2015/03/09 Menifee Lakes Plaza, LLC Menfiee Lakes Plaza Interchange ground breaking ACCESS AND INDEMNIFICATION AGREEMENT
Menifee Lakes Plaza
Interchange Ground Breaking
THIS ACCESS AND INDEMNIFICATION AGREEMENT ("Agreement") is made as
of this 9t' day of March 2015, by and between Menifee Lakes Plaza, LLC, a liability company,
(collectively, "Owner"), and the CITY OF MENIFEE, a California municipal corporation
RECITALS
A. WHEREAS, The Owner is the owner of certain land in the City of Menifee,
California referred to as the Menifee Lakes Plaza Project (the "Premises"), is located on the
corner of Newport Road and Antelope Road(the "vacant parcel").
B. WHEREAS, City desires to hold a Groundbreaking Ceremony for the 1-215/
Newport Interchange Project as conceptually depicted in Exhibit A (the "Event") on April 8,
2015; and
C. WHEREAS, The Owner desires to provide City certain non-exclusive temporary
access rights for ingress, egress and access on, over and across a portion of the Premises, as
depicted in Exhibit A attached hereto and made a part hereof (the "Access Area") solely in
connection with the Event, on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Premises. Subject to the terms and conditions of this Agreement, Owner grants to
City a nonexclusive temporary access rights over the Access Area during the Term.
2. Term. The term of this Agreement shall commence on April 8, 2015 and shall
end on April 9, 2015 ("Term"). This Agreement shall not be revoked by Owner during the Term
unless City defaults, beyond all applicable cure periods, in the performance of this Agreement.
Upon the expiration or early termination of this Agreement, all rights provided to City hereunder
shall be immediately revoked.
3. Use.
3.1 City's Use. The Access Area may be accessed and used by those
employees and authorized agents of the City (collectively, the "City Parties") solely for the
purpose of preparing for, and conducting, the Event (which shall be at City's sole cost and
expense) and to perform and complete City's obligations under this Agreement. City
acknowledges and agrees that the Premises (including the Access Area) is an active construction
site where Owner and its employees and agents are, and will be during the Term, continuing to
access and conduct all construction activities desired by Owner. As such, City agrees that each
access and use of the Access Area by any City Party shall be coordinated in advance with Lou
Miramontes, or any other representative(s) designated by Owner, and shall occur only during
time(s) approved by such representative and in a manner that does not unreasonably interfere
with Owner's activities at, or with respect to, the Premises. City shall, at its sole cost and
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expense, remove any fencing or gate existing along Newport Road or Antelope Road and place it
in the area specified by Owner, if applicable. The City is solely responsible for any and all costs
related to the Event, including reimbursing the Owner for electricity and water used by the City
for the Event. Nothing herein shall provide City any right to make any permanent alterations or
improvements within or to the Access Area.
4. Condition of Access Area. The Access Area shall be made available by Owner to
City in its "as is" condition. City acknowledges that neither Owner nor any agent of Owner has
made any representation or warranty with respect to the condition of the Access Area or the
Premises, or with respect to the suitability thereof for the use described in Section 3 above.
Owner reserves full control over the Premises to the extent not inconsistent with City's limited
access and use of the Access Area solely for the purposes herein described. This reservation
includes, but is not limited to, the right of Owner to grant licenses and easements to others. If
requested by Owner, City shall promptly join with Owner in executing any documents as maybe
reasonably appropriate to assist Owner to implement any such action, provided City need not
execute any document which is of the nature wherein liability is created in City or, if by reason
of the terms of such document, City will be deprived of its rights under this Agreement.
5. Indemnification. City shall defend, indemnify and hold harmless Owner, its
employees, officers, directors, partners, and agents (collectively, the "Indemnitees") from and
against any and all demands, lawsuits, claims, losses, costs, causes of action, judgments, fines,
penalties, liabilities, damages (including, but not limited to, consequential damages) and
expenses (including, but not limited to, attorneys' fees and court costs) of any kind whatsoever,
including, but not limited to, injury or death to any person or damage to any property occurring
within or about the Premises to the extent arising directly or indirectly out of the Event, and the
City's, its employees', agents', consultants' or invitees' access or use of the Premises, the
public's access of the Premises, or a breach or default by City in the performance or lack of
performance of this Agreement, or the imposition of any fee, penalty, or assessment on Owner
on the basis of City's use. City, upon notice from Owner, will defend any action or proceeding
brought against the Indemnitees, at City's expense with counsel satisfactory to Owner.
