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HomeMy WebLinkAboutBeach Promenade, LLC - 2016-12-19Dept. ID PW 16-070 Page 1 of 2 Meeting Date: 12/19/2016 CITY OF HUNTINGTON BEACH REQUEST FOR, CITY COUNCIL ACTION MEETING DATE: 12/19/2016 SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Manager PREPARED BY: Travis K. Hopkins, PE, Director of Public Works SUBJECT: Approve and authorize execution of a Landscape Maintenance Agreement with the State of California, Department of Transportation, a Special Utility Easement Agreement and License Agreement with Beach Promenade LLC for the Beach Promenade project located at the southeast corner of Beach Boulevard and Atlanta Avenue Statement of Issue: A Landscape Maintenance Agreement between the City and the State of California; a License Agreement between the City and Beach Promenade, LLC (owner/developer); and a Special Utility Easement Agreement between the City and Beach Promenade, LLC are presented for City Council approval and execution for the Beach Promenade redevelopment project at Beach Boulevard and Atlanta Avenue. Financial Impact: No funding is required for this action. Recommended Action: A) Approve and authorize the Mayor and City Clerk to execute the "Landscape Maintenance Agreement within State Highway Right of Way on Route 39 Within the City of Huntington Beach" for the Beach Promenade project (Attachment 1); and, B) Approve and authorize the Mayor and City Clerk to execute and record the "License Agreement Between the City of Huntington Beach and Beach Promenade, LLC, to Provide Installation and Maintenance of Landscaping improvements in the Public Right -of -Way" for the Beach Promenade project (Attachment 2); and, C) Approve and authorize the Mayor and City Clerk to execute the "Special Utility Easement Agreement' between the City of Huntington Beach and Beach Promenade, LLC for the Beach Promenade project (Attachment 3); and, D) Authorize the City Clerk to record the Special Utility Easement Agreement (Attachment 3) for the Beach Promenade project with the Orange County Recorder. Alternative Action(s): A) Do not authorize execution of the Landscape Maintenance Agreement within State Highway Right of Way on Route 39 within the City of Huntington Beach and direct staff accordingly. This alternative action will prevent the developer from satisfying the Conditions of Approval for this project. Item 13. - 1 xR -19'2- Dept. ID PW 16-070 Page 2 of 2 Meeting Date: 12/19/2016 B) Do not authorize execution of the License Agreement. Absent this License Agreement, the City would be responsible for the installation and maintenance of the landscaping and hardscape. This alternative action would result in increased future maintenance costs for the City and will prevent the developer from satisfying the Conditions of Approval for this project. C) Do not authorize execution of the Special Utility Easement Agreement between the City of Huntington Beach and Beach Promenade, LLC and provide the staff with an alternate action. Without this easement agreement, City forces will have no legal authority to access the public storm drain pipeline located on the private property. Analysis: The Beach Promenade project is located at 21022-21190 Beach Boulevard, the southeast corner of Beach Boulevard and Atlanta Avenue. The project's development requirements included the construction and responsibilities for future maintenance of landscaping and hardscape improvements within the public right-of-way along its street frontages. To achieve and document this responsibility, the developer/owner is required to execute the appropriate landscape maintenance agreement for all landscaping, irrigation, street furniture, and enhanced hardscape that encroaches into the State (Caltrans) right-of-way along Beach Boulevard and into the City right-of-way along Atlanta Avenue. In addition to landscaping and irrigation, the agreement also addresses sidewalk cleaning, trash cans, disposal of trash, signs, tree replacement, and all other aspects of maintenance for areas in State and City right-of-way. It is Caltrans' policy to only enter into such agreements with other governmental agencies, not with private developers/owners. Consequently, there are two agreements necessary to adequately address this landscape maintenance responsibility: one agreement between the State of California and the City of Huntington Beach (Attachment 1), and a second companion agreement between the City and the private developer/owner (Attachment 2), which effectively transfers the maintenance responsibility from the City to the developer/owner. Lastly, as part of the redevelopment project, a City -owned storm drain pipeline located on the project's private property was relocated to allow for new building construction. It is now necessary to execute a Special Utility Easement Agreement to grant the City a perpetual, non-exclusive easement to install, maintain, repair, and improve the public storm drain pipeline in its newly relocated alignment on the private property of the subject project. Public Works Commission Action: No action required Environmental Status: The subject request is exempt pursuant to the California Environmental Quality Act. Strategic Plan Goal: Enhance economic development. Attachment(s): 1. Landscape Maintenance Agreement Within State Highway Right of Way on Route 39 Within the City of Huntington Beach 2. License Agreement between the City of Huntington Beach and Beach Promenade, LLC, to Provide Installation and Maintenance of Landscaping Improvements in the Public Right -of -Way. 3. Special Utility Easement Agreement (between the City of Huntington Beach and Beach Promenade, LLC). HIS - 193- Item 13. - 2 ATTACHMENT #1- LANDSCAPE MAINTENANCE AGREEMENT WITHIN STATE HIGHWAY RIGHT OF WAY ON ROUTE 39 WITHIN THE CITY OF HUNTINGTON BEACH THIS AGREEMENT is made effective this � ay of-,�.61K2016, by and between the State of California, acting by and through the Department of Transportation, hereinafter referred to as "STATE" and the CITY of Huntington Beach; hereinafter referred to as "CITY" and collectively referred to as "PARTIES". SECTION I RECITALS PARTIES desire to work together to allocate their respective obligations relative to newly constructed or revised improvements within STATE's right of way by Permit Number 1215-6LC-0631. 