HomeMy WebLinkAboutC-5970(B) - License Agreement to Provide Installation and Maintenance of Landscaping and Hardscaping Improvements in the Public Right-Of-WayRECORIMNG REQUESTED BY:
CITY OF NEWPORT BEACH
WITEN RECOROED MALL TO:
City Clerk
City ofNewport Beach
P.O. Box 1768 / 100 Civic CenterDrive
Newport Beach, CA 92658
Eec exempt per Govemment Code § 6103
e2rded in Offcial Records Orange County
Hu h Nguyen, C erk-Recorder
I.I ft H 11 111 11110 III 11 111 11 NO FEE
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SPACE ABOVETHIS LINE FOR RECORDER'S USE
LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH
AND VBAS PROPERTIES, INC.
TO PROVIDE INSTALLATION AND MAINTENANCE OF LANDSCAPING AND
HARDSCAFING IMPROVEMENTS IN THE PUBLIC RIGHT-OF-WAY
This License Agreement (the 'Agreement') is made arid entered into by and between the
CITY OF NEWPORT BEACH, a Califomia municipal corporation and charter city, hereinafter
referred to as "CITY,' and VBAS PROPERTIES, INC., a California corporation, hereinafter
referred to as "LICENSEE."
WHEREAS, LICENSEE is the owner of certain real property located in the City ofNewport
Beach, CountyofOrange, State ofCalifornia, whieh isa commercial development commonly
known as Mariner's Pointe and more partieularly described in the legal description included in
Exhibit "A" and incorporated by this reference (the 'Property'); and
WHEREAS, CITY is the owner of certain public rights -of -way and other property in the
imniediate vieinity of the Property (the "lmprovement Areas"), which Improvement Areas are
more particularly described and depicted in Exhibit "B" attached hereto and incorporated herein
by this reference; and
WHEREAS, Califomia Department ofTransportation, hereinafier referred to as
"CALTRANS" andlor "STATE, "is the owner of certain public rights -of -way and other property
in the Improvernent Areas, and the CITY has or will enter mb a maintenance agreement with
CALTRANS to maintain the Improvement Areas; and
WI-IEREAS, in conneetion with its development of the Property, LICENSEE desires to install
and maintain Iandseaping and hardseape features in the Improvement Areas, and as a condition of
development of the Property, CITY agrees to aflow LICENSEE to install and maintain such
improvements subject to CITY's assignment of aJI responsibility for the installation and
maintenance oflandscaping and hardscaping within the Improvement Areas, as defined below in
Section 5, and the costs assoeiated therewith in accordance with: (1) The plans and specifications
submitted by LICENSEE and as reasonably approved by CITY; and (2) The Mairitenance
Agreement for Route 1 (Pcrmit Numbers 12-6MC-0100 and 14-6RW-0172) AND the Landscape
Maintenance Agreement for Permit 12-6MC-0100 between the CITY and CALTRANS as the
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same may be amended fron-, time to time and attached hereto as Exbibit "C" and incorporated
herein by this reference (collectively referred to as "CITY-CALTRANS AGREEMENTS").
By this Agreement, CITY desires to clarify and specifically delineate the LICENSEE's
obligations with respect to the installation and maintenance of landscaping and hardseaping
within the Improvement Areas,
NOW, THEREFORE, in consideration ofthe promises and agreernents hereinafter made and
exchanged, CITY and LICENSEE covenant and agree as foliows:
1. GRANT OF LICENSE. Subject to teiins and conditions hereinafter set forth, CITY
hereby grants to LICENSEE a non-exelusive, revocable license ('License") to install and
maintain landscaping and hardscaping within the Improvement Areas pursuant to the
terms as set forth in this Agreement and the CITY-CALTRANS ACREEMENT,
2. TERM. The term ofthe Lieense (the Term") granted herein shall be perpetual, provided
that CITY may terminate the License and this Agreement upon thirty (30) days written
notice to LICENSEE. LICENSEE (for itself, and its suecessors and assigns) agrees that
this Agreement and the rights and obligations contained herein run with the land, and are
binding upon and shall inure to the benefit of the owner of the Property, as the burdened
parcel, and the rights, and obligations contained herein shall bind and inure to the
LICENSEES successors in interest, assigns, heirs, executors, andlor personal
representatives. This Agreement and the covenants contained herein inures to the benefit
ofCITY as the owner of the Improvement Areas, as the benefited parcel.
3. TERMINATION. In the event of any such termination and upon request by CITY,
LICENSEE and .its successors and assigns shall be obligated to deliver the Improvement
Areas in compliance with the rnaintenance provisions set forth in this Agreement. At the
CITY's request the LICENSEE or its successors and assigns may be required to
disconnect existing water and electrical supply sources to the Improvement Areas from
the Property, and construct and reconnect altemative water and electrical supply sources
to the Improvement Areas to the satisfaction of CITY.
4. DESCRIPTION OF IMPROVEMENTS. All improvements installed within the
Improvement Areas shall be as depicted on those certain plans and specifications as
approved by the CITY relative to the Property and the subject development thereof The
landscaping, hardscaping, and other improvements within the Improvement Areas for
which LICENSEE, at its sole cost at no expense to the CITY, shall install, repair,
maintain, and/or replace in accordance with the terms of this License shall be collectively
referred to as the 'LICENSEE'S lmprovements" and includes the foflowing:
(a) Landscaping, Irrigation Systems and Plant Material: Plants and trees in
accordance with the Landscaping Plans relative to the Property and the subject
development thereof submitted by LICENSEE and approved by the CITY and the
irrigation systems serving the same.
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(b) Hardscaping: Enhanced and concrete paving including sidewalks, driveways,
aecess ramps and stairs in accordance with the precise grading plans relative to the
Property and the subjeet development thereof submitted by LICENSEE and
approved by the CITY.
5. MA[NTENANCE RESPONSIBILITIES. At LICENSEE'S sole eost and expense,
LICENSEE agrees to construct, inspect, clean, repair, replace, and rehabilitate the
Improvement Areas at its own cost, and perform all maintenanee responsibilities for the
Improvement Areas, ineluding, but not limited to: sidewaik cleaning; trash disposal; signs;
watering; repairing andlor adjusting irrigation systems when failures occur; fertilizing;
cultivating; edging; perfotniing general planting and trimming or other corrective
gardening; spraying grass and plants with both insectieides and herbicides; and, generaily
keeping the Improvement Areas in a clean, secure and attractive condition, taking into
consideration normal growth ofthe landscape materials and a continuation ofthe aesthetic
quality ofthe area. All work shall be performed in a manner to ensure ADA complianee at
all times. LICENSEE agrees to maintain and keep the Improvement Areas in good
condition and repair, free and elear of litter and debris and free from any nuisances and to
comply with all health and police regulations, in all respects at all times. LJCENSEE
agrees to dispose of litter and debris in a sanitary and legal manner and Iocation. All of
the responsibilities listed in this Section 5 (including subparts) shall collectively be
referred to as "Maintenance Responsibilities."
(a) Maintenance ofTrees and Plants. LICENSEEs maintenance obligations shall
include watering, repairing, maintaining, adjusting and monitoring irrigation
systems when failures occur, fertilizing, edging, perfoiuung general planting and
trimming or other corrective maintenance, spraying with insecticides arid
herbicides, and generaily keeping the Improvement Areas in a clean, secure and
attractive condition, taking into consideration normal growth ofthe landscape
materials and a continuation ofthe aesthetic quality ofthe Improvement Areas,
ineluding but not limited to the foliowing:
LICENSEE may install, or contract, authorizing a licensed contractor with
appropriate class of Iicense in the State ofCalifornia, to install and
thereafter will MANTA[N (Section 27 of the Streets and Highways Code)
LANDSCAPI}JG conforiiiing to those plans and specifications (PS&E)
preapproved by STATE.
