2017/11/27 PRP Menifee, LLC 2017 Tree Lighting Event^ -,THIS ACCESS AND INDEMNIFICATION AGREEMENT ("Aqreement") is rnade as of
*;fi'aay of NarRaL<2O1 7, by and between PRP MEN IFEE, LLC, a limited liability company
ACCESS AND INDEMNIFICATION AGREEMENT
Menifee
Tree Lighting Event
("Owner"), and the CITY OF MENIFEE. a California municipal corporation ("City")
RECITALS
A. WHEREAS. Owner is the owner of cerlain land in the City of Menifee, Calilbmia
refemed to as the Peninsula Retail Partners Property (the "Premises"), whereupon area is located
near City Hall.
B.
evenu and
WHEREAS. City desires to continue its tradition of holding an annual tree lighting
C. WHEREAS, City desires to conduct its annual tree lighting evenl on December 9,
2017 (the "Event") at PRP Menifee, 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 oll'-street
parking, unimproved land. and parking lots. as depicted in Exhibit A aftached hereto and made a
parl hereoi(the "Access Area") solely in connection with the Event, on the terms and conditions
sel forth herein.
NOW, THEREFORE. for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the panies agree as lbllows:
l. Premises. Subject to the terms and conditions of this Agreement, Owner grants to
City nonexclusive lemporary access rights over the Access Area during the Tem.
2. Term. The term ofthis Agreement shall commence on December4,2017 and shall
end on December I I ,2017 ("Iq!s"). 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.
'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 ofpreparing
fbr" and conducting. the Event (which shall be at City's sole cost and expense) and to perform and
conrplete City's obligations under this Agreement. As such, City agrees that each access and use
ofthe Access Area by any City Pa(y 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 u,ith 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.
3.1 Cit
3. Use.
3.2 Public Access. As part ol City's righl hereunder, the Access Area may be
accessed by the public only (i) between the hours of I I :30 a.m. and l0:00 p.m. on Decerrber 9,
2017, solely lbr the purpose of attending the Event and City shall be solely responsible. at City's
sole cost and expense, fbr (A) coordinating all aspects of the public's access 10 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 port-o-lels. 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 otheru,ise interf'ere with Owner's operations and activities within the Access Alea.
4. Condition ofAccess 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
fbr the Event. 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 lbr the use described in Section 3 above. Owner reserves full
control over the Premises to the extent nol 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 ofOwner to grant licenses and easements to others, on tenls 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 ofthe terms of such document, City will be deprived of its rights
under this Agreement.
5. lndernnification.City shall defend, indemnify and hold hannless Owner, its
employees, officers, directors, partners, and agents (collectively. the "Indemnitees") from and
against any and all demands, Iawsuits, 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 attomeys'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 Evenl. and City's.
its employees', agents'. consultants' or invitees' access or use of lhe Premises, the public's access
of the Premises, or a breach or default by City in the perionnance or lack of perfomance of this
Agreement, or the imposition of any l'ee. 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
lndemnitees, atCity'sexpense with counsel satisfactory to Owner. Notwithstanding the foregoing,
City's indemnilication obligations shall not apply to the extent damages to Indemnitees result from
(i) Owner's or any lndemnitee's failure to exercise reasonable care on or about the Premises or (ii)
Owner's or any Indenrnitee'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 liability 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 Million Dollars ($2,000,000) combined single limit. and containing an obligation of the
insurer to det'end all named insureds in the event of any and all claims covered thereby (the
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"Pgligy- ). Owner shall be named as additional insured thereunder. City shall provide to Owner a
certillcate evidencing the Policl''s coverage prior to City entering upon the Access Area. The
insurance carrier and the form and substance of the Policy shall be satisfhctory to Owner. The
insurance required in this Section 6 shall be with an insurance company ol companies licensed to
do business in the State of Califbrnia. 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 lhis
Agreement, or permit or suf-fler 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 lailure of City to comply with any covenant herein, where such lailure
shall continue for a period of five (5) days after written notice thereof from Owner to City. shall
constitule a material default and breach ofthis Agreement. In the event ofsuch a default by City.
Owner may terminate this Agreemenl and City's right hereunder by any lawful means.
9. Securitv. Owner shall not be responsible fbr providing any guard seruice or any
other security measures for the Access Area, the Premises, the Event and shall not be responsible
Ibr 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. Restoration. City, at its sole cost and expense, shall (i) by not later than 6:00 p.m.
on December 11.2017, 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 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 interf'ere with Owner's construction activities. City shall
promptly provide written notice to Owner of completion of the restoration required under this
Section l0 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 ( l0) calendar days.
I l. Nuisance. City shall not do or permit anything to be done in or about the Premises
which shall obstruct or inlerfere with adjoining properly users or injure or annoy them. or
knowingly permit any nuisance or wasle 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.
J
13. Validitv. The invalidity, in whole or in part, of any tenns or conditions of this
Agreement, shall not afI'ect the validity of any other terms or conditions.
14. Attorneys' Fees. If either Owner or Cit y commences an action against the olher
party arising out ofor in connection with this Agreement, the prevailing party shall be entitled lo
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 fumished or obligations incurred by City and agrees that any nrechanics' lien
filed against the Premises for work claimed to have been done foq or for materials claimed to have
been fumished 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. Lirnitation o1'Owner"s Liability. Ci ty acknowledges and agrees that neithcl 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 fbr any injury, loss or damage arising from or
oul ofany occurrence in. upon, at or relating to the Event or any use ofthe Access Alea by City
or the public, other than any injury, loss, or damage resulting from the willful misconducl or gross
negligence ofOwner 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 ofthe change of address in writing. Notice shall be deemed
communicated lbrty-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(rlcityofmenifee. us
Telephone: (95 l) 67 2-67 7 7
To Owner:PRP Menifee. LLC
4l 7 29th Street
Newport Beach. CA 92663
Attn: Greg Lukosky
Email : greg@)prpdevelopment.com
Telephone: (949', 723 -9500
18. Amendment. This A greenlent rlay lre amended at any time by the mulual consent
ofthe parties by an instlument in writing signed by both parties
19. Applicable Laws. [n perfonring its obligations and duties under this Agreenrent,
each party shall comply with all applicable local, state, and federal laws, regulations, rules, and
ordinances.
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Calilornia
Governing Law This Agreement is lo be govemed by the laws of the State o1'
2l- Entire Asreement; Countemafis. This Agreement 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 parties lrereto 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 plovision of any other Agreement to
which said paty is bound.
ISIGNATURES APPEAR ON THE FOLLOWING PAGES]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
set fbrth above.
CIT\':
By:
Its:lnbn
"A>'Z'rh
By:
City Clcrk
COUN IGNED:
By:
Fi Direclor
APPRO AS TO FORM:
By'
Ci Altorney
OWNER:
PRP Menifee, LLC
a limited liability company
By:
Its:Member/M
By:
Its: AuthorizedSignatory
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