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HomeMy WebLinkAboutC-8063-3 - Encroachment Agreement EPN N2012-0109 for 600 East Bay Avenue-1 r ' RECORDING REQUESTED AND O WHEN RECORDED RETURN TO: I� V Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92658-1768 SCANNED Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder I �1111 III] III III 1111I 1111 I J III III 111111111111111 II III ]136, 00 *$ R 0 0 0 5 1 2 3 6 4 6 $ * 2012000517129 8:32 am 09/06/12 276 422 Al2 11 0.00 0.00 0.00 0.00 30.00 0.00 0.00 0.00 (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 12411 day of ILW , 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. Si ng ature. 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 Y e; 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 Y ATTORNEY By: Aaron d— arp, City Attorney ATTEST: By: � - M'�' Leilani I. Brown City Clerk ATTACHMENTS: CITY OF NEWPORT BEACH, a Municipal corporation By: Da A. Kiff, City Manager OWNER: NHNM Property Holdings, LLC By- ita R. Sten nd, ,PvesiAnt z--) I - 'aKph Rodheim, ecretary Owners must sign in the presence of notary public EXHIBIT A —Plans as approved by Public Works Encroachment Agreement Pape 18 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of Califyorrnia County of U r'rCJ�hC1 On V5� /; a—' - before me, 1' k m— I'�..t�+t, �a�rCt -PVto�IC_ Date ff Here Insert Name and Title of the OlYce, personally appeared T)G V Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the personkea whose nameke) is/aK subscribed to the within instrument and acknowledged to me that he/atlle/ttwy executed the same in his/hpf/t4e authorized capacity(), and that by rA KiM RIEFF his/ /t � I'iedr signaturej!a'j on the instrument the Commission #1 1967536 Notary Public -California person(' r the entity upon behalf of which the instrument. personVacted, executed the Orange County my Comm. WiresJan 26 2016f 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. Signature: G Place Notary Seal Above Signature of Notary bli OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual Partner — ❑ Limited 'El General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing RIGHT THUMBPRINT OF SIGNER of thumb here Number of Pages: Signer's Name: El Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited FE General I Attorney in Fact ❑ Trustee Guardian or Conservator Other: Signer Is Representing RIGHT THUMBPRINT OF SIGNER thumbTop of her © 2010 National Notary Association • National Notary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 ACKNOWLEDGMENT State of California County of )SS. On �L/ / to I Z before me, 1I--,\AY,j)v► Notary Public, personally appeared AI ; Sin ivr,a who proved to me on the basis of satisfactory evidence to be the personkgwhose name(p) is/ap6 subscribed to the within instrument and acknowledged to me that /`she/they executed the same in I�Osher/Veir authorized capacity(iK, and that by h�d/her/their signatureskgon the instrument the personK, 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 m hand d official l. MARVIN JOVANI CARVAJAL my anseasue" Commission # 1917523 za '� Notary Public - California z ' =`�' Z Orange County D My Comm. Expires Dec 17, 2014 rvo Signature (seal) ACKNOWLEDGMENT State of California County of C Ss. On C���'Z �' Z before me,a�J Notary Public, personally appeared 'R A\pL, gel,-v, (Z6 who proved to me on the basis of satisfactory evidence to be the person('whose name* is/are subscribed to the within instrument and acknowledged to me that he/safe/tWey executed the same in his/h(/their authorized capacity(), and that by his/h,br/t�'eir signatures�gj on the instrument the personkg), or the entity upon behalf of which the person(gacted, 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. MARVIN JOVANI CARVAJAL _ Commission # 1917523 �{ Notary Public - California z z z Orange County n o My Comm. Expires Dec 17. 2014 Signature (seal) Encroachment Agreement Page 19 NV300NO1dX3 o F a 3NOZ Nflj N w m NOLLdNOna As 31V0 'ON b NOISb3n - Ndld 3AS '� a CNnISIA�N A w z H a a° z 5. z H a 3 z z z z O w \ z Z 0 O N Z z Z