2. This Agreement addresses CITY responsibilities which can include, but are not limited to landscaping, planting, irrigation systems, mulches, control litter and weed removal (collectively the "LANDSCAPING") as well as CITY responsibilities which can include but are not limited to driveways, sidewalks, Biofiltration Swales and parking restriction signs (collectively the "IMPROVEMENTS") placed within State Highway right of way on State Route 39, as shown on Exhibit A, attached to and made a part of this Agreement. NOW THEREFORE, IT IS AGREED AS FOLLOWS: SECTION II AGREEMENT 3. In consideration of the mutual covenants and promises herein contained, CITY and STATE agree as follows: 3.1. PARTIES have agreed to an allocation of maintenance responsibilities that include, but are not limited to, inspection, providing emergency repair, replacement, and maintenance, (collectively hereinafter "MAINTAIN/MAINTENANCE") of LANDSCAPING and IMPROVEMENTS as shown on said Exhibit "A." 3.2. When a planned future improvement is constructed and/or a minor revision has been effected with STATE's consent or initiation within the limits of the STATE's right of way herein described which affects PARTIES' division of maintenance responsibility as described herein, PARTIES will agree upon and execute a new dated and revised Exhibit "A" which will be made a part hereof and will thereafter supersede the attached original Exhibit "A" to thereafter become a part of this Agreement. The new exhibit can be executed only upon written consent of the PARTIES hereto acting by and through their authorized representatives. No formal amendment to this Agreement will be required. 4. CITY agrees, at CITY expense, to do the following: 4.1. CITY may install, or contract, authorizing a licensed contractor with appropriate class of license in the State of California, to install and thereafter will MAINTAIN LANDSCAPING conforming to those plans and specifications (PS&E) pre -approved by STATE. 4.2. The degree or extent of maintenance work to be performed, and the standards therefore, shall be in accordance with the provisions of Section 27 of the Streets and Highways Code and the then current edition of the State Maintenance Manual. 4.3. CITY 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. 4.4. CITY shall ensure that LANDSCAPED areas designated on Exhibit "A" are provided with adequate scheduled routine MAINTENANCE necessary to MAINTAIN a neat and attractive appearance. 4.5. 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. 4.6. CITY contractors will be required to obtain an Encroachment Permit prior to the start of any work within STATE's right of way. 4.7. To furnish electricity for irrigation system controls, water, and fertilizer necessary to sustain healthy plant growth during the entire life of this Agreement. 4.8. To replace unhealthy or dead plantings when observed or within 30 days when notified in writing by STATE that plant replacement is required. 4.9. To prune shrubs, tree plantings, and trees to control extraneous growth and ensure STATE standard lines of sight to signs and corner sight distances are always maintained for the safety of the public. 4.10. To MAINTAIN, 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 sidewalks/bike paths, or leaving surface water that becomes a hazard to vehicular or pedestrian/bicyclist travel. 4.11. To control weeds at a level acceptable to the STATE. 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. 2 CITY shall report all chemical spray operations quarterly (using Form LA17) to the STATE at the address below: Department of Transportation District 12, Maintenance Maintenance Manager 1750 East Fourth Street, Suite 100 Santa Ana, CA 92705 4.12. To remove LANDSCAPING, IMPROVEMENTS and appurtenances and restore STATE owned areas to a safe and attractive IMPROVEMENTS condition acceptable to STATE in the event this Agreement is terminated as set forth herein. 4.13. To furnish electricity and MAINTAIN lighting system and controls for all street lighting systems installed by and for CITY. 4.14. To inspect LANDSCAPING and IMPROVEMENTS on a regular monthly or weekly basis to ensure the safe operation and condition of the LANDSCAPING. 4.15. To expeditiously MAINTAIN, replace, repair or remove from service any LANDSCAPING and IMPROVEMENTS system component that has become unsafe or unsightly. 4.16. To MAINTAIN all sidewalks/bike paths within the Agreement limits of the STATE highway right of way, as shown on Exhibit A, at CITY 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 and IMPROVEMENTS in an expeditious manner. 4.17. To MAINTAIN all parking or use restrictions signs encompassed within the area of the LANDSCAPING. 4.18. To allow random inspection of LANDSCAPING, IMPROVEMENTS, street lighting systems, sidewalks/bike paths and signs by a STATE representative. 4.19. To keep the entire landscaped area policed and free of litter and deleterious material. 4.20. All work by or on behalf of CITY will be done at no cost to STATE. 5. STATE agrees to do the following: 5.1. May provide CITY with timely written notice of unsatisfactory conditions that require correction by the CITY. However, the non -receipt of notice does not excuse CITY from maintenance responsibilities assumed under this Agreement. 3 5.2. Issue 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 party to this Agreement, or affect the legal liability of either PARTY to this Agreement by imposing any standard of care respecting the design, construction and maintenance of these STATE highway improvements or CITY facilities different from the standard of care imposed by law. 6.2. If during the term of this Agreement, CITY should cease to MAINTAIN the LANDSCAPING and IMPROVEMENTS to the satisfaction of STATE as provided by this Agreement, STATE may either undertake to perform that MAINTENANCE on behalf of CITY at CITY's expense or direct CITY to remove or itself remove LANDSCAPING and IMPROVEMENTS at CITY's sole expense and restore STATE's right of way to its prior or a safe operable condition. CITY hereby agrees to pay said STATE expenses, within thirty (30) days of receipt of billing by STATE. However, prior to STATE performing any MAINTENANCE or removing LANDSCAPING and IMPROVEMENTS, STATE will provide written notice to CITY to cure the default and CITY will have thirty (30) days within which to affect that cure. 6.3. Neither CITY 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 STATE under or in connection with any work, authority or jurisdiction arising under this Agreement. It is understood and agreed that STATE shall fully defend, indemnify and save harmless CITY and all of its officers and employees from all claims, suits or actions of every name, kind and description brought forth under, including, but not limited to, tortious, contractual, inverse condemnation and 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 necessary to cure a noticed default on the part of CITY. 6.4. Neither STATE 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 connection with any work, authority or jurisdiction arising under this Agreement. It is understood and agreed that CITY shall fully defend, indemnify and save harmless STATE and all of its officers and employees from all claims, suits or actions of every name, kind and description brought forth under, including, but not limited to, tortious, contractual, inverse condemnation or other theories or assertions of liability occurring by reason of anything done or omitted to be done by CITY under this Agreement. 