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Home My WebLink AboutC-4947(C) - Rhine Channel Hold Harmless/License AgreementV RHINE CHANNEL HOLD HARMLESS/LICENSE AGREEMENT THIS HOLD HARMLESS/LICENSE AGREEMENT ("Agreement") is made and entered into as of �:' (�. 12011, by and between the City of Newport Beach a California municipal corporation ("City"), and Dennis Overstreet and Christine Overstreet, a property owner(s) along or adjacent to the Rhine Channel in Newport Beach, California ("Owner"). RECITALS: A. Owner is the owner of that certain real property and related structures located at 2816 Lafayette Ave., Newport Beach, California ("Property"). B. City is undertaking a comprehensive dredging project within the Rhine Channel and adjacent harbor areas to remove contaminated sediment and deposit said sediment within the Port of Long Beach's Middle Harbor Redevelopment Project ("POLB"). C. As part of the City's dredging project the City, at its cost, will: (1) dredge under the Owner's pier/slip/finger/float/dock/gangway and remove sediment at a level to be determined in City's sole discretion; (2) transport and deposit the dredged sediment at the POLB; (3) remove and discard dock pile(s) selected by the City; (4) replace any removed dock pile(s) with new City -selected dock pile(s); and (5) if required, alter the existing pier/slip/finger/float/dock/gangway to accommodate the new dock pile(s) (collectively "Improvements"). D. City desires to perform the Improvements in order to have a more comprehensive project and to improve the Tidelands for the public's use and enjoyment. E. Owner desires to have City perform the Improvements on his/her Property and grants City and its contractors permission to enter his/her Property and perform the Improvements. AGREEMENT: NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Owner agree as follows. - 1 . ollows: 1. Recitals. The Recitals contained within this Agreement are true and correct and are incorporated into the operative part of this Agreement. 2. License. Owner hereby grants City and its employees, contractors, subcontractors, and agents the right to enter the Owner's Property for the purpose of working on the Improvements. This license to enter the Owner's Property shall automatically expire when the Improvements on Owner's Property are deemed complete by City in its sole and absolute discretion. 2.1. Insurance. All City contractors, agents, and subcontractors entering upon Owner's Property pursuant to this Agreement shall be licensed and insured. 1 3. Installation of Improvements. Owner grants City permission to remove and replace Owner's dock pile(s) as deemed necessary by City, in its sole discretion, and replace with new dock pile(s) selected by City in its sole discretion. The removed dock pile(s) will be disposed of by City without any compensation to Owner. Owner grants City permission to alter the Owner's pier/slip/finger/float/dock/gangway to accommodate the new dock pile(s). This alteration will be permanent and may include, but not be limited to, widening the pile(s) opening to accommodate a greater diameter pile or replacing parts of the pier/slip/finger/float/dock/gangway to maintain their structural integrity. In the event Owner's pier/slip/finger/float/dock/gangway is deemed to be structurally unable to accept new dock pile(s) the City reserves the right to elect not to perform the Improvements unless Owner takes immediate action to bring their pier/slip/finger/float/dock/gangway to a City -approved condition that will allow the Improvements to occur as determined by City in its sole and absolute discretion. 4. Vessel and Personal Property Removal. In order to allow the Improvements to be completed on schedule, it is necessary for all vessels and personal property on Owner's pier/slip/finger/float/dock/gangway to be temporarily re -located off-site. City shall provide at least ten (10) calendar days written notice to Owner prior to the date personal property (e.g., satellite dish, kayak, dock box, etc.), and vessels must be removed from Owner's pier/slip/finger/float/dock/gangway. Owner agrees to remove his/her personal property and vessel(s) or his/her tenant's or guest's personal property and vessel(s) from the Owner's pier/slip/finger/float/dock/gangway within the time period provided in the City's written notice and to keep the Owner's pier/slip/finger/float/dock/gangway free and clear of all personal property or vessel(s) until City authorizes the personal property or vessel(s) return. In the event personal property or a vessel, either owned by Owner, Owner's guest, or a tenant, is not removed within the provided time period, Owner hereby grants City and its agents (e.g., Sea Tow, OC Sheriff's Department, etc.) permission to remove the personal property or vessel(s) without notice and charge Owner the full cost for removal and storage. Except as otherwise provided by state law, Owner agrees to hold City and its agents harmless for any damage that may occur to the personal property and/or vessel(s) during removal or storage. 