Notwithstanding the foregoing, City's indemnification obligations shall not apply to the extent
damages to Indemnitees result from Owner's failure to exercise reasonable care at the Access
Area or Owner's violation of laws, regulations and standards relating to the Event. The
covenants of this Section shall survive the expiration and termination of this Agreement.
6. Insurance. At all times during the Term, City shall, at its own cost and expense,
obtain and maintain in effect comprehensive general liability insurance covering all aspects of
City's use of the Access Area (including the acts of its employees, agents, consultants, guests,
and visitors) and the operation of any entity selected by City to perform any work or activity at
the Access Area, with bodily injury and property damage coverage, both primary and secondary,
of at least Two Million Dollars ($2,000,000) combined single limit, and containing an obligation
of the insurer to defend all named insureds in the event of any and all claims covered thereby
(the "Polic '). Owner shall be named as additional insured thereunder. City shall provide to
Owner a certificate evidencing the Policy's coverage prior to City entering upon the Access
Area. The insurance carrier and the form and substance of the Policy shall be satisfactory to
Owner. The insurance required in this Section 6 shall be with an insurance company or
companies licensed to do business in the State of California. The insurance carrier shall have a
policyholder's rating of no less than "A-VIII" or with insurers reasonably approved by Owner.
The Policy shall contain a provision that it cannot be canceled or modified as to the nature or
extent of the coverage without first giving Owner thirty (30) days' notice in writing of the
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insurance carrier's intention to do so. City shall provide to Owner a certificate of insurance to
Owner which evidences the Policy prior to any City Party's entry on the Access Area.
7. Assignment. City shall not, either voluntarily or by operation of law, directly or
indirectly, sell, hypothecate, assign, pledge, sublease, encumber or otherwise transfer this
Agreement, or permit or suffer the Access Area to be used by anyone other than those specified
in Section 3 above without the prior written consent of Owner, which consent may be withheld
in Owner's sole discretion.
8. Default. The failure of City to comply with any covenant herein, where such
failure shall continue for a period of five (5) days after written notice thereof from Owner to
City, shall constitute a material default and breach of this Agreement. In the event of such a
default by City, Owner may terminate this Agreement and City's right hereunder by any lawful
means.
9. Security. Owner shall not be responsible for providing any guard service or any
other security measures for the Access Area, the Premises, and the Event and shall not be
responsible for any damage to or theft of any personal property brought onto the Access Area by
City, except to the extent caused by Owner or its employees or agents.
10. Restoration. City, at its sole cost and expense, shall (i)by not later than 9 am on
April 9, 2015 remove the Event only-related materials, equipment, trash and debris brought onto
the Access Area by the City or resulting from the Event and commence appropriate repair or
restoration required under this Section related to the Event (ii)by not later than 9am April 9,
2015 and restore the fence and gate at Newport Road and Antelope Road, if applicable. In the
event the City's repair or restoration requires more time that provided herein,the Term of this
Agreement shall extend until such repair or restoration work is complete; provided,however, the
City's right to access the Access Area shall be limited to solely activities necessary to complete
such repair or restoration and, as an active construction site, all such access shall be strictly
coordinated with the Owner's representative. The City's repair and restoration activities shall
not interfere with the Owner's construction activities. The City shall promptly provide written
notice to the Owner of completion of the restoration required under this Section 10 and may
request written confirmation from the Owner of the termination of this Agreement.
11. Nuisance. City shall not do or permit anything to be done in or about the
Premises which shall obstruct or interfere with adjoining property users or injure or annoy them,
or knowingly permit any nuisance or waste in, on or about the Access Area.
12. Time Is of the Essence. Time is of the essence with respect to the performance of
every provision of this Agreement.
13. Validity. The invalidity, in whole or in part, of any terms or conditions of this
Agreement, shall not affect the validity of any other terms or conditions.
14. Attorneys' Fees. If either Owner or City commences an action against the other
party arising out of or in connection with this Agreement, the prevailing party shall be entitled to
have and recover from the non-prevailing party reasonable attorneys' fees and costs of suit.
15. Liens. City shall keep the Premises free from any liens arising out of any work
performed, materials furnished or obligations incurred by City and agrees that any mechanics'
lien filed against the Premises for work claimed to have been done for, or for materials claimed
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to have been furnished to, City, shall be discharged by City, at its sole expense, within ten (10)
days after City's receipt of written notice from Owner.
