Del Cerro Homeowners Association (Security Camera) LICENSE AND HOLD HARMLESS AGREEMENT
This License and Hold Harmless Agreement("Agreement")is made and entered into
on Cep I , 201 5e("Agreement Date") by and between the City of Rancho Palos Verdes,
a municipal corporation ("Licensor") and DEL , a California corporation
("Licensee"). Licensor and Licensee may be referred to, individually as a "Party" or jointly
as "Parties."
RECITALS:
A. Licensor is a municipal corporation which provides municipal services to the
residents of the City of Rancho Palos Verdes.
B. Licensee is a X(enter#members)member homeowners' association ("HOA")
organized under the laws of the State of California and governs the residential development
commonly known as " vet_ c *tab " and located at 1 O OCEAKi¢ Da Jv�
("HOA Property") in the City of Rancho Palos Verdes as shown in Exhibit A.
C. The Covenants, Conditions, and Restrictions (CC&Rs) of the HOA allow
assessment of owners for contribution to pay for costs, expenses and liabilities of the HOA.
D. City Council Policy No. 31 allows a homeowner association to install security
cameras and related equipment within a City right of way adjacent to the HOA Property
provided that:
(1) The HOA execute an indemnity and hold harmless agreement in favor
of the City as a condition precedent to obtaining an encroachment
permit to place the security cameras on the City property (Section
III(5)(a)); and
(2) The HOA execute a license agreement with the City for the use of the
applicable City property, which includes a commitment by the HOA to
remove the equipment upon notice.
E. In accordance with City Council Policy No. 31, Licensee desires to install
security cameras and related equipment (the "Equipment") as specifically described in
Exhibit B in and around the HOA Property. In order to have an effective range of vision, the
Equipment around the HOA Property will be installed in the public right-of-way (the
"Encroachment Property") in the specific locations shown as the Encroachment Area,
with' the Encroachment Property, pursuant to Encroachment Permit No. I 1343 issued on
1 �- , 201 1' ("Encroachment Permit") by the Community Development Department.
The Encroachment Property and Encroachment Area are all shown and described in Exhibit
C.
F. Exhibits A, B & C are attached hereto and are incorporated herein and made
a part hereof by reference.
NOW, THEREFORE, in consideration of the covenants, conditions and agreements
contained herein, the Parties agree as follows:
01203.0001/410497.11 1
1. Recitals. The Recitals are true and correct and are incorporated into this
Agreement.
2. License Granted. Licensor grants Licensee a non-exclusive license to install
the Equipment in the Encroachment Area in accordance with the terms of this Agreement
and the Encroachment Permit. Licensee may not use the Encroachment Area for any other
purpose but to install, operate and repair the Equipment. This license is revocable at any
time. This Agreement is subject to all terms of City Council Policy 31 and of the
Encroachment Permit.
3. Term. The term of this License shall commence on the Agreement Date and
shall continue in effect until terminated in accordance with Section 16 ("Term").
4. Use of the Encroachment Area. Any entry into the Encroachment Property
shall be for the limited purpose of installing and maintaining the Equipment in the
Encroachment Area, and shall be consistent with all terms of the Encroachment Permit.
Licensee may only locate the Equipment in the Encroachment Area in the manner approved
in the Encroachment Permit. Licensee shall not permit any part of the Encroachment Area
to be used for: (i) the conduct of any offensive, noisy, or dangerous activity; (ii) the creation
or maintenance of a public nuisance; (iii)anything which is against public regulations or rules
of any public authority at any time applicable to the Encroachment Area; or(iv) any purpose
or in any manner which will unreasonably obstruct, interfere with, or infringe upon the rights
of the residents of adjoining properties.
5. Utilities. Licensee shall be solely responsible for all charges incurred for any
and all public utility services provided to the Encroachment Area for the operation of the
Equipment, including, but not limited to, electric power and telecommunications("Charges").
Licensee shall pay such Charges promptly as they become due. Failure to pay Charges will
be a material breach of this Agreement. Licensee shall indemnify Licensor for any and all
such Charges, including any such charges which must be paid by Licensor to prevent
delinquency. Licensor shall promptly bill Licensee for any such charges and provide an
accounting thereof.
