HomeMy WebLinkAboutE-4 Staff Report - Off-Site Maintenance Agreements for The OrchardCONSENT ITEM
E-4
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
VIA: SERGIO GONZALEZ, CITY MANAGER
FROM: ROBERT DELGADILLO, PE, DIRECTOR OF PUBLIC WORKS/CITY ENGINEER
DATE: JUNE 20, 2022
SUBJECT: REQUEST AUTHORIZATION TO APPROVE OFF-SITE MAINTENANCE
AGREEMENTS FOR “THE ORCHARD”, 626 N AZUSA AVE.
BACKGROUND:
On August 15, 2018, the Planning Commission approved the project known as “The Orchard” located at
626 N. Azusa Ave. The Project was approved with several non-standard design features in the public
right-of-way that require on-going maintenance. These features include, Public Art, overhead signs that
project into the public right-of-way and custom finish sidewalk and landscape at the southeast corner of
Azusa Ave and Foothill Blvd. Because the Developer elected to install these features, they will be
responsible for their maintenance. As such, the City will enter into three (3) distinct Maintenance
Agreements to outline the City’s maintenance requirements for each non-standard design feature. Each
maintenance agreement will be accompanied by an Encroachment Permit issued by the Engineering
Division. These Maintenance Agreements will be memorialized by recording a Memorandum of
Maintenance Agreements.
RECOMMENDATIONS:
Staff recommends that the City Council take the following actions:
1) Approve the Maintenance Agreements with “The Orchard” listed below:
•Memorandum of Maintenance Agreements
•Landscape and Sidewalk Maintenance Agreement
•Maintenance Agreement for Projecting Signs into the Public Right-of-Way
•Maintenance Agreement for Public Art in the Public Right-of-Way
2)Authorize the City Manager to execute, in a form acceptable to City Attorney, on behalf of the
City.
APPROVED
CITY COUNCIL
6/20/2022
OFF-SITE MAINTENANCE AGREEMENTS FOR “THE ORCHARD”, 626 N AZUSA AVE.
June 20, 2022
Page 2 of 2
ANALYSIS:
The Maintenance Agreements outline the Developer’s responsibilities and reference an Encroachment
Permit for each non-standard feature constructed in the public right-of-way. The Encroachment Permit
includes specific conditions that must be met to keep the permit. In addition, the Encroachment permit
for each agreement includes specific insurance requirements and indemnity and duty to defend articles.
FISCAL IMPACT:
There is no fiscal impact associated with the proposed recommendations.
Prepared by: Reviewed and Approved by:
Miguel Cabanas, PE Robert Delgadillo, P.E.
Principal Civil Engineer Director of Public Works/City Engineer
Reviewed and Approved by:
Sergio Gonzalez
City Manager
Attachments:
1) Memorandum of Maintenance Agreements
2) Landscape and Sidewalk Maintenance Agreement
3) Maintenance Agreement for Projecting Signs into the Public Right-of-Way
4) Maintenance Agreement for Public Art in the Public Right-of-Way
WHEN RECORDED MAIL TO:
City Clerk
City of Azusa
213 E. Foothill Blvd.
Azusa, CA 91702
Attn: Engineering
______________________________________________________________________
MEMORANDUM OF MAINTENANCE AGREEMENTS
This Memorandum of Maintenance Agreements (the “Agreement”) is made and
entered this ___ day of _____, 20__ by and between the City of Azusa, a municipal
corporation, hereinafter referred to as “CITY” and Azusa Block 36 LLC, a California limited
liability company hereinafter referred to as the “DEVELOPER.” CITY and DEVELOPER
are sometimes hereinafter individually referred to as a “Party” and/or collectively referred
to as the “Parties.”
RECITALS
WHEREAS, DEVELOPER is the owner of the real property located at 626 N Azusa
Ave, described in Exhibit “A” and depicted in “Exhibit B” referred to as the real property;
and
WHEREAS, DEVELOPER has developed the Property described in Exhibit “A,”
attached hereto, and incorporated herein by this reference, hereinafter referred to as the
“Project”; and
WHEREAS, DEVELOPER is desirous to enter into an agreement with the City to
maintain the following:
1. Landscape, irrigation and decorative sidewalk in the public right-of-way as
described in the “Landscape and Sidewalk Maintenance Agreement”
between the CITY and the DEVELOPER and in conformance with the Standard
and Special Conditions listed in “Encroachment Permit” _________.
2. Project signs installed in private property that encroach into the public right-of-
way as described in the “Maintenance Agreement for Projecting Signs into
the Public Right-of-Way” between the CITY and the DEVELOPER and in
conformance with the Standard and Special Conditions listed in
“Encroachment Permit” _________.
3. Public art in the public right-of-way as described in the “Maintenance
Agreement for Public Art in the Public Right-of-Way” between the CITY
and the DEVELOPER and in conformance with the Standard and Special
Attachment 1
Memorandum of Maintenance Agreements
626 N Azusa Ave – The Orchard
Page 2 of 6
Conditions listed in “Encroachment Permit” _________.
WHEREAS, to ensure continuous compliance with the maintenance of the
landscape, irrigation, decorative sidewalk, encroaching project signs and public art, the
CITY desires assurance that the DEVELOPER and their successors will maintain these
items in a good workmanlike manner; and
NOW THEREFORE, in consideration of the acceptance by the CITY, the Parties
hereto mutually covenant and agree as follows:
TERMS
1. It is the CITY’s and DEVELOPER’s intent that should any right, title or
interest in and to the Property, or a part thereof, be sold or otherwise conveyed, that the
obligations set forth in this Agreement and the conditions in the Encroachment Permit
shall automatically become the obligations of the new title or interest holder. The
obligations set forth in this Agreement shall bind DEVELOPER’s heirs, successors and
assigns of the Property and the covenants contained herein shall run with the Property,
and those covenants shall benefit each and every other parcel of property located in the
CITY. This Agreement shall be notarized and recorded with the Los Angeles County
Recorder’s Office.
2. In the event that DEVELOPER fails to comply with the terms of this
Agreement, or with the conditions of the Encroachment Permits the CITY shall provide
DEVELOPER, or DEVELOPER’s successors in interest, with a thirty-day (30) written
notice of default, which notice shall specify the nature of the default. In the event that
DEVELOPER or DEVELOPER’s successors in interest fail to cure the default within the
said thirty (30) days following receipt of said notice, the CITY may immediately take steps
to cure the default by curing the default itself and imposing a lien, pursuant to the law,
against the Property for the cost of such cure; provided, however, notwithstanding the
foregoing, if the nature of the default is such that the default is not reasonably susceptible
of being cured within thirty (30) days, then so long as DEVELOPER or its successors
commence the cure within the thirty (30) day cure period, the CITY shall not take steps
to cure the default so long as Developer or its successors is/are diligently prosecuting the
cure to completion. The imposition of a lien for failure to prove landscape maintenance
on a public right of way as required under this Agreement shall be applied to the Property.
3. If legal proceedings are necessary to enforce or interpret the terms of this
Agreement, the prevailing Party, as determined by the court, shall be entitled to recover
from the other Party all costs and expenses of the proceedings, including reasonable
attorneys' fees and related costs.
4. DEVELOPER hereby agrees to indemnify, defend and hold the CITY and
its officials, officers, agents, servants and employees harmless from any and all liabilities,
claims, demands, debts, suits, actions and causes of actions, including but not limited to,
property damage, personal injury or wrongful death, arising out of or in any manner
Memorandum of Maintenance Agreements
626 N Azusa Ave – The Orchard
Page 3 of 6
connected with any act or omission of DEVELOPER, or its officers, agents, servants or
employees, done or performed pursuant to the terms and provisions of this Agreement,
except to the extent that such claim or demand results from the negligence or willful
misconduct of the City or the City’s officials, officers, agents, servants or employees.