LICENSEE will submit the final form ofthe PS&E, prepared, stamped and
sigiied by a licensed landscape architect, for LANDSCAPING to STATEs
District Permit Engineer for review and approval and will obtain and have
in place a valid necessary encroachment permit prior to the start of any
work within STATES right ofway. All proposed LANDSCAP[NG must
meet STATE's applicable standards.
LICENSEE shall ensure that LANDSCAPED areas designated on Exhibit
"A' are provided with adequate schedulcd routine MAIINTENANCE
neeessary to MAITNTAIIN a neat and attractive appearance.
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iv. An encroachment permit rider may be required for any changes to the
scope of work allowed by this Agreement prior to the start of any work
within CI'T'Ys right ofway. All contraetors must obtain the necessary
Encroachment Permits from STATE's District 12 Encroachmerit Permit
Office prior to entering STATE right of way to perform mainteriance
responsibilities. In case ofa need for any lane closure, the time frame
shall be eoordinated with STATE. Any disturbed pavement due to
pressure, operation, maintenance and repair ofthe PROJECT will be
repaired and restored by LICENSEE to CITY AND STATE's satisfaction
at no cost to CITY AND STATE.
v. LICENSEE's contractors will be required to obtain an encroachment
perrnit prior to the start of ariy work within STATE's right ofway.
vi. To fiimish electrieity for irrigation system controls, water, and fertilizer
neeessary to sustain healthy plant growth during the entire life of this
Agreement.
vii. To replace unl-iealthy or dead plantings when observed or within thirty (30)
days when notified in writing by CITY and!or CALTRANS that plant
replacement is required.
viii. To prune shrubs, tree plantings, and trees to control extraneous growth and
ensure CITY and/or CALTRANS standard lines of sight to signs and
corner sight distanees are always maintained for the safety ofthe public.
ix. To MA[NTAIIN, repair and operate the irrigation systems in a manner that
prevents water from flooding or spraying onto the CALTRANS highway,
spraying parked and moving automobiles, spraying pedestrians on public
sidewalks/bike paths, or leaving surface water that becomes a hazard to
vehicular or pedestrianfbicyclist travel. AJI the above requirements apply to
the proposed water fountain which will be built outside of tlie CALTRANS
right of way.
x. To control weeds at a level acceptable to the CITY and/or CALTRANS.
Any weed control performed by chemical weed sprays (herbicides) shall
comply with all laws, rules, and regulations established by the California
Department ofFood and Agriculture. All chemical spray operations shall
be reported quarterly (Forrn LA 17) to the CITY and/or CALTRANS to:
Maintenance Manager at District Maintenance, 3347 Michelson Drive,
Suite 100, Irvine CA 92612.
xi. To remove LANDSCAPJNG and appurtenanees and restore The
Improvement Areas owned areas to a safe and attractive condition
acceptable to CITY in the event this Agreement is terminated as set forth
herein.
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xii. To fiirnish electricity and MA[NTAIN lighting system and contrnls for all
street lighting systems installed by and for LICENSEE.
xiii. To inspect LANDSCAPING on a regular monthly or weekly basis to
ensure the safe operation and condition of the LANDSCAPING.
xiv. To expeditiously MAIINTAIN, replace, repair or remove from service any
LANDSCAP[NG system eomponent that has become unsafe or unsightly.
xv. To MAINTAIN all sidewalkslbilce paths within the Agreement limits ofthe
CALTRANS highway right ofway, as shown on Exhibit A, at
LICENSEE's expense. MAINTENANCE ineludes, but is not limited to,
conerete repair, replaeement arid to grind or patch vertical variations in
elevation of sidewalkslbike paths for an acceptable waiking and riding
surface, and the removal of dirt, debris, graffiti, weeds, and any deleterious
item or material on or about sidewalks/bike paths or the LANDSCAP[NG
in an expeditious manner.
xvi. To MAINTAIN all parking or use restrictions signs encompassed within
the area ofthe LANDSCAPING.
xvii. To allow random inspection of LANDSCAPING, street lighting systems,
sidewalks/bike paths and signs by a CITY representative.
xviii. To keep the entire landscaped area policed and free of litter and deleterious
material.
xix. All work by or on behalf of LICENSEE will be done at no cost to CITY.
xx. Provide and apply fertilizer as neeessary to sustain healthy growth.
Maintain a separate irrigation system and pay all repairs, water and
electrical cost.
xxi. Maintain the Improvement Areas to allow access by CITY personnel to
CITY facilities and in a condition that is substantially free from weeds,
debris, and harmfiul insects at all times.
xxii. Keep plantings trimmed to eye pleasing appearance.
xxiii. Remove and replace unhealthy, dead, invasive or unplanned plantings as
they are observed.
xxiv. Keep the entire area policed and free of litter and deleterious material.
LICENSEE shall provide trash pick-up, sweeping, and clean-up as required
to ensure no offensive odors, gum, wax, litter, Iiquids or other materials are
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allowed to remain on or stain paving, planters, containers, decorative
features, artwork or other surfaces.
xxv. Maintain, repair and operate irrigation system in a manner that prevents
water from flooding onto the right-of-ways.
xxvi. All tree trimming shall be done by an LS.A. Certified Arborist or an I.S.A.
Certified tree worker under the direct supervision ofan I,S.A. Certified
Arborist, Said trimming shall be per the lnternational Society ofArborist,
A.N.S.I. 300A standards. Any tree work not conforming to these
requirements shall be subject to damage assessment by the CITY. Damages
may potentially lead to penalties which can involve removing and
replaeing the damaged tree with an approved replacement of the same size
that was originally planted, and payment of fines equal to the value ofthe
original (damaged) tree. Any fines shall be payable by LICENSEE to the
CITY.
xxvii. If for any reason LICENSEE is unable to maintain the Improvement Areas
in a manner satisfactory to the CITY, LICENSEE shall re -landscape the
Improvement Areas to a condition acceptable to the CITY at LICENSEE's
sole cost and expense.
xxviii. Jfduring the term of this Agreement, LICENSEE should cease to maintain
the "PROJECT' to the satisfaction ofCITY as provided by this Agreement,
CITY may either undertake to perform that maintenanee on behalf of
LICENSEE at LICENSEE's expense or direct LICENSEE to remove or
itselfremove PROJECT at LICENSEE's sole expense and restore STATE
AND CITY's right of way to its prior or safe operable condition.
LJCENSEE hereby agrees to pay CITY AND STATE said expenses,
within thirty (30) days ofreceipt of billing by CYI Y OR STATE. However,
prior to CITY perfoiiiing any maintenance or removing PROJECT, CITY
will provide written notice to LICENSEE to euro the default and
LICENSEE wiH have thirty (30) days within whieh to affeet that euro.
xxix. Control and maintain the Improvement Areas sueh that no landscaping or
plant materials growth, or irrigation water spray, obstructs or hinders
vehicular or pedestrian trafflc, or encroaches across or onto any bieycle
path, sidewaik, public access area, the street right-of-way from the edge of
the curb/gutter to the eenter of any Street right-of-way.
xxx. Conform to all applicable standards set forth in the CITY'S Municipal
Code.
