HomeMy WebLinkAbout14 - Newport Harbor Nautical MuseumCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 14
April 13, 2010
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Socheata Chhouk, Associate Civil Engineer
949 - 644 -3346 or schhouk @newportbeachca.gov
SUBJECT: NEWPORT HARBOR NAUTICAL MUSEUM — ENCROACHMENT
AGREEMENT TO RELOCATE AMUSEMENT EQUIPMENT WITHIN THE
EASEMENT FOR SIDEWALK, PUBLIC UTILITY, AND PEDESTRIAN
PURPOSES
APPLICANT: NEWPORT HARBOR NAUTICAL MUSEUM & KIDS AT HEART- 600 E.
BAY AVENUE
RECOMMENDATIONS:
1. Approve the Applicant's request to install, maintain and operate bungee trampoline
equipment, stairway, and appurtenances encroaching into the easement for
sidewalk, public utility, and pedestrian purposes at 600 E. Bay Avenue.
2. Authorize staff to execute an encroachment permit and encroachment agreement
for these improvements.
DISCUSSION:
The bungee trampoline equipment is currently located in the courtyard of the Newport
Harbor Nautical Museum (NHNM) adjacent to the merry-go -round carousel ride. The
NHNM proposes to relocate the bungee trampoline ride onto the boardwalk adjacent to
the bulkhead, more specifically between the existing Fun Zone Boat Company ticket
sales booth and seating area. They will add tables, chairs, and umbrella to the
courtyard area in the bungee trampoline equipment's place. The bungee trampoline will
continue to be maintained and operated by Kids at Heart.
The proposed bungee trampoline location will encroach into an easement dedicated for
sidewalk, public utility, and pedestrian purposes. At 600 E. Bay Avenue, there are two
adjacent and parallel easements dedicated to the City of Newport Beach for sidewalk,
public utility, and pedestrian purposes. A 12 -foot wide easement was dedicated to the
City on a Grant of Easement and recorded on April 14, 1967. Additionally, a 23 -foot
Newport Harbor Nautical Museum Encroachment
Agreement to Relocate Amusement Equipment
April 13, 2010
Page 2
wide easement was dedicated to the City on Parcel Map 82 -706 and recorded on
February 24, 1986.
The proposed improvements are shown on Exhibit "A" and include:
1. Relocate the bungee trampoline equipment, stairway, and appurtenances as
shown on Exhibit "A ". The bungee trampoline will be located against the
bulkhead and would continue to allow for pedestrian access along the
boardwalk.
2. Relocate two benches elsewhere within the property and remove one
table /stools set from the seating area.
3. Remove a City diseased palm tree located easterly of the Fun Zone Boat
Company ticket sales booth. Relocate an existing City palm tree from the
proposed bungee trampoline area to the diseased City palm tree location. The
City palm tree relocation has been approved by the General Services
Department.
The encroachment agreement requires NHNM and Kids at Heart to provide insurance
and indemnify the City. It also provides that the NHNM and Kids at Heart must remove
all improvements upon 60 days written notice from the City. The NHNM and Kids at
Heart are required to maintain all proposed improvements in accordance with the
general prevailing standards of maintenance, and pay all costs and expenses.
Staff believes that the proposed bungee trampoline equipment and related
appurtenances within the easement is consistent with the other permitted uses within
the easement (i.e., ferris wheel and ticket sales booth). The Office of the City Attorney
and the Risk Manager have reviewed the encroachment agreement and are satisfied
that it provides adequate protection for the City. The encroachment agreement is
attached as Exhibit "B ".
Conditions Of Approval:
1. The winter hours of operation are Wednesday thru Sunday, 11 A.M. to 6 P.M.
The summer hours of operation are 11 A.M. to 12 midnight, daily.
2. The bungee trampoline cover and stairs shall be secured to ensure that no
access to the equipment is provided during non - working hours.