4.1. Notice to Tenants. Within five (5) days prior to relocation, Owner shall provide written notice to his/her tenants and/or guests, if any, regarding the Improvements and required personal property and vessel(s) removal schedule. City shall not owe any compensation to Owner, tenant, guest, or any third party for any expenses associated with the personal property and/or vessel(s) removal or storage. 5. Ownership and Maintenance. Owner accepts and acknowledges ownership to the dock pile(s) including any alterations and Improvements installed by the City and agrees to maintain the installed dock pile(s), alterations and Improvements at its sole cost. City has no ownership interest or maintenance responsibility in the dock pile(s), alterations, or other Improvements provided under this Agreement. City's dredging under the Owner's pier/slip/finger/float/dock/gangway is a one-time event and does not obligate the City to perform any future dredging or maintenance for Owner. 6. Indemnity. To the fullest extent permitted by law, Owner and its successors or assigns, agrees to indemnify, defend and hold harmless the City and its employees, City Council, agents, consultants and contractors ("Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death, mechanics liens, or 2 damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements, costs of litigation, investigation, appeal, expert witness fees and court costs) of every kind and nature whatsoever (individually, a "Claim"; collectively, "Claims"), which arise from the Indemnified Parties, its contractors', agents', employees', invitees', and their respective employees use of and/or presence on all or any of the Owner's property, including but not limited to the Owner's pier/slip/finger/float/dock/gangway to perform the Improvements provided under this Agreement. The foregoing shall not serve as authority for Owner or its counsel to settle any Claim without the prior written consent of the City. Notwithstanding the foregoing, nothing herein shall be construed to require Owner to indemnify the Indemnified Parties from any Claim arising from the negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. 7. Termination. City may terminate this Agreement with or without cause upon seven (7) calendar days written notice to Owner. Owner may terminate this Agreement only for cause in the event of City's breach or default under this Agreement. 8. Notices. Any notice required under this Agreement shall be delivered to Owner at the address listed within this Agreement and to the City at 3300 Newport Blvd., Newport Beach, CA 92658, Attention: Harbor Resources Manager. 9. Successors and Assigns. This Agreement shall bind and inure to the benefit of the parties and their respective successors and assigns. 10. Interpretation. All section headings are inserted for convenience only and shall have no effect on the construction or interpretation of this Agreement. Each party acknowledges that such party had access to counsel and thoroughly reviewed this Agreement. As such, the terms of this Agreement shall be fairly construed and the usual rule of construction, to the effect that any ambiguities herein should be resolved against the drafting party, shall not be employed in the interpretation of this Agreement. 11. Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement, with venue in Orange County. 12. Modifications. All modifications of, or amendments to, this Agreement shall be in writing and signed by the parties, approved as to form by the City Attorney. 13. Prior Agreements. This Agreement contains all of the agreements of the parties with respect to the transaction contemplated hereby, and no prior agreements or understandings pertaining to any such transaction shall be effective for any purpose 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. 14. Authority to Enter into Agreement. Both City and Owner acknowledge they have the power and authority to enter into this Agreement and be bound by the terms and conditions contained herein. 3 15. Counterparts. This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, taken together, shall be deemed to be one and the same instrument. 16. No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement the prevailing party shall not be entitled to legal fees. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: Date'CF,� ,, CITY ATTORNEY Leonie Mulvihill MT Assistant City Attorney -41 tk ATTEST: Date. 7- ZZ' By: am Leilani I. Brown City Clerk LIQ., Foal CITY OF NEWPORT BEACH, A California municipal corporation Date: ]I �. By: David i City Manager OWNER, , Date: /�-'� /i �// -, - 1,16 4