RPVCCA_CC_SR_2011_10_18_F_Authorize_Access_Agreement_Portuguese_Bend_ClubCITY OF RANCHO PALOS VERDES
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
REVIEWED:
Project Manager:
HONORABLE MAYOR &CITY COUNCIL MEMBE .......V'~
RAY HOLLAND,DIRECTOR OF PUBLIC WOR
OCTOBER 18,2011
AUTHORIZE ACCESS AGREEMENT WITH THE
PORTUGUESE BEND CLUB
CAROLYN LEHR,CITY MANAGER (!"Q __-,
Ron Dragoo,Senior Civil Enginee~
RECOMMENDATIONS
1.Approve the attached Right of Access Agreement by and between the
Portuguese Bend Club Homeowners Association and the City of Rancho
Palos Verdes
2.Authorize the Mayor to execute the Agreement.
BACKGROUND/ANALYSIS
The Portuguese Bend Club has requested an agreement indemnifying the Club from
damages which may occur as a result of the City's Contractor using their private
roadways to access the Agency-owned preserve land to the west during the re-
establishment of the storm drainage pipes.Access through the Portuguese Bend
property is needed to complete the work that has begun restoring the storm drain pipe.
At the time of this writing,the grading portion of the project is near completion.Staff
has been advised that the installation of the pipe,which will be performed by Hardy &
Harper,will not be allowed to begin until this recently requested agreement is in place.
The agreement requires the City to repair damages incurred as a result of our
Contractors using the Bend Club's private roads.The Bend Club is requesting
indemnification for any physical damage to their roads caused by equipment and/or for
personal damages to people and/or their personal property as a result of accidents
associated with the construction.The City requires its contractors to provide insurance
policies including broad-form comprehensive general liability,property damage
insurance,automotive liability insurance and workers compensation insurance which
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are sufficient to provide adequate protection for the City.
CONCLUSION
Adopting Staff's recommendations will result in the execution of the Right of Access
Agreement.
FISCAL IMPACT
Their will be no fiscal impact as a result of adopting Staff's recommendations.
Attachments:
1396449
Right of Access Agreement
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RIGHT OF ACCESS AGREEMENT
THIS RIGHT OF ACCESS AGREEMENT (this "Agreement")is made and entered into
as of October _,2011,by and between the Portuguese Bend Club Homeowners Association,
("Grantor"),and the CITY OF RANCHO PALOS VERDES,a California Municipal
Corporation,("City").
WIT N E SSE T H:
WHEREAS, the City wishes to perform certain grading work and install drainage pipes
on certain properties that are owned by the City and the Rancho Palos Verdes Redevelopment
Agency to improve the stability of one of the City's streets,Palos Verdes Drive South,and from
time to time,the City wishes to use a portion of the private street,Yacht Harbor Drive,as is
generally depicted on Exhibit A attached hereto (the "Property"),that is located on Grantor's
property iIi connection with the performance of that work;and
WHEREAS,Grantor is willing to grant to City a non-exclusive,irrevocable license for
access to and use ofthe Property in connection with the performance ofthe work,as is more
particularly described in this Agreement.
AGREEMENT
NOW,THEREFORE,for and in consideration of the foregoing premises,the mutual
covenants and agreements contained herein,and other good and valuable consideration,the
receipt and sufficiency of which are hereby acknowledged,Grantor and City hereby covenant
and agree as follows:
1.License and Restrictions.
1.1 Subj ect to the terms and conditions of this Agreement,Grantor hereby grants a non-
exclusive,irrevocable license (the "License")to the City and its agents,employees and
contractors (collectively,the "City Parties")to access and use the Property for the
following purposes (the "License Purposes"):to move equipment,materials and workers
to and from the Palos Verdes Drive South street right-of-way and to and from the
adj acent parcel of property that is owned by the Rancho Palos Verdes Redevelopment
Agency.
1.2 The City Parties shall not conduct any activity on the Property other than in connection
with the License Purposes.The City Parties shall not use the Property in any way that
will conflict with any law,statute,ordinance,rule,regulation or requirement of any duly
constituted public authorities with jurisdiction over the Property,whether now in force or
hereafter enacted or promulgated.The City shall not permit any party other than the City
Parties to enter upon the Property in connection with the License or otherwise.
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1.3 The City hereby covenants and agrees to use good faith efforts to cause the fueling,
servicing and/or repairing of vehicles being used exclusively in connection with the
City's Project Improvements to be conducted within areas that are not located on
Grantor's Property;provided,however,that Grantor acknowledges that the contractor has
informed City that its general practice is to conduct such fueling,servicing and/or
repairing at the place (whether on the Construction Site,the Property or otherwise)where
any such vehicle requires the same (e.g.,where any such vehicle runs out of fuel or
breaks down).
