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HomeMy WebLinkAbout09 - Landscape & Hardscape Maintenance on West Coast Highway - City Attorney MemoU' Cq<!FO DATE: TO: FROM: MATTER: SUBJECT: CITY OF NEWPORT BEACH r CITY ATTORNEY'S OFFICE November 12, 2014 Honorable Mayor & Members of the City Council Leonie Mulvihill, Assistant City Attorney Mariner's Point No.: A14 -00193 Regular Meeting November 12, 2014, Agenda Item 9 Agreements for Landscape and Hardscape Maintenance on West Coast Highway (Route 1) for the Mariner's Pointe Development Project at 100 -300 West Coast Highway Agenda Item 9 requests authority for the Mayor and City Clerk to execute a license agreement to allow VBAS Properties, Inc. to install and maintain improvements in the public rights -of -way. Since the posting of the agenda, we have determined that the agreement included in the agenda should be revised to better reflect the obligations of the licensee. We have prepared a revised draft for your consideration and a redlined draft is attached hereto as Attachment 1 for your reference. Submitted by: Leonie Mulvihill Assistant City Attorney [A14- 00193] -Late Communication to City Council Attachment I RECORDING REQUESTED BY: CITY OF NEWPORT BEACH WHEN RECORDED MAIL TO: City Clerk City of Newport Beach P.O. Box 1768 / 100 Civic Center Drive Newport Beach, CA 92658 Fee exempt per Govemment Code § 6103 LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND VBAS PROPERTIES, INC. TO PROVIDE INSTALLATION AND MAINTENANCE OF LANDSCAPING AND HARDSCAPING IMPROVEMENTS IN THE PUBLIC RIGHT -OF -WAY This License Agreement (the "Agreement ") is made and entered into by and between the CITY OF NEWPORT BEACH, a California 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 of Newport Beach, County of Orange, State of California, which is a commercial development commonly known as Mariner's Pointe and more particularly 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 immediate vicinity of the Property (the "Improvement Areas "), which Improvement Areas are more particularly described and depicted in Exhibit "B" attached hereto and incorporated herein by this reference; and WHEREAS, California Department of Transportation, hereinafter referred to as ' *ALTRANS=' and/or "STATE, " is the owner of certain public rights -of -way and other property in the Improvement Areas, and the CITY has or will enter into a maintenance agreement with CALTRANS to maintain the Improvement Areas; and j WHEREAS, in connection with its development of the Property. LICENSEE desires to install a d maintain landscaping and hardscape features in the Improvement Areas, and as a condition of d velopment of the Property, CITY agrees to allow LICENSEE to install and maintain such ii provements subject to desi,e to CITY's assignment of all responsibility for the installation and maintenance of landscaping and hardscaping within the Improvement Areas, as defired below in S ction 5, and the costs associated therewith in accordance with_ 1 The tans and specifications s bmitted by LICENSEE and as reasonably approved by CITY; and (2) The Maintenance A14 -00193 Formatted; English (U.S.) By this Agreement, CITY desires to clarify and specifically delineate the LICENSEE'S obligations with respect to the installation and maintenance of landscaping and hardscaping thin the Improvement Areas, Formatted: English (U.S.) Now, THEREFORE, in consideration of the promises and agreements hereinafter made and exchanged, CITY and LICENSEE covenant and agree as follows: 1. GRANT OF LICENSE. Subject to terms and conditions hereinafter set forth, CITY hereby grants to LICENSEE a non - exclusive, revocable license ( "License ") to install and maintain landscaping and hardscaping within the Improvement Areas pursuant to the terms asset forth in this Agreement and the CITY - CALTRANS AGREEMENT. 2. TERM. The term of the License (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 successors 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 LICENSEE'S successors in interest, assigns, heirs, executors, and/or personal representatives. This Agreement and the covenants contained herein inures to the benefit of CITY 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 maintenance provisions set forth in this Agreement. At the CITY's request the LICENSEE or its successors and assigns maybe required to disconnect existing water and electrical supply sources to the Improvement Areas from the Property, and construct and reconnect alternative 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 Improvements" and includes the following: (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. A14 -00193 (b) Hardscanina: Enhanced and concrete paving including sidewalks, driveways, access ramps and stairs in accordance with the precise grading plans relative to the Property and the subject development thereof submitted by LICENSEE and approved by the CITY. 5. MAINTENANCE RESPONSIBILITIES. At LICENSEE'S sole cost and expense, LICENSEE agrees to construct, inspect, clean, repair, replace, and rehabilitate the Improvement Areas at its own cost, and perform all maintenance responsibilities for the Improvement Areas, including, but not limited to: sidewalk cleaning; trash disposal; signs; watering; repairing and/or adjusting irrigation systems when failures occur; fertilizing; cultivating; edging; performing general planting and tritmming or other corrective gardening; spraying grass and plants with both insecticides and herbicides; and, generally keeping the Improvement Areas in a clean, secure and attractive condition, taking into consideration normal growth of the