5. Any and all notices, including, but not limited to a notice of default sent or
required to be sent to the Parties to this Agreement will be mailed to the following
addresses:
City of Azusa
213 E. Foothill Blvd.
Azusa, CA 91702
Attn: Sergio Gonzalez, City Manager
DEVELOPER
24 N Marengo Avenue
Pasadena, CA 91101
Attn: Jason Tolleson
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
[Signatures on Following Page]
Memorandum of Maintenance Agreements
626 N Azusa Ave – The Orchard
Page 4 of 6
CITY: DEVELOPER:
THE CITY OF AZUSA
a California municipal corporation
AZUSA BLOCK 36, LLC
a California limited liability company
By:
_______________________________
Robert Gonzales, Mayor
By:
_________________________________
Jeffrey Paul, Manager
Date:
_____________________________
Date:
_______________________________
ATTEST:
By:
_______________________________
Jeffrey Cornejo, City Clerk
APPROVED AS TO LEGAL FORM:
BEST BEST & KRIEGER, LLP
By:
_________________________________
Marco Martinez, City Attorney
Memorandum of Maintenance Agreements
626 N Azusa Ave – The Orchard
Page 5 of 6
Exhibit A
Memorandum of Maintenance Agreements
Legal Description of Property
EXHIBIT A
626 N AZUSA AVE ‐ LEGAL DESCRIPTION OF PROPERTY
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES,
CITY OF AZUSA AND DESCRIBED AS FOLLOWS:
LOT 2 OF TRACT NO. 68892, IN THE CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS
PER MAP RECORDED IN BOOK 1347, PAGE(S) 85 AND 86 OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ALL OIL, HYDROCARBON, SUBSTANCES AND MINERALS OF EVERY KIND AND
CHARACTER LYING MORE THAN 500 FEET BELOW THE SURFACE OF SAID LAND, TOGETHER WITH THE
RIGHT TO DRILL INTO, THOUGH, AND TO USE AND OCCUPY ALL PARTS OF SAID LAND LYING MORE THAN
500 FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL PURPOSES INCIDENTAL TO THE
EXPLORATION FOR AND PRODUCTION OF OIL, GAS, HYDROCARBON SUBSTANCES OR MINERALS FROM
SAID LANDS BUT WITHOUT, HOWEVER, THE RIGHT TO USE EITHER THE SURFACE OF SAID LAND OR ANY
PORTION OF SAID LAND WITHIN 500 FEET OF THE SURFACE FOR ANY PURPOSE OR PURPOSES
WHATSOEVER AS RESERVED BY ZODILLA W. SINGLETON, ROBERT M. SINGLETON AND DOROTHY N.
SINGLETON IN DEED RECORDED MAY 16, 1986 AS INSTRUMENT NO. 86‐603413 OF OFFICIAL RECORDS.
APN: 8611‐003‐053
Memorandum of Maintenance Agreements
626 N Azusa Ave – The Orchard
Page 6 of 6
Exhibit B
Memorandum of Maintenance Agreements
Legal Description Plat
EXHIBIT B
LEGAL DESCRIPTION PLAT
LANDSCAPE AND SIDEWALK MAINTENANCE AGREEMENT
This Landscape and Sidewalk Maintenance Agreement (the “Agreement”) is made
and entered this ___ day of _____, 20__ by and between the City of Azusa, a municipal
corporation, hereinafter referred to as “CITY” and Azusa Block 36 LLC, a California limited
liability company hereinafter referred to as “DEVELOPER.” CITY and DEVELOPER are
sometimes hereinafter individually referred to as a “Party” and/or collectively referred to
as the “Parties.”
RECITALS
WHEREAS, DEVELOPER is the owner of the real property located at 626 N Azusa
Ave, described in “Exhibit “A” and depicted in “Exhibit B” referred to as the real property;
and
WHEREAS, DEVELOPER has developed the Property as described in Exhibit “A,”
attached hereto, and incorporated herein by this reference, hereinafter referred to as the
“Project”; and
WHEREAS, DEVELOPER is desirous of maintaining the Landscape Planter and
decorative sidewalk in the public right-of-way located at the south east corner of the
intersection of Azusa Ave and Foothill Blvd to be in substantial conformance with the
construction drawings approved by the CITY and on file with the CITY’s Planning and
Engineering Divisions. Those construction drawings include landscape and street
improvements drawings hereinafter referred to as “Approved Plans”. Exhibit “C” shows
the limits of the Landscape and Sidewalk Maintenance Agreement; and
WHEREAS, to ensure continuing compliance with the maintenance of the
landscape planter and decorative sidewalk, the CITY desires assurance that
DEVELOPER and successors will maintain the Landscape Planter and decorative
sidewalk for the life of the project in a good workmanlike manner; and
NOW THEREFORE, in consideration of the acceptance by the CITY, the Parties
hereto mutually covenant and agree as follows:
TERMS
1. DEVELOPER agrees to maintain the Landscape Planter and decorative
sidewalk installed pursuant to the Approved Plans including, but not limited to,
maintaining plant material, irrigation system, hardscape as identified in the Approved
Plans and the “City of Azusa Permit to Encroach the Public Right-of-Way” described in
Exhibit “D,” attached hereto, and incorporated herein by this reference, hereinafter
referred to as the “Encroachment Permit”.
2. DEVELOPER may request amendments to the Approved Plans. The CITY
may approve such amendments in its sole and absolute discretion provided they are
Attachment 2
Landscape Sidewalk Maintenance Agreement
626 N Azusa Ave – The Orchard
Page 2 of 8
consistent with original intent, design quality and water efficiency of the Approved Plans.
3. It is the CITY’s and DEVELOPER’s intent that should any right, title or
interest in and to the Property, or a part thereof, be sold or otherwise conveyed, that the
obligations set forth in this Agreement and the conditions in the Encroachment Permit
shall automatically become the obligations of the new title or interest holder. The
obligations set forth in this Agreement shall bind DEVELOPER’s heirs, successors and
assigns of the Property and the covenants contained herein shall run with the Property,
and those covenants shall benefit each and every other parcel of property located in the
CITY.
4. In the event that DEVELOPER fails to comply with the terms of this
Agreement, or with the conditions of the Encroachment Permit the CITY shall provide
DEVELOPER, or DEVELOPER’s successors in interest, with a thirty-day (30) written
notice of default, which notice shall specify the nature of the default. In the event that
DEVELOPER or DEVELOPER’s successors in interest fail to cure the default within the
said thirty (30) days following receipt of said notice, the CITY may immediately take steps
to cure the default by curing the default itself and imposing a lien, pursuant to the law,
against the Property for the cost of such cure; provided, however, notwithstanding the
foregoing, if the nature of the default is such that the default is not reasonably susceptible
of being cured within thirty (30) days, then so long as DEVELOPER or its successors
commence the cure within the thirty (30) day cure period, the CITY shall not take steps
to cure the default so long as Developer or its successors is/are diligently prosecuting the
cure to completion. The imposition of a lien for failure to provide maintenance for signs
that encroach into public right-of-way as required under this Agreement shall be applied
to the Property.
5. If legal proceedings are necessary to enforce or interpret the terms of this
Agreement, the prevailing Party, as determined by the court, shall be entitled to recover
from the other Party all costs and expenses of the proceedings, including reasonable
attorneys' fees and related costs.
6. DEVELOPER hereby agrees to indemnify, defend and hold the CITY and
its officials, officers, agents, servants and employees harmless from any and all liabilities,
claims, demands, debts, suits, actions and causes of actions, including but not limited to,
property damage, personal injury or wrongful death, arising out of or in any manner
connected with any act or omission of DEVELOPER, or its officers, agents, servants or
employees, done or performed pursuant to the terms and provisions of this Agreement,
except to the extent that such claim or demand results from the negligence or willful
misconduct of the City or the City’s officials, officers, agents, servants or employees.
7. This Agreement shall become effective upon receipt of the Certificate of
Occupancy by the City (the “Effective Date”) and continue through the Term(s) described
in the Encroachment Permit.