(b) Maintenance of Hardscape Material. LICENSEE's maintenance obligations shali
include all concrete and enhaneed hardseaping material ineluding all sidewalks,
driveways, aecess ramps and stairs, Maintenance includes, but is not Iimited to,
linear root barriers, concrete repair and replacement, grinding or patching
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variations in elevation of sidewalks and driveways for an acceptable riding
surface, and the removal ofdirt, debris, graffiti, weeds, and any other deleterious
items or matex-ial on or about the sidewalks or driveways in an expeditious
rnanner.
(c) Bicycle Paths. As to any bicycle paths constructed as permitted encroacbments
within the Improvement Areas, LICENSEE will maintain, at LICENSEE expense,
a safe facility for bicycle travel along the entire length ofthe path by providing
sweeping and debris removal when neeessary; and all signing and striping and
pavement markings required for the direction and operation ofthat non -motorized
facility.
(d) Utilities Serving the Improvement Areas. LICENSEE shall bear the expense of
electricity and any other utility necessary to serve the Improvement Areas.
LICENSEE shall be responsible for using such utilities in a secure and hazardless
manner, complying in all respects with applicable codes and ordinances.
(e) Signage. LICENSEE shall repair and maintain during the Term any signage
constructed and installed on the Improvement Areas by LICENSEE.
6. PLANS AND SPECIFICATIONS. Throughout the Term, LICENSEE shall perform, at
its sole cost and expense, any and all repairs, replacements or refurbishing to the
Improvements which LICENSEE constructs in the Improvement Areas as necessary to
bring the Improvements into an operating condition, all in accordance with plans and
specifications as submitted by LICENSEE to CITY, which plans and specifications shaJl
be subject to the prior written approval ofCITY. No changes, modifications, or
alterations may be made to the Improvement Areas without the prior written eonsent of
cITY.
7. MATERIAL ALTERATIONS. Afier the approval ofthe plans and specifications and the
installation ofthe Improvements in the Improvement Areas in accordarice with the plans
and specifications, no material changes, modifications or alterations may be made to the
Improvement Areas without the prior written consent ofCITY.
8. CITY REQUIREMENTS. LICENSEE, or anyone performing work on behalfof
LICENSEE, shall be properly licensed by CITY for any work perfoiuied on the
[mprovement Areas. Furtherrnore, LICENSEE, or anyone performing work on behalf of
LICENSEE, shall acquire the proper encroachment peiiuit and comply with all other
CITY requirements prior to performing any work on Improvement Areas in the public
right-of-way.
9. PREVAILING WAGE REQUIREMENTS. Ifthe work perforrned on the Improvernent
Areas is done under contract and falis within the Labor Code section 1720(a)(1) definition
ofa public work' in that it is construction, alteration, demolition, installation, repair or
maintenance, LICENSEE must conforrn to the provisions of Labor Code sections 1720
through 1815, all applicable regulations and coverage determinations issued by the
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Director of IndustriaI Relations. LICENSEE agrees to include prevailing wage
requirements in its contracts for public work.
10. PREVAILING WAGE REQU[REMENTS 1N SUBCONTRACTS. LICENSEE shall
require its contractors to include prevailing wage requirements in all subcontracts ffinded
by this Agreement when the work to be performed by the subcontractor is a public work'
as defined in Labor Code Section 1720(a)(1). Subcontracts forpublic works shall include
all prevailing wage requirements set forth in CITY's public works contracts.
11. CITY RIGHT TO IINSPECT. CITY shall have the right to inspect the Improvement Areas
at any time to ensure that LICENSEE is performing its obligations hereunder. CITY and
LICENSEE shall negotiate in good faith to come to a mutual agreement as to the time and
date for such inspections.
12. DAMAGE TO IMPROVEMENT AREAS. In the event any damage is caused to any
pathways, sidewalks, curbs, gutters, street furniture, street lights, medians, streets or
utilities as a result ofthe iristailation ofthe landscaped and/or hardscaped material
installed on the Improvement Areas and/or the performance of the maintenance
responsibilities ofthe Improvement Areas, LICENSEE agrees to repair same at its own
expense. In the event that damage is caused by the acts of any person to any portion of
the landscaped or hardscaped area or in the event any equipment is broken or breaks or is
destroyed or in the event vegetation rots or dies, said equipment or vegetation shall be
replaced or restored within ten (10) calendar days of the date of the breakage or
destruction. Stolen items will be considered destroyed for purposes ofthis Section 12.
13. REPAIR BY CITY. Except as otherwise provided for in this License, in the event any
darnage is caused to any of the LICENSEEs Improvernents within the Improvement
Areas as a result ofthe installation, maintenance andlor repair work performed by the
CITY or its contractors, agents or employees within the Improvement Areas, CITY shall
promptly repair the same at its own expense.
14. COOPERATION. In the event both LICENSEE and CITY are required to repair damage
to the improvements the parties shall cooperate with each other so as to minimize the costs
incurred by each ofthem. To the extent maintenance of any of the LICENSEE'S
Improvements require access to any real property owned by CALTRANS, rather than
CITY, CITY shall cooperate with LICENSEE by contacting CALTRANS on behalfof
LICENSEE and assist in obtaining the necessary permits, approvals andlor agreements
required to permit LICENSEE such access.
15. MECHANICS' LIENS. LICENSEE agrees not to suffer any mechanics' lien(s) to be fi1ed
against the Improvement Areas by reason of any work, labor, services or material
perfoiiiied at or fumished to the Improvement Areas, by or through LICENSEE.
LICENSEE shall, at its sole cost and expense, cause any mechanics' lien(s) which may be
filed against the Improvement Areas to be released or bonded or affirmatively insured
within sixty (60) days after the date of fihing ofsuch mechanics' lien(s). Nothing in this
Agreement shall be construed as consent on the part of the CITY to subject the CITY's
A14OO193 8
estate in the Improvement Areas to any mechanics lien(s) or liability under the mechanics'
lien laws ofthe State ofCalifornia.
16. ASSIGNMENT. The License herein granted is personal to LICENSEE and any attempt
to assign the License to any entity shall require the prior approval ofCITY and is subject
to the provisions set forth in Section 37 below. Other than the License granted hereunder,
LICENSEE hereby expressly waives any claim to or interest or estate of any kind or
extent whatsoever in the Improvement Areas arising out of the License or out of
LICENSEE'S use or occupancy of the lmprovement Areas, whether now existing or
arising at any fiiture tirne. This License is appurtenant to the Property and may not be
separately assigned apart from the Property or the interests therein. In the event that CITY
has approved an assignment or delegation, LICENSEE shall give notice in writing to
CITY of any such assignment and delegation; such notice shall include the mailing
address of the delegee, and will become the delegee's address for service ofnotices.
LICENSEE hereby covenants for itselfand its successors and assigns, that conveyanee of
any interest in the Property shall constitute an assumption by any successors, assigns or
transferees of LICENSEE, ofthe obligations under this License, asid upon such
conveyanee, the predecessor in interest of such assu.ming party shall be deemed relieved
from any further obligations or responsibilities under this License.