landscape materials and a continuation of the aesthetic quality of the area. All work shall be performed in a manner to ensure ADA compliance at all times. LICENSEE agrees to maintain and keep the Improvement Areas in good condition and repair, free and clear of litter and debris and free from any nuisances and to comply with all health and police regulations, in all respects at all times. LICENSEE agrees to dispose of litter and debris in a sanitary and legal manner and location. All of the responsibilities listed in this Section 5 (including subparts) shall collectively be referred to as "Maintenance Responsibilities." (a) Maintenance of Trees and Plants. LICENSEE's maintenance obligations shall include watering, repairing, maintaining, adjusting and monitoring irrigation systems when failures occur, fertilizing, edging, performing general planting and trimming or other corrective maintenance, spraying with insecticides and herbicides, and generally keeping the Improvement Areas in a clean, secure and attractive condition, taking into consideration normal growth of the landscape materials and a continuation of the aesthetic quality of the Improvement Areas, including but not limited to the following: i. LICENSEE may install, or contract, authorizing a licensed contractor with appropriate class of license in the State of California, to install and thereafter will MAINTAIN (Section 27 of the Streets and Highways Code) LANDSCAPING conforming to those plans and specifications (PS &E) preapproved by STATE. ii. LICENSEE will submit the final form of the PS &E, prepared, stamped and signed by a licensed landscape architect, for LANDSCAPING to STATE's 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 STATE'S right of way. All proposed LANDSCAPING must meet STATE's applicable standards. iii. LICENSEE shall ensure that LANDSCAPED areas designated on Exhibit "A" are provided with adequate scheduled routine MAINTENANCE necessary to MAINTAIN a neat and attractive appearance. A14 -00193 iv. An encroachment permit rider maybe required for any changes to the scope of work allowed by this Agreement prior to the start of any work within CITY's right of way. All CITY C rn- r- anv- v-r,-,Y 'T's contractors must obtain the necessary Encroachment Permits from STATE's District 12 Encroachment Permit Office prior to entering STATE right of way to perform C— W— maintenance responsibilities. This permit will be issued-at no -evste CITY. In case of a need for any lane closure, the time frame shall be coordinated with STATE. Any disturbed pavement due to pressure, operation, maintenance and repair of the PROJECT will be repaired and restored by LICENSEE CIITY -to CITY AND STATE's satisfaction at no cost to CITY AND STATE. V. LICENSEE's contractors will be required to obtain an encroachment permit prior to the start of any work within STATE's right of way. vi. To furnish electricity for irrigation system controls, water, and fertilizer necessary to sustain healthy plant growth during the entire life of this Agreement. vii. To replace unhealthy 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 comer sight distances are always maintained for the safety of the public. ix. To MAINTAIN, 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 sidewalksibike paths, or leaving surface water that becomes a hazard to vehicular or pedestrian/bicyclist travel. All the above requirements apply to the proposed water fountain which will be built outside of the 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 of Food and Agriculture. All chemical spray operations shall be reported quarterly (Form 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 LANDSCAPING and appurtenances and restore The Improvement Areas owned areas to a safe and attractive condition A14 -00193 acceptable to CITY in the event this Agreement is terminated as set forth herein. xii. To furnish electricity and MAINTAIN lighting system and controls 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 MAINTAIN, replace, repair or remove from service any LANDSCAPING system component that has become unsafe or unsightly. xv. To MAINTAIN all sidewalks/bike paths within the Agreement limits of the CALTRANS highway right of way, as shown on Exhibit A, at LICENSEE's expense. MAINTENANCE includes, but is not limited to, concrete repair, replacement and to grind or patch vertical variations in elevation of sidewalks/bike paths for an acceptable walking 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 LANDSCAPING in an expeditious manner. xvi. To MAINTAIN all parking or use restrictions signs encompassed within the area of the 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 necessary 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 harmful 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 A14 -00193 to ensure no offensive odors, gum, wax, litter, liquids or other materials are 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 I.S.A. Certified Arborist or an I.S.A. Certified tree worker under the direct supervision of an I.S.A. Certified Arborist. Said trimming shall be per the International Society of Arborist, 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 replacing the damaged tree with an approved replacement of the same size that was originally planted, and payment of fines equal to the value of the 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. If during the term of this Agreement, LICENSEE GIT — should cease to maintain the "PROJECT" to the satisfaction of CfTY STATEas provided by this Agreement, .CITY STAT&may either undertake to perform that maintenance on behalf of LICENSEE CITY -at