16. Limitation of Owner's Liability. City acknowledges and agrees that neither
Owner nor any of its affiliates or their respective officers, employees and agents shall be liable or
responsible in any way to City or any other person for any injury, loss or damage arising from or
out of any occurrence in, upon, at or relating to the Event or any use of the Access Area by City
or the public, other than any injury, loss, or damage resulting from the willful misconduct of
such Owner parties. The covenants of this Section shall survive the expiration and termination
of this Agreement.
17. Notices. Any notice, demand, request, consent, approval, or communication
either party desires or is required to give to the other party shall be in writing and either served
personally or sent by prepaid, first-class mail to the address set forth below. Either party may
change its address by notifying the other party of the change of address in writing. Notice shall
be deemed communicated forty-eight(48) hours from the time of mailing if mailed as provided
in this Section.
To City: City of Menifee
29714 Harm Road
Menifee, CA 92586
Attn: Gina Gonzalez
Email: GGonzalez@citvofinenifee.us
Telephone: 951-672-6777
To Owner: Menifee Lakes Plaza, LLC
3636 Birch Street
Newport Beach, CA 92660
Attn: Lou Miramontes
Telephone: 949-660-1300
18. Amendment. This Agreement may be amended at any time by the mutual consent
of the parties by an instrument in writing signed by both parties.
19. Applicable Laws. In performing its obligations and duties under this Agreement,
each party shall comply with all applicable local, state, and federal laws, regulations, rules, and
ordinances.
20. Governing Law. This Agreement is to be governed by the laws of the State of
California.
21. Entire Agreement; Counterparts. This Agreement contains the entire agreement
between the parties hereto pertaining to the subject matter hereof and fully supersedes all prior
written or oral agreements and understandings between the parties pertaining to such subject
matter. This Agreement may be executed in multiple counterparts, each of which when taken
together, shall constitute one agreement.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the date
set forth above.
ATTEST:
By: Awbe
City Jerk
COUNTERSIGNED:
By: �r_�
Finance Director
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City Attorney
DEVELOPER:
Menifee Lakes Plaza, LLC
a limited liability company
By:
Its: Owner
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EXHIBIT A
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Established 1986
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March 11,2015 'X
PUBLIC AGENCY RISK SHARING
ADDITIONAL COVERED PA AUTHORITY OF CALIFORNIA
RTY:
Menifee Lakes Plaza,LLC and
Laguna Beach Properties, LLC
Attn: Lou Miramonte
3636 Birch Street
Newport Beach,CA 92660
RE: EVIDENCE OF COVERAGE&ADDITIONAL COVERED PARTY ENDORSEMENT#1A347-ME
Only as respects the Access and Indemnification Agreement by and between Menifee Lakes Plaza, LLC, Laguna
Beach Properties,LLC and City of Menifee for a Groundbreaking Ceremony for the 1-215/Newport Interchange
Project; April B-9,2015.
To Whom It May Concern:
Please be advised that the City of Menifee participates in PARSAC,the Public Agency Risk Sharing Authority of California,
As such, it is collectively and permissibly self-insured under Sections 990.4 and 990.8 of the California Government Code.
The specifics of the self-Insured program are listed below:
COVERAGE YEAR: JULY 1,2014 - JULY 1,2015
General and Automobile Liability
Y Public Officials Errors&Omission
Limit:$1 Million per occurrence group self-insurance
Occurrence Retention: $5,000
CONDITIONS OF THIS ADDITIONAL COVERED PARTY ENDORSEMENT
Effective Date: April 8,2015 Expiration Date: April 9,201.5
The coverage afforded as described above is subject to all terms,exclusions,conditions,definitions,and other provisions of
the Public Agency Risk Sharing Authority of California's Memorandum of Coverage.
If the City of Menifee is required by agreement or contract to name Menifee Lakes Plaza, LLC and Laguna Beach
Properties, LLC as an Additional Covered Party and the agreement or contract requires the coverage provided to the
Additional Covered Party to be primary, then the coverage provided by this endorsement shall be primary. In all other
events, if collectible insurance with any insurer, coverage with any other joint powers authority or other self-funding
mechanism is available to the Additional Covered Party named above covering a loss to which the PARSAC Memorandum
of Coverage applies (whether on a primary, excess or contingent basis), the coverage of this Memorandum shall be in
excess of, and shall not contribute with such other Insurance or coverage; provided that this clause does not apply with
respect to excess insurance or cove'rage purchased specifically to be in excess of such Memorandum. The bankruptcy of,
insolvency of, or placement into rehabilitation or receivership by any regulatory agency of any joint powers authority or
insurance company providing joint powers authority protection or insurance coverage to the Additional Covered Party,
named above,shall not amend the application of this condition,
This Endorsement does not apply to liability arising out of the sole negligence of the Additional Covered Party named
above.