17. WORKERS COMPENSATION [NSURANCE. Pursuant to Califomia Labor Code
§ 1861, LICENSEE and its suecessors or assigiis aeknowledges awareness of Section 3700
et seq. ofsaid California Labor Code, which requires every employer to be insured against
liability for workers compensation. LICENSEE eovenants that it will comply with such
laws and provisions prior to conducting any activity pursuant to this lieense. LICENSEE
shall maintain such Workers Compensation lnsurance in an amount ofnot less than One
Million Dollars ($ 1,000,000) bodily injury by accident, each oecurrence, One Million
Dollars ($ 1,000,000) bodily injury by disease, each employee, and One Million Dollars
(51,000,000) bodily injury by disease, policy limit, at all times incident hereto, in foiziis
and underwritten by insurance companies reasonably satisfactory to CITY. LICENSEE
shall require all subeontraetors retained by LICENSEE to perforrn work hereunder to
provide such workers' compensation insurance for alt of the subcontractors' employees.
LICENSEE shati fumish to CITY a certifjeate of waiver of subrogation under the terms of
the workers compensation insurance and LICENSEE shall similarly require ati
subcontractors to waive subrogation.
18. OTHER INSURANCE. In addition to the workers compensation insurance in Section 17
above and LICENSEE's covenant to indemnify CITY in Section 20 below, LICENSEE or
its successors or assigns shall obtain and fiirnish to the CITY and carry at all times
incident hereto, on alt activities to be performed in the Improvernent Areas as
contemptated herein, general tiability insurance ineluding coverage for bodity injury,
property damage and motor vehicle coverage. All insurance shall be underwritten by
insurance companies reasonably satisfactory to CITY. Said insurance shall name the
CITY as Additional Insureds and shall specifically provide that any other insurance which
may be appticabte to alt activities to be undertaken by LICENSEE concerning the
Improvement Areas shati be deemed excess coverage and that LICENSEE's insurance
shalt be primary. Said policy of insurance shall pay on beha1fofLtCENSEE, its officers,
A14-00193 9
agents, and employees, while acting within the scope of their duties, against any and all
claims of liability arising out ofor in connection with all activities to be undertaken by
LICENSEE concerning the Improvement Areas affected by the license. LICENSEE shall
subscribe for and maintain said insurance policies in ftill force and effect during the life of
this Agreement, in an amount not less than the foliowing amount: combined single limit
bodily injury and property damage, ineluding products/completed operations liability and
blanket contractual liability, ofOne Million Dollars ($ 1,000,000) per oceurrence. If
coverage is provided under a form which includes a designated general aggregate limit,
such limit shall be not less than Two Million Dollars ($2,000,000). In the event of
aggregate coverage, LICENSEE shall immediat&y notify CITY ofany known depietion
oflimits. LICENSEE shall require its insurer to waive its subrogatiori rights against
CITY.
19. CERTIFICATE OF INSURANCE; ADDITIONAL FNSURED ENDORSEMENTS. Prior
to conducting any activity pursuant to this Agreenient, LICENSEE shall fumish to CITY
certificates of insurance evidencing the foregoing insurance coverage as required by this
Agreement; said certificates shall provide the narne and policy number of each carrier and
policy; and shall state that the policy is currently in force; and shall promise to provide
that such policies will not be caneeled or modifled without providing notice to CITY in
accordance with policy provisions. LICENSEE shall maintain the foregoing insurance
coverage in force until the Term ofthis Agreement has expired or this Agreement is
terminated. The requirement for carrying the foregoing insurance coverage shall not
derogate the obligations of LICENSEE under this Agreement. CITY or its representative
shall at all times have the right to demand a copy of all said policies of insurance.
LICENSEE shall pay, in a prompt and timely marmer, the premiunis on all insurance
hereinabove required. A separate copy of the additional insured endorsement to
LICENSEEs liability policy as required hereunder, naming the CITY as Additional
Insureds, shall be provided to the City Attorney for approval prior to the commencement
ofany work by LICENSEE pursuant to this Agreement.
20. [NDEMNIFICATION AND HOLD HARMLESS. LICENSEE hereby agrees to protect,
defend, indemnify and hold and save harmless CITY, CALTRANS, and/or the State of
California, its officers, and employees, and assigns (hereinafier colleetively called
'Indemnified Parties") against any and all liability, claims, judgments, penalties, damages,
expenses, costs and demands, including without limitation reasonable attorneys fees,
however caused, including those resulting from death or injury to any person (including
without limitation any Indemnified Party), and damage to any property, real or personal,
of any kind wherever Iocated and by whornever owned (including, without limitation,
property owned by an Indemnified Party), which injury, death or physical damages arises
directly or indirectly out of the grarn of license herein contained or the activities to be
undertaken by LICENSEE (or LICENSEE's officers, employees, agents, contractors,
licensees, or invitees) concerriing the Improvement Areas, caused in whole or in part by
any negligent act or omission ofthe LICENSEE, any ofits contraetors, subcontractors, or
anyone directly or indirectly employed by any of them or anyone for whose acts any of
theni may be liable (collectively, the "LICENSEE Parties'), including but not limited to
concurrent active or passive negligence ofthe LICENSEE Parties, except to the extent
caused by the negligence or wilithi misconduct of CITY or any of its agents, contractors,
A14-00193 10
subcontractors, officers, or employees. City shall provide immediate notice to LICENSEE
whereupon LICENSEE shall conduct any defense required hereunder at its sole cost and
expense.
21. INDEPENDENT CONTRACTOR. LTCENSEE agrees that all work done or undertaken
by it on the lmprovement Areas shall be for its sole aceount and not as an agent, servant or
contractor for CITY.
22. RULES AND REGULATIONS. LICENSEE agrees to obey and observe (and cause its
officers, employees, contraetors, licensees, invitees and all others doing business with
LICENSEE to obey and observe) all rules and regtilations ofgeneral applicability
regarding the Improvement Areas as may be reasonably established by CITY at any time
and from time to time during the Term ofthis Agreement.
23. DEFAULT. In the event LICENSEE does not perform, or cause to be performed, any of
the Maintenance Responsibilities as contemplated by this Agreement, CITY shall first
provide written notice to LICENSEE in the manner and at the address for notices provided
in Section 25, describing the alleged default by LICENSEE. IfLICENSEE fails to eure
said default within thirty (30) ealendar days foliowing the date of delivery of sueh notice
ofdefault, CITY may thereafler cause such maintenance to be performed, and all actual
and reasonable costs ineurred shall be assessed to and billed directly to the LICENSEE.
Any invoice for such costs ineurred shall include eopies of paid invoices evideneing the
costs ineurred. Payment from LICENSEE shall be due within thirty (30) calendar days
foliowing the date ofreceipt ofinvoice. In addition, one and a haif (1-1/2%) interest per
month shall be added for each month payment hereunder is due but unpaid.
24. APPLICABLE LAW. LICENSEE shall, at its sole cost and expense, faithfully observe in
the use and occupation of the Improvement Areas all municipal ordinances, and all state
and federal statutes now in force and which may hereafier be in force, and shall fully
comply, at its sole expense, with all regulations, orders, and other requirements issued or
made pursuant to any such ordinances and statutes. All building permits, business
licenses and other applicable permits and Iicenses shall be secured and paid for by
LICENSEE.