LICENSEE's GITY's expense or direct LICENSEE GITY —to remove or itself remove PROJECT at LICENSEEEI-TY's sole expense and restore STATE AND CITY's right of way to its prior or safe operable condition. LICENSEE C4TY —hereby agrees to pay CITY AND STATE said expenses, within thirty (30) days of receipt of billing by CITY OR STATE. However, prior to CITY STAT perforating any maintenance or removing PROJECT, CITY siA will provide written notice to LICENSEE 44TY —to cure the default and LICENSEE CITY will have thirty (30) days within which to affect that cure. xxix. Control and maintain the Improvement Areas such that no landscaping or plant materials growth, or irrigation water spray, obstructs or hinders vehicular or pedestrian traffic, or encroaches across or onto any bicycle path, sidewalk, public access area, the street right -of -way from the edge of the curb /gutter to the center of any street right -of -way. xxx. Conform to all applicable standards set forth in the CITY'S Municipal Code. A14-00193 (b) Maintenance of Hardscape Material. LICENSEE's maintenance obligations shall include all concrete and enhanced hardscaping material including all sidewalks, driveways, access ramps and stairs. Maintenance includes, but is not limited to, linear root barriers, concrete repair and replacement, grinding or patching variations in elevation of sidewalks and driveways for an acceptable riding surface, and the removal of dirt, debris, graffiti, weeds, and any other deleterious items or material on or about the sidewalks or driveways in an expeditious manner. (c) Bicycle Path s. As to any bicycle paths constructed as permitted encroachments within the Improvement Areas, LICENSEE will maintain, at LICENSEE 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 pavement markings required for the direction and operation of that 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 shall be subject to the prior written approval of CITY. No changes, modifications, or alterations may be made to the Improvement Areas without the prior written consent of CITY. 7. MATERIAL ALTERATIONS. After the approval of the plans and specifications and the installation of the Improvements in the Improvement Areas in accordance with the plans and specifications, no material changes, modifications or alterations may be made to the Improvement Areas without the prior written consent of CITY. 8. CITY REQUIREMENTS. LICENSEE, or anyone performing work on behalf of LICENSEE, shall be properly licensed by CITY for any work performed on the Improvement Areas. Furthermore, LICENSEE, or anyone performing work on behalf of LICENSEE, shall acquire the proper encroachment permit 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. If the work performed on the Improvement Areas is done under contract and falls within the Labor Code section 1720(a)(1) definition A14 -00193 of a "public work" in that it is construction, alteration, demolition, installation, repair or maintenance, LICENSEE must conform to the provisions of Labor Code sections 1720 through 1815, all applicable regulations and coverage determinations issued by the Director of Industrial Relations. LICENSEE agrees to include prevailing wage requirements in its contracts for public work. 10. PREVAILING WAGE REQUIREMENTS IN SUBCONTRACTS. LICENSEE shall require its contractors to include prevailing wage requirements in all subcontracts funded 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 for public works shall include all prevailing wage requirements set forth in CITY's public works contracts. 11. CITY RIGHT TO INSPECT. 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 of the installation of the landscaped and/or hardscaped material installed on the Improvement Areas and/or the performance of the maintenance responsibilities of the 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 of this Section 12. 13. REPAIR BY CITY. Except as otherwise provided for in this License, in the event any damage is caused to any of the LICENSEE's Improvements within the Improvement Areas as a result of the installation, maintenance and /or 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 of them. 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 behalf of LICENSEE and assist in obtaining the necessary permits, approvals and/or agreements required to permit LICENSEE such access. 15. MECHANICS' LIENS. LICENSEE agrees not to suffer any mechanics' lien(s) to be filed against the Improvement Areas by reason of any work, labor, services or material performed at or furnished 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 A14 -00193 within sixty (60) days after the date of filing . of such mechanics' lien(s). Nothing in this Agreement shall be construed as consent on the part of the CITY to subject the CITY's estate in the Improvement Areas to any mechanics' lien(s) or liability under the mechanics' lien laws of the State of California. 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 of CITY 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 Improvement Areas, whether now existing or arising at any future time. 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 of notices. LICENSEE hereby covenants for itself and its successors and assigns, that conveyance of any interest in the Property shall constitute an assumption by any successors, assigns or transferees of LICENSEE, of the obligations under this License, and upon such conveyance, the predecessor in interest of such assuming party shall be deemed relieved from any further obligations or responsibilities under this License. 