7. PREVAILING WAGES: 7.1. Labor Code Compliance- If the work performed on this Project is done under contract and falls within the Labor Code section 1720(a)(1) definition of a "public 4 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. 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 performed by the subcontractor is a "public work" as defined in Labor Code Section 1720(a)(1) and Labor Code Section 1771. Subcontracts shall include all prevailing wage requirements set forth in CITY's contracts 8. INSURANCE 8.1. SELF -INSURED - CITY is self -insured. CITY agrees to deliver evidence of self - insured coverage providing general liability insurance, coverage of bodily injury liability and property damage liability, naming the STATE, its officers, agents and employees as the additional insured in an amount of $1 million per occurrence and $2 million in aggregate and $5 million in excess. Coverage shall be evidenced by a certificate of insurance in a form satisfactory to the STATE that shall be delivered to the STATE with a signed copy of this Agreement in a form satisfactory to STATE, along with a signed copy of the Agreement. 8.2. SELF -INSURED- using Contractor - If the work performed on this Project is done under contract CITY shall require its contractors to maintain in force, during the term of this agreement, a policy of general liability insurance, including coverage of bodily injury liability and property damage liability, naming the STATE, its officers, agents and employees as the additional insured in an amount of $1 million per occurrence and $2 million in aggregate and $5 million in excess. Coverage shall be evidenced by a certificate of insurance in a form satisfactory to the STATE that shall be delivered to the STATE with a signed copy of this Agreement. 9. TERMINATION - This Agreement may be terminated by timely 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 STATE. 10. TERM OF AGREEMENT -This Agreement shall become effective on the date first shown on its face sheet and shall remain in full force and effect until amended or terminated at any time upon mutual consent of the PARTIES or until terminated by STATE for cause. PARTIES are empowered by Streets and Highways Code Section 114 & 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. 5 IN WITNESS WHEREOF, the PARTIES hereto have set their hands and seals the day and year first above written. THE City OF HUNTINGTON BEACH, a Municipal Corporation of the State of California Mayor/Chairmen Initiated and Approved STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION MALCOLM DOUGHERTY Director of Transportation By: By: i-ef2Z` e City Manager James Pinheiro Deputy District Director Operations and Maintenance District 12 ATTEST: City Clerk As to Form and Procedure: City Attorney 6 IN WITNESS WHEREOF, the PARTIES hereto have set their hands and seals the day and year first above written. CITY OF HUNTINGTON BEACH, California Municipal Corporation ., .%- Mayor Cit Clerk INITIATED AND APPROVED: irector of Public—Okorks REVI ND APPROVED: 1 Cit ; n ger APPROVED 01 7, 016 II STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION MALCOLM DOUGHERTY Director of Transportation IC James Pinheiro Deputy Director of Transportation Operations and Maintenance District 12 ATLANTA AVENUE CURB SIDEWALK 32+44.79 D� 0CITY RIGHT-0 -WAY BCR Q N 1215-6LC-0631 o PM 0.631 13 I Fp w N DEL ppR MATCH LEFT w l< PARCL. 1 cn m � mP// V A w p PR�E� w PARCEL 1 O ZD U Y m N J 0 PARCEL 2 m 2 J 00g��2 2 V11g 0 Q � OLL- m = o U '- a w E m w 13 a PARCEL V 8 p Mg' PARCEL 3 MATCH RIGHT MATCH SHEET 2 OF 2 LEGEND EXHIBIT "A" BEACH PROMENADE LANDSCAPE & IMPROVEMENTS AREA 21000-21190 BEACH BLVD., HUNTINGTON BEACH, CA WITHIN STATE RIGHT—OF—WAY LANDSCAPE MAINTENANCE AGREEMENT TO BE MAINTAINED BY CITY OF STATE OF CALIFORNIA — CITY HB HUNTINGTON BEACH WALDEN & ASSOCIATES Date 11-15-2016 Sheet 1 of 2 T%I MATCH SHEET 1 OF 2 C n PARCEL 2 w J Q 1215-6LC-0631 PM 0.631 MPQ QP MATCH LEFT Mp,Q 131 PARCEL 3 QPRc � � Q > o ,! o PARCEL 4 Of�22------------------- O w " Y 20pg/ � m ND' w � = w a �22 U o > LO 2pOg m Np O 13 m 2 -- PARCEL U 0 w ,20 m Q M 22+39.25 Q� MATCH RIGHT L LY PROPERTY LINE LEGEND EXHIBIT "A" BEACH PROMENADE LANDSCAPE & IMPROVEMENTS AREA 21000-21190 BEACH BLVD., HUNTINGTON BEACH, CA WITHIN STATE RIGHT-OF-WAY LANDSCAPE MAINTENANCE AGREEMENT TO BE MAINTAINED BY CITY OF STATE OF CALIFORNIA - CITY HB HUNTINGTON BEACH WALDEN & ASSOCIATES Date 11 — 15-2016 Sheet 2 of 2 � 3 � d Lo o � Boa 00 U N M p N U E ca N U) C Q Q a Q c0 0 `o -Z V 10 CDd i+ u' O in z Lo Q IDCD 0 = N a <c m _N U N N N O C (gyp C N (p L � N N C 0 LL �o 3 LL C R 2 N C - c' O N LL Of " Z o O H a� W °a w O z 0 w N F Q aU w Q= zV 0 O LL O N LLLL OLL LU U � > O� LU O wa a W U) g Of w m D z Z F U w O Of a z O Q- a U w w Q w a Q z z 0 z w Of O U z O 0 0 U 00 Q II W Q Of Z) Q of w0 Xzw a W F' w H z0 OO Q Of 2 LL U W W w U_ Of 2 a-J w Q Q U Q Q � Q U) U H W a O O Q H N Q w Q LL z O H IL _ 2 U N W 0 t] 3Sd3S10 J 'Ol3 'HlOW '3ldOS J Y SNOIOIS H N 3d31GVMJ9 w IL SS`d2iJ C] w U3A000Nnou9 Q a 'W'd O 1Ntfld 301 z AAI H z Q S8nUHS a S33UI J U_ 0 U c = m 000 U Q w a O ANNnS a Aanmo Y U W'd _ 'W'd U W1dO AONIM Ada w U- Of O LL w U z Q z w Z Q w a z z U H w U Of Of U)ac Q O O U a F- z a z O O U mmmm ��� 1mm ■■■■m • so ME 0 MENEM Immmm ,■■■■ ,■moll 1■■■■ Immmm ' ATTACHMENT #2 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder I 1I ] 1� IH� 11� 11III IIE� 1EIT III NO FEE *$ R 0 0 0 8 9 4 8 9 7 4$ 2016000652019 3:49 pm 12122116 217 40S Al2 17 0.00 0.00 0.00 0.00 48.00 0.00 0.00 0.00 (Space Above For Recorder's Use) [Goverrunent Code Sec. 6103 exempt]. LICENSE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH, AND BEACH PROMENADE, LLC, TO PROVIDE INSTALLATION AND MAINTENANCE OF LANDSCAPING IMPROVEMENTS IN THE PUBLIC RIGHT-OF-WAY This agreement (the "Agreement") is made and entered as of the // day of_ 20_,�6, by and between