Landscape Sidewalk Maintenance Agreement
626 N Azusa Ave – The Orchard
Page 3 of 8
8. Any and all notices, including, but not limited to a notice of default sent or
required to be sent to the Parties to this Agreement will be mailed to the following
addresses:
City of Azusa
213 E. Foothill Blvd.
Azusa, CA 91702
Attn: Sergio Gonzalez, City Manager
DEVELOPER
24 N Marengo Avenue
Pasadena, CA 91101
Attn: Jason Tolleson
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
[Signatures on Following Page]
Landscape Sidewalk Maintenance Agreement
626 N Azusa Ave – The Orchard
Page 4 of 8
CITY: DEVELOPER:
THE CITY OF AZUSA
a California municipal corporation
AZUSA BLOCK 36, LLC
a California limited liability company
By:
_______________________________
Robert Gonzales, Mayor
By:
_________________________________
Jeffrey Paul, Manager
Date:
_____________________________
Date:
_______________________________
ATTEST:
By:
_______________________________
Jeffrey Cornejo, City Clerk
APPROVED AS TO LEGAL FORM:
BEST BEST & KRIEGER, LLP
By:
_________________________________
Marco Martinez, City Attorney
Landscape Sidewalk Maintenance Agreement
626 N Azusa Ave – The Orchard
Page 5 of 8
Exhibit A
To the Landscape and Sidewalk Maintenance Agreement
Legal Description of Property
EXHIBIT A
626 N AZUSA AVE ‐ LEGAL DESCRIPTION OF PROPERTY
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES,
CITY OF AZUSA AND DESCRIBED AS FOLLOWS:
LOT 2 OF TRACT NO. 68892, IN THE CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS
PER MAP RECORDED IN BOOK 1347, PAGE(S) 85 AND 86 OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ALL OIL, HYDROCARBON, SUBSTANCES AND MINERALS OF EVERY KIND AND
CHARACTER LYING MORE THAN 500 FEET BELOW THE SURFACE OF SAID LAND, TOGETHER WITH THE
RIGHT TO DRILL INTO, THOUGH, AND TO USE AND OCCUPY ALL PARTS OF SAID LAND LYING MORE THAN
500 FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL PURPOSES INCIDENTAL TO THE
EXPLORATION FOR AND PRODUCTION OF OIL, GAS, HYDROCARBON SUBSTANCES OR MINERALS FROM
SAID LANDS BUT WITHOUT, HOWEVER, THE RIGHT TO USE EITHER THE SURFACE OF SAID LAND OR ANY
PORTION OF SAID LAND WITHIN 500 FEET OF THE SURFACE FOR ANY PURPOSE OR PURPOSES
WHATSOEVER AS RESERVED BY ZODILLA W. SINGLETON, ROBERT M. SINGLETON AND DOROTHY N.
SINGLETON IN DEED RECORDED MAY 16, 1986 AS INSTRUMENT NO. 86‐603413 OF OFFICIAL RECORDS.
APN: 8611‐003‐053
Landscape Sidewalk Maintenance Agreement
626 N Azusa Ave – The Orchard
Page 6 of 8
Exhibit B
To the Landscape and Sidewalk Maintenance Agreement
Legal Description Plat
EXHIBIT B
LEGAL DESCRIPTION PLAT
Landscape Sidewalk Maintenance Agreement
626 N Azusa Ave – The Orchard
Page 7 of 8
Exhibit C
To the Landscape and Sidewalk Maintenance Agreement
Limits of Sidewalk and Decorative Sidewalk
Landscape Sidewalk Maintenance Agreement
626 N Azusa Ave – The Orchard
Page 8 of 8
Exhibit D
To the Landscape and Sidewalk Maintenance Agreement
City of Azusa Permit to Encroach the Public Right-of-Way
Page 1 of 8
CITY OF AZUSA
PERMIT TO ENCROACH
THE PUBLIC RIGHT-OF-WAY
I. STANDARD CONDITIONS
A. Permittee or Permittees authorized representative must notify City of Azusa Public
Works Inspector at least forty-eight (48) hours before commencing any work under this
Permit. Permittee or Permittees shall notify by flyer or door knocker one week prior to
commencing work to all residents or business owners whose ingress or egress is affected.
Failure to notify the Public Works Inspector is cause for revocation of Permit. Should
Permittee fail to commence the work or project for which this permit was issued within
sixty (60) calendar days from the date of issuance set forth above, or fail to actively and
diligently exercise the privileges of this Permit, the Permit becomes null and void.
B. The City of Azusa Agency shall not be responsible for monitoring the Permittee's
compliance with any laws or regulations. If the Permittee performs any work knowing or
having reason to know that it is contrary to laws or regulations, the Permittee shall bear
all claims, costs, losses, and damages (including but not limited to all fees and charges
of engineers, architects, attorneys, and other professionals and all court or arbitration or
other dispute resolution costs) arising out of or relating to such work.
C. Permittee or Permittees authorized representative shall notify underground service alert
at least forty-eight (48) hours before commencing any excavation necessary to perform
the work authorized by this Permit. Permittee agrees to contact and obtain an Inquiry ID
Number from underground service alert at (800) 422- 4133 at least two (2) working days
prior to commencing work. By signing this Permit application, Permittee acknowledges
that Permitee understands the statutes and regulations pertaining to excavation near or in
the vicinity of underground utilities and agrees to strictly conform all of Permitee's
activities to such requirements. And failure on the part of Permitee to comply with such
requirements shall be grounds for the immediate revocation of this Permit.
D. A copy of this Permit shall be kept at the site of the work throughout the period of
operations within the jurisdictional limits of the Agency and any right-of-way therein
and shall be shown to any Agency employee, agent or duly authorized representative or
any law enforcement officer upon demand.
Page 2 of 8
I. STANDARD CONDITIONS (continued)
E. This Permit is valid only for the purpose specified herein. No change to the scope of work
as identified in the application and/or drawings submitted therewith is permitted except
upon written permission of the Agency Engineer or his/her duly authorized
representative.
F. Compliance with the American with Disabilities Act (ADA): All work shall be conducted
in compliance with all applicable Federal, State, and Local Access Laws, regulations and
guidelines including but not limited to the Americans with Disabilities Act Accessibility
Guidelines (ADAAG), the Public Rights-of-Way Guidelines (PROWG), Design
Information Bulletin 82-05, "Pedestrian Accessibility Guidelines for Highway Projects"
and the Agency 's encroachment permit and encroachment permit packet shall be
approved by the Agency's California Licensed Professional Engineer, Licensed
Architect, or Licensed Landscape Architect, Activities and uses authorized under this
Permit are subject to any instruction of the Agency Engineer or his/her designated
representative , including but not limited to the Public Works Inspector. All instructions
must be strictly observed.
G. Any damage caused to Agency structures by reason of exercise of this Permit shall be
replaced or repaired by Permittee at his/her/its sole expense to the satisfaction of the
Agency. Upon notice of damage to Agency structures arising from the exercise of this
Permit, should Permittee fail to promptly make repairs or replaced the damaged item, the
Agency may make any and all repairs or replacement or have repairs/replacement made
and Permittee will be billed and shall reimburse Agency for all costs incurred.
H. Upon written notice of cancellation or revocation of this Permit for any cause
whatsoever, Permittee shall promptly restore Agency right-of-way and structures to their
condition prior to the issuance of the Permit and then shall vacate Agency property.
Should Permittee fail to promptly restore the premises or structures to a condition
satisfactory to the Agency Engineer or his/her duly authorized representative, the Agency
may make any and all repairs or have repairs made and Permittee will be billed and shall
reimburse Agency for all costs incurred.
I. Unless otherwise specifically provided, all costs incurred by Permittee as a result of the
conditions of the Permit or the exercise by Agency of any right, authority, or reservation
contained therein shall be the sole responsibility of and shall be borne entirely by the
Permittee.
J. Issuance of this Permit shall not be construed as an obligation on the part of the Agency
to assume responsibility for any damages incurred to the Permittee's improvements
and/or for any injury or death to person(s) or damage to property arising out of the
permitted work.
K. The permittee or permittee's authorized representative shall notify the Agency Engineer
when all work is completed.
Page 3 of 8
I. STANDARD CONDITIONS (continued)
L. In the event the Permittee fails, neglects, or refuses to make repairs, or the site of an
excavation is considered hazardous, constitutes a public nuisance, public emergency,
or other imminent threat to the public health, and/or safety, the person(s) identified by
the director as the responsible party shall compensate the department for any reasonable
costs associated with the administration, construction, consultants, equipment,
inspection, notification, remediation, repair, restoration, or any other actual costs
incurred by the department or other departments or agencies of the city made necessary
by reason of the emergency remediation undertaken by the department per A.M.C
Sections 62-94 to 62-99.
II. SPECIAL CONDITIONS
A. Upon the execution of the Landscape and Sidewalk Maintenance Agreement between
the CITY and the Owner, the Owner at Owner’s sole expense shall maintain, operate,
repair, and replace the sidewalk in accordance with all applicable laws in the State of
California and the Special Provisions set forth in this section. Whenever a reference is
made to the “Owner”, it shall be construed as referring to the Owner(s) of the
Development Project known as “The Orchard”, located at 626 N Azusa Avenue.
