HomeMy WebLinkAboutLan Nguyen - 2016-03-07Dept ID PW 16-009 Page 1 of 2
Meeting Date 3f7/2016
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
MEETING DATE: 3/7/2016
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 and recordation of a License Agreement with
Lan Nguyen for Landscape and Hardscape Improvements in the Public Right -of -
Way at 956 11th Street
Statement of Issue
The property owner at 956 11"' Street (Lan Nguyen) requests that a License Agreement be
executed with the City of Huntington Beach for the maintenance and liability of the landscape and
hardscape improvements within the public right-of-way along the property frontage
Financial Impact
No funding is required for this action
Recommended Action
Approve and authorize the Mayor and City Clerk to execute and record the "License Agreement
Between the City of Huntington Beach and Lan Nguyen to Provide Maintenance of Landscaping
and Hardscaping Improvements in the Public Right -of -Way" along the frontage of the property
located at 956 11 th Street (Attachment 1)
Alternative Action(s)
Do not authorize execution of the License Agreement and direct staff accordingly Without a
License Agreement, the property owner will be required to remove all partially constructed
improvements (including retaining wall) constructed in the public right-of-way The City would then
be responsible for maintenance and liability within this public right-of-way area, increasing the
maintenance responsibilities already burdened by City forces
Analysis
The project site is located at 956 1 Vh Street (Attachment 2) The property owner recently renovated
their home and was required to make additional public improvements along their property frontage
pursuant to City of Huntington Beach Zoning Code Section 230 84 The requirements consisted of
replacing portions of their driveway, curb, gutter and sidewalk, as well as the construction of an
ADA accessible ramp After completing construction of these required improvements, the property
owner began construction of a planter wall along the back of the sidewalk fronting their property,
which they mistakenly believed to be their property line The adjacent property has not made
dedications for the ultimate right-of-way at this time The owner was required to provide a transition
from the new improvements to the existing adjacent improvements The improvements will be up to
eight (8) feet into the public right-of-way The wall, slope and landscaping improvements will
continue to allow beneficial use of the public sidewalk and includes enhanced sloped landscaping
providing aesthetic appeal for the right-of-way These improvements could only be allowed through
xB -303- Item 14. - 1
Dept ID PW 16-009 Page 2 of 2
Meeting Date 3I7/2016
the execution of a License Agreement that would require the property owner to be responsible for
maintenance and liability for these improvements in the public right of way
Staff has taken this request into consideration and determined that execution of a License
Agreement is the appropriate mechanism to allow the owner to retain these improvements in the
public right of way, as well as to address the maintenance and liability of these landscape and
hardscape improvements (e g planter wall) The Agreement has been prepared, signed by the
property owner, approved "as to form" by the City Attorney, and is now ready for final City approval
and execution
Environmental Status
The subject request is exempt pursuant to the California Environmental Quality Act
Strategic Plan Goal
Enhance and maintain infrastructure
Attachment(s)
1 License Agreement between the City of Huntington Beach and Lan Nguyen to provide
installation and maintenance of landscaping and Hardscaping Improvements In the Public
Right -of -Way (Note If the agreement is approved by City Council, the property owner will
submit a Plat Map and Legal Description prepared by a licensed civil engineer, for City staff
approval, and ultimate attachment to the License Agreement )
2 Map of License Agreement Boundary
3 Photograph of Right -of -Way
Item 14. - 2 xB -304-
ATTACHML
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RECORDING REQUESTED BY:
CITY OF HUNTINGTON BEACH
WHEN RECORDED MAIL TO:
City Clerk
City oi'Huntington Beach
P.O. Box 190 / 2000 Main Street
Huntington Beach, CA 92648
Fee exempt per Government Code § 6103
Retarded in Official Records, Orange County
Hugh Nguyen, Clerk -Retarder
III �1 �1� 111� 11� 111111 �] 111111111 �1� INII NO FEE
*$ R 0 0 0 8 3 6 2 2 3 0$
2016000207075 9:54 am 05110116
7 402 Al2 15
0.00 0.00 0.00 0.00 42.00 0.00 0.00 0.00
SPACE AI3OVE THIS LINE- FOR RECORDER'S USE
LICENSE AGREEMENT BETWEEN
THE CITY OF HUNTINGTON BEACH AND LAN NGUYEN TO PROVIDE
INSTALLATION AND MAINTENANCE OF LANDSCAPING AND HARDSCAPING
IMPROVEMENTS IN THE PUBLIC RIGHT-OF-WAY
This License Agreement (the "Agreement") is made and entered into by and between the CITY
OF HUNTINGTON BEACH, a California municipal corporation, hereinafter referred to as "CITY,"
and LAN NGUYEN, hereinafter referred to herein as "LICENSEE."