the CITY OF HUNTINGTON BEACH, a municipal corporation_ of the State of California, herein called "City," and BEACH PROMENADE, LLC, a California limited liability company, herein called "Licensee." RECITALS WHEREAS, Licensee is the owner of certain real property generally located along Atlanta Avenue east of Beach Boulevard in the City of Huntington Beach, County of Orange, State of California legally described in the attached Exhibit "A" and hereafter referred to as the "Site:" and City is the owner of a certain public rights -of -way and other property in the immediate vicinity of the Site depicted by hatching on the attached Exhibit "B" and hereinafter referred to as the "Improvement Area"; and California Department of Transportation, hereinafter referred to as "Caltrans," 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 In connection with the development of the Site and the approval of certain land use entitlements regarding the Site by City, Licensee was required by the City Zoning and Subdivision Ordinance to provide certain street trees and other landscaping and to maintain such street trees and other landscaping, together with certain other improvements (the "Improvements") to be constructed and/or installed in the Improvement Area by Licensee, in accordance with plans and specifications previously submitted by Licensee to City and approved by City, which plans and specifications are more particularly described below (the "Landscape Plans"); and This doaiment is solely for the offldal kWrm s of the Clry of Huntington 8e0kh, as contemplated under 00yWW*nt Code Sec 8103 snd 6hcuid b i reccni4w area of charge. 16-5175/134085 PD I WHEREAS, in connection with and as a condition of approval for development of the Site, City desires to assign responsibility for the installation and maintenance of landscaping and other improvements within the Improvement Areas, as defined below in Section 5, and the costs associated therewith in accordance with plans and specifications submitted by Licensee and as reasonably approved by City and the Caltrans; and The Improvements to be constructed and/or installed in the Improvement Area by Licensee described and depicted on the Landscape Plans shall be inspected and approved by City; and By this Agreement the parties hereto desire to clarify and specifically delineate their respective obligations with respect to the installation and maintenance of landscaping within the Improvements located within the Improvement Areas; NOW. THEREFORE, the parties hereto 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 other improvements within the Improvements Areas pursuant to the terms as set forth in this Agreement. 2. Term. The term of the License (the "Term") granted herein shall be perpetual, provided that City may terminate 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 insure to the benefit of the owner of the Property, as the burdened parcels, 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 remove the Improvements or restore the Improvement Areas to their previous condition as reasonably required by City. 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 alternative water and electrical supply sources to the Improvement Areas as reasonably required by 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 and Caltrans. The landscaping and other improvements within the Improvement Area 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: 16-5175/134085 PD 2 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. Hardscaping: Enhanced and concrete paving included 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 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 trimming or other corrective gardening; spraying grass and plants with both insecticides and herbicides; and, generally keeping the Improvement Areas in a clean, safe and attractive condition, taking into consideration normal growth of the landscape materials and a continuation of the aesthetic quality of the area. 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 objectionable noises, odors or 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 Paragraph 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, safe 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: Provide and apply fertilizer as necessary to sustain healthy growth. Maintain a separate irrigation system and pay all repairs, water and electrical cost. ii. Maintain the Improvement Areas to allow access by City personnel to City facilities and in a condition that is free from weeds, debris and harmful insects at all times. ill. Keep plantings trimmed to eye pleasing appearance. iv. Use only those pesticides and fertilizers approved by the State of California and in a manner consistent with label and legal restrictions. 16-5175/134085 PD 3 v. Remove and replace unhealthy, dead, invasive or unplanned plantings as they are observed. vi. 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 guarantee no offensive odors, gum, wax, litter, liquids or other materials are allowed to remain on or stain. vii. Maintain, repair and operate irrigation system in a manner that prevents water from flooding onto the right-of-ways. viii. 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.1. 300A standards. Any tree work not conforming to these requirements shall be subject to damage assessment by the City of Huntington Beach Tree Supervisor. 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 the contractor or persons responsible to the City. ix. If for any reason Licensee is unable to maintain the area in a manner satisfactory to the City, Licensee shall re -landscape the area to a condition acceptable to the City at Licensee's sole cost and expense. X. Remove landscaping and restore area to original condition prior to planting or to a condition acceptable to City representatives in the event this agreement is terminated under the terms set forth herein. xi. 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. xii. Conform to all applicable Best Management Practices set forth in the City of Huntington Beach Local Implementation Plan Section A-9 Existing Development Exhibit A-9.11 BMP Fact Sheet 1 C7 Landscape Maintenance and the Arboricultural and Landscape Standards Specification issued by the Department of Public Works. 16-5175/134085 PD 4 xiii. Maintenance of Hardscape Material. LICENSEE's maintenance obligations shall include all concrete and enhanced 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. b. 