Coverage ie� �y
s stated above and will not be cancelled except upon 30 days written notice to the Additional
Covered Pa
March 11,2015
Kin Ong,ARM
Risk Manager
cc: Bruce Foltz, City of Menifk525 Response Road, Suite One, Sacramento, CA 95815r9k"Ovised 6,/3/13
Phone(916) 927-7727 Facsimile (916) 927-3075 www.parsac.org
CERTIFICATE NO. ISSUE DATE(MM/DD/YYYY)
GL1-7549 Al CERTIFICATE OF COVERAGE 03/12/2015
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE
CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR
CSAC Excess Insurance ALTER THE COVERAGE AFFORDED BELOW.THIS CERTIFICATE OF COVERAGE DOES NOT CONSTITUTE
CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE
Authority CERTIFICATE HOLDER.
C/O ALLIANT INSURANCE SERVICES,INC.
PO BOX 6450 IMPORTANT:If the certificate holder is an ADDITIONAL INSURED and/or requesting a WAIVER OF
NEWPORT BEACH,CA 92658-6450 SUBROGATION,the Memorandums of Coverage must be endorsed.A statement on this certificate does
not confer rights to the certificate holder in lieu of such endorsement(s).
PHONE(949)756-0271/FAX(619)699-0901
LICENSE#OC36861 COVERAGE it A_CSAC Excess Insurance Authority
y
Member: COVERAGE
PUBLIC AGENCY RISK SHARING AUTHORITY OF AFFORDED B
CALIFORNIA(PARSAC)
1525 RESPONSE ROAD, SUITE 1 COVERAGE
SACRAMENTO, CA 95815 AFFORDED C
COVERAGE
AFFORDED D
Coverages
THIS IS TO CERTIFY THAT THE MEMORANDUMS OF COVERAGE LISTED BELOW HAVE BEEN ISSUED TO THE MEMBER NAMED ABOVE
FOR THE PERIOD INDICATED,NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER
DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE COVERAGE AFFORDED BY THE
MEMORANDUMS DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS,AND CONDITIONS OF SUCH MEMORANDUMS.
LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
CO TYPE OF COVERAGE MEMORANDUM COVERAGE EFFECTIVE COVERAGE EXPIRATION LIABILITY LIMITS
LTR NUMBER DATE(MM/DD/YYYY) DATE(MM/DD/YYYY)
Difference between
A ® Excess General Liability EIA-PE 14 EL-76 07/01/2014 07/01/2015 $2,000,000
® Excess Auto Liability and the Members Self-Insured
® Excess Errors&Omissions Retention of $1,000,000
Completed Operations
Aggregate Applies
Description of Operations/Locations/Vehicles/Special Items:
AS RESPECTS ACCESS AND INDEMNIFICATION AGREEMENT BETWEEN CITY OF MENIFEE AND MENIFEE LAKES PLAZA,LLC AND
LAGUNA BEACH PROPERTIES,LLC FOR USE OF PROPERTY KNOWN AS THE MENIFEE LAKES PLAZA PROJECT FOR THE
GROUNDBREAKING CEREMONY FOR THE 1-215/NEWPORT BEACH INTERCHANGE PROJECT ON APRIL 8 AND 9,2015.
MENIFEE LAKES PLAZA,LLC AND LAGUNA BEACH PROPERTIES,LLC ARE INCLUDED AS ADDITIONAL COVERED PARTIES,BUT ONLY
INSOFAR AS THE OPERATIONS UNDER THIS CONTRACT ARE CONCERNED.
THIS COVERAGE SHALL BE PRIMARY.PURSUANT TO ENDORSEMENT NUMBER U-10.