1.4 The City hereby covenants and agrees to repair and restore the asphalt surface of the
private street to its current nearly new condition in order to eliminate any damage to the
Property that is caused by the City Parties in connection with this Agreement.
2.Term of License.The License shall be irrevocable and shall remain in full force and
effect from the date hereof until the earlier of (a)December 31,2011,or (b)the date
Grantor receives a copy ofthe notice of completion recorded by the City pursuant to
Section 6.2.Notwithstanding the foregoing,if the License Work is not completed by
December 31,2011,the City may request a reasonable extension of the term ofthe
License,and Grantor shall not unreasonably withhold its approval thereof.
3.Agreement to Cooperate and Coordinate.The City acknowledges and agrees that
Grantor may,and shall be entitled to,perform work on the Property (collectively,the
"Grantor Work")concurrently with the License Work (including the erection of barriers
around the same).To that end,the City and Grantor agree to meet as often as is
reasonably necessary in order to coordinate the work schedules for the License Work and
the Grantor Work so as to minimize as much interference between the same as is
reasonably possible and to complete such work as efficiently as possible.
4.Personal Property;Fixtures.Grantor acknowledges and agrees that the City Parties may
bring equipment and other materials onto the Property in connection with the License
Purposes.Grantor further acknowledges and agrees that such equipment and materials
are the personal property of the City Parties;and that Grantor has no,and shall not claim,
any right title or interest therein.
5.Liens.The City shall not suffer or permit to be enforced against the Property,any
mechanics',materialmen's,contractors'or subcontractors'liens or any claim for damage
arising from the License Work,and the City shall pay,or cause to be paid,all of such
liens,claims or demands before any action is brought to enforce the same against the
Property.Notwithstanding the foregoing,if the City shall,in good faith,contest the
validity of any such lien,claim or demand,then the City shall,at its expense,defend the
Property against the same and shall pay and satisfy any adverse judgment that may be
rendered thereon before any enforcement thereof against the Property;provided,
however,that,if Grantor shall so require,the City shall procure and record or furnish to
Grantor a surety bond,or other security satisfactory to Grantor,in an amount equal to at
least one hundred fifty percent (150%)ofthe amount of such contested lien,claim or
demand,holding the Property free from the effect thereof.Grantor reserves the right,at
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any time and from time to time,to post and maintain on the Property such notices of
nonresponsibility as may be necessary to protect Grantor against liability for all such
liens,claims and demands.
6.Notices ofNonresponsibility and Completion.
6.1 Promptly upon commencement of the License Work,the City shall,at its expense,post
on the Property and record in the Official Records of Los Angeles County,California,a
notice of nonresponsibility executed by Grantor in statutory form.
6.2 Promptly upon completion ofthe License Work,the City shall,at its expense,post on the
Property and record in the Official Records of Los Angeles County,California,a notice
of completion executed by the City in statutory form.
7.PaYment of Claims.In addition to,and not in limitation of,Grantor's other rights and
remedies hereunder,should the City fail within twenty (20)days of a request from
Grantor either (a)to pay and discharge any lien,claim or demand as provided in
Section 5,or (b)to protect,indemnify,defend and hold Grantor free and harmless as
provided in Section 8,then,in any such case,Grantor may,at its option,pay any such
lien,claim or demand or settle or discharge any action therefor or satisfy any judgment
thereon,and all reasonable costs,expenses and other amounts incurred by Grantor in
connection therewith (including reasonable attorneys'fees)shall be paid to Grantor by
the City upon demand,together with interest thereon at the maximum rate permitted by
law from the date paid by Grantor until repaid by the City.
8.Indemnity.The City hereby agrees to protect,indemnify,defend and hold Grantor and
its employees,members,contractors,representatives,officers,directors and agents
(collectively,"Grantor Indemnitees"),free and harmless from and against (collectively,
"Indemnify")any and all claims,causes of action,demands,damages,liens,liabilities,
losses,costs and expenses (including,without limitation,reasonable attorneys'fees)to
which Grantor Indemnitees may become exposed or which Grantor Indemnitees may
incur in connection with the City Parties exercising their rights and performing their
obligations hereunder (collectively,"Losses").Notwithstanding the foregoing,it is the
intent of the City and Grantor that the City shall be liable to Indemnify Grantor
Indemnitees under this Section 8 irrespective ofthe cause of the Losses (i.e.,regardless
of whether or not caused by any act,omission,willful misconduct or negligent conduct
(whether active or passive)of the City,or otherwise),except to the extent that the Losses
are caused solely by the gross negligence or willful misconduct of Grantor Indemnitees.
The provisions ofthis Section 8 shall survive the termination of the License as provided
in Section 3 for four (4)years except as to claims made and pending at such time
(collectively,the "Indemnified Losses").