6. Right of Inspection and Testing. Licensee acknowledges Licensor's right
and authority to enter upon the Encroachment Area by and through its employees,
representatives, contractors, attorneys, and consultants, at reasonable times during daylight
hours, for the purpose of inspecting the Equipment and other investigation as the Licensor
reasonably determines is required. Licensor shall make reasonable efforts to notify Licensee
in advance of entering and inspecting the Equipment and Encroachment Property.
7. Licensee's Maintenance Obligations. As material consideration for this
Agreement, Licensee shall fulfill the following obligations.
7.1 Equipment Maintenance. Licensee shall maintain the Equipment in
good condition and working order at its sole cost and expense. Any
Equipment that is broken, vandalized, inoperable, malfunctioning or
unsafe shall be repaired or replaced immediately by Licensee. Licensor
reserves the right to remove Equipment that is not repaired or replaced
01203.0001/410497.11 2
in a timely manner. In the event that Equipment is in a condition that
threatens the health and safety of the public in Licensor's sole
discretion, Licensor may remove the Equipment immediately and send
an Invoice to Licensee for the cost incurred in accordance with Section
16.2. Licensor has no obligations of any kind to maintain or protect the
Equipment.
7.2 Landscape Maintenance. As may be required by the Encroachment
Permit, Licensee shall be responsible for usual and normal landscape
maintenance of the Encroachment Area at Licensee's sole cost and
expense. Any required landscape maintenance shall be subject to the
limitation that Licensee shall use the minimum amount of water
necessary to maintain the landscaping, in order to preclude percolation
into the ground of excessive irrigation water.
7.3 Not Interfere With Encroachment Property. Licensee shall comply
with all provisions of the Encroachment Permit and not interfere with
operation of or damage the Encroachment Property.
7.4 Warranty of Right to Assess. Under the CC&Rs HOA has right to
assess owners for contractual obligations of HOA including for such
obligations as undertaken herein for maintenance of Equipment and
landscaping, including the right to assess owners and lien their interest
for nonperformance. In accordance with all such procedures in the
CC&Rs, HOA will undertake such assessments in order to meet its
obligations hereunder, if necessary, to raise funds therefore, and will
timely enforce such assessments as provided in the CC&Rs.
8. Indemnity. As a material part of the consideration to Licensor for entering into
this Agreement and granting the Encroachment Permit, Licensee agrees to indemnify,
defend, protect and hold Licensee, its officers, directors, agents, representatives, City
Council members and employees (collectively, "Indemnified Parties"), harmless from and
against all liens and encumbrances of any nature whatsoever which may arise from this
Agreement, the Encroachment Permit or in the exercise of Licensee's rights under this
Agreement or the Encroachment Permit, and from any and all claims, causes of action,
liabilities, costs and expenses (including reasonable attorneys' fees), losses or damages
arising from the same, or any act or failure to act of Licensee or Licensee's agents,
employees, contractors, or invitees (collectively, "Licensee Parties"), except those arising
solely as a result of the willful misconduct of Licensor.The indemnity obligations shall survive
for a period of five (5) years after the removal of the Equipment and after expiration of the
Term.
9. Insurance.
9.1 General. Licensee shall procure and maintain, at its sole cost and
expense, and submit concurrently with its execution of this Agreement,
in a form and content satisfactory to Licensor, public liability and
property damage insurance against all claims for injuries against
01203.0001/410497.11 3
persons or damages to property resulting from Licensee's construction
and use of the Equipment within the Encroachment Area under this
Agreement. This insurance may be included with the HOA's regular
insurance program as long as the Equipment is included. The
insurance shall be kept in full force and effect during the Term, and shall
not be cancelable by the insurer without thirty (30) days' prior written
notice to Licensor of any proposed cancellation. Certificates of
insurance evidencing the foregoing and designating Licensor and
Indemnified Parties as additional named insured by original
endorsement shall be delivered to and approved by Licensor. The
procuring of such insurance and the delivery of policies, certificates,
and endorsements evidencing the same shall not be construed as a
limitation of Licensee's obligation to indemnify Licensor and the
Indemnified Parties.
9.2 Minimum Scope of Insurance. The minimum amount of insurance
shall be a policy of comprehensive general liability and personal injury
with limits of at least One Million Dollars ($1,000,000) combined single
limit coverage per occurrence. For any claims related to this
Agreement, Licensee's insurance coverage shall be primary insurance
with respect to Licensor and the Indemnified Parties. Any insurance or
self-insurance maintained by Licensor and the Indemnified Parties,
shall be in excess of Licensee's insurance and shall not contribute to it.
