2018/10/08 Menifee Partners, LP Scott Rd Interchange Grand Opening, indemnification agreement ACCESS AND INDEMNIFICATION AGREEMENT
Shops at Scott
Scott Road Interchange Grand Opening
THIS ACCESS AND INDEMNIFICATION AGREEMENT("Agreement") is made as of
this 81h day of October, 2018, by and between Menifee Partners, LP a California Limited
Partnership, ("Owner'),and the CITY OF MENIFEE,a California municipal corporation("City").
RECITALS
A. WHEREAS, Owner is the owner of certain land located at 27701 Scott Road in the
City of Menifee, California referred to as the Shops at Scott (the "Premises"), whereupon the
Parking Lot and Unimproved Land ("Property Area") area is located near Scott Road (the "Plaza
area").
B. WHEREAS, City desires to continue its tradition of holding a Ground Breaking
ceremony event at the Property; and
C. WHEREAS, City desires to conduct its Ground Breaking Ceremony event on
October 11, 2018 (the"Event") at the Property Area and permit public access to the Property Area
on the day of the event on October 11, 2018 ("Public Event").
D. WHEREAS, 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, including the
Property Area and off-street parking in graded dirt lots, as depicted in Exhibit A attached hereto
and made a part hereof(the "Access Area") solely in connection with the Event and the Public
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 nonexclusive temporary access rights over the Access Area during the Term.
2. Term. The term of this Agreement shall commence on 5am on October 11, 2018
and shall end at midnight on October 11, 2018 ("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. Unless otherwise provided herein, 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 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 Theofilo Hamui,or any other representative(s)
designated by Owner, and shall occur only during time(s) approved by such representative and in
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a manner that does not unreasonably interfere with Owner's activities at, or with respect to, the
Premises. City is solely responsible for any and all costs related to the Event, including
reimbursing Owner for electricity, trash removal, and water used by City for the Event, which
reimbursement amount is capped at One Thousand Dollars ($1,000.00). Nothing herein shall
provide City any right to make any permanent alterations or improvements within or to the Access
Area.
3.2 Public Access. As part of City's right hereunder, the Access Area may be
accessed by the public for the event only(i)between the hours of 5 a.m. and 11:59 p.m. on October
11, 2018 solely for the purpose of setting up and attending the Event. City shall be solely
responsible, at City's sole cost and expense, for(A) coordinating all aspects of the public's access
to the Access Area for the Event and Public Viewing, including, without limitation, parking for
the public (only on the location depicted for public parking on Exhibit A and as approved by
Owner), parking attendants, trash receptacles and port-o-lets, all in compliance with the terms and
conditions of this Agreement and with Owner's reasonable input, and (B) ensuring that the public
does not access any area outside of the Access Area or otherwise interfere with Owner's operations
and activities within 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, on terms not
inconsistent with the rights granted to City herein. If requested by Owner, City shall promptly join
with Owner in executing any documents as may be 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, reasonable 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, the Public
Viewing and 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(i) Owner's or any Indemnitee's failure to exercise reasonable
care on or about the Premises or (ii) Owner's or any Indemnitee's violation of laws, regulations,
and standards relating to the Event and Public Viewing. The covenants of this Section shall survive
the expiration and termination of this Agreement.
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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
"Policy"). Owner and its development manager, Otrospa,a California Corporation,shall be named
as additional insured thereunder. City shall provide to Owner and Spathco 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.
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. Securi1y. Owner shall not be responsible for providing any guard service or any
other security measures for the Access Area, the Premises, 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 11:59
p.m. on October 11, 2018 remove the Event-only related materials, equipment, trash and debris
brought onto the Access Area by 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 11:59
a.m. October 11, 2018, remove all materials, equipment, other personal property, trash and debris
brought onto the Access Area by City and repair and restore any damage to the Premises caused
by City's or the public's use of the Access Area. In the event 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, 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 Owner's representative.
City's repair and restoration activities shall not interfere with Owner's construction activities.
City shall promptly provide written notice to Owner of completion of the restoration required
under this Section 10 and may request written confirmation from Owner of the termination of
this Agreement. If such written confirmation is requested by City from Owner, Owner shall
provide such written confirmation within ten (10) calendar days.
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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. Validi1y. 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. The
court may set such fees in the same action or in a separate action brought for that purpose.
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 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 or gross
negligence of Owner or any of its affiliates or their respective officers, employees and agents. 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 Haun Road
Menifee, CA 92586
Attn: Armando Villa
Email:AV it la@city ofinenifee.us
Telephone: (951) 672-6777
To Owner: Menifee Partners, LP
8445 Camino Santa Fe, Suite 205
San Diego, CA 92121
Attn: Teofilo Hamui
Email: thamui@spathco.com
Telephone: (858) 292-5185
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.
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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.
22. Execution of Contract. The persons executing this Agreement on behalf of each of
the parties hereto represent and 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) that entering into this Agreement does not violate any provision of any other Agreement to
which said party is bound.
[SIGNATURES APPEAR ON THE FOLLOWING PAGES]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
set forth above.
CITY:
By:
Its: / l�
ATTEST:
go-
ke-1-
By:
City Clerk
COUNTERSIGNED:
By:
Finance Officer
APPR AS TO FORM:
By:
rey Melchin
City Attorney
OWNER:
Menifee Partners, LP
By: Otrospa
Its: General Part r
By:
Its: Authorized Signatory
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EXHIBIT A
Depiction of the Access Area
Scott Road Interchange
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Established 1986
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PUBLIC AGENCY RISK SHARING
AUTHORITY Of CALIFORNIA
ADDITIONAL COVERED PARTY
Menifee Partners,LP
8445 Camino Santa Fe,Suite 205
San Diego,CA 92586
Attention:Teofilo Hamui
Re: EVIDENCE OF COVERAGE&ADDITIONAL COVERED PARTY ENDORSEMENT AS REQUIRED BY
AGREEMENT OR CONTRACT;#18-567-ME
Only as respects to use of the property for ingress and egress,including parking on property known as 27701 Scott Road
during the Scott Road Interchange Grand Opening Event
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 1,2018-July 1,2019
-General Liability including Automobile Liability
-Public Officials Errors&Omission
Limit:$1,000,000 per occurrence group self-insurance
Occurrence Retention:$25,000
CONDITIONS OF THIS ADDITIONAL COVERED PARTY ENDORSEMENT
Effective Date: October 11,2018 Expiration Date: October 11,2018
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 Liability Memorandum of Coverage.The coverage is afforded hereunder only
where City of Menifee is required by agreement or contract to name Menifee Partners,LP as Additional Covered Party.
If the City of Menifee is required by agreement or contract to name Menifee Partners,LP 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 coverage 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 is in effect as ted above and will not be cancelled except upon 30 days written notice to the Additional Covered Party.
October 11,2018
m ng,ARM — -
Manager
cc:Margarita C mejo,City of Menifee Form Revised 6/29/15
1525 Response Road,Suite One,Sacramento,CA 95815-4803
Phone(916)927-7727 Facsimile(916)927-3075 www.parsac.org