WHEREAS, LICENSEE is the owner of certain real property located in the City of Huntington
Beach, County of Orange, State of California, which is more particularly described in the legal
description attached hereto as Exhibit "A" and incorporated by this reference (the "Property"); and
CITY is the owner of that certain area of public right-of-way in the immediate vicinity of the
Property as depicted on Exhibit "B" attached hereto and incorporated herein by this reference (the
"Improvement Area"); and
LICENSEE desires to assume responsibility for the installation and maintenance of landscaping
and hardscaping within the Improvement Area, 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
By this Agreement, CITY and LICENSEE desire to clarify and specifically delineate their
obligations with respect to the installation and maintenance of hardscape and landscaping within the
Improvement Area,
NOW, THEREFORE, in consideration of the promises and agreements hereinafter made and
exchanged, CITY and LICENSEE covenant and agree as follows:
1. GRANT OF LICENSE. Subject to terms and conditions hereinafter set forth, CITY hereby
hereby grants to LICENSEE a non-exclusive, revocable license ("License") to install and maintain
landscaping and hardscaping within the Improvement Area pursuant to the terms as set forth in this
Agreement.
15-4975/128127
RECORDING REQUESTED BY:
CITY OF HUNTINGTON BEACH
WHEN RECORDED MAIL- TO:
City Clerk
City of Huntington Beach
P.O. Box 1.90 / 2000 Main Street
Huntington Beach, CA 92648
Fee exempt per Government Code § 6103
SPACE, ABOVE, THIS LINE FOR RECORDER'S USE
LICENSE AGREEMENT BETWEEN
THE CITY OF HUNTINGTON BEACH AND LAN NGUYEN TO PROVIDE
INSTALLATION AND MAINTENANCE OF LANDSCAPING AND HARDSCAPING
IMPROVEMENTS IN THE PUBLIC RIGHT-OF-WAY
This License Agreement (the "Agreement") is made and entered into by and between. the CITY
OF HUNTINGTON BEACH, a California municipal corporation, hereinafter referred to as "CITY,"
and LAN NGUYEN, hereinafter referred to herein as "LICENSEE."
WHEREAS, LICENSEE is the owner of certain real property located in the City of Huntington
Beach, County of Orange, State of California, -which is more particularly described in the legal
description attached hereto as Exhibit "A" and incorporated by this reference (the "Property"); and
CITY is the owner of that certain area of public right-of-way in the immediate vicinity of the
Property as depicted on Exhibit "B" attached hereto and incorporated herein by this reference (the
"Improvement Area"); and
LICENSEE desires to assume responsibility for the installation and maintenance of landscaping
and hardscaping within the Improvement Area, 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
By this Agreement, CITY and LICENSEE desire to clarify and specifically delineate their
obligations with respect to the installation and maintenance of hardscape and landscaping within the
Improvement Area,
NOW, THEREFORE, in consideration of the promises and agreements hereinafter made and
exchanged, CITY and LICENSEE covenant and agree as follows:
1. GRANT OF LICENSE. Subject to terms and conditions hereinafter set forth, CITY hereby
hereby grants to LICENSEE a non-exclusive, revocable license ("License") to install and maintain
landscaping and hardscaping within the Improvement Area pursuant to the terms as set forth in this
Agreement.
15-4975/ 128127
2. TERM. The tern of the License (the "Tenn") granted herein shall be perpetual, provided that
CITY may terminate the License and this Agreement upon thirty (30) days written notice to
LICENSEE.
3. TERMINATION. In the event of any such termination, the CITY may, at its option, either:
(a) at its sole expense, disconnect existing water and electrical supply sources to the
Improvement Area from the Property (leaving the water and electrical systems serving the Property
fully functional and in compliance with law), and construct and reconnect CITY water and electrical
supply sources to the Improvement Area, or
(b) continue to use water and electricity from. the Property for the Improvement Area, in
which case CITY shall agree in writing, upon terms acceptable to the parties, to reimburse LICENSEE
on a monthly basis for the reasonable costs of such water and electricity, and, at its sole expense, to
maintain in a good condition and repair the portion of the water and electrical systems located in the
Improvement Area.