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 safe and hazardless manner, complying in all respects with applicable codes and ordinances. C. Siznaae. Licensee shall repair and maintain in perpetuity any signage constructed and installed on the Improvement Areas. 6. Plans and Specifications. Throughout the term of this License, Licensee shall perform, at its sole cost and expense, any and all repair, replacements or refurbishing to the Improvement Areas as necessary to bring the Improvement Areas into an operating condition, all in accordance with plans and specifications as submitted by Licensee to City and County of Orange, 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. S. 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. 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. 10. 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 material installed on the Improvement Areas and/or 16-5175/134085 PD 5 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 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 calendar days of the date of the breakage or destruction. Stolen items will be considered destroyed for purposes of this Section 10. 11. 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. 12. 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 in order to assist in obtaining the necessary permits, approvals and/or agreements required to permit Licensee such access. 13. 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, or to anyone holding the Improvement Areas through or under the Aareement. 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 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. 14. Assignment. The License herein granted is personal to Licensee any attempt to assign the License to any other entity shall require the prior approval of the City and is subject to the provisions set forth in Section 38 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. 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. 16-5175/134085 PD 6 15. 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. 16. Other Insurance. In addition to the workers' compensation insurance in Section 15 above and Licensee's covenant to indemnify City in Section 18 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, its officers; agents, and employees (the "Additionally Insured Parties") 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 Improvement Areas shall be deemed excess coverage and that Licensee's insurance shall be primary and non- contributory with any other valid and collectible insurance or self-insurance available to the Additionally Insured Parties. Any available insurance proceeds in excess of the minimum coverage amount specified herein shall be available to the Additionally Insured Parties. All coverage available to Licensee shall also be available to the Additionally Insured Parties. 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 full 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 a form which includes a designated general aggregate limit, such limit shall be not less than One Million Dollars ($1,000,000). 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. Under no circumstances shall said above mentioned insurance contain a self -insured retention, or "deductible" or any similar form of limitation on the required coverage in excess of Twenty Five Thousand Dollars ($25,000.00). Licensee shall be responsible for causing all Subcontractors to maintain the same types and limits of insurance coverage as that required of Licensee by this Agreement. 16-5175/134085 PD 7 17. Certificate of Insurance: Additional Insured Endorsements. Prior to conducting any activity pursuant to this Agreement, Licensee shall furnish to City certificates of insurance subject to approval of the City Attorney 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 thirty (30) days prior written notice to City. 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 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 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 Additionally Insured Parties as Additional Insureds, shall be provided to the City Attorney for approval prior to the commencement of any work by Licensee pursuant to this Agreement. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. Licensee shall require all subcontractors to name Licensee, its officers, employees and agents, and the Additionally Insured Parties as Additional Insureds on all subcontractor insurance policies using ISO form number CG 20 38 04 13 or coverage at least as broad. Licensee shall verify that every subcontractor policy endorsement complies with the requirements set forth herein. 18. Indemnification and Hold Harmless. Licensee hereby agrees to protect, defend, indemnify and hold and save harmless City, 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 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. Licensee shall conduct any defense required hereunder at its sole cost and expense. 19. 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. License agrees to indemnify and hold City harmless from and against all claims or liens of workers and material suppliers. 16-5175/134085 PD 8 20. Rules and Regulations. Licensee agrees to obey and observe (and cause its officers, employees, contractors, licensees, invitees and all other 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. 21. 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 23, 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. A late charge of ten percent (10%) shall be applied after any payment hereunder is due but unpaid. In addition, one and a half (1-1/2%) interest per month shall be added for each month payment hereunder is due but unpaid. In the event City fails to perform its obligations hereunder after a reasonable period of time, including, but not limited to, repairing any damage to Licensee's Improvements, Licensee shall first provide written notice to Licensee in the manner and at the address provided in Section 23, describina, the alleged default by Licensee. If City fails to cure within thirty (30) calendar days of receipt of the notice, Licensee may cause any such work to be performed and City shall promptly reimburse Licensee an amount equal to the actual costs incurred by Licensee to repair such Licensee's Improvements, which reimbursement shall be due no later than thirty (30) days after 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. 22. 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. 23. 