9.3 Sufficiency of Insurers. All insurance shall be provided by
authorized insurers admitted and in good standing with the State of
California and shall have an A.M. Best's Key Rating of B++, Class VIII,
or better, unless otherwise acceptable to Licensor in its sole discretion.
9.4 Proof of Insurance. Licensee shall furnish Licensor with both
certificates of insurance and copies of policies, including additional
endorsements, affecting all of the coverage required by this Agreement.
The certificates and endorsements are to be signed by a person
authorized by that insurer to bind coverage on its behalf. All proof of
insurance is to be received and approved by Licensor prior to approval
of this Agreement. Licensor reserves the right to require Licensee's
insurers to provide complete, certified copies of all required insurance
policies at any time.
9.5 Verification. Verification of insurance coverage may be provided by:
(1) an approved General Endorsement Form for City of Rancho Palos
Verdes, or(2)an acceptable Certificate of Liability Insurance Coverage
with an approved Additional Insured Endorsement with the following
endorsements stated on the certificate:
(a) City of Rancho Palos Verdes, its officials, employees and agents
are named as an additional insured" ("as respects Encroachment
License No. 13-01" may be included in this statement)."This
01203.0001/410497.11 4
insurance is primary and non-contributory over any insurance or
self-insurance Licensor may have" ("as respects Encroachment
License No. 13-02" may be included in this statement)."
(b) Should any of the above described policies be cancelled before
the expiration date thereof, the issuing company will mail thirty
(30) days written notice to the Certificate Holder named."
Language such as, "endeavor to" mail and "but failure to mail
such notice shall impose no obligation or liability of any kind upon
the company, its agents or representative" is not acceptable and
must be crossed out. See example below.
(c) In addition to the endorsements listed above, City of Rancho
Palos Verdes shall be named the certificate holder on the policy.
All certificates and endorsements are to be received and
approved by City before this Agreement is approved.
Cancellation Example:
SHOULD ANY OF THE ABOVE REFERENCED POLICIES BE CANCELLED BEFORE THE
EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30
DAYS* WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED HEREIN BUT
FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF
ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES.
*The broker/agent can include a qualifier stating"10 days'notice for nonpayment of premium."
9.6 Deductibles and Self-Insured Retentions. Any deductibles or self-
insured retentions must be declared to and approved by Licensor in
writing. At the option of Licensor, either the insurer shall reduce or
eliminate such deductibles or self-insured retentions as respects
Licensor or the Indemnified Parties; or, Licensee shall procure a bond
guaranteeing payment of losses and related investigations, claim
administration, and defense expenses.
9.7 Severability of Interests (Separation of Insureds). This insurance
applies separately to each insured against whom claim is made or suit
is brought except with respect to the limits of the insurer's liability.
9.8 Insurance Increase. Not more frequently than once within a three (3)
year period, if, in the opinion of Licensor's Risk Manager, the amount of
public liability and property damage insurance coverage at that time is
not adequate, Licensor may require modifications to the required
insurance coverage in this Section 9. Licensor shall notify Licensee in
writing ("Increase Notice"), and Licensee agrees to provide Licensor
with certificates and endorsements evidencing Licensor's required
increased insurance coverage amounts within thirty (30) days' of the
Increase Notice. Failure of Licensee to provide Licensor with certificates
and endorsements evidencing Licensor's required increased insurance
01203.0001/410497.11 5
coverage amounts within said period shall be a material default under
this Agreement.
10. Alterations. Licensee shall not make any alteration to the Encroachment Area
nor any other portion of the Encroachment Property, nor install any other equipment in the
Encroachment Area except as authorized by Licensor in writing and consistent with the
Encroachment Permit.
11. Assignment and Subletting Prohibited. Neither this Agreement nor the
Encroachment Permit may be assigned by Licensee, nor shall Licensee rent or sublet the
Encroachment Area nor Encroachment Property or the Equipment. Any attempted
assignment of this Agreement or the Encroachment Permit or the subletting of the
Encroachment Area or Encroachment Property or the Equipment, without the prior written
consent of Licensor, which may be withheld in its sole and absolute discretion, shall be void
and a material breach of this Agreement.