25. NOTICES. Any notice or special instructions required to be given in writing under this
Agreement shall be given either by personal delivery to LICENSEE (as designated herein)
or to CITY as the situation shall warrant, or by enclosing the same in a sealed envelope
and sent (i) postage prepaid, and depositing the same in the United States Postal Service,
via certified or registered mail, or (ii) using nationaily reeognized overnight courier
service, or (iii) via faesimile transmission (with a copy to also be placed in the United
States Mail), and addressed as foliows:
TO CITY: TO LICENSEE:
CityofNewport Beach
100 Civic Center Drive
P.O. Box: 1768
A14-00193 11
VBAS PROPERTIES, INC.
c/o Glenn Verdult, President
100 W. Coast Hwy., Suite R-101
Newport Beach, CA 92658
Attn: Director of Public Works
Tel: (949) 644-3330
Fax: (949) 644-3308
Newport Beach, CA 92660
with copy to:
Tod W. Ridgeway
Ridgeway Development Company
2804 Lafayette Avenue
Newport Beach, CA 92663
Ariy mailing address or telefacsimile number may be changed at any tinie by giving
written notice of such change in the manner provided above at least ten (10) days prior to
the effective date of the charige. All notices under this Agreement shall be deemed given,
reeeived, made or communicated on the date personal receipt aetually occurs or, ifmailed,
on the delivery date or attempted delivery date shown on the return receipt. A person may
not give official or bindirig notice by facsimile. The effective time ofa notice shall not be
affected by the reeeipt, prior to the receipt of the original, ofa facsimile copy ofthe
notice.
26. CAPTIONS AND TERMS. The captions and section numbers appearing in the
Agreement are for convenience only and are not a part ofthe Agreement and do not in any
way limit, amplify, define, construe or describe the scope of intent of the tenTls and
provisions ofthis Agreement, or in any way affect this Agreement.
27. RECORDATION. LICENSEE shall record this Agreement in the Official Records ofthe
County of Orange, State of california.
28. NON -EXCLUSIVITY. This License is non-exclusive, and the Improvement Areas shall
at all times be open to use by the general public.
29. NONDISCRIMINATION. LICENSEE agrees that in the performance of this Agreement
and use of the Improvement Areas it will not engage in, discrimination against any person
because ofrace, religious creed, color, national origin, ancestry, physical handicap,
medica! condition, marital status or sex.
30. COOPERATION. LICENSEE shall in good faith cooperate in connection with its
respective rights and obligations under this Agreement, ineluding, but not lirnited to,
performing any acts and executing any fiirther documents that may be reasonably
necessary to effectuate the purposes of or rights conferred under this Agreement.
31. SEVERABILITY. If any provision ofthis Agreement shall to any extent be deemed to be
invalid or unenforceable, the remainder of this Agreement shall not be affected thereby.
Each provision of this Agreernent, unless specifically conditioned upon such invalid or
unenforceable provision, shall be valid and enforceable to the fiullest extent perrnitted by
law.
32. ENTIRE AQREEMENT. This Aeement, together with any attachments hereto or
inclusions by reference, constitutes the entire agreement between the parties hereto
relating to the i-ights hercin granted and the obligations herein assumed, and this
A14-00193 12
Agreement supersedes and cancels any and all previous negotiations, arrangements,
agreements, and understandings, ifany, between the parties hereto with respect to the
rights and obligations contained herein. Any oral representations or modifications
concerning this instrument shall be ofno force or effect except a subsequent modification
in writing, approved by the CITY and signed by the parties to be charged.
33. A FIORNEYS FEES. If any action or proceeding is brought by either party against the
other under this Agreement, whether for interpretation, enforcement or otherwise, each
party shall bear its own attorneys fees. The prevailing party shall not be entitled to
recover its attorneys' fees from the non -prevailing party.
34. CITY RIGHT TO ENFORCE. Notwithstanding the provisions of Section 33 above,
LICENSEE acknowledges and agrees that CITY has the right and standing, but not the
obligation, to enforce any ofthe terms ofthis Agreement by any appropriate legal or
equitable means and shall be entitled to reimbursement for any costs incurred in enforcing
this Agreement. LICENSEE shall provide CITY with, and at all times keep current,
contact information for LICENSEE and any property manager acting on its behalf.
35. GOVERNING LAW. This Agreement shall be govemed, construed, interpreted, and
enforced under and in accordance with and governed by the laws of the State of California
and any action brought relating to this Agreement shall be adjudicated in a court of
competentjurisdiction in the County ofOrange, State ofCalifomia.
36. AMENDMENTS. This Agreement may be amended, modified, and/or suppleniented only
by the written agreement ofLICENSEE and CITY, or the successors and assigns ofeach.
37. COVENANTS. Each of the covenants set forth in this Agreement (i) shall run with the
land; (ii) shall be binding upon, and shall inure to the benefit of, any person or entity
having or acquiring any interest in any portion ofany property benefited or burdened
thereby, during the period of such person's or entity's ownership, and all of their
respective successive owners and assigns; and (iii) shall be binding upon, and shall inure
to the benefit of, the property benefited or burdened thereby and every portion thereof and
interest therein. The License granted by this Agreement is subject to all matters ofrecord
as of the effective date of this Agreement.
38. DELEGATION OF AUTHORITY. CITY hereby delegates to its City Manager or his or
her designee the authority to inipienient all provisions ofthis Agreement.
39. EXCLUSIVE BENEFIT OF PARTIES. The provisions of this Agreement are forthe
exclusive benefit ofCITY and LICENSEE and their successors and assigns, subject to the
provisions hereof, and neither for the benefit of nor give rise to any claim or cause of
action by any other person.
40. SURVIVAL. All representations, warranties, waivers, and indemnities given or made
hereunder shall survive tei.inination ofthis Agrecment.
A14-00193 13
41. AUTHORITY TO SIGN. LICENSEE hereby represents that the individual executing this
Agreement on behalf of LICENSEE has full authoriity to do so and to bind LICENSEE to
perform pursuant to the terms and conditions ofthis Agreement.
[SIGNATURES �N NEXT PAGE]
A14-00193 14
IN WITNESS WHEREOF, the parties have caused this Agreement to be exeeuted on
the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
BYM
Aaron C. Harp
City Attorney
ATTEST:
Date:
B y:
Leilani 1. rown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: . D-. t4
By:
Rush N. Hill, 11
Mayor
LLCENSEE: VBAS Properties, Inc., a
California 2rppration / •
Date: /(-J
By..zJtOL�—
Gler6i verdult
(7/•
(,President
K4flda Verdult
ViPresident/Assistant Secretary
[END OF SIGNATURESJ
CALIFQRNIA NOTARY
ACK/JURATAflACHED
/1 /k/2O)'
(-f 4J KOLcL VcW-uk
A14OO193 15
State af California
County of ORANGE
ACKNOWLEDGMENT
)
On beforeme, R.H. BADANII Notary Public
(insert name and title of the officer)
personalty appeared CrLavui 'k2ot2U silnol KaLchx Ve2cLuJJ
who proved to me on the baais of satisfactory evidence to be the person(s) whose name(s) -islare
subscribed to the within instrument and acknowledged tp me that he#she/they executed the same in
hisffier/their authorized capacityes), and that by hi&her/their signature(s) on the instrument the
person(s), or the entity upon bebaif of which the persori(s) acted, executed the instrument.
1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WTNESS my hand and official seal.
Signature
(Seal)
R. 11. BADANI
COMM.1977O5 UJ
NOTMY PUBUC-CAJ.IF0RNPA
ORANGECOUNTY 0)
My Term Exp. May 31 2016
OPTIONAL
Thoogb thc inron-natiori bcIo not rcquircd by bw. t rrmy provc viiluahlc to persons rdyiiig on thc docunicot ajid eoukl prcvcnt r uduknt retooval and
rcattach,ncnt of [his rorn to another docu;ncnt.