4. DESCRIPTION OF IMPROVEMENTS. All improvements installed within the Improvement
Area shall be as depicted on those certain plans and specifications as approved by the CITY. 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:
Landscaping, Irrigation Systems and Plant Material: Plants and trees in accordance with the
Landscaping Plans submitted by LICENSEE and approved by the CITY and the irrigation
systems serving the same.
Hardscaping: Enhanced and concrete paving including sidewalks, retaining was, driveways,
access ramps and stairs in accordance with the precise grading plans 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 Area, including, but not
limited to: sidewalk cleaning; trash disposal; signs; pedestrian scale lighting (defined as 14-foot high
street Lamps); 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 Area
in a clean, secure and attractive condition, taking into consideration normal growth of the landscape
materials and a continuation of the aesthetic quality of the area. LICENSEE agrees to maintain and
keep the Improvement Area in good condition and repair, free and clear of litter and debris and free
from any nuisances and to comply with all health and police regulations, in all respects at all times.
LICENSEE agrees to dispose of litter and debris in a sanitary and legal manner and location. All of
the responsibilities listed in this Paragraph 5 (including subparts) shall collectively be referred to as
"Maintenance Responsibilities."
15-4975/128127 2
(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 Area in a clean,
secure and attractive condition, taking into consideration normal growth of the landscape materials
and a continuation of the aesthetic quality of the Improvement Area, including but not limited to the
following:
1. Provide and apply fertilizer as necessary to sustain healthy.growth.
2. Maintain the Improvement Area to allow access by CITY personnel to CITY
facilities and in a condition that is substantially free from weeds, debris and harmful insects at all
times.
3. Keep plantings trimmed to eye pleasing appearance.
4. Use only those pesticides and fertilizers approved by the State of California and
in a manner consistent with label and legal restrictions.
5. Remove and replace unhealthy, dead, invasive or unplanned plantings as they
are observed.
6. Keep the entire area policed and free of litter and deleterious material.
LICENSEE shall. provide trash pick-up, sweeping, and clean-up as required to. ensure no offensive
odors, gum, wax, litter, liquids or other materials are allowed to remain on or stain paving, planters,
containers, decorative features, artwork or other surfaces.
7. Maintain, repair and operate irrigation. system in a manner that prevents water
from flooding onto the right -of ways.
8. All tree trimming shall be done by an I.S.A. Certified Arborist or an I.S.A.
Certified tree worker under the direct supervision of an I.S.A. Certified Arborist. Said trimming shall
be per the International Society of Arborist, A.N.S.I. 300A standards. Any tree work not conforming
to these requirements shall be subject to damage assessment by the City 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 LICENSEE
to the CITY.
9. If for any reason LICENSEE is unable to maintain the Improvement Area in a
manner satisfactory to the CITY, LICENSEE shall re -landscape the Improvement Area to a condition
acceptable to the CITY at LICENSEE's sole cost and expense.
10. Control and maintain the Improvement Area 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.
15-4975/128127 3
11. Conform to all applicable Best Management Practices set forth in the CITY'S
Local Implementation Plan Section A-9, Existing Development Exhibit A-9.11, BMP Fact Sheet 1C7
Landscape :Maintenance and the Arboricultural and Landscape Standards Specification issued by the
Department of Public Works.
(b) Maintenance of Hardscape Material. LICENSEE's maintenance obligations shall
include all concrete and enhanced hardscaping material including all sidewalks, driveways, retaining
walls, access ramps and stairs. Maintenance includes, but is not limited to, linear root barriers,
concrete repair and replacement, grinding or patching variations in elevation of sidewalks and
driveways for an acceptable riding surface, and the removal of dirt, debris, graffiti, weeds, and any
other deleterious items or material on or about the sidewalks or driveways in an expeditious manner.
(c) Utilities Serving the Improvement Area. LICENSEE shall bear the expense of
electricity and any other utility necessary to serve the Improvement Area. LICENSEE shall be
responsible for using such utilities in a secure and hazardless manner, complying in all respects with
applicable codes and ordinances.
(d) Signage. No signage shall be constructed or installed on the Improvement Area by
LICENSEE.