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 (ill) via facsimile transmission (with a copy to also be placed in the United States Mail), and addressed as follows: 16-5175/134085 PD 9 TO CITY: Director of Public Works City of Huntington Beach 2000 Main Street Huntington Beach, CA 92647 Facsimile: 374-1573 TO LICENSEE: Beach Promenade, LLC 21190 Beach Boulevard Huntington Beach, CA 92648 Attn: Bijan Sassounian Facsimile: 714 374-2211 Any mailing address or telefacsimile number may be changed at any time by dying 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. 24. 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. 25. Recordation. Licensee shall record this Agreement in the Official Records of the County of Orange; State of California. 26. Non -Exclusivity. This License is non-exclusive, and the Improvement Areas shall at all times be open to use by the general public. 27. Nondiscrimination. Licensee agrees that in the performance of this Agreement and use of the Improvement Areas it will not engage in, or permit its agents to engage in, discrimination against any person because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status or sex. 28. 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. 29. 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. 30. 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 16-5175/134085 PD 10 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. 31. 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 form the nonprevailing party. 32. City Right to Enforce. Notwithstanding the provisions of Section 31 above, Licensee acknowledges and agrees that the City has the right and standing, but not the obligation. to enforce any of the terms of this Agreement by any appropriate legal and/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. 33. 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. 34. Amendments. This Agreement may be amended, modified, and/or supplemented only by the written agreement of the Owner and the City, or the successors and assigns of each. 35. Time. Time is of the essence of this Agreement and each and every part hereof. 36. 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. 37. Delegation of Authority. City hereby delegates to City Administrator or his or her designee the authority to implement all provisions of this Agreement. 38. Successors and Assigns. Subject to Section 14 above, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns (except as otherwise specifically provided in Section 39 below), including without limitation all grantees and other successors -in -interest of City and Licensee in any portion of the Improvement Areas. Subject to Section 14 above, Licensee shall provide prior notice of any assignment of Licensee's rights and obligations hereunder and any such assignment shall either (a) include the insurance provisions hereunder or (b) shall include insurance provisions approved by City. 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 not for the benefit of nor give rise to any claim or cause of action by any other person. 16-5175/134085 PD 11 40. Survival. All representations, warranties, waivers, and indemnities given or made hereunder shall survive termination of this Agreement. 41. Authority to Sian. The individual executing this Agreement on behalf of Licensee hereby represents that he or she has full authority to do so and to bind Licensee to perform pursuant to the terms and conditions of this Agreement. IN WITNESS WHEREOF, the parties Ike,reto have caused this Agreement to be executed by and through their authorized officers onj 9 20 /1, . LI CEN SEE: BEACH PROMENADE. LLC! a California Limited Liability Company.__ !' �0 print name ITS: (circle one) Chairman/President/Vice Presi dent/M anaaer A By:2✓� _ print name ITS: (circle one) Secretary/Chief Financial Officer/Asst. Secretary — Treasurer/Manager CITY: CITY OF HUNTINGTON BEACH, a INITIATED AND APPROVED: (- . !9�WZ--- Director of Pu is Works REVIE APPROVED: ty anager n»:Z!]i/�IIt, Attorney 16-5175/134085 PD 12 California All -Purpose Certificate of 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 �' _ �� On ��� ""' \ �) before me, personally appeared Name of Notary Public, Title CIA_ C, t Name of Signer (1) —J -�S C) Vim. ✓, 1 l L --'— Name of Signer (2) 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 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. I certify under PENALTY OF PERJURY under the laws of the State-of�California that the foregoing paragraph is true and correct.: , ..'^� WITNESS rrtyhand nd�fficial�l. ,,.� 'y c '. Signature of'iS4ry PWic-- O ZIONAL INFORMATION Seal Although the information in this section is not required by law, it could prevent fraudulent removal and reattachment of this acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document. Description of Attached Document The preceding Certificate of Acknowledgment is attached to a document titled/for the purpose of containing pages, and dated The signer(s) capacity or authority is/are as: ❑ Individual(s) ❑ Attorney -in -fact ❑ Corporate Officer(s) ❑ Guardian/Conservator ❑ Partner - Limited/General ❑ Trustee(s) ❑ Other: representing: Title(s) Name(s) of Person(s) Entity(ies) Signer Is Representing Method of Signer Identification Proved to me on the basis of satisfactory evidence: ❑ form(s) of identification ❑ credible witness(es) Notarial event is detailed in notary journal on: Page # Entry # Notary contact: Other ❑ Additional Signer ❑ Signer(s) Thumbprints(s) v luua-lulb Notary Learning center - All Rights Reserved You can purchase copies of this form from our web site at www.TheNotarysStore.com 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. ACKNOWLEDGMENT STATE OF CALIFORNIA ss COUNTY OF ORANGE On December 22, 2016 before me, P. L. Esparza, Notary Public, personally appeared Robin Estanislau and Barbara Delgleize who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons 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. WITNESS my hand and official seal. (Notary SignatAre) I/ (i r7r, P. L. ESPARZA Commission # 2032750 Q ='� Notary Public - California z Z :P._� Z ' Orange County D My Comm. Expires Aug 4, 2017 (Seal) PARCEL MAP NO. 2009-122, IN STATE OF CALIFORNIA, AS SHOWN 20 INCLUSIVE, RECORDS OF THE kSDEN & SOCIATES THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, ON THE MAP FILED IN BOOK 371, PAGES 17 THROUGH COUNTY RECORDER OF SAID COUNTY. CIVIL ENGINEERS - LAND SURVEYORS - PLANNERS 2552 WHITE ROAD, SUITE B •IRVINE, CA 92614-6236 (949) 660-0110 FAX: 660-0418 1:01011:��_, BEACH PROMENADE 21000-21190 BEACH BLVD., HUNTINGTON BEACH, CA LANDSCAPE MAINTENANCE AGREEMENT CITY HB — BEACH PROMENADE, LLC W.O. No. 1623-478-001 Date 1 1-15-2016 Engr. B.J.W. Chk'd. J.W. Sheet 1 of 1 m rK U w 0 CURBS ATLANTA