17. WORKERS COMPENSATION INSURANCE. Pursuant to California Labor Code § 1861, LICENSEE and its successors or assigns acknowledges awareness of Section 3700 et seq. of said California Labor Code, which requires every employer to be insured against liability for workers' compensation. LICENSEE covenants that it will comply with such laws and provisions prior to conducting any activity pursuant to this license. LICENSEE shall maintain such Workers' Compensation Insurance in an amount of not less than One Million Dollars ($1,000,000) bodily injury by accident, each occurrence, One Million Dollars ($1,000,000) bodily injury by disease, each employee, and One Million Dollars ($1,000,000) bodily injury by disease, policy limit, at all times incident hereto, in forms and underwritten by insurance companies reasonably satisfactory to CITY. LICENSEE shall require all subcontractors retained by LICENSEE to perform work hereunder to provide such workers' compensation insurance for all of the subcontractors' employees. LICENSEE shall furnish to CITY a certificate of waiver of subrogation under the terms of the workers' compensation insurance and LICENSEE shall similarly require all 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 furnish to the CITY and carry at all times incident hereto, on all activities to be performed in the Improvement Areas as contemplated herein, general liability insurance including coverage for bodily 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 applicable to all activities to be undertaken by LICENSEE concerning the A14 -00193 Improvement Areas shall be deemed excess coverage and that LICENSEE's insurance shall be primary. Said policy of insurance shall pay on behalf of LICENSEE, its officers, agents, and employees, while acting within the scope of their duties; against any and all claims of liability arising out of or 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 hill force and effect during the life of this Agreement, in an amount not less than the following amount: combined single limit bodily injury and property damage, including products /completed operations liability and blanket contractual liability, of One Million Dollars ($1,000,000) per occurrence. If coverage is provided under 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 immediately notify CITY of any known depletion of limits. LICENSEE shall require its insurer to waive its subrogation rights against CITY. 19. CERTIFICATE OF INSURANCE: ADDITIONAL INSURED ENDORSEMENTS. Prior to conducting any activity pursuant to this Agreement, LICENSEE shall furnish to CITY certificates of insurance evidencing the foregoing insurance coverage as required by this Agreement; said certificates shall provide the name 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 canceled or modified without providing notice to CITY in accordance with policy provisions. LICENSEE shall maintain the foregoing insurance coverage in force until the Term of this Agreement has expired or this Agreement is terminated. The requirement for carrying the foregoing insurance covemge 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 aprompt and timely manner; the premiums on all insurance hereinabove required. A separate copy of the additional insured endorsement to LICENSEE's liability policy as required hereunder, naming the CITY as Additional Insureds, shall be provided to the City..QY- Attorney for approval prior to the commencement of any work by LICENSEE pursuant to this Agreement. 20. INDEMNIFICATION 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 (hereinafter collectively 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 located and by whomever owned (including, without limitation, property owned by an Indemnified Party), which injury, death or physical damages arises directly or indirectly out of the grant of license herein contained or the activities to be undertaken by LICENSEE (or LICENSEE's officers, employees, . agents, contractors, licensees, or invitees) concerning the Improvement Areas, caused in whole or in part by any negligent act or omission of the LICENSEE, any of its contractors, subcontractors, or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable (collectively, the "LICENSEE Parties "), including but not limited to A14 -00193 10 concurrent active or passive negligence of the LICENSEE Parties, except to the extent caused by the negligence or willful misconduct of CITY or any of its agents, contractors, 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. LICENSEE agrees that all work done or undertaken by it on the Improvement Areas shall be for its sole account 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, contractors, licensees, invitees and all others doing business with LICENSEE to obey and observe) all rules and regulations of general applicability regarding the Improvement Areas as may be reasonably established by CITY at any time and from time to time during the Term of this 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. If LICENSEE fails to cure said default within thirty (30) calendar days following the date of delivery of such notice of default, CITY may thereafter cause such maintenance to be performed, and all actual and reasonable costs incurred shall be assessed to and billed directly to the LICENSEE. Any invoice for such costs incurred shall include copies of paid invoices evidencing the costs incurred. Payment from LICENSEE shall be due within thirty (30) calendar days following the date of receipt of invoice. In addition, one and a half (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 hereafter 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 licenses 