CITY OF MENIFEE IS A MEMBER OF PUBLIC AGENCY RISK SHARING AUTHORITY OF CALIFORNIA(PARSAC)
Certificate Holder Cancellation
SHOULD ANY OF THE ABOVE DESCRIBED MEMORANDUMS OF COVERAGES BE CANCELLED
BEFORE THE EXPIRATION DATE THEREOF,NOTICE WIL BE DELIVERED INACCORDANCE
WITH THE MEMORANDUMS OF COVERAGE PROVISIONS.
MENIFEE LAKES PLAZA,LLC
LAGUNA BEACH PROPERTIES,LLC
ATTN:LOU MIRAMONTE AUTHORIZED REPRESENTATIVE
3636 BIRCH ST
NEWPORT BEACH,CA 92660
CSAC EXCESS INSURANCE AUTHORITY PAGE 1 OF 2
ENDORSEMENT NO. U-1
CSAC EXCESS INSURANCE AUTHORITY
GENERAL LIABILITY I
ADDITIONAL COVERED PARTY AMENDATORY ENDORSEMENT
It is agreed that the 'Covered Party, Covered Persons or Entities' section of the Memorandum is amended
to include the person or organization named on the Certificate of Coverage, but only with respect to liability
arising out of premises owned by or rented to the Member, or operations performed by or on behalf of the
Member or such person or organization so designated.
Coverage provided under this endorsement is limited to the lesser of the limits stated on the Certificate of
Coverage or the minimum limits required by contract.
ADDITIONAL COVERED PARTY:
NAME OF PERSON OR ORGANIZATION SCHEDULED PER ATTACHED CERTIFICATE OF COVERAGE
AS RESPECTS:
PER ATTACHED CERTIFICATE OF COVERAGE
It is further agreed that nothing herein shall act to increase the Authority's limit of liability.
This endorsement is part of the Memorandum and takes effect on the effective date of the
Memorandum unless another effective date is shown below. All other terms and conditions
remain unchanged.
Effective Date:
Memorandum No.: PER ATTACHED CERTIFICATE OF COVERAGE
Issue Date: June 27, 2014
Authorized Representati
CSAC Excess Insurance thorny
PAGE 2 OF 2
ENDORSEMENT NO. U-10
CSAC EXCESS INSURANCE AUTHORITY
GENERAL LIABILITY I
AMENDATORY ENDORSEMENT-PRIMARY/NON-CONTRIBUTORY
It is understood and agreed that Condition 7. OTHER COVERAGE, of the Memorandum to
which it is attached, is deleted in its entirety and replaced by the following:
7. OTHER COVERAGE
If collectible insurance with an insurer is available to the covered party covering a loss also
covered hereunder (whether on a primary, excess or contingent basis), the coverage hereunder
shall be in excess of, and shall not contribute with, such insurance; provided that this clause
does not apply with respect to excess insurance purchased specifically to be in excess of this
Memorandum, or to insurance or reinsurance which is intended to provide the remainder of the
limit of liability stated in the Declarations of this Memorandum when the coverage afforded under
this Memorandum provides less than 100 percent of the limit set forth in the Declarations.
However, if the covered party has entered into a written agreement, prior to any loss event, in
which it is agreed that this coverage shall be primary and/or non-contributory with respect to an
additional covered party as specified in Endorsement U-1 of this Memorandum, then this
coverage shall respond as primary and/or non-contributory, but shall be limited to the lesser of
the limits stated on the Certificate of Coverage or the minimum limits required by the written
agreement.
Notwithstanding the foregoing paragraph, if, because of liability arising out of or in connection
with the operation of any clinic or established health care facility, coverage for damages is
available under this Memorandum and under the Authority's Medical Malpractice Program, it
shall be conclusively presumed that the coverage afforded under the Medical Malpractice
Program shall be primary and any coverage available under this Memorandum shall be excess
only. For claims to which this provision applies, the exhaustion of the Authority's limit of
liability under the Medical Malpractice Program will satisfy the covered party's self-insured
retention under this Memorandum.
Coverage for the additional covered party under this endorsement is limited to the written
contract or agreement as specified on the Certificate of Coverage and Endorsement U-1 of this
Memorandum.
It is further agreed that nothing herein shall act to increase the Authority's limit of liability.
Page 1 of 2
This endorsement is part of the Memorandum and takes effect on the effective date of the
Memorandum unless another effective date is shown below. All other terms and conditions
remain unchanged.
Effective Date: Memorandum No.: EIA 14 EL-00
Issued to: ALL MEMBERS
Issue Date: June 24, 2014
Authorized Repres ntative
CSAC Excess Insur hority
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