AVENUE %) LCITY RIGHT—OLWAY F 0® / PARCEL 2 0 = Pp / w V) I / PARCEu 1 2p0g,�22 CEL 2 P Mg J MATCH SHEET 2 OF 2 n CURB—\ LANDSCAPE & IMPROVEMENTS AREA WITHIN STATE RIGHT—OF—WAY TO BE MAINTAINED BY BEACH N PROMENADE. LLC 0 6i LANDSCAPE & IMPROVEMENTS AREA WITHIN CITY RIGHT—OF—WAY V) TO BE MAINTAINED BY BEACH PROMENADE. LLC ALDEN & EXHIBIT "B" SBEACH PROMENADE SOCIATES 21000-21190 BEACH BLVD., HUNTINGTON BEACH, CA LANDSCAPE MAINTENANCE AGREEMENT CIVIL ENGINEERS - LAND SURVEYORS - PLANNERS CITY HB — BEACH PROMENADE, LLC 2552 WHITE ROAD, SUITE B •IRVINE, CA 92614-6236 W.O. No. 1623-478-001 Date 1 1-15-2016 (949) 660-0110 FAX: 660-0418 Engr. B.J.W. Chk'd. S.K. Sheet 1 of 2 LANDSCAPE & IMPROVEMENTS AREA WITHIN STATE RIGHT—OF—WAY TO BE MAINTAINED BY BEACH PROMENADE, LLC. N MATCH SHEET 1 OF 2 0 13 PARCE9 1 w J Q N aAP.P m m U 0 a w J 0 m v Q w In I'm MATCH LEFT J PP P PRoE� M I 0 � U PARCEL 3 PARCEL 4 ►'i MATCH RIGHT '- — OItTHEWLY PROPERTY LINE vk DEN & OCIATES EXHIBIT "B" SBEACH PROMENADE 21000-21190 BEACH BLVD., HUNTINGTON BEACH, CA LANDSCAPE MAINTENANCE AGREEMENT CIVIL ENGINEERS - LAND SURVEYORS - PLANNERS CITY HB - BEACH PROMENADE, LLC 2552 WHITE ROAD, SUITE B •IRVINE, CA 92614-6236 W.O. No. 1623-478-001 Date 1 1-15-2016 (949)660-0110 FAX:660-0418 Engr. B.J.W. Chk'd.S.K. Sheet 2 of 2 ATTACHMENT #3 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk ) City of Huntington Beach ) 2000 Main Street ) Huntington Beach, CA 92648 ) Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder I IN T 1 �1� IN� 1111 11 11[ 1�P� 11[1 1[ NO FEE *$ R 0 0 0 8 9 4 8 9 7 6$ 2016000652020 3:50 PM 12/22/ 16 217 405 E02 8 0.00 0.00 0.00 0.00 21.00 0.00 0.00 0.00 Space above this line for Recorder's use. This document is exempt from recording fees pursuant to Government Code Section 6103. SPECIAL UTILITY EASEMENT AGREEMENT For valuable consideration, receipt of which is hereby acknowledged Beach Promenade, LLC. a California limited liability company. (hereinafter "GRANTOR") hereby grants and conveys to the City of Huntington Beach. a municipal corporation of the State of California, (hereinafter "CITY") a perpetual non- exclusive easement and right of way to install, maintain. repair, improve and relocate a pipeline or pipelines. with incidental ordinary and necessary appurtenances and connection(s), in. on and under said real property, for its entire length and full width as described on Exhibit A (attached hereto and incorporated by this reference). and made a part hereof; and to construct structures for the conveyance of storm water, including but not limited to, manholes and service connection structures appurtenant to said line or lines, which structures may extend above the surface of the ground: together with the right to enter and traverse upon other land of Grantor in order to obtain access to and along said strip of land and to deposit tools, implements and material thereon by CITY, its officers, agents and employees or by persons under contract to CITY, whenever and wherever necessary for the purpose of laying, constructing, reconstructing, renewing, inspecting, maintaining, operating, repairing, enlarging, replacing and using said storm drain pipeline or lines. Grantor retains the right to use the surface areas and the non-exclusive right to use the subsurface areas of the easement and right of way in such manner as Grantor shall deem proper. Grantor may request CITY to change or relocate CITY's storm drain pipeline or any equipment incidental thereto, at Grantor's expense. In the performance of any of the work which CITY is authorized to perform in the area of such easement and right of way, CITY shall avoid, to the extent reasonably possible, any damage or interference with other installations in the areas of such easement or right of way. Grantor shall not alter the grade, surface or overhead conditions without prior written approval from the CITY. There shall also be no less than 20 feet of clear vertical space immediately above the surface areas of the easement measured from finished ground level, nor shall any trees be located within, or overhang into the easement ground area, with the exception of the patio cover and canopy at Building 'T" The CITY agrees to confer with Grantor thereof in order that CITY activity will result in a minimum of inconvenience or hardship. i`hia oa.,,r�nt is sotety ira tr�� ,�rci.�:;. bu",es5 of the City of HunhoQtr Reach, as oontemplated unaiv Ccrve mi *n t Code Sec. 6103 n; to 16-5227/135352 CITY accepts the easement and right of way granted hereby with the knowledge that Grantor intends to improve the surface of the easement herein granted and use the same for motor vehicle travel, pedestrian access, landscaping and related purposes. In making any installation or in the performance of any work, CITY shall adequately protect its installations against such use. In making any use of this easement, CITY shall: (a) Make adequate provision for the safet}, and convenience of all persons using such areas or other improvements or facilities in such areas; (b) Replace and restore the areas and surface improvements to the condition in which they were prior to the performance of such work, except for any enhanced pavement treatments other than asphalt concrete, any landscaping, and any landscape irrigation facilities which shall be the responsibility of Grantor; and (c) Have no obligation for maintenance, repair or replacement of enhanced pavement treatments, landscaping or irrigation facilities; and (d) Hold Grantor and other users of the easements harmless against all claims, liabilities or expenses, including costs and attorneys' fees, arising from CITY's use of such area In its use of the easement and right of way herein granted, CITY shall not permit any claim, lien or other encumbrance arising from such use to accrue against or attach to said easement and right of way or the interest of Grantor in the land in, on and under which said easement is granted. If the City abandons the onsite public storm drain system, a formal easement vacation process will be initiated by the Public Works Department within 90 days of such abandonment. IN WITNESS WHEREOF, this Special Utility Easement has been executed by the Grantor herein on 2016. GRANTOR BEACH PROMENADE. LLC. a -.Cali limited liability ccompanv' IC ITS: (circle one) Chairman/PresidentNice President AND By:: r �z print name ITS: (circle one) Secretary/Chief Financial Officer/Asst. Secretary - Treasurer CITY OF HUNTINGTON BEACH, a municipal City Clerk APPROVED AS T ----- -- 77 City Attorney 16-5227/135352 2 California All -Purpose Certificate of 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 Califor i County of r� On 6 I lll, ( before me, personally appeared Name of Notary Public, Title ✓\� Name of Signer (1) —Name of Signer (2) 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 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. I certify under PENALTY OF PERJURY under the laws of the.State,of California that the foregoing paragraph is true and dorrect. WITNESS my hand an;d'off0bi seal. Notary Public 3+c".u*�-a�a �h�.m3.F.