Description of Attaehcd Doeument
Title or Type ofDocurncnt: Lt cj�inS.i
Document Date:
Number ofPages:
H
Signer(s) Other Than Named Above:
L V&As
(Not ncltiding ths page)
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EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
Parce 1 ofParcel Map No. 2010-133, iri the City ofNewport Beach, County ofOrange, State of
Califomia as shown on Map Recorded in Book 375, Pages 1 through 4 of Miscellaneous Maps,
records ofsaid County, Califomia.
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EXHIBIT B
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PROJLCT SPECIFIC JYLAINTENANCE AGREEMENT
FOR ROUTE 1 IN THE CITY OF NEWPORT BEACH
THIS AGREEMENT is made effective this day of, 2014, by and between
the State of California, acting by and through the Department of Transportation, hereinafter
referred to as "STATE" and the City of Newport Beach; hereinafter referred to as "CITY"
and collectively referred to as "PARTIES".
SECTION 1
RECITALS
1. WI-JIEREAS, PARITIES desire to work together to allocate respective obligations relative
to newly constructed or revised improvements which inelude but not limited to
eonstructing new curb and gutter, driveway, and removing the sidewalk and replacing it
with precast concrete pavers and colored concretc f'or new sidewaik, (a.s part of the
Mariner's Point Development) 011 State Route 1, hereinafter referred to as "PROJECT",
as shown on Exbibit "A", by PerrnitNumbers 12-6MC-0100 and 14-6RW-0172, and
2. WHEREAS, it was agreed by PARTIES that prior to or upon PROJECT completion, CITY and
STA th will enter into a Maintenance Agreement.
3, WTI-IEREAS, the PARTIES hereto rnutually desire to clarify the division ofnrninteuance
responsibility as defined in Section 27 of the California Streets and Highways Code and
their respective responsibilities as to PROJECT constructed under the Encroachmeot
Perrnit Numbers 12-6MC-0 100 and 14-6RW-0 172.
NOW THEREFORE, IT 15 AGREED AS FOLLOWS:
SECTION 11
AGREEMENT
4. Exhibit A consists of a plan drawing that delineates the areas within STATE right of way
which are the responsibility of the CITY to maintain in accordance with this Maintenance
Agreement.
5. The CITY agrees that CITY will construct, maintain, inspeet, clean, repair, replace and
rebabilitate the PROJECT at no cost to the STATE. AIL the work will be performed in a
manner to ensure ADA compliance at all the tirne.
6. If there is mutual agreement 011 the change in the maintenance duties between PARTTES,
the PARTIES can revise the Exhibit "A" by a rnutua! written -execution ofthe exhibit.
7. CITY and CITY's contractors rnust obtain the necessary Encroachment Peiznits from
STATE's District 12 Encroachment Permit Office prior to entering STATE right of way
to perform CITY mainteoance responsibilities. This permit will be issued at no cost to
CJTY, In case of a need for any lane closure, the time frame shall be eoordinated with
STATE. Any disturbed paveinent due to pressure, operation, maintenance and repair of
the PROJECT will be repaired and restored by CITY to STATE'S satisfaetion at no cost
to STATE.
8. CITY will maintain, at CITY expense, all facilities construeted by PROIECT within State
right of way, ineluding, but without limitation curbs, sidewalks, drainage system (and
shall perforni such work as may be necessary to ensure a safe, and otherwise suitable
surface), lighting installations with the exception of street lights, signs, pavement aiid
pavement markings that may be required for the benefit or control of traffie using that
roadway or faeilities otherwise deseribed in Exhibit"A".
9. If during the term of this Agreement, CITY should cease to maintain the "PROJECT"
to the satisfaction of STATE as provided by this Agreement, STATE may either
uridertake to perform that maintenance on behalf of CITY at CITY's expense or direet
CITY to remove or itself reniove PROJECT at CITY's sole expense aid restore
STATE's right of way to its prior or safe operable condition. CITY hereby agrees to
pay STATE said expenses, within thirty (30) days of receipt of billing by STATE.
However, prior to STATE performing any maintenance or removing PROJIECT,
STATE will provide written notiee to CITY to cure the default and CJTY will have
thirty (30) days withm whieh to affect that cure.
10. LANDSCA.PED AREAS - Responsibility for the maintenance of any plantings or other
types of roadside development lying outside of the area reserved for exelusive freeway
use shall lie with CITY and not with STATE and are the subject of a separate Landseape
Maintenance Agreement.
11. BICYCLE PATHS - Except for bicycle paths constructed as permitted encroaehments
within STATE's right of way for which the permittee is solely responsible for all path
irnprovements, STATE will maintain, at STATE expense, alt fences, guard railing,
drainage faeilities, slope and structural adequacy of any bieycle path loeated and
eonstructed within STATE's right of way. CITY will maintain, at CITY expense, a safe
facility for bicycle travel along the entire length of the path by providing sweeping and
debris removal when necessary; and all signing and striping and pavernent markings
required for the direction and operation of that non -motorized facility.
12. LEGAL RELATIONS AND RESPONSIB1LITtES
12.1. Nothing within the provisions of this Agreement is intended to create duties or
obligations to or rights in third parties not parties to this Agreernent or to affect the
legal liability of a PARTY to the Agreement by imposing any standard of care with
2
respect to the operation and rnaintenance of STATE highways and local facilities
differerit from the standard of care imposed by law.
12.2. Neither CITY rior any offlcer or employee thereof is responsible for any injury,
dainage or liability occurring by reason of anything done or ornitted to be done by,
under or in connection with any work, authority or jurisdietion conferred upon
STATE under this Agreement. It is understood and agreed that STATE shall fully
defend, indemnify and save harmless CITY and all of their officers and employees
from all elaims, suits or actions of every name, kind and deseription brought forth
under, including, but not Iimited to, tortious, contraetual, inverse eondernnation or
other theories or assertions of liability occurring by reason of anything done or
omitted to be done by STATE under this Agreement with the exception of those
actions of STATE neeessary to eure a noticed default on the part of CITY.
12.3. Neither STA 1 E nor any officer or employee thereof is responsible for any injury,
damage or liability occurring by reason of anything done or omitted to be done by
CITY under or in eonnection with any work, authority or jurisdietion conferred upon
CJTY under this Agreement. It is understood and agreed that CITY shall fully
defend, indemnify and save harmless STAIL and all of its officers and eniployees
from all claims, suits or aetions of every name, kind and deseription brought forth
u.nder, ineluding section but not limited to, tortious, contractual, inverse
eondernnation or other theories or assertions of liability occurring by reason of
anything done or omitted to be done by CITY under this Agreement.
13, PREVAILING WAGES:
13.1. Labor Code Compliance- If the work performed on this Project is done under
contraet and falis within the Labor Code section 1720(a)(1) definition of a "public
work° in that it is construction, alteration, demolition, installation, or repair; or
maintenance work under Labor Code section 1771. CITY must conform to the
provisions of Labor Code sections 1720 through 1815, and all applicable provisions
of California Code of Regulations found in Title 8, Chapter 8, Subchapter 3, Articles
1-7. CITY agrees to include prevailing wage requirements in its contracts for public
work. Work performed by CITY's own forces is exempt from the Labor Code's
Prevailing Wage requirements.
13.2. Requirements in Subcontracts - CITY shall require its contractors to include
prevailing wage requirements in all subcontracts fiinded by this Agreement when the
work to be performed by the subcontractor is a 'public work' as defined in Labor
Code Section 1720(a)(1) and Labor Code Section 1771. Subcontracts shall indude
all prevailing wage requirements set forth in CITY contracts.