6. PLANS AND SPECIFICATIONS. Throughout the Term, LICENSEE shall perform, at its sole
cost and expense, any and all repairs, replacements or refurbishing to the Improvements which
LICENSEE constructs in the Improvement Area as necessary to bring the Improvements into an
operating condition, all in accordance with plans and specifications as submitted by LICENSEE to
CITY, which plans and specifications shall be subject to the prior written approval of CITY. No
changes, modifications, or alterations may be made to the Improvement Area 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 Area in accordance with the plans and
specifications, no material changes, modifications or alterations may be made to the Improvement
Area without the prior written consent of CITY.
8. CITY REQUIREMENTS. LICENSEE, or anyone performing work on behalf of LICENSEE,
shall be properly licensed by CITY for any work performed on the Improvement Area. 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 Area in the public right-of-way.
9. CITY RIGHT TO INSPECT. CITY shall have the right to inspect the Improvement Area at
any time to ensure that LICENSEE is performing its obligations hereunder.
10. DAMAGE TO IMPROVEMENT AREA. 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 Area and/or the
performance of the maintenance responsibilities of the Improvement Area, 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
15-4975/128127 4
the event vegetation rots or dies, said equipment or vegetation shall be replaced or restored within ten
(10) calendar days of the date of the breakage or destruction. Stolen items will be considered
destroyed for purposes of this Section 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 Area as a result
of the installation, maintenance and/or repair work performed by the CITY or its contractors, agents or
employees within the Improvement Area, 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.
13. MECHANICS' LIENS. LICENSEE agrees not to suffer any mechanics' li.en(s) to be filed
against the Improvement Area by reason of any work, labor, services or material performed at or
furnished to the Improvement Area, by or through LICENSEE. LICENSEE shall, at its sole cost and
expense, cause any mechanics' lien(s) which may be filed against the Improvement Area 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 Area to any mechanics' lien(s) or liability under the
mechanics' lien laws of the State of California.
1.4. ASSIGNMENT. The License herein granted is personal to LICENSEE and any attempt to
assign the License to any person or entity shall require the prior approval of CITY and is subject to the
provisions set forth in Section 37 below. Other than the License granted hereunder, LICENSEE
hereby expressly waives any claim to or interest or estate of any kind or extent whatsoever in the
Improvement Area arising out of the License or out of LICENSEE'S use or occupancy of the
Improvement Area, whether now existing or arising at any future time. This License is appurtenant to
the Property and may not be separately assigned apartfrom 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.
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
1.5-4975/128127
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. INSURANCE. In addition to the workers' compensation and employer's liability
insurance and LICENSEE's covenant to defend, hold harmless and indemnify CITY, LICENSEE
shall. obtain and furnish to CITY, a policy of general public liability insurance, including motor
vehicle coverage, on all activities to be performed. in the Improvement Area. This policy shall
indemnify LICENSEE, its officers, employees and agents while acting within the scope of their
duties, against any and all claims arising out of or in connection with all activities to be undertaken by
LICENSEE in connection with the Improvement Area, and shall provide coverage in 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, the aggregate limit must be no less than One Million Dollars ($1,000,000).
This policy shall. name CITY, its officers, elected or appointed officials, employees, agents, and
volunteers (the "Additionally Insured Parties") as Additional Insureds, and shall specifically provide
that any other insurance coverage which may be applicable 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.
Under no circumstances shall said above -mentioned insurance contain a self -insured retention
without the express written consent of CITY; however, an insurance policy "deductible" of $5,000.00
is permitted.
LICENSEE shall be responsible for causing all subcontractors retained by LICENSEE to perform
work in the Improvement Area to maintain the same types and limits of insurance coverage as that
required of LICENSEE by this Agreement.
17. CERTIFICATES 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
coverages as required by this Agreement; the certificates shall:
1. provide the name and policy number of each carrier and policy;
2. state that the policy is currently in force; and
3. promise to provide that such policies will not be canceled or modified without thirty (30)
days' prior written notice of CITY.
LICENSEE shall maintain the foregoing insurance coverages in force until this Agreement is
terminated.
15-4975/128127 6
The requirement for carrying the foregoing insurance coverages shall not derogate from the
LICENSEE's defense, hold harmless and indemnification obligations as set forth under this
Agreement. CITY or its representative shall at all times have the right to demand the original or a
copy of all the policies of insurance. LICENSEE shall pay, in a prompt and timely manner, the
premiums on all insurance hereinabove required.