9.Successors and Assignment.This Agreement shall be binding upon and enforceable
against,and shall inure to the benefit of,the parties hereto and their respective heirs,legal
representatives and successors;provided,however,that this Agreement may not be
assigned by either party,in whole or in part.
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10.Notices.All notices and communications (each a "Notice")required or permitted to be
given under this Agreement shall be in writing and may be sent in the following manner:
(a)by personal delivery,(b)by facsimile,(c)by mail,or (d)by overnight courier service
for next business day delivery.All Notices shall be deemed given and delivered as
follows:(i)if sent by personal delivery,when delivered to the address of the receiving
party,(ii)if sent by facsimile,the time of delivery set forth on the confirmation sheet
printed by the sending facsimile machine showing delivery of the Notice without errors
to the facsimile number ofthe receiving party,(iii)if sent by mail,three (3)business days
after deposit of the Notice in the United States mail,postage prepaid,with return receipt
requested,addressed to the receiving party,and (iv)if sent by overnight courier service,
one (1)business day after deposit of such Notice with such courier service addressed to
the receiving party.The proper addresses and facsimile numbers for Grantor and the City
for,purposes of giving Notices pursuant to this Section 10 shall be the Grantor's and
Grantee's addresses and facsimile numbers set forth on the signature pages hereof.
11.Governing Law.This Agreement shall be construed,enforced and interpreted in
accordance with the laws ofthe State of California,excluding California's choice oflaw
rules.
12.Counterparts.This Agreement may be executed in several counterparts,each of which
shall be deemed an original,and all of which together shall constitute one and the same
instrument.
13.Complete Agreement.This Agreement supersedes any prior negotiation,discussions or
communications by and between Grantor and the City and constitutes the entire
agreement between Grantor and the City with respect to the subject matter hereof.
14.Attorneys'Fees.Should the City or Grantor institute any action or proceeding to enforce
this Agreement,or for damages by reason of any alleged breach of this Agreement,or for
a declaration of rights hereunder,the prevailing party in any such action or proceeding
shall be entitled to receive from the non-prevailing party all costs and expenses,
including,without limitation,reasonable attorneys'fees,incurred by the prevailing party
in connection with such action or proceeding.
15.No Recording of Agreement or Memorandum of Agreement.The parties agree that
neither this Agreement nor any memorandum hereof shall be recorded in the Official
Records of Los Angeles County,California.
16.Mutual Cooperation.Each party hereto agrees to execute any and all documents and
writings that are reasonably necessary or expedient to carry out the intent ofthis
Agreement,to do such other reasonable acts as will further the purposes hereof,and to
refrain from any actions which would impede or otherwise interfere with the other party
with respect to the performance of its duties and obligations hereunder.
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17.Amendments.Any amendment to this Agreement must be in writing and signed by all of
the parties hereto.
18.Opportunity to Consult with Own Counsel.Each party agrees that it has reviewed and
understood the scope and effect ofthe provisions of this Agreement and has affixed its
signature hereto voluntarily and without coercion.Grantor further acknowledges that it
has had an opportunity to consult with an attorney of its own choosing regarding the
terms ofthis Agreement.Neither party has relied upon any representation or statement
made by the other party hereto which is not specifically set forth in this Agreement.
IN WITNESS WHEREOF,Grantor and the City have caused this Agreement to be
executed as of the day and year first written above.
GRANTOR:PORTUGUESE BEND CLUB HOMEOWNERS
ASSOCIATION
By:
Name:Michael A.Barth
Title:President
Address for notices:
4100 Palos Verdes Drive South
Rancho Palos Verdes,California 90275
Attention:Ms.Gale Lovrich
Telephone No.:(310)377-3667
Facsimile No.:(310)541-2426
[With a copy to:]
Timi Hallem,Esq.
Manatt,Phelps &Phillips,LLP
11355 West Olympic Boulevard
Los Angeles,California 90064
Telephone No.:(310)312-4000
Facsimile No.:(310)312-4224
[Signatures Continue On The Next Page]
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[Signatures Continued From The Previous Page]
CITY:CITY OF RANCHO PALOS VERDES
By:
Name:Thomas D.Long
Title:Mayor
Address for notices:
30940 Hawthorne Boulevard
Rancho Palos Verdes,California 90275
Attention:Ron Dragoo,Senior Engineer
Telephone No.:(310)544-5252
Facsimile No.:(310)544-5292
[With a copy to:]
Carol W.Lynch,Esq.
Richards,Watson &Gershon
355 South Grand Avenue,40th Floor
Los Angeles,California 90071
Telephone No.:(213)626-8484
Facsimile No.:(213)626-0078
ATTEST:
City Clerk
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1397888
EXHIBIT A
DEPICTION OF THE PROPERTY
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