B. Sidewalk Maintenance and Repair: The Owner(s) of lots or portions of lots abutting
on any portion of the sidewalk, including the sidewalk, and gutters, and persons in
possession of such abutting lands by virtue of any lease, contract or other form of right
shall be jointly and severally obligated to and bound by the Conditions of this
Encroachment Permit to maintain and repair such sidewalk, landscaping, street furniture,
lighting, and other sidewalk amenities and to pay all costs and expenses thereof as
provided herein.
C. Maintenance and Repair of the Sidewalk: The maintenance and repair of the sidewalk
shall include all reasonable measures to promptly inspect, remove and correct defects or
hazardous conditions, but not limited to maintenance and repair of surfaces including
grading, re-leveling, re-surfacing, removal and replacement of the sidewalk, pavers or
portions and the removal and filling or replacement or repair of sidewalk furniture, trees,
landscaping, and ice/snow removal.
D. Sidewalk Displacement: A sidewalk shall be repaired if it is in any of the following
conditions: vertical displacement between adjacent pavers or between pavers adjacent
concrete, or gouges in pavers or concrete surfaces, of more than 0.25 inches. Walking
surface cross-slopes shall not exceed 2 percent. In areas of curb ramps slope shall not
exceed 1:12 and vertical rise shall not exceed six inches.
E. Tree Irrigation and Maintenance Requirements: Owner shall be responsible for the
irrigation of six (6) trees fronting Foothill Blvd and seven (7) trees fronting Alameda
Avenue. The trees fronting the property located at 152 E Foothill Blvd (two (2) trees
along Foothill Blvd and seven (7) trees along Alameda Ave) may be hand watered;
however, the owner will be responsible for their survival. If any tree dies for lack of
Page 4 of 8
II. SPECIAL CONDITIONS (continued)
irrigation, the owner shall be responsible for replacing it at a 3:1 ratio. The additional
trees may be planted in other parkways throughout the City. In addition, the Owner shall
be responsible for the maintenance of the thirteen (13) trees described above, including
trimming in accordance with International Society of Arboriculture (ISA) standards.
Trimming shall be performed under the direction of a certified arborist.
F. City May Perform: Per the City of Azusa Municipal Code (AMC) Sections 62-94
through 62-98, if the City Engineer determines that sidewalk, materials or substances
deposited on the sidewalk, create an imminent public safety hazard, the City may, but is
not required to, remedy the conditions forthwith at the cost of Owner(s).
G. The Sidewalk: The alteration or removal of the sidewalk by any person or entity without
the prior written approval of the City is prohibited. Owner(s) wishing to modify the
design of a portion of the sidewalk shall prepare and provide to the City Engineer or
designee a set of engineered plans for proposed modifications. The City reserves the right
to charge a review fee commensurate with administrative costs incurred in such review.
The City Engineer or designee has the right to accept, deny or modify proposed
modifications. This decision may be appealed to the City Manager. The owner may
appeal to City Council if not in agreement with the City Manager.
H. Obstruction of the Sidewalk: The sidewalk may not be obstructed without the prior
approval of the City. Any activity or use that might obstruct or otherwise impede the
normal passage of pedestrians on the sidewalk shall be prohibited. Such activities or uses
shall include, but not be limited to, the following:
a) the parking of a motor vehicle, except emergency vehicles, on or over any portion of
the sidewalk;
b) the dumping, depositing, or placing [of] refuse, leaves, or snow upon the sidewalk;
c) the growth of trees, bushes, or other plants in such a way that any part of the plant
growing on or over a sidewalk might impede or obstruct the passage of pedestrians or
create a sight distance hazard for uses or the right-of-way.
I. Landscaping: Owner shall cause maintenance of plants and landscaping to occur such
that plants and landscaping are kept alive. If the plants die, they shall be promptly
removed and replaced with like kind or species. The irrigation system for the landscaping
shall be maintained in a functional manner that provides for watering of the plants, but
that does not result in spillage or overspray of water or icing of the sidewalk surfaces.
The winterization and de-winterization of the irrigation system is the responsibility of
the Owner(s), and the responsibility for payment of water bills is also the responsibility
of the Owner(s).
J. Lighting: The maintenance of sidewalk lighting, replacement bulbs, and payment of
electric bills for the sidewalk lighting, irrigation controller and any other electrically
powered features is the responsibility of the Owner(s).
Page 5 of 8
II. SPECIAL CONDITIONS (continued)
K. Graffiti: The removal of graffiti from fixtures, furniture, or the sidewalk itself adjacent
to the property is the responsibility of the Owner(s) within a 48-hour time period from
the time that the graffiti occurs.
L. Successors: In the case of an assignment or transfer to which City consents, this
Encroachment Permit shall be binding on and inure to the benefit of the successors and
assigns of the parties. Except for assignment or transfer to which City consents, this
Encroachment Permit as set forth previously is non-transferable and non-assignable.
Remedies not Exclusive: The use by either party of any remedy specified herein for the
enforcement of this Encroachment Permit is not exclusive and shall not deprive the party
using such remedy of, or limit the application of, any other remedy provided by law.
M. Notices: Any notices, statements, reports, approvals, or requests or other
communications that are required either expressly or by implication to be given by either
party to the other under this Encroachment Permit shall be in writing and signed for each
party by such officers as each may, from time to time, authorize in writing to so act. All
such notices shall be deemed to have been received on the date of delivery if delivered
personally or three days after mailing is enclosed in a properly addressed and stamped
envelope and deposited in a United States post office for delivery.
N. Interpretation of this Agreement: The parties acknowledge that each party has
reviewed, negotiated and revised the Standard and Special Conditions of this permit and
that the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of the Conditions or
any document executed and delivered by any party in connection with the transactions
contemplated by this Encroachment Permit.
O. Term: The Initial Term and any Additional Terms, if applicable, shall be referred to
herein as the “Term.” All Additional Terms shall be subject to the same terms as the
Initial Term unless otherwise amended in writing by the Parties. The Initial Term of this
Encroachment Permit shall commence upon receipt of the Certificate of Occupancy (the
“Effective Date”) and terminate on the tenth (10th) anniversary of the Effective Date.
Developer shall have the option to extend the Initial Term by two (2) consecutive 10-
year terms if mutually agreed. Developer shall provide a written renewal notice to the
City no later than ninety (90) days prior to the end of the Initial Term or Additional
Term(s), as applicable. Upon failure to provide a written renewal notice to the City, the
Initial Term and other subsequent Additional Terms shall be automatically extended for
successive one (1) year periods, unless either party provides written notice of non-
renewal at least ninety (90) days prior to the end of the initial term, applicable additional
terms, or one-year extension thereof.
These Special Conditions in conjunction with the Landscape and Sidewalk Maintenance
Agreement shall be construed in accordance with the laws of the State of California and
represents the entire agreement of the parties with regards to its terms and supersede and
replace all previous oral or written understandings or representations.
Page 6 of 8
III. INSURANCE
A. Permittee, at his/her/their sole cost and expense, shall maintain public liability insurance
in the amount of at least one million dollars ($1,000,000) and aggregate coverage and
property damage insurance in the amount of at least two million dollars ($2,000,000),
insuring City, its officers, employees, agents, and volunteers against all liability, claims,
demands, or losses arising out of or in connection with this Encroachment Permit. The
insurance shall be endorsed to name City, its officers, officials, employees, agents and
volunteers as additional insured’s regarding liability arising out of this Encroachment
Permit. The policy must include coverage for contractual liability that has not been
amended. Any endorsement restricting standard ISO "insured contract" language will not
be accepted. Any insurance proceeds available to Permittee in excess of the minimum
limits and coverage set forth in this Permit and which is applicable to a given loss or claim
shall be deemed by this Permit to be applicable to the Agency. A certificate of insurance
evidencing this coverage shall be submitted to the City Engineer every year, starting on the
month the Certificate of Occupancy is issued and continue thereafter for the Term of the
Encroachment Permit. The Agency's Risk Manager may from time to time increase the
limits of the required insurance coverage.
B. The insurance is to be placed with insurers having an A.M. Best Company rating of no less
than A:VIII and licensed to do business in California, unless otherwise acceptable to City.