LICENSEE shall provide a separate copy of the additional insured endorsement to each of
LICENSEE's insurance policies, naming the Additionally Insured Parties as Additional Insureds,
to the City Attorney for approval prior to any payment hereunder. A statement on an insurance
certificate will not be accepted in lieu of the actual endorsement.
LICENSEE shall require all subcontractors retained by LICENSEE to perform work in the
Improvement Area 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 Area, 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. City shall provide immediate notice to LICENSEE whereupon 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 Area shall be for its sole account and not as an agent, servant or contractor for
CITY.
20. RULES AND REGULATIONS. LICENSEE agrees to obey and observe (and cause its
officers, employees, contractors, invitees and all others doing business with LICENSEE to obey and
observe) all rules and regulations of general applicability regarding the Improvement Area 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
15-4975/128127 7
days following the date of delivery of such notice of default, CITY may thereafter cause such
maintenance to be performed, and all actual. and reasonable costs incurred shall be assessed to and
billed directly to the LICENSEE. Any invoice for such costs incurred shall include copies of paid
invoices evidencing the costs incurred. Payment from LICENSEE shall be due within thirty (30)
calendar days following the date of receipt of invoice. In addition, one and a half (1-1/2%) interest
per month shall be added for each month payment hereunder is due but unpaid.
22. APPLICABLE LAW. LICENSEE shall, at its sole cost and expense, faithfully observe in the
use and occupation of the Improvement Area 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 (iii) via facsimile transmission (with a
copy to also be placed in the United States Mail), and addressed as follows:
TO CITY: TO LICENSEE:
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Attn: Director of Public Works
Tel: (714) 536-5431.
Facsimile: (714) 374-1573
Any mailing address or telefaesimile number may be changed at any time by giving written notice
of such change in the manner provided above at least ten (10) days prior to the effective date of the
change. All notices under this Agreement shall be deemed given, received, made or communicated on
the date personal receipt actually occurs or, if mailed, on the delivery date or attempted delivery date
shown on the return receipt. A person may not give official or binding notice by facsimile. The
effective time of a notice shall not be affected by the receipt, prior to the receipt of the original, of a
facsimile copy of the notice.
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.
15-4975/128127
26. NON -EXCLUSIVITY. This License is non-exclusive, and the Improvement Area 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 Area it will not engage in, discrimination against any person because of race,
religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status or
sex.
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 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 :from the
nonprevailing party.
32. CITY RIGD: TO ENFORCE. Notwithstanding the provisions of Section 31 above,
LICENSEE acknowledges and agrees that CITY has the right and standing, but not the obligation, to
enforce any of the terms of this Agreement by any appropriate legal or equitable means and shall be
entitled to reimbursement for any costs incurred in enforcing this Agreement. LICENSEE shall
provide CITY with., and at all times keep current, contact information for LICENSEE and any
property manager acting on its behalf.
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 LICENSEE and CITY, or the successors and assigns of each.
15-4975/128127 9
35. 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.
36. DELEGATION OF AUTHORITY. CITY hereby delegates to its City Manager or his or her
designee the authority to implement all provisions of this Agreement.
37. EXCLUSIVE BENEFIT OF PARTIES. The provisions of this Agreement are for the
exclusive benefit of CITY and LICENSEE and their successors and assigns, subject to the provisions
hereof, and neither for the benefit of nor give rise to any claim or cause of action by any other person..
38. SURVIVAL. All representations, warranties, waivers, and indemnities given or made
hereunder shall survive termination of this Agreement.
39. AUTHORITY TO SIGN. LICENSEE hereby represents that the individual executing this
Agreement on behalf of LICENSEE has full authority to do so and to bind LICENSEE to perform
pursuant to the terms and conditions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and
through their authorized officers on /99/4A&j�- D '4L. 2014.
LICENSEE:
LAN NGUYEN
M.
CUNG DUY NGUYEN
Commission # 2057713 Z
m Notary Public - California
? ��. ' .d Orange County
My Comm. Ex ires Feb 13, 2018
CITY:
CITY OF
a
Clerk
BEACH,
INITIATED AND PP VED.
Director of Jublic Works
REV&MAD APPROVED:
City Manager
City Attorney 0 e -, f
Jr s'
15-4975/128127 10
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
CIVIL_ CODE 1189
Y1_S`id;eWo
A notarj public or other officer completing this certificate verifies only ths, identity of the individual who.s'yned the
document to which this certificate is attached, and not the truthfulness, accu acy; er validity of t",at daciatnent..
