HomeMy WebLinkAboutC-8063-1 - Encroachment Agreement EPN N2016-0269 for 600 East Bay AvenueDocument -1430269 -Page- I
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658-8915
Page 1 of 1
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
1111111111111111111111111111111111111111111111111111111111111111111 Jillil 60.00
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2016-0269)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
27th day of June, 2016, by and between NHNM Property Holdings, LLC, a California limited
liability company ("Owner"), and the City of Newport Beach, a California municipal
corporation and charter city, organized and existing under and by virtue of its Charter and
the Constitution, and the laws of the State of California ("City").
RECITALS
WHEREAS THIS ENCROACHMENT AGREEMENT supersedes and terminates the
Encroachment Agreement executed on June 12, 2012, recorded on September 6, 2012 as
Official Record No. 2012000517129 in the Office of the County Recorder'of Orange
County, California;
WHEREAS, Owner is the vested owner of property located at 600 East Bay Avenue,
Newport Beach, California, 92661 and legally described as Parcel 1 as shown on a map
filed in Book 208, Pages 4, 5, and 6 inclusive of Parcel Maps in the office of the County
Recorder of Orange County, County Assessor's Parcel Number 048-112-20 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein- ("Permitted Improvements") within the within the easement for
sidewalk, public utility, and pedestrian purposes right-of-way (hereinafter "Right -of -Way")
that is located adjacent to Property;
WHEREAS, Owner may subcontract the concession or operation of the Permitted
Improvements to Owner's agent ("Owner's Agent") upon the written consent of the City
Manager;
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 Right -of -Way; and
about:blank 06/27/2016
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658-8915
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2016-0269)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
27th day of June, 2016, by and between NHNM Property Holdings, LLC, a California limited
liability company ("Owner"), and the City of Newport Beach, a California municipal
corporation and charter city, organized and existing under and by virtue of its Charter and
the Constitution, and the laws of the State of California ("City").
RECITALS
WHEREAS THIS ENCROACHMENT AGREEMENT supersedes and terminates the
Encroachment Agreement executed on June 12, 2012, recorded on September 6, 2012 as
Official Record No. 2012000517129 in the Office of the County Recorder of Orange
County, California;
WHEREAS, Owner is the vested owner of property located at 600 East Bay Avenue,
Newport Beach, California, 92661 and legally described as Parcel 1 as shown on a map
filed in Book 208, Pages 4, 5, and 6 inclusive of Parcel Maps in the office of the County
Recorder of Orange County, County Assessor's Parcel Number 048-112-20 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the within the easement for
sidewalk, public utility, and pedestrian purposes right-of-way (hereinafter "Right -of -Way")
that is located adjacent to Property;
WHEREAS, Owner may subcontract the concession or operation of the Permitted
Improvements to Owner's agent ("Owner's Agent") upon the written consent of the City
Manager;
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 Right -of -Way; and
WHEREAS, the parties hereto desire to enter into this Agreement providing for
fulfillment of the conditions required by City to permit Owner to construct and maintain said
Permitted Improvements.
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto
agree as follows:
1. City and Owner acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference into this Agreement.
2. It is mutually agreed that Permitted Improvements shall be defined as:
a. "Happy Swing" ride, fence, and appurtenances thereto;
b. "Empire Tower' ride, fence, and appurtenances thereto;
C. "Coconut Climb" coconut tree climbing attraction, fence, and appurtenances
thereto; and
d. "Ocean Motion Trampoline" bungee trampoline equipment, stairway, and
appurtenances thereto,
encroaching into the easement for sidewalk, public utility, and pedestrian purposes,
as approved by the Public Works Department and as shown on Exhibit "A" attached
hereto and incorporated by reference.
e. Owner may saw cut and remove portions of the existing sidewalk for the
installation of the footings/foundation associated with the installation of the
Permitted Improvements. Owner shall submit plans for the
footings/foundations to the City's Building Department for approval and
Owner shall obtain a building permit before any work is started.
f. 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, as approved by the Public Works Department and as shown on Exhibit
"A."
3. 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 shall 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 the Right -of -Way, if in substantial conformance with the plans and
specifications on file in City. City will further allow Owner or Owner's Agent to take
all reasonable measures necessary or convenient in accomplishing the aforesaid
activities.
NHNM Property Holdings, LLC Encroachment Agreement Page 2
4. Rights granted under this Agreement may be terminated by City with or without
cause and at any time without notice. City shall make good faith efforts to provide
sixty (60) calendar days' notice in advance of termination, 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.