Prior to the effective date of this Encroachment Permit, Owner(s) shall provide to City
endorsements evidencing this insurance signed by a person authorized to bind coverage on
behalf of the insurer(s). The certificates and policies shall provide that 30 days’ written
notice of any material, change, reduction of coverage or cancellation of the insurance
policies will be provided to City. The requirements as to the types, limits, and City approval
of insurance coverage to be maintained by Owner(s) are not intended to and shall not in
any manner limit or qualify the liabilities and obligations assumed by Owner(s) under this
Encroachment Permit. In addition, in the event any change in made in the insurance carrier,
policies or nature of coverage required under this Encroachment Permit, Owner(s) shall
notify City prior to making such changes.
C. The Agency is to be named as an additional insured with an endorsement in favor of the
Agency.
D. Coverage provided by Permittee shall be primary and any insurance or self-insurance
procured or maintained by Agency shall not be required to contribute with it. The limits of
insurance required herein may be satisfied by a combination of primary and umbrella or
excess insurance. Any umbrella or excess insurance shall contain, or be endorsed to contain
a provision that such coverage shall also apply on a primary and non - contributory basis
for the benefit of Agency before the Agency's own insurance or self-insurance shall be
called upon to protect it as a named insured.
E. A severability of interests provision must apply for all additional insureds ensuring that
Permittee's insurance shall apply separately to each insured against whom claim is made
or suit is brought, except with respect to the insurer's limits of liability. The policy(ies)
Page 7 of 8
III. INSURANCE (continued)
shall not contain any cross- liability exclusions.
F. None of the coverages required herein will be in compliance with these requirements if
they include any limiting endorsement of any kind that has not been first submitted to
Agency and approved in writing.
G. If Permittee maintains higher limits than the minimums shown above, Agency requires and
shall be entitled to coverage for the higher limits maintained by Permittee. Any available
insurance proceeds in excess of the specified minimum limits of insurance and coverage
shall be available to Agency.
H. Permittee must also maintain worker's compensation insurance as required the State of
California.
IV. INDEMNITY AGREEMENT
A. Permittee shall indemnify, defend, and hold harmless Agency, its officers, employees,
and agents from any and all losses, costs, expenses, claims, liabilities, actions, or
damages, including liability for injuries to any person or persons or damage to property
arising at any time during and/or arising out of or in any way connected with Permittee's
authorized activities under the terms of this permit, except to the extent that such claim
or demand results from the negligence or willful misconduct of the Agency , its officers,
employees, or agents.
B. It is expressly understood and agreed between the parties to this Encroachment Permit
that this is an agreement and permit for access to and for certain events to occur or work
to take place on Agency property. This Agreement and Encroachment Permit is not a
construction contract or an agreement for design professional services as those terms
are defined or used under Title 12 of the California Civil Code (§§ 2772 et. seq.).
V. DUTY TO DEFEND
A. As an express and material term of Agency's issuance of this Permit, Permittee agrees
to defend, at its sole expense, the indemnitees from and against any and all Claims
arising out of or related to the permitted encroachment. Permittee's duty to defend shall
apply immediately upon demand from the indemnitees for any injury or death to persons
or damage to property occasioned by reason of or arising out of the acts or omissions of
the Permittee, his/her/its agents, employees, contractors and subcontractors and/or any
other person or entity performing work authorized by this Permit, except to the extent
that such claim or demand results from the negligence or willful misconduct of the City
or the City’s officials, officers, agents, servants or employees.
B. In the event of any controversy , claim or dispute arising out of or relating to this
Page 8 of 8
V. DUTY TO DEFEND (continued)
Permit or the violation of any covenant contained herein, the prevailing party shall
be entitled to receive from the losing party reasonable expenses, including
attorney's fees and costs.
C. The Agency Engineer or his/her designated representative may, either at the time
of the issuance of this permit or at any time thereafter until the completion of the
work, prescribe such additional conditions as he/she may deem necessary for the
protection of the public property or for the prevention of undue interference with
traffic or to assure public safety .
MAINTENANCE AGREEMENT FOR PROJECTING SIGNS INTO THE PUBLIC RIGHT
OF WAY
This Maintenance Agreement for Projecting Signs into Public Right-of-Way (the
“Agreement”) is made and entered this ___ day of _____, 20__ by and between the City
of Azusa, a municipal corporation, hereinafter referred to as “CITY” and Azusa Block 36
LLC, a California limited liability company hereinafter referred to as “DEVELOPER.” CITY
and DEVELOPER are sometimes hereinafter individually referred to as a “Party” and/or
collectively referred to as the “Parties.”
RECITALS
WHEREAS, DEVELOPER is the owner of the real property located at 626 N Azusa
Ave, described in Exhibit “A” and depicted in “Exhibit B” referred to as the real property;
and
WHEREAS, DEVELOPER has developed the Property as described in Exhibit “A,”
attached hereto, and incorporated herein by this reference, hereinafter referred to as the
“Project”; and
WHEREAS, DEVELOPER is desirous of maintaining the signs that encroach into
the public right-of-way in good working order and in substantial conformance with the
construction drawings approved by the CITY and on file with the CITY’s Planning and
Engineering Divisions. Those approved construction drawings hereinafter referred to as
“Plans and Specifications”; and
WHEREAS, to ensure continuing compliance with the maintenance of the signs
that encroach into public right-of-way, the CITY desires assurance that DEVELOPER and
successors will maintain the signs for the life of the project in a good workmanlike manner;
NOW THEREFORE, in consideration of the acceptance by the CITY, the Parties
hereto mutually covenant and agree as follows:
TERMS
1. DEVELOPER agrees to maintain the signs that encroach into public right-
of-way pursuant to the approved Plans and Specifications and the “City of Azusa Permit
to Encroach for Projecting Signs in the Public Right-of-Way” described in Exhibit “C,”
attached hereto, and incorporated herein by this reference, hereinafter referred to as the
“Encroachment Permit”.
2. DEVELOPER may request amendments to Plans and Specifications. The
CITY may approve such amendments in its sole and absolute discretion provided they
are consistent with the original intent and design quality of the Plans and Specifications.
3. It is the CITY’s and DEVELOPER’s intent that should any right, title or
Attachment 3
Maintenance Agreement for Projecting Signs
626 N Azusa Ave – The Orchard
Page 2 of 7
interest in and to the Property, or a part thereof, be sold or otherwise conveyed, that the
obligations set forth in this Agreement and the conditions in the Encroachment Permit
shall automatically become the obligations of the new title or interest holder. The
obligations set forth in this Agreement shall bind DEVELOPER’s heirs, successors and
assigns of the Property and the covenants contained herein shall run with the Property,
and those covenants shall benefit each and every other parcel of property located in the
CITY.
4. In the event that DEVELOPER fails to comply with the terms of this
Agreement, or with the conditions of the Encroachment Permit the CITY shall provide
DEVELOPER, or DEVELOPER’s successors in interest, with a thirty-day (30) written
notice of default, which notice shall specify the nature of the default. In the event that
DEVELOPER or DEVELOPER’s successors in interest fail to cure the default within the
said thirty (30) days following receipt of said notice, the CITY may immediately take steps
to cure the default by curing the default itself and imposing a lien, pursuant to the law,
against the Property for the cost of such cure; provided, however, notwithstanding the
foregoing, if the nature of the default is such that the default is not reasonably susceptible
of being cured within thirty (30) days, then so long as DEVELOPER or its successors
commence the cure within the thirty (30) day cure period, the CITY shall not take steps
to cure the default so long as Developer or its successors is/are diligently prosecuting the
cure to completion. The imposition of a lien for failure to provide maintenance for signs
that encroach into public right-of-way as required under this Agreement shall be applied
to the Property.
5. If legal proceedings are necessary to enforce or interpret the terms of this
Agreement, the prevailing Party, as determined by the court, shall be entitled to recover
from the other Party all costs and expenses of the proceedings, including reasonable
attorneys' fees and related costs.
6. DEVELOPER hereby agrees to indemnify, defend and hold the CITY and
its officials, officers, agents, servants and employees harmless from any and all liabilities,
claims, demands, debts, suits, actions and causes of actions, including but not limited to,
property damage, personal injury or wrongful death, arising out of or in any manner
connected with any act or omission of DEVELOPER, or its officers, agents, servants or
employees, done or performed pursuant to the terms and provisions of this Agreement,
except to the extent that such claim or demand results from the negligence or willful
misconduct of the City or the City’s officials, officers, agents, servants or employees.