�es�'a-<'r r•-^ .`� �+b r:'�Rr+• y, L. t k; 5 ft`? }.`..i 3 1 fei g ��; `�b e _f ^L riC -� 3iitlrl5P33 �1 a . to 2017T, Seal OPTIONAL INFORMATION Although the information in this section is not required by law, it could prevent fraudulent removal and reattachment of this acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document. Description of Attached Document The preceding Certificate of Acknowledgment is attached to a document titled/for the purpose of containing pages, and dated The signer(s) capacity or authority is/are as: ❑ Individual(s) ❑ Attorney -in -fact ❑ Corporate Officers) ❑ Guardian/Conservator ❑ Partner - Limited/General ❑ Trustee(s) ❑ Other: representing: Title(s) Name(s) of Person(s) Entity(ies) Signer is Representing slmm.. i, Method of Signer Identification Proved to me on the basis of satisfactory evidence: ❑ form(s) of identification ❑ credible witness(es) Notarial event is detailed in notary journal on: Page # Entry # Notary contact: Other ❑ Additional Signer ❑ Signer(s) Thumbprints(s) © 2009-2015 Notary Learning Center - All Rights Reserved You can purchase copies of this form from our web site at www.TheNotarysStore.com 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. ACKNOWLEDGMENT STATE OF CALIFORNIA ) ) ss COUNTY OF ORANGE ) On December 22, 2016 before me, P. L. Esparza, Notary Public, personally appeared Robin Estanislau and Barbara Delgleize who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons 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. P. L. ESPARZA WITNESS my hand and official seal. Commission # 2092750 a -�� Z .. ` Notary Public -California z Z ''' Orange County My Comm. Expires Aug 4, 2017 (Seal) otary Si nat e) BEING PORTIONS OF PARCELS 1 THROUGH 4 INCLUSIVE, OF PARCEL MAP NO. 2009-122, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON THE MAP FILED IN BOOK 371, PAGES 17 THROUGH 20 INCLUSIVE, OF PARCEL MAPS, RECORDS OF THE COUNTY RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS: A STRIP OF LAND 10.00 FEET IN WIDTH, THE CENTERLINE OF WHICH IS DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE SOUTHERLY LINE OF SAID PARCEL 4, SAID POINT BEING SOUTH 89025'31" EAST 7.22 FEET FROM THE SOUTHWESTERLY CORNER OF SAID PARCEL 4; THENCE NORTH 00017'38" EAST 119.62 FEET; THENCE NORTH 22028'24' EAST 9.26 FEET; THENCE NORTH 00017'38" EAST 627.60 FEET TO THE BEGINNING OF A NON —TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 22.50 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 89042'14" WEST; THENCE EASTERLY ALONG SAID CURVE AN ARC DISTANCE OF 35.34 FEET THROUGH A CENTRAL ANGLE OF 89058'58", A RADIAL LINE TO SAID POINT BEARS NORTH 00°16'43" EAST; THENCE SOUTH 89°43'12" EAST 42.10 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 22.50 FEET; THENCE NORTHERLY ALONG SAID CURVE AN ARC DISTANCE OF 35.34 FEET THROUGH A CENTRAL ANGLE OF 90000'00"; THENCE NORTH 00016'48" EAST 176.75 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 22.50 FEET; THENCE WESTERLY ALONG SAID CURVE AN ARC DISTANCE OF 35.34 FEET THROUGH A CENTRAL ANGLE OF 90000'00"; THENCE NORTH 89043'12" WEST 55.68 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 11.25 FEET; THENCE NORTHERLY ALONG SAID CURVE AN ARC DISTANCE OF 5.89 FEET THROUGH A CENTRAL ANGLE OF 30000'00"; THENCE NORTH 59043'12" WEST 3.74 FEET TO THE POINT OF TERMINATION. THE SIDE LINES OF SAID STRIP ARE TO BE LENGTHENED OR SHORTENED SO AS TO INTERSECT AT ALL ANGLE POINTS AND TERMINATE AT THE SOUTHERLY LINE OF SAID PARCEL 4. AS SHOWN ON THE SKETCH ATTACHED HERETO AND MADE A PART HEREOF. ALDEN & SSOCIATES CIVIL ENGINEERS - LAND SURVEYORS - PLANNERS 2552 WHITE ROAD, SUITE B •IRVINE, CA 92614-6236 (949) 660-01 I0 FAX: 660-0418 EXHIBIT "A" LEGAL DESCRIPTION FOR STORM DRAIN EASEMENT BEACH PROMENADE HUNTINGTON BEACH, CA W.O. No. 1623-478-001 Date 12/12/16 Engr. B.J.W. Chk'd. J.W. Sheet 1 of 4 w J O m 2 Q w m I I PARCEL 1 I I ATLANTA AVENUE STORM DRAIN EASEMENT SHEET 3 SHEET 2 -a-' -al PARCEL 3 `LO N0� STORM DRAIN I EASEMENT 0 i PARCEL 4 N I-\ Q M� PARCEL 5 SHEET INDEX \�NNL LANp S ALLEN�91G�F No.-1914 v ��qlF OF C A`\�Q���Q 150 75 0 150 SCALE IN FEET inch =150 ft. LINE TABLE LINE BEARING DISTANCE L1 N 00017'38" E 119.62' L2 N 22028'24' E 9.26' L3 N 89043' 12" W 42.10' L4 N 00016'48" E 176.75' L5 N 89043' 127 W 55.68' L6 N 59043' 12" W 3.74' CURVE TABLE CURVE DELTA RADIUS LENGTH Cl 89058'58" 22.50' 35.34' C2 90000'00" 22.50' 35.34' C3 30000'00" 11.25' 5.89' ks DEN & EXHIBIT "A" SOCIATES SKETCH TO ACCOMPANY A LEGAL DESCRIPTION FOR STORM DRAIN EASEMENT BEACH PROMENADE CIVIL ENGINEERS - LAND SURVEYORS - PLANNERS HUNTINGTON BEACH, CA 2552 WHITE ROAD, SUITE B-IRVINE, CA 92614-6236 W.O. No. 1623-478-001 Date 12/12/16 (949) 660-0110 FAX: 660-0418 Engr. B.J.W. Chk'd. J.W. Sheet 2 of 4 SEE NOTE: SEE SHEET 1 OF 3 FOR LINE AND CURVE TABLES. W J m Q W m POINT OF BEGINNING 0 20 0 40 SCALE IN FEET 1 inch = 40 ft. SHEET 3 I MPQ PARCEL 3 Ili I to I I� II I I co I I� CD I to ,, Iz o I I STORM DRAIN EASEMENT 00 L2 N� o I 11 PARCEL 4 CDf I I 1- 10.00, 5.00' 5.00' J / III P M0 I I I I I I �I 7.22' N 89025'31" W 401.56'— vk DEN & EXHIBIT "A" SOCIATES SKETCH TO ACCOMPANY A LEGAL DESCRIPTION FOR STORM DRAIN EASEMENT BEACH PROMENADE CIVIL ENGINEERS - LAND SURVEYORS - PLANNERS HUNTINGTON BEACH, CA 2552 WHITE ROAD, SUITE B •IRVINE, CA 92614-6236 W.O. No. 1623-478-001 Date 1 2/1 2/1 6 (949) 660-0I 10 FAX: 660-0418 Engr. B.J.W. Chk'd. J.W. Sheet 3 of 4 L �ANp NOTE: ALLEN�9l0�� SEE SHEET 1 OF 3 O LINE AND CURVE TABLES. w 00 0 0 0 KA STORM DRAIN EASEMENT - 5.00' �6 C3 —L5— — — Q � \ PP I I 10.00' 5.00' � QI I 1�1 � 1 J I ICI � � I WI I PARCEL 1 I I I 1 1 �I I1 of I I :Ed �r---L3--- AGO / CN89042'14'_W (RAD)_ �22 10.00' 2ppg' 5.00' I 1 gyp. I I I N I� 1 I I W I 100 III CDPARCEL 2CD 0 to SEE SHEET 2 ' m ALDEN & EXHIBIT "A" SKETCH TO ACCOMPANY A LEGAL DESCRIPTION SSOCIATES FOR STORM DRAIN EASEMENT BEACH PROMENADE CIVIL ENGINEERS - LAND SURVEYORS - PLANNERS HUNTINGTON BEACH, CA 2552 WHITE ROAD, SUITE B •IRVINE, CA 92614-6236 W.O. No. 1623-478-001 Date 1 2/1 2/1 6 (949) 660-0110 FAX: 660-0418 Engr. B.J.W. Chk'd. J.W. Sheet 4 of 4