3. The palm tree removal and relocation will be performed by a valid State Licensed
Contractor. Class C -27 under a valid Encroachment Permit.
4. The palm fronds of the City palm tree adjacent to the bungee trampoline
equipment shall be trimmed on a regular basis to ensure that the fronds do not
impact the bungee trampoline operation. The trimming will be performed by a
Newport Harbor Nautical Museum Encroachment
Agreement to Relocate Amusement Equipment
April 13, 2010
Page 3
valid State Licensed Contractor Class C -27 with prior approval from the General
Services Department.
5. The bungee trampoline operation will not impede the adjacent pedestrian access
along the boardwalk (i.e., queue of patrons).
Environmental Review:
Categorically Exempt under Chapter 3, Article 19, Section 15301, Class 1(c) of Title 14,
California Code of Regulations. Exemption is for minor alterations of existing facilities
not expanding existing uses.
Prepared by: Submitted by:
Socheata Chhouk
Associate Civil Engineer
Attachments: Exhibit "A" — Site Plan Exhibit
Exhibit "B" — Encroachment Agreement
)Iirn G. Badum
lic Works Director
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RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92658 -1768
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2010 -0007)
THIS AGREEMENT is made and entered into this day of
2010, by and between NHNM Property Holdings, LLC, a California Limited Liability
Company (hereinafter "Owner "), Richard Baranoski and Carrie Baranoski, doing
business as ( "DBA ") Kids at Heart, sole proprietors (hereinafter "Concessionaire ")
and the City of Newport Beach, California, a municipal corporation organized and
existing under and by virtue of its Charter and the Constitution and the laws of the State
of California, (hereinafter "CITY "). OWNER is the owner of property located at 600 E.
Bay Avenue, Newport Beach, California 92661 and legally described as Parcel 1 of
Parcel Map No. 82 -706, as shown on a map recorded in Book 208, Pages 4 through 6
inclusively of Parcel Maps in the office of the County Recorder of Orange County,
California Assessor Parcel Number 048 - 112 -20. CONCESSIONAIRE is the owner and
operator of the bungee trampoline herein after referred to as the "Permitted
Improvements."
WITNESSETH:
WHEREAS, OWNER and CONCESSIONAIRE desire to construct certain non-
standard improvements (hereinafter "PERMITTED IMPROVEMENTS ") within the
easement for sidewalk, public utility, and pedestrian purposes that is legally described
as a 12 -foot wide easement as shown on the Grant of Easement recorded in Book
8225, Pages 684 through 688 of Official Records in the office of the County Recorder of
Orange County and a 23 -foot wide easement as shown on Parcel Map 82 -706 recorded
in Book 208, Pages 4 through 6 inclusively of Parcel Maps in the office of the County
Recorder of Orange County (hereinafter "EASEMENT') that is located adjacent to the
parcel legally described as Parcel 1 of Parcel Map No. 82 -706, as shown on a map
recorded in Book 208, Pages 4 through 6 inclusively of Parcel Maps in the office of the
County Recorder of Orange County, California; also known as 600 E. Bay Avenue,
Newport Beach, California; and
WHEREAS, 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 EASEMENT; and
WHEREAS, the parties hereto desire to execute an agreement providing for
fulfillment of the conditions required by CITY to permit OWNER and
CONCESSIONAIRE to construct and maintain said PERMITTED IMPROVEMENTS.
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto
agree as follows:
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined
as:
a. Bungee trampoline equipment, stairway, and appurtenances
encroaching into the easement for sidewalk, public utility, and
pedestrian purposes as shown on EXHIBIT "A" attached hereto
and as approved by the Public Works Department.
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 by the Public Works Department and shall be shown
on the "As Built" plans.