State of California )
County of O P"a _ )
On _ Z!t 41419 before me, COLD i6r=-_TjU`(
D e ` Here Insert Name and 7i+fe of Via OfficEmr
personally appeared
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to bE the person(s) whose narne(s i. axe
subscribed to the within instrument and acknowled ed to me t,,at he. sh Tiey executed the same in
hiVtheir authorized capacity(ies), and that by his /their sicgrature(s) on the iii.3trumeot th person(s),
or t entity upon behalf of which the persons) acte���'''executed 'che instrument.., `
{
certify under PENALTY 01= PEP, JURY under the laws
of the State,of Calif(ii-r.ia that tn.:). foregoing paragraph
is true and corract. , I
CUNG DUY NGUYEN
Commission #t 2057713
Notary Public - California
Orange County
My Comm. Ex ires Feb 13, 2015
WITNESS my ha I'd and. offic;I'al seal.
Signature___ _
Place Notary Seal Above
OPTIONAL ------
Though this section is optional, completing this information c2n deter alteration of the document or
fraudulent reattachment of this form to an uniri;ended documerih
Description of Attached Document
Title or Type of Document: v'
Document Date: Number- of Pages:
Signer(s) Other Than NamedAbove': NO IV t
Capacity(Ees) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
Vt Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Consen�ator
❑ Other:
Signer Is Representing:
Signer's Name _--
❑ Corporate Officer — Title(s):
❑ Partner -- ❑ Limited [ General
❑ Individual 1 Attorney iri Fact
❑ Trustee O Guardian or Consewutur
Other:
Signer Is Representing
02015 National Notary Association - www.NationalNotary.org - 1-800-US3 NC)MRY (1.-W`-876=6827) item #590
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 March 9, 2016, before me, P. L. Esparza, Notary Public, personally appeared
Joan L. Flynn and Jim Katapodis 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 Signa re)
P. L. ESPARZA
Commission * 2032750
0110y
Notary Public - CaliforniaOrange CountyComm. Expires Aug 4. 2017
------------
(Seal)
EXHIBIT A
: I � A 10 f]'ftf:Aof4l:o
SHEET 1 OF 2
THAT PARCEL OF LAND LOCATED IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE,
STATE. OF CALIFORNIA, BEING A PORTION OF THE DEDICATED RIGHT OF WAY FOR PUBLIC USE
ALONG THE I WEST I S . IDE OF LAKE STREET (FORMERLY RAILROAD.. AVENUE) 90 FEET WIDE, 45
FEET WEST OF AND 45 FEET EAST OF THE CENTERLINE.OF SAID LAKE STREET AND THE SOUTH
SIDE OF 11" STREET, 75 FEET WIDE, 37.5 FEET SOUTH OF AND 37.5 FEET NORTH OF THE
CENTERLINE OF SAID 11" STREET AS SAID STREETS ARE DEDICATED ON THE MAP OF THE
WESLEY PARK SECTION; OF HUNTINGTON BEACH, ILED IN BOOK 4, PAGE. 17, OF
MISCELLANEOUS MAPS, IN RECORDS, OF SAID COUNTY. THE PURPOSE' OF THIS DESCRIPTION IS
TO DESCRIBE A PARCEL OF LAND WITHIN THE DEDICATED PUBLIC RIGHT OF WAY OF LAKE
STREETAND 11" STREET FOR A LIMITED LICENSE AGREEMENT, MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHEAST CORNER OF LOT 52, BLOCK, 910, OF SAID WESLEY PARK
SECTION, OF THE CITY OF HUNTINGTON BEACH, THENCE NORTH 00000'00" EAST, 141.69 FEET,
ALONG THE EAST LINE OF SAID LOT 52, TO THE TRUE POINT OF BEGINNING OF THIS