7. This Agreement shall become effective upon receipt of the Certificate of
Occupancy by the City (the “Effective Date”) and continue through the Term(s) described
in the Encroachment Permit.
8. Any and all notices, including, but not limited to a notice of default sent or
required to be sent to the Parties to this Agreement will be mailed to the following
addresses:
Maintenance Agreement for Projecting Signs
626 N Azusa Ave – The Orchard
Page 3 of 7
City of Azusa
213 E. Foothill Blvd.
Azusa, CA 91702
Attn: Sergio Gonzalez, City Manager
DEVELOPER
24 N Marengo Avenue
Pasadena, CA 91101
Attn: Jason Tolleson
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
[Signatures on Following Page]
Maintenance Agreement for Projecting Signs
626 N Azusa Ave – The Orchard
Page 4 of 7
CITY: DEVELOPER:
THE CITY OF AZUSA
a California municipal corporation
AZUSA BLOCK 36, LLC
a California limited liability company
By:
_______________________________
Robert Gonzales, Mayor
By:
_________________________________
Jeffrey Paul, Manager
Date:
_____________________________
Date:
_______________________________
ATTEST:
By:
_______________________________
Jeffrey Cornejo, City Clerk
APPROVED AS TO LEGAL FORM:
BEST BEST & KRIEGER, LLP
By:
_________________________________
Marco Martinez, City Attorney
Maintenance Agreement for Projecting Signs
626 N Azusa Ave – The Orchard
Page 5 of 7
Exhibit A
To the Maintenance Agreement for Projecting Signs
Legal Description of Property
EXHIBIT A
626 N AZUSA AVE ‐ LEGAL DESCRIPTION OF PROPERTY
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES,
CITY OF AZUSA AND DESCRIBED AS FOLLOWS:
LOT 2 OF TRACT NO. 68892, IN THE CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS
PER MAP RECORDED IN BOOK 1347, PAGE(S) 85 AND 86 OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ALL OIL, HYDROCARBON, SUBSTANCES AND MINERALS OF EVERY KIND AND
CHARACTER LYING MORE THAN 500 FEET BELOW THE SURFACE OF SAID LAND, TOGETHER WITH THE
RIGHT TO DRILL INTO, THOUGH, AND TO USE AND OCCUPY ALL PARTS OF SAID LAND LYING MORE THAN
500 FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL PURPOSES INCIDENTAL TO THE
EXPLORATION FOR AND PRODUCTION OF OIL, GAS, HYDROCARBON SUBSTANCES OR MINERALS FROM
SAID LANDS BUT WITHOUT, HOWEVER, THE RIGHT TO USE EITHER THE SURFACE OF SAID LAND OR ANY
PORTION OF SAID LAND WITHIN 500 FEET OF THE SURFACE FOR ANY PURPOSE OR PURPOSES
WHATSOEVER AS RESERVED BY ZODILLA W. SINGLETON, ROBERT M. SINGLETON AND DOROTHY N.
SINGLETON IN DEED RECORDED MAY 16, 1986 AS INSTRUMENT NO. 86‐603413 OF OFFICIAL RECORDS.
APN: 8611‐003‐053
Maintenance Agreement for Projecting Signs
626 N Azusa Ave – The Orchard
Page 6 of 7
Exhibit B
To the Maintenance Agreement for Projecting Signs
Legal Description Plat
EXHIBIT B
LEGAL DESCRIPTION PLAT
Maintenance Agreement for Projecting Signs
626 N Azusa Ave – The Orchard
Page 7 of 7
Exhibit C
To the Maintenance Agreement for Projecting Signs
City of Azusa Permit to Encroach for Projecting Signs in the Public Right-of-Way
Page 1 of 7
CITY OF AZUSA
PERMIT TO ENCROACH
FOR PROJECTING SIGNS IN THE PUBLIC RIGHT-OF-WAY
I. STANDARD CONDITIONS
A. Permittee or Permittees authorized representative must notify City of Azusa Public
Works Inspector at least forty-eight (48) hours before commencing any work under this
Permit. Permittee or Permittees shall notify by flyer or door knocker one week prior to
commencing work to all residents or business owners whose ingress or egress is affected.
Failure to notify the Public Works Inspector is cause for revocation of Permit. Should
Permittee fail to commence the work or project for which this permit was issued within
sixty (60) calendar days from the date of issuance set forth above, or fail to actively and
diligently exercise the privileges of this Permit, the Permit becomes null and void.
B. The City of Azusa Agency shall not be responsible for monitoring the Permittee's
compliance with any laws or regulations. If the Permittee performs any work knowing or
having reason to know that it is contrary to laws or regulations, the Permittee shall bear
all claims, costs, losses, and damages (including but not limited to all fees and charges
of engineers, architects, attorneys, and other professionals and all court or arbitration or
other dispute resolution costs) arising out of or relating to such work.
C. Permittee or Permittees authorized representative shall notify underground service alert
at least forty-eight (48) hours before commencing any excavation necessary to perform
the work authorized by this Permit. Permittee agrees to contact and obtain an Inquiry ID
Number from underground service alert at (800) 422- 4133 at least two (2) working days
prior to commencing work. By signing this Permit application, Permittee acknowledges
that Permitee understands the statutes and regulations pertaining to excavation near or in
the vicinity of underground utilities and agrees to strictly conform all of Permitee's
activities to such requirements. And failure on the part of Permitee to comply with such
requirements shall be grounds for the immediate revocation of this Permit.
D. A copy of this Permit shall be kept at the site of the work throughout the period of
operations within the jurisdictional limits of the Agency and any right-of-way therein
and shall be shown to any Agency employee, agent or duly authorized representative or
any law enforcement officer upon demand.
Page 2 of 7
I. STANDARD CONDITIONS (continued)
E. This Permit is valid only for the purpose specified herein. No change to the scope of work
as identified in the application and/or drawings submitted therewith is permitted except
upon written permission of the Agency Engineer or his/her duly authorized
representative.
F. Compliance with the American with Disabilities Act (ADA): All work shall be conducted
in compliance with all applicable Federal, State, and Local Access Laws, regulations and
guidelines including but not limited to the Americans with Disabilities Act Accessibility
Guidelines (ADAAG), the Public Rights-of-Way Guidelines (PROWG), Design
Information Bulletin 82-05, "Pedestrian Accessibility Guidelines for Highway Projects"
and the Agency 's encroachment permit and encroachment permit packet shall be
approved by the Agency's California Licensed Professional Engineer, Licensed
Architect, or Licensed Landscape Architect, Activities and uses authorized under this
Permit are subject to any instruction of the Agency Engineer or his/her designated
representative , including but not limited to the Public Works Inspector. All instructions
must be strictly observed.
G. Any damage caused to Agency structures by reason of exercise of this Permit shall be
replaced or repaired by Permittee at his/her/its sole expense to the satisfaction of the
Agency. Upon notice of damage to Agency structures arising from the exercise of this
Permit, should Permittee fail to promptly make repairs or replaced the damaged item, the
Agency may make any and all repairs or replacement or have repairs/replacement made
and Permittee will be billed and shall reimburse Agency for all costs incurred.
H. Upon written notice of cancellation or revocation of this Permit for any cause
whatsoever, Permittee shall promptly restore Agency right-of-way and structures to their
condition prior to the issuance of the Permit and then shall vacate Agency property.
Should Permittee fail to promptly restore the premises or structures to a condition
satisfactory to the Agency Engineer or his/her duly authorized representative, the Agency
may make any and all repairs or have repairs made and Permittee will be billed and shall
reimburse Agency for all costs incurred.
I. Unless otherwise specifically provided, all costs incurred by Permittee as a result of the
conditions of the Permit or the exercise by Agency of any right, authority, or reservation
contained therein shall be the sole responsibility of and shall be borne entirely by the
Permittee.
J. Issuance of this Permit shall not be construed as an obligation on the part of the Agency
to assume responsibility for any damages incurred to the Permittee's improvements
and/or for any injury or death to person(s) or damage to property arising out of the
permitted work.
K. The permittee or permittee's authorized representative shall notify the Agency Engineer
when all work is completed.