2. CITY will permit OWNER and CONCESSIONAIRE to construct,
reconstruct, install, maintain, use, operate, repair and replace said
PERMITTED IMPROVEMENTS and appurtenances incidental thereto,
within a portion of EASEMENT, if in substantial conformance with the
plans and specifications on file in the CITY. CITY will further allow
OWNER and CONCESSIONAIRE to take all reasonable measures
necessary or convenient in accomplishing the aforesaid activities.
3. Rights granted under this Agreement may be terminated by CITY at any
time by giving 60 -day notice, specifying in said notice the date of
termination. CITY shall incur no liability whatsoever in the event of the
termination of this Agreement, or subsequent removal of improvements by
CITY.
4. OWNER, CONCESSIONAIRE and CITY further agree as follows:
a. OWNER and CONCESSIONAIRE may construct and install
PERMITTED IMPROVEMENTS and appurtenances incidental
thereto, in substantial conformance with the plans and
specifications on file in the CITY's Public Works Department, and
as described on Exhibit "A" attached hereto.
Encroachment Agreement Page 12
b. OWNER and CONCESSIONAIRE shall maintain the PERMITTED
IMPROVEMENTS in accordance with generally prevailing
standards of maintenance, and pay all costs and expenses incurred
in doing so. However, nothing herein shall be construed to require
OWNER and CONCESSIONAIRE to maintain, replace or repair
any CITY -owned pipeline, conduit or cable located in or under said
PERMITTED IMPROVEMENTS, except as otherwise provided
herein.
C. If City or other public facilities or improvements are damaged by the
installation or presence of PERMITTED IMPROVEMENTS,
OWNER and CONCESSIONAIRE shall be responsible for the cost
of repairs.
d. That should CITY be required to enter onto said EASEMENT to
exercise its primary rights associated with said EASEMENT,
including but not limited to, the maintenance, removal, repair,
renewal, replacement or enlargement of existing or future public
facilities or improvements, CITY may remove portions of the
PERMITTED IMPROVEMENTS, as required, and in such event:
(i) CITY shall notify OWNER and CONCESSIONAIRE in
advance of its intention to accomplish such work, provided
that an emergency situation does not exist.
(ii) OWNER and CONCESSIONAIRE shall be responsible for
arranging for any renewal, replacement, or restoration of the
PERMITTED IMPROVEMENTS affected by such work by
CITY.
(iii) CITY agrees to bear only the cost of any removal of the
PERMITTED IMPROVEMENTS affected by such work by
CITY.
(iv) OWNER and CONCESSIONAIRE agree to pay all costs for
the renewal, replacement, or restoration of the PERMITTED
IMPROVEMENTS.
5. In the event either party 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 CONCESSIONAIRE, CITY may enter upon
the EASEMENT and remove all or part of the improvements installed by
OWNER and CONCESSIONAIRE. Termination because of breach shall
be upon a minimum of ten (10) day notice, with the notice specifying the
Encroachment Agreement Page 13
date of termination. In the event of litigation, commenced with respect to
any term of condition of this Agreement, the prevailing party shall be
entitled to reasonable attorneys fees and costs incurred.
6. OWNER and CONCESSIONAIRE 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 design, construction, maintenance, or continued
existence of the PERMITTED IMPROVEMENTS.
7. Without limiting OWNER and CONCESSIONAIRE's indemnification of
City, and prior to commencement of the work for the PERMITTED
IMPROVEMENTSOWNER and CONCESSIONAIRE shall obtain, provide
and maintain at their own expense at all times while the PERMITTED
IMPROVEMENTS are located, maintained or operated within the
EASEMENT, a policy or policies of liability insurance of the type and
amounts described below and in a form satisfactory to City.