DESCRIPTION;
THENCE CONTINUING NORTH 00000'00" EAST, 70.71 FEET ALONG SAID EAST LINE, TO THE
BEGINNING OF A CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 20.00 FEET;
THENCE NORTHWESTERLY AND WESTERLY ALONG THE.NORTHEASTERLY AND NORTHERLY LINE
OF SAID LOT 52 AND CONTINUING WESTERLY ALONG THE:.NORTHlERLY LINE OF LOT 51 OF SAID
WESLEY PARK SECTION, OF HUNTINGTON BEACH, 42.56 FEET ALONG SAID CURVE
THROUGH A
CENTRAL ANGLE OF 121* 56'06" TOA POINT ALONG THE. SOUTHERLY LINE OF 11" STREEET, A
RADIAL LINE TO SAID POINT BEARS,NORTH 31'56'06" WEST;
THENCE EASTERLY LEAVING SAID SOUTHERLY LINE AND SAIDCURVE NORTH' 57 19'41" EAST/
7.94 FEET TO THE BEGINNING OF A NON -TANGENT CURVE CONCAVE SOUTHEASTERLY' HAVING A
RADIUS OF 17.18 FEET A RADIAL LINE TO SAID POINT OF CURVATURE BEARS NORTH 33'39'20"
WEST;
THENCE NORTH EASTERLYANDEASTERLY 8.02 FEET ALONG SAID CURVE THROUGH. A CENTRAL
ANGLE OF 2645'01" TO THE BEGINNING OF ANOTHER NON -TANGENT
GENT CURVE
UR VE CONCAVE
CAVE
SOUTHWESTERLY AND HAVING A RADIUS OF 21.64 FEET, A RADIAL LINE BEARS NORTH,6' 54'19-
WEST TO THE ENDPOINT OF THE'WESTERLY NON -TANGENT CURVE., AND NORTH 6* 3544" EAST
TO THE EASTERLY NON-TAN,GENTp'CURVE RESPECTIVELY;,
EXHIBIT A
LEGAL DESCRIPTION (CONTINUED)
SHEET 2OF2
y
THENCE SOUTHEASTERLY 12.85 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE: OF 34°
01' 35" TO THE NORTHERLY TERMINUS OF A LINE NON -TANGENT TO PRECEDING CURVE, A
RADIAL LINE TO SAID END OF CURVATURE AND NORTHERLYTERMINUS BEARS NORTH 40' 37' 19"
EAST, THENCE;
SOUTH 39' 36' 31" EAST, 4.38 FEET, THENCE;
SOUTH 32` 01' 30" EAST, 6.08 FEET, THENCE;
SOUTH 24 55' 19" EAST, 3.36 FEET, THENCE;
SOUTH 20° 48 '28" EAST, 4.42 FEET, THENCE;
SOUTH 14° 12' 56" EAST, 4.99 FEET, THENCE,
SOUTH 07` 37' S6" EAST, 4.10 FEET, THENCE;
SOUTH 05° 12' 13" EAST, 21.89 FEET, THENCE;
SOUTH 00000'00" EAST, 39.46 FEET, THENCE;
SOUTH 21' 59' 12" WEST, 4.09 FEET, THENCE;
NORTH 90000'00"• WEST,6.39 FEET TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION.
Q�pFESSlON9
N. Plydel
ca No.29MLw
m
cr- Exp•� 3//7
/ * Q
LM N. PRAM 9lF OF C
RCU9595 .3/3VZ+b17
EXHIBrT B
I OF 1
<CL 11TH STREET
NOO"35*44*E RAD.
N06-54'19-W RAD. NOT T-O'SCALE
N33*39*2CrW RAD.
C2
0-
N40*3'rl9"E RAD.
LINE DATA
. . .........
. . ......... -
S 2W
0' 4
28
E
4.4Z
F-W E, ZZ
IM
S 21* 59
12"
W
4.09',
NOODO 00"W
RAD.
t
Li
TRUE POINT OF BEGINNING
CURVE DATA
A R L
Cl 121 * 56' 06" 20.00 42.56'
C2 26* 4W 01 17Aa &0I III III 2'
C3. 3c.ov W 21.6412-86
•BLOCK 91•
it
LOT 51, (R) LOT 5.2 (R)
(25.35' R) (25AV :12)
3'-014-Z0(6 (R) --RECORD PER lHE
WESI-EY PARK SECTION OF
HUN71NGTON BEACH, FlLED
BOOK 4, PAGE: 17.OFM.t .
L.6
L7 43*
L&
L9
I 1_10
m
m
LICENSE AGREEMENT
AREA
POINT OF COMMENCEMENT
SOUTHEAST CORNER
LOT 52, BLOCK 910
WESTLEY PARK, SECTION
HUNTINGTON BEACH
� - J = � _�
_� _ �� _
= - _ --
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Item 14. -
It
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aela HB -318-
NATCtyrf r..AHET
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414
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