Page 3 of 7
I. STANDARD CONDITIONS (continued)
L. In the event the Permittee fails, neglects, or refuses to make repairs, or the site of an
excavation is considered hazardous, constitutes a public nuisance, public emergency,
or other imminent threat to the public health, and/or safety, the person(s) identified by
the director as the responsible party shall compensate the department for any reasonable
costs associated with the administration, construction, consultants, equipment,
inspection, notification, remediation, repair, restoration, or any other actual costs
incurred by the department or other departments or agencies of the city made necessary
by reason of the emergency remediation undertaken by the department per A.M.C
Sections 62-94 to 62-99.
II. SPECIAL CONDITIONS
A. Upon the execution of the Maintenance Agreement for Projecting Signs into the Public
Right-of-Way between the CITY and the Owner, the Owner at Owner’s sole expense
shall maintain, operate, repair, and replace the projecting signs on the public right-of-
way in accordance with all applicable laws in the State of California and the Special
Provisions set forth in this section. Whenever a reference is made to the “Owner”, it
shall be construed as referring to the Owner(s) of the Development Project known as
“The Orchard”, located at 626 N Azusa Avenue.
B. Projecting Sign Maintenance and Repair: The Owner(s) and/or businesses(s) of lots
or portions of lots abutting on any portion of the projecting sign, including the sign
bracket, lighting and any associated components of the sign, and persons in possession
of such abutting lands by virtue of any lease, contract or other form of right shall be
jointly and severally obligated to and bound by the Conditions of this Encroachment
Permit to maintain and repair such projecting sign and all associated components of the
sign amenities and to pay all costs and expenses thereof as provided herein.
C. Maintenance and Repair of the Projecting Sign: The maintenance and repair of the
projecting sign shall include all reasonable measures to promptly inspect, remove and
correct defects or dangerous conditions, but not limited to maintenance and repair of any
and all components of the projecting sign.
D. City May Perform: If the City Engineer determines that the projecting sign may create
an imminent public safety hazard, the City may, but is not required to, remedy the
conditions forthwith at the cost of Owner(s).
E. The Projecting Sign: The alteration or removal of the projecting sign by any person or
entity without the prior written approval of the City is prohibited. Owner(s) and/or
businesses(s) wishing to modify the design of a portion of the projecting sign or replace
shall prepare and provide to the City Engineer or designee, Building Division and
Planning Division a set of engineered plans for proposed modifications. The City
reserves the right to charge a review fee commensurate with administrative costs incurred
in such review. The City Engineer or designee, Building Division or Planning Division
Page 4 of 7
II. SPECIAL CONDITIONS (continued)
have the right to accept, deny or modify proposed modifications. This decision may be
appealed to the City Council.
F. Obstruction of the Sidewalk: The sidewalk may not be obstructed without the prior
approval of the City. The sidewalk shall also have a minimum clearance of 8 feet from
the local grade to the bottom of the projecting sign and shall comply with Section 3202
of the California Building Code. Any activity or use that might obstruct or otherwise
impede the normal passage of pedestrians on the sidewalk shall be prohibited. Such
activities or uses shall include, but not be limited to, the following:
a) the parking of a motor vehicle, except emergency vehicles, on or over any portion of
the sidewalk;
b) the dumping, depositing, or placing [of] refuse, leaves, or snow upon the sidewalk;
c) the growth of trees, bushes, or other plants in such a way that any part of the plant
growing on or over a sidewalk might impede or obstruct the passage of pedestrians or
create a sight distance hazard for uses or the right-of-way.
G. Lighting: The maintenance of projecting signs lighting, replacement bulbs, and payment
of electric bills for the lighting and any other electrically powered features is the
responsibility of the Owner(s) and/or business owner.
H. Graffiti: The removal of graffiti from projecting signs and/or any associated fixtures or
furniture adjacent to the property is the responsibility of the Owner(s) within a 48-hour
time period from the time that the graffiti occurs.
I. Successors: In the case of an assignment or transfer to which City consents, this
Encroachment Permit shall be binding on and inure to the benefit of the successors and
assigns of the parties. Except for assignment or transfer to which City consents, this
Encroachment Permit as set forth previously is non-transferable and non-assignable.
Remedies not Exclusive: The use by either party of any remedy specified herein for the
enforcement of this Encroachment Permit is not exclusive and shall not deprive the party
using such remedy of, or limit the application of, any other remedy provided by law.
J. Notices: Any notices, statements, reports, approvals, or requests or other communications
that are required either expressly or by implication to be given by either party to the other
under this Encroachment Permit shall be in writing and signed for each party by such
officers as each may, from time to time, authorize in writing to so act. All such notices
shall be deemed to have been received on the date of delivery if delivered personally or
three days after mailing is enclosed in a properly addressed and stamped envelope and
deposited in a United States post office for delivery.
K. Interpretation of this Agreement: The parties acknowledge that each party has
reviewed, negotiated and revised the Standard and Special Conditions of this permit and
that the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of the Conditions or
any document executed and delivered by any party in connection with the transactions
Page 5 of 7
II. SPECIAL CONDITIONS (continued)
contemplated by this Encroachment Permit.
L. Term: The Initial Term and any Additional Terms, if applicable, shall be referred to
herein as the “Term.” All Additional Terms shall be subject to the same terms as the
Initial Term unless otherwise amended in writing by the Parties. The Initial Term of this
Encroachment Permit shall commence upon receipt of the Certificate of Occupancy (the
“Effective Date”) and terminate on the tenth (10th) anniversary of the Effective Date.
Developer shall have the option to extend the Initial Term by two (2) consecutive 10-
year terms if mutually agreed. Developer shall provide a written renewal notice to the
City no later than ninety (90) days prior to the end of the Initial Term or Additional
Term(s), as applicable. Upon failure to provide a written renewal notice to the City, the
Initial Term and other subsequent Additional Terms shall be automatically extended for
successive one (1) year periods, unless either party provides written notice of non-
renewal at least ninety (90) days prior to the end of the initial term, applicable additional
terms, or one-year extension thereof.
These Special Conditions in conjunction with the Maintenance Agreement for Projecting
Signs into the Public Right-of-Way shall be construed in accordance with the laws of the
State of California and represents the entire agreement of the parties with regards to its
terms and supersede and replace all previous oral or written understandings or
representations.
III. INSURANCE
A. Permittee, at his/her/their sole cost and expense, shall maintain public liability insurance
in the amount of at least one million dollars ($1,000,000) and aggregate coverage and
property damage insurance in the amount of at least two million dollars ($2,000,000),
insuring City, its officers, employees, agents, and volunteers against all liability, claims,
demands, or losses arising out of or in connection with this Encroachment Permit.
The insurance shall be endorsed to name City, its officers, officials, employees, agents and
volunteers as additional insured’s regarding liability arising out of this Encroachment
Permit. The policy must include coverage for contractual liability that has not been
amended. Any endorsement restricting standard ISO "insured contract" language will not
be accepted. Any insurance proceeds available to Permittee in excess of the minimum
limits and coverage set forth in this Permit and which is applicable to a given loss or claim
shall be deemed by this Permit to be applicable to the Agency. A certificate of insurance
evidencing this coverage shall be submitted to the City Engineer every year, starting on the
month the Certificate of Occupancy is issued and continue thereafter for the Term of the
Encroachment Permit. The Agency's Risk Manager may from time to time increase the
limits of the required insurance coverage.
B. The insurance is to be placed with insurers having an A.M. Best Company rating of no less
than A:VIII and licensed to do business in California, unless otherwise acceptable to City.
Prior to the effective date of this Encroachment Permit, Owner(s) shall provide to City
endorsements evidencing this insurance signed by a person authorized to bind coverage on
Page 6 of 7
III. INSURANCE (continued)
behalf of the insurer(s). The certificates and policies shall provide that 30 days’ written
notice of any material, change, reduction of coverage or cancellation of the insurance
policies will be provided to City. The requirements as to the types, limits, and City approval
of insurance coverage to be maintained by Owner(s) are not intended to and shall not in
any manner limit or qualify the liabilities and obligations assumed by Owner(s) under this
Encroachment Permit. In addition, in the event any change in made in the insurance carrier,
policies or nature of coverage required under this Encroachment Permit, Owner(s) shall
notify City prior to making such changes.
C. The Agency is to be named as an additional insured with an endorsement in favor of the
Agency.