a. Certificates of Insurance. OWNER and CONCESSIONAIRE 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 (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 and
CONCESSIONAIRE shall maintain Workers' Compensation
Insurance and Employer's Liability Insurance for his or her
employees in accordance with the laws of the State of
Encroachment Agreement Page 14
California. In addition, OWNER and CONCESSIONAIRE
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 and
CONCESSIONAIRE shall maintain commercial general
liability insurance in an amount not less than three million
dollars ($3,000,000) per occurrence for bodily injury,
personal injury, and property damage, including without
limitation, contractual liability. If commercial general liability
insurance or other form with a general aggregate limit is
used, either the general aggregate limit shall apply
separately to the work to be performed under this
Agreement, or the general aggregate limit shall be at least
twice the required occurrence limit.
e. Endorsements. Each general liability insurance policy shall be
endorsed with the following specific language:
(i) The City, its elected or appointed officers, officials,
employees, agents and volunteers are to be covered as
additional insureds with respect to liability arising out of the
PERMITTED IMPROVEMENTS in the EASEMENT.
(ii) This policy shall be considered primary insurance as
respects to City, its elected or appointed officers, officials,
employees, agents and volunteers as respects to all claims,
losses, or liability arising directly or indirectly from the
Consultant's operations or services provided to City. Any
insurance maintained by City, including any self- insured
retention City may have, shall be considered excess
insurance only and not contributory with the insurance
provided hereunder.
(iii) This insurance shall act for each insured and additional
insured as though a separate policy had been written for
Encroachment Agreement Page 15
i
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
(10 calendar days written notice of non - payment of premium)
written notice has been received by City.
f. Additional Insurance. OWNER and CONCESSIONAIRE shall also
procure and maintain, at its own cost and expense, any additional
kinds of insurance, which in its own judgment may be necessary for
its proper protection of the PERMITTED IMPROVEMENTS in the
EASEMENT.
8. OWNER agrees that this Agreement shall remain in full force and effect
from execution thereof; shall run with the land; shall be binding upon the
heirs, successors, and assigns of OWNER and /or CONCESSIONAIRE'S
interest in the land and PERMITTED IMPROVEMENTS, whether fee or
otherwise, and shall be recorded in the Office of the County Recorder of
Orange County, California.
9. 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.
10. 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.
11. 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.
Encroachment Agreement Page 16
12. A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained
herein, whether of the same or a different character.
13. OWNER and CONCESSIONAIRE shall at OWNER and
CONCESSIONAIRE 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.
14. 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.
15. When notice is to be given pursuant to this Agreement, it shall be as
follows:
CITY: Public Works Director
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658 -8915
OWNER: NHNM Property Holdings, LLC
Newport Harbor Nautical Museum
600 E. Bay Ave.
Newport Beach, CA 92661
CONCESSIONAIRE:
Kids at Heart
Richard and Carrie Baranoski
2033 Newport Blvd.
Costa Mesa, CA 92627
Encroachment Agreement Page 17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Leonie Mulvihill
Assistant City Attorney
ATTEST:
Leilani I. Brown, City Clerk
ATTACHMENTS
CITY OF NEWPORT BEACH,
a Municipal corporation
David A. Kiff,
City Manager
OWNER: NHNM Property Holdings,
LLC
0
Matthew W. Paskerian,
Managing Member
CONCESSIONAIRE: KIDS AT HEART
9M
Richard Baranoski
Carrie Baranoski
EXHIBIT A —Plans as approved by Public Works
Encroachment Agreement Page 18
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On , 2010, before me,
Notary Public, personally appeared DAVID A. KIFF, who 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 has 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 acted, executed
the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(This area for official notarial
seal)
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On , 2010, before me, Notary
Public, personally appeared MATTHEW W. PASKERIAN, who 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 has 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 acted, executed
the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(This area for official notarial
seal)
Encroachment Agreement Page 19
On , 2010, before me, Notary
Public, personally appeared RICHARD BARANOSKI, who 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 has 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 acted, executed
the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(This area for official notarial
seal)
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
On , 2010, before me, Notary
Public, personally appeared CARRIE BARANOSKI, who 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 has 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 acted, executed
the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
seal)
Encroachment Agreement
(This area for official notarial
Page 110
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