14. SELF -INSURED - CITY is selfinsured. CITY agrees to deliver evidence ofself-insured
coverage in a fotui satisfactory to STATE, along with a signed copy of the Agreement.
15. SELF-[NSURED, using Contractor - Jfthe work performed ori this Project is done under
contract CITY shall recjuire its contractors to maintain in force, during the terrn of this
agreement, a policy of general Iiability insurance, including coverage of bodily injury
Iiabi1ity and property damage Iiabi1ity, naming the STATE, its officers, agents and
employees as the additional insured in an amount of $1 million per occurrence and $2
rnillion in aggregate. Coverage shall be evidenced by a certificate of insurance in a f'orm
satisfactory to the STATE that shall be delivered to the STATE with a signed copy of this
Agreement.
16. TERMINATION - This Agreement may be terminated by tiinely mutual written consent
by PARTIES, and CITY's failure to comply with the provisions of this Agreement may
be grounds for a Notice of Termination by STA It. Prior to termination of this
agreement, CITY will be required to remove the "PROJECT" and restore the site to the
STATE's standard at no cost to the STATE. The CITY shall perform the task within 120
days of written notice by STATE. Iri case of CITY's failure to perform the requested
task, STAIE will remove the "PROJECT" in behalf of CITY. The CITY shall be solely
responsible to reimburse STATE for all the cost associated with the removal and
restoration ofthe area in a timely manner.
17. TERM OF AGREEMENT - Tbis Agreement shall become effeetive on the date firsi
shown on its faee sheet and shall remain in full force and effect until amended or
terminated at any time upon mutual consent of the PARTIES or until tenninated by
STATE for cause.
PARTIES are empowered by Streets and Highways Code Section 114 and 130 to enter into
this Agreement and have delegated to the undersigned the authority to execute this
Agreement on behalf of the respective agencies and covenants to have followed all the
necessary legal requirements to validly execute this Agreement.
4
IN WJTNESS WHEREOF, the PARTIES hereto have set their harids and seals the day and
year first above written.
THE CITY OF NEWPORT BEACH
A California Municipal Corporation
and Charter City
STATE OF CALJFORNTA
DEPARTMENT OF TPJSNSPORTATION
By: MALCOLM DOUGHERTY
Rush N. Hill, 11 Mayor Director ofTransportation
ATTEST:
By: By: _'cCc4 )2I
Leilani Brown, CITY Clerk
James Pinheiro
Deputy District Director
Maintenance and Operations
District 12
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY As to Forni and Procedure:
Aaron C. Harp, CITY Attorney
By:
Attorney
Departmerit of Transportation
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DESCRIPTION
PREC$T CONCRETE PAVERS WITHIN STATE WGHT OF WAY TO BE
OWNED & MAINTAINED BY THE CWY OF NEWPORT BEACH
CONCRETE SIDEWAIK \MTFUN STATE RIGHT QF WAY ID BE
MAJNtAJNED BY THE STATE
COIORED CONGRETE WITHIN STATE RIGHT OF WAY TO BE
MPJNTMNED BYTHE CITYOF NEWPORTBEAO-I
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LANDSCAPE MAINTENANCE AGREEMENT
WITHIN STATE HIGHWAY RIGHT OF WAY
ON ROUTE 1 WITH THE CJTY OF NEWPORT BEACH
THIS AGREEMENT is made effective this day of 2014, by and
between the State of California, acting by and through the Department of Transportation, hereinafter referred to
as "STATE" and the Ciiy of Newport Beach; hereinafter referred to as "CITY" and collectively referred to as
"PARTIES".
SECTION 1
RECITALS
1. PARTIES desire to work togeiher to allocate respective obligations relative to newly constructed or
revised improvernents within STATE's right ofway by Permit Number 12-6MC-0100.
2. This Agreement addresses CITY responsibilities which ineludes but not limited to landscaping, planting,
irrigation systems, mulches, control litter and weed removal, (collectively the "LANDSCAPING")
placed within State Highway right of way on State Route 1, as shown on Exhibit A, attached to and
made a part ofthis Agreement.
NOW THEREFORE, IT 15 AGREED AS FOLLOWS:
SECTION 11
AGREEMENT
3. In consideration of the mutual covenants and promises herein contained, CITY and STATE agrce as
follows:
3.1. PARTIES have agreed to an aUocation of maintenance responsibilities that includes, but is not
Iimited to, inspection, providing ernergency repair, replacemcnt, and mainteuance, (collectively
hereinafter "MA[NTENANCE") of LANDSCAPING as shown on said Exhibit "A."
3.2. When a plauned future improvement is constructed and/or a rninor revision has been cffected with
STATE'S conscnt or initiation within tbe limits of the STATE's right of way herein described which
affects PART[ES' Division of Maintenance's responsibility as dcscribed hereiu, PARTIES will
agrec upon and execute a new dated and revised Exhibit "A" which will be made a part hercof and
will thereafter supersede the attached original Exhibit "A" to thereafter bccome a part of this
Agreernent. The new exhibit can be CXCCLLICd only upon written consent of the PARTIES hereto
acting by and througb their authorized representatives. No forma arnendrnent to tliis Agreeinent
will he reqtiired.
4. CITY agrees, at CJTY expense, to do the following:
4.1. CITY may install, or contraet, authorizing a licensed contractor with appropriate class of license in
the State of Califomia, to install and thereafter will MAINTAIN (Section 27 of the Streets and
Highways Code) LANDSCAPING conforming to those plans and specifications (PS&E) pre -
approved by STATE.
4.2. CITY wili submit the final form of the PS&E, prepared, stamped and signed by a licensed
landseape architect, for LANDSCAPING to STATE's District Petmit Engineer for review and
approval and will obiain and have in place a valid necessary eneroachment permit prior to the start
of any work within STATE'S right of way. All proposed LANDSCAPING must meet STATE's
applicable standards.
4.3. CITY shall ensure that LANDSCAPED areas designated on Exhibit "A" are provided with adequate
scheduled routine MAINTENANCE necessary to MAFNTAIN a neat and attractive appearance.
4.4. An encroachment permit rider may be required for any changes to the scope of work allowed by this
Agreement prior to the start of any work within STATE'S right of way.
4.5. CITY contractors will be required to obtain an encroachment permit prior to the start of any work
within STATE's right ofway.
4.6. To fiirnish electricity for irrigation system controls, water, and fertilizer necessary to sustain healthy
plant growlh during the entire life ofthis Agreement.
4.7. To replace unhealthy or dead plantings when observed or within 30 days when notifled in writing
by STATE that plant rep!acement is required.
4.8. To prune shrubs, tree plantings, and trees to control extraneous growth and ensure STATE standard
iines ofsight to signs a.nd corner sight distances are always niaintained for the safety of the public.
4.9. To MA[NTAIN, repair and operate the irrigation systems in a manner that prevents water from
flooding or spraying onto STATE highway, spraying parked and moving automobiles, spraying
pedestrians on public sidewalksfbike paths, or leaving surface water thal becoines a hazard to
vehicular or pedestrianlbicyclist travel. All the above requirements appiy to the proposed water
fountain which will be built outside ofSTATE right ofway.
