2017/11/27 Newport Towne Square II, LLC Tree Lighting EventACCESS AND INDEMNIFICATION AGREEMENT
Men ifee
Trec Lighting Event
Itlls ACCESS AND INDEMNIFICATION AGREEMENT ("Aqreement") is made as of
thiszl]day of Fro\rtnDcI.\2017, by and between NEWPORT TOWNE SQUARE II, LLC, a
limited liability company ("Owner"), and the CITY OF MENIFEE, a California municipal
corporation ("Citv").
RECITAI-S
A. WHEREAS, Owner is the owner of certain land in the City of Menifee, California
referred to as the Peninsula Retail Partners Property (the "Premises"), whereupon alea is located
near City Hall.
B. WHEREAS, City desires tc continue its traCiticn of holding an annual tree lighting
event; and
C. WHEREAS. City desires to conduct its annual tree lighting event on December 9,
2017 (the -Ey9!1') at Newport Towne Square II, LLC property (APN: 336380071) and permit
public access to the access areas on the evening of December 9,2017 .
D. WHEREAS, Owner desires to provide City certain non-exclusive temporary access
rights for ingress, egress and access on, over and across the Premises, including the off-street
parking, unimproved land, and parking lots. as depicted in Exhibit A attached hereto and made a
part hereof (the "Access Area") solely in conncction 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 nonexclusive temporary access rights over the Access Area during the Term.
2. Term. Thetermof this Agreement shall commence on December 4, 2017 and shall
^-,1 ^F n-^-'har I I )nl ? /'--ll-crrn"l Thic Aoreeiy'enl shrll not he revoked bv Owner dUrinq tlte, \ -.:-:..1-:..!
Tenn 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 Usc. 'l'hc Access Arca ma y be accessed and used by those employces
and authorized agents of City (collectively. the "Citv 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. As such, City agrees that each access and use
ofthe Access Area by any City Party shall be coordinated in advance with Greg Lukosky, 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. Nothing herein shall provide city any right to make any permanent
alterations or improvements within or to the Access Area.
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3.2 Public Access. As part of City's right hereunder. the Access Area nray be
accessed by the public only (i) between the hours of 1l:30 a.m. and l0:00 p.m. on December 9,
2017, solely for the purpose of attending the Event and 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, including, without limitation, security therefor, any fencing, gate(s) and/or
barricade(s) reasonably required by Owner, 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 porl-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 ofthe
Access Area or otherwise interf-ere with Owner's operations and activities within the Access Area.
4. Condition of Access Area. The Access Area shall be made available b v C)wner to
City in its "as is" condition, and the owner permits the City to weed abate the Owner Access Area
for the Event. City acknowtedges 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 respcct to the suitability thereoffor 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 ofthe
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.Indemnilrcation City shall defend, indemnify and hold harmless Owncr, its
employees, officers. directors, partners. and agents (collectively, the "lndemnitees") 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) ofany 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 ofthe Event, 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, wili defend any aclion or proceeditig 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) Orvner'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.
6. Insurance. At all times during the Term, City shall. at its own cost and expense,
obtain and maintain in effect comprehensive general tiability insurance covering all aspects of
City's use ofthe 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, ofat
least Two Mitlion Dollars ($2,000,000) combined single limit, and containing an obligation of the
insurer to defend atl named insureds in the event of any and all claims covered thereby (the
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-PAIq'). Owner shall be nanred 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 satislactory 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 Califomia. The insurance carrier shall have a policyholder's rating of
no less than "A-VIII" or with insurers reasonably approved by Owner.
7. Assisnment. City shall not, either voluntarily or by operation of law, directly or
indirectty, 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 faiture of City to comply with any covenant herein, w'here 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, the Event and shall not be responsible
for any damage to or theft ofany personal property brought onto the Access Area by City, except
to the extent caused by Owner or its employees or agents.
10. I{cstoratior.r. Cit y. at its sole cost and cxpense, shall (i) by not later than 6:00 p.m
on December 11,2011, remove the Event-only related materials, equipment, trash and debris
brought onto the Access Area by City or resulting from the Event (except for decorations from the
Tree and appropriate equipment related to City's rights or obligations under this Agreement related
to the Public Viewing) and 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 ofthe Access Area. ln the event City's repair or restoration
requires more time that provided herein, the Term ofthis Agreement shalI 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 pro.,'ide *ritten notice to Ouner of completion cf 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 ( I 0) calendar days.
I l. 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 Essen e. Time is of the essence with rcs pect to the performance ofC
every provision of this Agreement.
13. Validitv. The invalidity, in whole or in part, of any terms or conditions of this
Agreement, shall not affect the validity ofany other terms or conditions.
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14. Attorneys' Fees. If either Owner or Cit y commences an action against the other
party arising out ofor in connection with this Agreement, the prevailing party shall be entitled to
have and recover from the non-prevailing party reasonable attorneys' f'ees 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 incuned by City and agrees that any mechanics' lien
liled 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 Liabilitv. City acknowledges and agrees that neither Owner
nor any ol its alfiliates 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 ofany occurrence in, upon, at or relating to the Event or any use ofthe Access Arca by City
or the public, other than any injur.v, [oss. or damage resulting from the u'illful misconduct or gross
negligence of Owner or any of its affiliates or their respective oflicers, employees and agents. The
covenants of this Section shall survive 1he 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: Ronald E. Bradley
Email :rbradley@cityofmenifee.us
Telephone: (9 5 1) 67 2-67 7 7
To Owner Newport Towne Square II, LLC
5051 Avenida Encinas
Carlsbad, CA 92008
A.ttn: Scott Nelson
Email : snelson@grantgc.com
Telephone: (760) 438-7500
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 shalt comply with all applicable local, state, and federal laws, regulations, rules, and
ordinances.
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California
Governinu Law. This Agreement is to be govemed by the laws of the Statc of
21.Entire Asreement Cou ntemarts. This A greement contains the entire agreement
between the parties hereto pertaining to the subject matter hereof and fully supersedes all prior
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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 ofContract. The persons executing this Agreement on behalfofeach of
the pades 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:-4rap--L6*By:
Its:\nk4 u |\4o
By:
City Clerk
COUNTERSIGNED
By
Finance ctor
APPRO AS TO FORM:
By:
yMe
City Attorney
OWNER:
Newport Towne Square II, LLC
a limited liability company
By: GPA,',T. r"\EAJrfEE, Lr'Z-
Its: Member/Manager
By:
J ar.lr s e'. eF.t..ft HAa.TAG{P-
lts: AuthorizedSignatory
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ATTEST:7 -rt
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EXIIIBIT A
Depiction of the Access Area
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