12. Construction by Others within Encroachment Property. Licensee
understands that the license under this Agreement is non-exclusive and that Licensor may
grant subsequent encroachments permits within the Encroachment Property provided such
additional licenses do not unreasonably interfere with the purpose of the Equipment.
Licensee shall promptly join and maintain membership with United Service Alert of Southern
California (commonly known as "Dig Alert") for the entire term of this Agreement, or until
the Equipment is removed, whichever occurs first. Licensee shall monitor notifications from
USA/Dig Alert (Dial "811") of excavations or other work within the Encroachment Area by
public agencies or private parties that may directly affect Licensee's Equipment. Licensee's
shall be sole responsible to adequately mark, identify, and locate its Equipment within the
Encroachment Property for any and all public agencies or private parties who have duly
notified USA/Dig Alert of excavations or other work within the Encroachment Property.
Failure of Licensee to timely and/or correctly mark, identify, and locate its Equipment within
the Encroachment Property shall be the responsibility of Licensee. Licensee shall indemnify,
hold harmless, and release Licensor from all damages of any kind, due to damages incurred
to its Equipment within the Encroachment Property, including complete loss of the use
and/or value of the Equipment due to excavations or other work within the Encroachment
Property by public utility companies, other governmental agencies, and private parties,
including Licensor, which has duly notified USA/Dig Alert of their intention to excavate or
perform other work within the Encroachment Property.
13. Relocation of Equipment. In the event of a conflict with an underground
utility proposed by any public agency whose proposed public utility is approved for
installation by Licensor within the Encroachment Area, Licensee shall relocate the
Equipment, at Licensee's sole expense, as necessary to remove any such conflict with an
underground utility proposed by any public agency. Licensee shall prepare relocation plans
for the Equipment and submit same to Licensor Engineer, as well as the affected public
agency, for review and comment within thirty (30) days' notice from Licensor of the
underground utility conflict. Licensee shall relocate the Equipment, as directed by Licensor,
pursuant to this Sections 15, except, however,that relocation of the Equipment, as approved
by Licensor, shall commence no later than thirty (30) days from the date of approval of the
relocation plans for the Equipment by Licensor. If the relocation is to a portion of the
01203.0001/410497.11 6
Encroachment Property outside of the Encroachment Area, the map of the Encroachment
Area shall be revised, as approved by the City Engineer.
14. Tax Implications. Licensee shall be solely responsible for any real estate tax
consequences, if any, arising from Licensee's right to use the Encroachment Property and
agrees to indemnify Licensor from any such taxes, including but not limited to, possessory
interest taxes.
15. Touch and Concern. The obligations herein touch and concern the land,
being the HOA Property, and run with the land until such time as the Equipment is removed
from the HOA Property. Licensor as the owner of the Encroachment Property has the right
to enforce the terms hereof against the Licensee and the HOA and its members.
16. Breach. Upon a material breach of this Agreement and/or the Encroachment
Permit, City may, at its sole discretion, provide Licensee with a written notice of breach and
specify a reasonable time to cure the breach ("Default Notice"). If Licensee fails to cure the
breach within the time specified in the Default Notice, Licensor may, in its sole discretion,
elect to termination this Agreement and the Encroachment Permit ("Default Termination
Notice").
17. Termination.
17.1 Termination Rights. This Agreement shall terminate five (5) days
following delivery of a written termination notice, either with or without
cause ("Termination Notice"). Licensor may provide a reasonable
period to cure any default in accordance with Section 16. Either Party
may give a "Non-Default Termination Notice" for any reason. Upon
termination the Equipment shall thereafter be removed in accordance
with Section 16.2.
