson 'Sor the en ►may u on behalf of which the person acte , 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 y and and official seal. N6j94 Public in and for said State seal) L. WA1 ON Commission on # 1840150 Notary Public - California > Orange County Comm. Expires Mar 12.2013 (This area for official notarial STATE OF CALIFORNIA) COUNTY OF ORANGE ) On G 2010, before me. J1 V j "j— % � 11�{, ,Notary Public, perso ally appeared JAMES D. REED 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. 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. ✓lye � �"r��n�-�--. Not Public in and for said State seal) too IION IIIIIIIIIIIgo all IIIIIIIIII IIItIn JIM FOURNIER •�� COMM. #1792960 QQ c` S NOTARY PUBLIC - CALIFORNIA'Ji ORANGE COUNTY MY COMMISSION EXPIRES 03-31.2012 1/IaIIIILIIIIIIIIIIIIIIIIIIIIIIIIIIIIr (This area for official notarial Encroachment Agreement Page 19 STATE OF CALIFORNIA) COUNTY OF ORANGE ) On 5 ZO , 2010, before me, CQ �N ,Notary Public, personally appeared RICHARD BARANOSKI, who proved to melon the basis of satisfactory evidence to be the person(.O'whose named is/axesubscribed to the within instrument and acknowledged to me that he/s#6/t1hi5y has executed the same in his/hWfteif authorized capacity i , and that by his/j;lethqjr-signature(s-y on the instrument the persor>�r the entity upon behalf of which the person acted, executed the instrument. certify under PENALTY OF PERJURY under the foregoing paragraph is true and correct. WITNESS my hand and official seal. P�� 4��r� Notary Public in and for said Stat seal) STATE OF CALIFORNIA ) COUNTY OF ORANGE ) law f t Sae of California that the M. LOCEY Commission # 1864451 Notary Public - California Orange County M Comm. Ex Tres Oct 7, 2013 (This area for official notarial On 51 zn , 2010, before me, ✓li t'iCX,!-y ,Notary Public, personally appeared CARRIE BARANOSKI, who proved to me on the basis of satisfactory evidence to be the personal whose nameW is/are-subscribed to the within instrument and acknowledged to me that t he/t4ey-has executed the same in 4eher/their authorized capacity(Wtl,- and that by JW�her/th&r-signature4-s�-on the instrument the person(4< or the entity upon behalf of which the person acted, executed the instrument. 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. /xX toc-�� Notary ublic in and for said St e seal) M. 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