4.10. To control weeds at a levei acceptable to the STATE. Any weed control performed by chernical
weed sprays (herbicides) shall cornply with all Laws, rules, and regulations established by the
California Depariment of Food and Agriculture. All chernical spray operations shall be reported
quarterly (Forrn LAI7) to the STATE to: Maintenance Manager at Disiriet Maintenance, 3347
Michelson Drive, Suite 100, Irvine CA 92612.
4.11. To rernove LANDSCAPING and appurtenanees and restore STATE owned areas to a safe and
attractive condition acceptable to STATE in the event this Agreement is terrninated as set forth
herein.
7
4.12. To furnish electrieity and MA[NTA[N lighting system and controls for all street lighting systems
installed by and for CITY.
4.13. To inspect LANDSCAP[NG on a regular monthly or weekly basis to ensure the safe operation
and condition ofthe LANDSCAPING.
4.14. To expeditiously MAINTAIN, replace, repair or remove from service any LANDSCAPING
systeni eomponent that has becorne unsafe or unsightly.
4.15. To MA[NTA[N all sidewalks/bike paths within the Agreement 1imits of the STATE highway
right of way, as shown on Exhibit A, at CITY's expense. MAINTENANCE ineludes, but is not
limited to, concrete repair, replacement arid to grind or patch vertieal variations in elevation of
sidewalks/bike paths for an aeceptable walking and riding surface, and the removal of diz-t, debris,
graffiti, weeds, and any deleterious item or material on or about sidewalks/bike paths or the
LANDSCAPJNG in an expeditious manner.
4.16. To MA[NTAIN all parking or use restrictions signs eneompassed within the area of the
LANDSCAPING.
4.17. To allow random inspection of LANDSCAPINQ, street lighting systems, sidewalks/bike paths
and signs by a STATE representative.
4.18. To keep the entire Iandseaped area polieed and free of Iitter and deleterious material.
4.19. All work by or on bebaif of CITY will be done at no cost to STATE.
5. STATE agrees to do the foliowing:
5.1. May provide CITY with timety itten notice of unsatisfaelory conditions that require correction by
the CITY. However, lhe non -receipt of notice does not excuse CITY from maintenance
responsibilities assumed under this Agreement.
5.2. lssue encroachment permits to CITY and CITY contractors at no cost to them.
6. LEGAL RELATIONS AND RESPONSIBILITIES:
6.1. Nothing within the provisions of this Agreement is intended to create duties or obligations to or
rights in third PARTIES not PARTIES to this Agreernerfl, or affect the legal liability of either
PARTY to this Agreement by irnposing any standard of care respecting the design, construction and
maintenance of these STATE highway irnproveLnents or CITY facilities different from the standard
of care imposed by law.
6.2. If during the terrn of this Agreement, CITY should cease to MAINTAIN the LANDSCAPINGtO
the satisfaction of STATI'3 as provided by this Agreement, STATE may either undcrtake to perform
that MAINTENANCE on behalf of CITY at CITY expense or direct CITY to remove or itself
rernove LANDSCAP[NQ at CITY sole expense and restore STATE's right of way to its prior or a
safe operable eondition. CITY hereby agrees to pay said STATE expenses, within thirty (30) days
3
of receipt of billing by STATE. However, prior to STATE performing any MA[NTENANCE or
removing LANDSCAPING STATE wilt provide written notice to CITY to eure the defautt and
CITY wilt have thirty (30) days within which to affect that eure.
6.3. Neither CITY nor any officer or ernployee thereof is responsible for any injury, damage or liability
occuring by reason of anything done or oniitted to be done by STATE under or in eonneetion with
any work, authority or jurisdietion arising trnder this Agreement. It is understood and agreed that
STATE shall fully defend, indemnify and save harmless CITY asic! all of its officers and employees
from all claims, suits or aetions of every nanle, kind and deseription brought forth under, including,
but not limited to, tortious, contractual, inverse condeinnation and other theories or assertions of
liability oceurring by reason of anything done or omitted to be done by STATE under this
Agreement with the exception of those actions of STATE necessary to eure a notieed default on the
part of CITY.
6.4. Neither STATE nor any offieer or employee thereof is responsible for any injury, damage or
ilability oecurring by reason of anything done or ornitted to be done by CITY under or in
connection with any work, authority or jurisdiction arising under this Agreement. It is tmderstood
and agreed that CITY shall fully defend, indernnify and save harmtess STATE and alt of its officers
and employees from alt claims, suits or actions of every name, kind and deseription brought forth
under, ineluding, but not limited to, tortious, eontraetual, inverse condemnation or other theories or
assertioris of liability oecurring by reason of anything done or omitted to be done by CITY under
this Agreeinent.
7. PREVAILING WAGES:
7.1. Labor Code Cornpliance- If the work perfomied on this Projeet is done under contract and fatis
within the Labor Code section 1720(a)(l) definition of a "publie work" in that it is eonstruction,
atteration, demolition, installation, or repair; or mainteriance work under Labor Code section 1771.
CITY must conform to the provisions of Labor Code sections 1720 through 1815, and all applicable
provisions ofCalifornia Code of Regulations found in Title 8, Chapter 8, Subchapter 3, Articles 1-7.
CITY agrees to include prevailing wage requirements in its eontracts for public work. Work
performed by CITY's own forces is exempt from the Labor Code's Prevaiting Wage requirements.
7.2. Requirements in Subcontracts - CITY shall require its contractors to include prevailing wage
requirements in all subcontracts funded by this Agreement when the work to be perforrned by the
subcontractor is a public work' as defined in Labor Code Section 1720(a)(l) and Labor Code
Section 1771. Subcontracts shall include all prevailing wage requirenients set forth in CITYs
contracts.
8. INSURANCE:
8.1. CITY is self insured. CITY agrees to deliver evidence of setf-insured coverage iri a forrn
satisfactory to STATE, along witha signed copy ofthe Agreernent.
8.2. If the work performed on this Project is done wider contract CITY shall requirc its contractors to
maintain in force, during the term of this agreement, a policy of general Iiabi1ity insurance,
ineluding coverage of bodily injury liahility and property damage liability, naming the S'I'ATE, its
officers, agents and ernployees as the additional insured in an amount of$1 million per occurrence
4
and $2 million in aggregate. Coverage shal] be evidenced by a certificate of insurance in a form
satisfactory to the STATE that shall be de!ivered to the STATE with a signed copy of this
Agreernent.
9. TERMIINATION - This Agreement may be terminated by tirnety mutual witten eonsent by PARTIES,
and CITY failure to comply with the provisions of this Agreement may be grounds for a Notiee of
Termination by STATE.
10. TERM OF AOREEMENT -This Agreement shall becorne effective on the date first shown on its faee
sheet and shall rernain in full force and effect until amended or terminated at any time upon rnutual
consent ofthe PARTIES or until terminated by STATE for cause.
PARTIES are ernpowered by Streets and Highways Code Section 114 & 130 to enter into this Agreernent and
have delegated to the undersigned the authority to execute this Agreement on behalf of the respective agencies
and covenants to have followed all the necessary legal requirements to validly execute this Agreernent.
5
IN WITNESS WHEREOF, the PARTIES hereto have set their hands and seals the day and year first above
written.
THE CITY OF NEWPORT BEACH
A California Municipai Corporation
and Charter City
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
By: MALCOLM DOUGHERTY
Rush N. Hill, 11 Mayor Director of Transportation
ATTEST:
By: By:
L.t •JS'Hbce
Leilani Brown, CITY Clerk James5inheiro
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Aon C. Harp, CITY Attomey
/
1
Deputy District Director
Operations and Maintenance
District 12
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