17.2 Licensee Obligations at Termination. Within ten (10) days from
Termination, Licensee shall, at Licensee's sole cost and expense,
remove the Equipment except in case of an emergency where less
notice may be provided. Upon removal of the Equipment, Licensee shall
repair any damage to Encroachment Property at its sole cost and
expense. Failure to remove the Equipment and repair any damage to
the Encroachment Property within the specified time will result in
removal of the Equipment and/or repair of the Encroachment Property
by Licensor, and Licensee shall promptly reimburse Licensor for the
costs of removal and repairing the Encroachment Property as billed by
Licensor ("Invoice"). If Licensee fails to pay such amount to Licensor
within ten (10) days from receipt of the Invoice, the amount specified
shall thereafter bear interest at the rate of ten percent(10%) per annum
until paid in full. Licensor shall not be responsible for any damage to the
Equipment if Licensor is forced to remove it. Upon removal of the
Equipment, Licensee shall repair any damage to Encroachment
Property at its sole cost and expense and has the authority to do so
described in Section 7.0. Removed Equipment shall be returned to
01203.0001/410497.11 7
Licensee, and Licensor shall have no liability for the condition of the
Equipment.
18. Notices. Any notices, demands, or communications under this Agreement
shall be in writing, and may be given either by (i) personal services, (ii) overnight delivery,
or (iii) mailing via United States mail, certified mail, postage prepaid, return service
requested, addressed as set forth on the signature page of this Agreement or such other
address as may be furnished in writing by a party, and such notice or communication shall,
if properly addressed, be deemed to have been given as of the date so delivered, or three
(3) business days after deposit into the United States mail. Either Party may change the
address for notice by giving written notice of such change to the other Party in the manner
provided for in this section.
19. Amendments & Modifications. This Agreement may only be amended or
modified by a written document executed by both Parties and recorded in the Official
Records in Los Angeles County.
20. No Waiver. The failure to enforce any term, covenant, or condition of this
Agreement shall not be construed as a waiver of the right to enforce this, or any other, term,
covenant, or condition of this Agreement.
21. No Third Party Beneficiaries. There are no intended third party beneficiaries
of any right or obligation assumed by the Parties.
22. Invalidity; Severability. If any portion of this Agreement is declared invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions shall continue in full force and effect.
23. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of California and any legal action shall be brought in
a court of competent jurisdiction in Los Angeles County.
24. Attorney's Fees. In the event of any litigation or other legal proceeding
arising from this Agreement, the prevailing party will be entitled to recover, in addition to any
other relief awarded or granted, its reasonable costs and expenses, including attorney's
fees, incurred in the proceeding.
25. Construction. This Agreement, along with its exhibits, contains the entire
agreement between the Parties and, supersedes any prior oral or written statements or
agreements between the Parties with respect to the subject matter of this Agreement. In
determining the meaning of, or resolving any ambiguity with respect to, any word, phrase or
provision of this Agreement, no uncertainty or ambiguity shall be construed or resolved
against a Party under any rule of construction, including the party primarily responsible for
the drafting and preparation of this Agreement. Headings used in this Agreement are
provided for convenience only and shall not be used to construe meaning or intent. As used
in this Agreement, masculine, feminine or neuter gender and the singular or plural number
shall each be deemed to include the others wherever and whenever the context so dictates.
01203.0001/410497.11 8
26. Counterparts. This Agreement may be signed in counterparts, each of which
shall constitute an original and which collectively shall constitute one instrument.
27. Corporate Authority. The persons executing this Agreement on behalf of the
parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly
authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing
this Agreement, such party is formally bound to the provisions of this Agreement, and (iv)
the entering into this Agreement does not violate any provision of any other Agreement to
which said party is bound. This Agreement shall be binding upon the heirs, executors,
administrators, successors and assigns of the parties
IN WITNESS WHEREOF, this Agreement has been executed as of the date first above
written.
LICENSEE: LICENSOR:
DSL C 62 20 & , 0 .A . CITY OF RANCHO PALOS VERDES,
, a municipal corporation
a California corporatio
By.
By: Susan Brooks, Mayor
P21 s
Its: , 201
By:
ATT_
Its: � p.'EA S V2
ADD ADDRESS
ity Clerk
APPROVED AS TO FORM:
With a copy to:
ALESHIRE &WYNDER, LLP
By: I
David J. Aleshire, City Attorney
01203.0001/410497.11 9
Exhibit A
Depiction of HOA Property and Encroachment Property
01203.0001/410497.11 1
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Exhibit B
Description of Equipment
01203.0001/410497 11 1
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Exhibit C
Map of Encroachment Area in the Encroachment Property
01203.0001/410497.11 1
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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 LOS ANGELES )
On , 201_ before me, , a notary public,
personally appeared
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 my hand and official seal.
Notary Public
SEAL:
01203.0001/410497.11 1