5. Owner and City further agree as follows:
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 City's Public Works Department, and as
described on Exhibit "A."
b. Owner or Owner's Agent shall maintain 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, presence, or removal of the Permitted Improvements, Owner shall
restore these public facilities or improvements to their condition at the time of
entry into this Agreement. Additionally, upon the expiration or termination of
this Agreement, Owner shall restore the Property to the condition that existed
at the time of execution of this Agreement. Alternatively, City may elect to
restore or repair the Property and bill the costs to Owner, which costs shall be
reimbursed to the City within five (5) calendar days.
d. Should City be required to enter onto said Right -of -Way to exercise its
primary rights associated with said Right -of -Way, 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 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 Permitted Improvements affected by such work by
City.
(iii) City agrees to bear only the cost of any removal of Permitted
Improvements affected by such work by City.
(iv) Owner agrees to pay all costs for the renewal, replacement, or
restoration of Permitted Improvements.
NHNM Property Holdings, LLC Encroachment Agreement Page 3
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 benefit of the City.
6. In the event either party (or any agent of Owner) 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 any agent of Owner, City may enter upon Right -of -Way and
remove all or part of the improvements installed by Owner, without any
compensation due to Owner or Owner's Agent. Termination because of breach shall
be upon a minimum of ten (10) calendar days' notice, with the notice specifying the
date of termination.
7. In the event of any dispute or legal action arising under this Agreement, the
prevailing party shall not be entitled to attorneys' fees.
8. Owner and any agent of Owner 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 Permitted Improvements.
9. Without limiting Owner's or any agent of Owner's indemnification of City, andrip or to
commencement of any 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 Right -of -
Way, 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 any agent of Owner shall provide
certificates of insurance with original endorsements to City as evidence of the
insurance coverage required herein. Insurance certificates must be approved
by City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with City
at all times during the term of this Agreement.
b. Signature. A person authorized by the insurer to bind coverage on its behalf
shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned
policyholders' Rating of A (or higher) and Financial Size Category Class VII
NHNM Property Holdings, LLC Encroachment Agreement Page 4
(or larger) in accordance with the latest edition of Best's Key Rating Guide,
unless otherwise approved by the City's Risk Manager.
d. Coverage Requirements.
(i) Workers' Compensation Coverage. Owner 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 Right -of -Way.
(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.
NHNM Property Holdings, LLC Encroachment Agreement Page 5
(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 Right -of -Way.
10. 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, whether fee or otherwise;
and shall be recorded in the Office of the County Recorder of Orange County,
California.
11. 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.
12. 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, California.
13. 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.
14. 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.
15. 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
NHNM Property Holdings, LLC Encroachment Agreement Page 6
any other term, covenant or condition contained herein, whether of the same or a
different character.
16. Owner or any agent of Owner shall, at Owner's or 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.
17. 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.
[SIGNATURES ON NEXT PAGE]
NHNM Property Holdings, LLC Encroachment Agreement Page 7
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNE 'S OFFICE a California municipal corporation
Date: /y t o Date: folw )K&
Aaron C. Warp (Am oulitillc.a Dave'Kiff
City Attorney City Manager
ATTEST: / OWNER(S): NHNM Property Holdings,
Date: �` v�7• l�I LLC
Date: I/
By: By:
Leilani I. Brown Linda Mayer
City Clerk President, ExplorOcean, a California
�$WPrN non-profit corporation
e [END OF SIGNATURES]
C14. PORNeP,
Owners must sign in the presence of notary public
ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by
Public Works
NHNM Property Holdings, LLC Encroachment Agreement Page 8
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Q }ss. {{
On 7111-0-1 1CI" , 20 ( before me, Notary
Public, personally appearedA4 ay e-,,' , who proved to
me on the basis of satisfactory evidence to bete personA whose name(s) is/a(e subscribed to the
within instrument and acknowledged to me that hfVshe/they executed the same in .fes/her/theetr
authorized capacity(ies), and that by hid/her/their signatures,( -s) on the instrument the person(s), or the
entity upon behalf of which the person( -5) acted, executed the instrument.
certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
SEANIANGIER
WITNESS my hand and official seal. ` Commission -: 2351070
Notary Public - California
-
® Orange County
`-!' Comm _.. Expires J!an 3, 2018
./'.-,✓l.- _.. _„
Signat (seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of }ss.
On 20 before me, Notary
Public, personally appeared proved to me
on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(seal)
NHNM Property Holdings, LLC Encroachment Agreement Page 9
EXHIBIT A
PERMITTED IMPROVEMENTS PLAN
NHNM Property Holdings, LLC Encroachment Agreement Page A-1
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Use Forklift and pallet jack or dolly to move the structure into the building.
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Tie a heavy duty strap around the top of the frame, and use the forklift to raise it to the vertical
position.
EXHIBIT "A"
PAGE 5OF8
N2016-0269
Attach back brace kit
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Bottom Legs (qty 2)
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EXHIBIT "A"
PAGE 6OF8
N2016-0269
Drill holes and install wedge anchor bolts
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Attach palm fronds — pin in place
Attach banners using thumb screws and banner track
5 bolts on
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