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 nationally recognized overnight courier service, or (iii) via facsimile transmission (with a copy to also be placed in the United States Mail), and addressed as follows: TO CITY: TO LICENSEE: City of Newport Beach VBAS PROPERTIES, INC. A14 -00193 11 100 Civic Center Drive c/o Glenn Verdult, President P.O. Box: 1768 100 W. Coast Hwy., Suite R -101 Newport Beach, CA 92658 Newport Beach, CA 92660 Attn: Director of Public Works Tel: (949) 644 -3330 with copy to: Fax: (949) 644-3308 Tod W. Ridgeway Ridgeway Development Company 2804 Lafayette Avenue Newport Beach, CA 92663 Any mailing address or telefacsimile number may be changed at anytime by giving written notice of such change in the manner provided above at least ten (10) days prior to the effective date of the change. All notices under this Agreement shall be deemed given, received, made or communicated on the date personal receipt actually occurs or, if mailed, on the delivery date or attempted delivery date shown on the return receipt. A person may not give official or binding notice by facsimile. The effective time of a notice shall not be affected by the receipt, prior to the receipt of the original, of a facsimile copy of the notice. 26. CAPTIONS AND TERMS. The captions and section numbers appearing in the Agreement are for convenience only and are not a part of the Agreement and do not in any way limit, amplify, define, construe or describe the scope of intent of the terms and provisions of this Agreement, or in any way affect this Agreement. 27. RECORDATION. LICENSEE shall record this Agreement in the Official Records of the 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 of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status or sex. 30. COOPERATION. LICENSEE shall in good faith cooperate in connection with its respective rights and obligations under this Agreement, including, but not limited to, performing any acts and executing any further documents that may be reasonably necessary to effectuate the purposes of or rights conferred under this Agreement. 31. SEVERABILITY. If any provision of this 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 Agreement, unless specifically conditioned upon such invalid or unenforceable provision, shall be valid and enforceable to the fullest extent permitted by law. A14 -00193 12 32. ENTIRE AGREEMENT. This Agreement, together with any attachments hereto or inclusions by reference, constitutes the entire agreement between the parties hereto relating to the rights herein granted and the obligations herein assumed, and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements, and understandings, if any, between the parties hereto with respect to the rights and obligations contained herein. Any oral representations or modifications concerning this instrument shall be of no force or effect except a subsequent modification in writing, approved by the CITY and signed by the parties to be charged. 33. ATTORNEY'S 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 of the terms of this 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 governed, 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 competent jurisdiction in the County of Orange, State of California. 36. AMENDMENTS. This Agreement may be amended, modified, and/or supplemented only by the written agreement of LICENSEE and CITY, or the successors and assigns of each. 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 of any 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 of record 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 implement all provisions of this Agreement. 39. EXCLUSIVE BENEFIT OF PARTIES. The provisions of this Agreement are for the exclusive benefit of CITY 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. A 14 -00193 13 40. SURVIVAL. All representations, warranties, waivers, and indemnities given or made hereunder shall survive termination of this Agreement. 41. AUTHORITY TO SIGN. LICENSEE hereby represents that the individual executing this Agreement on behalf of LICENSEE has full authority to do so and to bind LICENSEE to perform pursuant to the terms and conditions of this Agreement. [SIGNATURES ON NEXT PAGE] A14 -00193 14 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: Aaron C. Harp City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: Rush N. Hill. IlDave -Kiff f-itpMapeg"Mayor LICENSEE: VBAS Properties, Inc., a California corporation By: Glenn Verdult President Date: By: Kalida Verdult Vice President/Assistant Secretary ]END OF SIGNATURES] A14-00193 15 Field Code_ Changed...___ State of California County of On 2014, before me, Notary Public, personally appeared , personally known to me (or 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 signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature State of California County of (Seal) On 2014, before me, Notary Public, personally appeared , personally known to me (or 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 signature(s) on the instrument, the person(s), or the entity upon behalf of which the persons) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) ;,Field Code Changed A14 -00193 16 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY Parcel 1 of Parcel Map No. 2010 -133, in the City of Newport Beach, County of Orange, State of California as shown on Map Recorded in Book 375, Pages I through 4 of Miscellaneous Maps, records of said County, California. EXHIBIT "B" IMPROVEMENT AREA �- - -' Formatted: Centered, Line spacing: Multiple 1.15Ii EXHIBIT "C" CITY - CALTRANS AGREEMENTS - - - -- Formatted: Centered TO BE INSERTED