D. Coverage provided by Permittee shall be primary and any insurance or self-insurance
procured or maintained by Agency shall not be required to contribute with it. The limits of
insurance required herein may be satisfied by a combination of primary and umbrella or
excess insurance. Any umbrella or excess insurance shall contain, or be endorsed to contain
a provision that such coverage shall also apply on a primary and non - contributory basis
for the benefit of Agency before the Agency's own insurance or self-insurance shall be
called upon to protect it as a named insured.
E. A severability of interests provision must apply for all additional insureds ensuring that
Permittee's insurance shall apply separately to each insured against whom claim is made
or suit is brought, except with respect to the insurer's limits of liability. The policy(ies)
shall not contain any cross- liability exclusions.
F. None of the coverages required herein will be in compliance with these requirements if
they include any limiting endorsement of any kind that has not been first submitted to
Agency and approved in writing.
G. If Permittee maintains higher limits than the minimums shown above, Agency requires and
shall be entitled to coverage for the higher limits maintained by Permittee. Any available
insurance proceeds in excess of the specified minimum limits of insurance and coverage
shall be available to Agency.
H. Permittee must also maintain worker's compensation insurance as required the State of
California.
IV. INDEMNITY AGREEMENT
A. Permittee shall indemnify, defend, and hold harmless Agency, its officers, employees,
and agents from any and all losses, costs, expenses, claims, liabilities, actions, or
damages, including liability for injuries to any person or persons or damage to property
arising at any time during and/or arising out of or in any way connected with Permittee's
authorized activities under the terms of this permit, except to the extent that such claim
or demand results from the negligence or willful misconduct of the Agency , its officers,
Page 7 of 7
IV. INDEMNITY AGREEMENT (continued)
employees, or agents. It is expressly understood and agreed between the parties to this
Encroachment Permit that this is an agreement and permit for access to and for certain
events to occur or work to take place on Agency property. This Agreement and
Encroachment Permit is not a construction contract or an agreement for design
professional services as those terms are defined or used under Title 12 of the California
Civil Code (§§ 2772 et. seq.).
V. DUTY TO DEFEND
A. As an express and material term of Agency's issuance of this Permit, Permittee agrees
to defend, at its sole expense, the indemnitees from and against any and all Claims
arising out of or related to the permitted encroachment. Permittee's duty to defend shall
apply immediately upon demand from the indemnitees for any injury or death to persons
or damage to property occasioned by reason of or arising out of the acts or omissions of
the Permittee, his/her/its agents, employees, contractors and subcontractors and/or any
other person or entity performing work authorized by this Permit, except to the extent
that such claim or demand results from the negligence or willful misconduct of the City
or the City’s officials, officers, agents, servants or employees.
B. In the event of any controversy , claim or dispute arising out of or relating to this
Permit or the violation of any covenant contained herein, the prevailing party shall
be entitled to receive from the losing party reasonable expenses, including
attorney's fees and costs.
C. The Agency Engineer or his/her designated representative may, either at the time
of the issuance of this permit or at any time thereafter until the completion of the
work, prescribe such additional conditions as he/she may deem necessary for the
protection of the public property or for the prevention of undue interference with
traffic or to assure public safety .
MAINTENANCE AGREEMENT FOR PUBLIC ART IN PUBLIC RIGHT-OF-WAY
This Maintenance Agreement for Public Art in Public Right-of-Way (the
“Agreement”) is made and entered this ___ day of _____, 20__ by and between the City
of Azusa, a municipal corporation, hereinafter referred to as “CITY” and Azusa Block 36
LLC, a California limited liability company hereinafter referred to as “DEVELOPER.” CITY
and DEVELOPER are sometimes hereinafter individually referred to as a “Party” and/or
collectively referred to as the “Parties.”
RECITALS
WHEREAS, DEVELOPER is the owner of the real property located at 626 N Azusa
Ave, described in “Exhibit A” and depicted in “Exhibit B” and referred to as the real
property; and
WHEREAS, DEVELOPER has developed the Property as described in Exhibit “A,”
attached hereto, and incorporated herein by this reference, hereinafter referred to as the
“Project”; and
WHEREAS, DEVELOPER is desirous of maintaining the public Art that
encroaches into the public right-of-way in good working order and in substantial
conformance with the construction drawings approved by the CITY and on file with the
CITY’s Planning and Engineering Divisions. The approved site plan as shown in Exhibit
“C” attached and hereinafter referred to as “Public Art Site Plan”; and
WHEREAS, to insure continuing compliance with the maintenance of the public
art that encroaches into public right-of-way, the CITY desires assurance that
DEVELOPER and successors will maintain the public Art for the life of the project in a
good workmanlike manner;
NOW THEREFORE, in consideration of the acceptance by the CITY, the Parties hereto
mutually covenant and agree as follows:
TERMS
1. DEVELOPER agrees to maintain the Public Art that encroaches into public
right-of-way pursuant to the approved Public Art Site Plan and the “City of Azusa Permit
to Encroach for Public Art in the Public Right-of-Way” described in Exhibit “D,” attached
hereto, and incorporated herein by this reference, hereinafter referred to as the
“Encroachment Permit”.
2. DEVELOPER may request amendments to the Public Art Site Plan. The
CITY may approve such amendments in its sole and absolute discretion provided they
are consistent with original intent and art quality of the Public Art Site Plan.
3. It is the CITY’s and DEVELOPER’s intent that should any right, title or
Attachment 4
Maintenance Agreement for Projecting Signs
626 N Azusa Ave – The Orchard
Page 2 of 8
interest in and to the Property, or a part thereof, be sold or otherwise conveyed, that the
obligations set forth in this Agreement and the conditions in the Encroachment Permit
shall automatically become the obligations of the new title or interest holder. The
obligations set forth in this Agreement shall bind DEVELOPER’s heirs, successors and
assigns of the Property and the covenants contained herein shall run with the Property,
and those covenants shall benefit each and every other parcel of property located in the
CITY.
4. In the event that DEVELOPER fails to comply with the terms of this
Agreement, or with the conditions of the Encroachment Permit the CITY shall provide
DEVELOPER, or DEVELOPER’s successors in interest, with a thirty-day (30) written
notice of default, which notice shall specify the nature of the default. In the event that
DEVELOPER or DEVELOPER’s successors in interest fail to cure the default within the
said thirty (30) days following receipt of said notice, the CITY may immediately take steps
to cure the default by curing the default itself and imposing a lien, pursuant to the law,
against the Property for the cost of such cure; provided, however, notwithstanding the
foregoing, if the nature of the default is such that the default is not reasonably susceptible
of being cured within thirty (30) days, then so long as DEVELOPER or its successors
commence the cure within the thirty (30) day cure period, the CITY shall not take steps
to cure the default so long as Developer or its successors is/are diligently prosecuting the
cure to completion. The imposition of a lien for failure to provide maintenance for signs
that encroach into public right-of-way as required under this Agreement shall be applied
to the Property.
5. If legal proceedings are necessary to enforce or interpret the terms of this
Agreement, the prevailing Party, as determined by the court, shall be entitled to recover
from the other Party all costs and expenses of the proceedings, including reasonable
attorneys' fees and related costs.
6. DEVELOPER hereby agrees to indemnify, defend and hold the CITY and
its officials, officers, agents, servants and employees harmless from any and all liabilities,
claims, demands, debts, suits, actions and causes of actions, including but not limited to,
property damage, personal injury or wrongful death, arising out of or in any manner
connected with any act or omission of DEVELOPER, or its officers, agents, servants or
employees, done or performed pursuant to the terms and provisions of this Agreement,
except to the extent that such claim or demand results from the negligence or willful
misconduct of the City or the City’s officials, officers, agents, servants or employees.
7. This Agreement shall become effective upon receipt of the Certificate of
Occupancy by the City (the “Effective Date”) and continue through the Term(s) described
in the Encroachment Permit.
8. Any and all notices, including, but not limited to a notice of default sent or
required to be sent to the Parties to this Agreement will be mailed to the following
addresses:
Maintenance Agreement for Projecting Signs
626 N Azusa Ave – The Orchard
Page 3 of 8
City of Azusa
213 E. Foothill Blvd.
Azusa, CA 91702
Attn: Sergio Gonzalez, City Manager
DEVELOPER
24 N Marengo Avenue
Pasadena, CA 91101
Attn: Jason Tolleson
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
[Signatures on Following Page]
Maintenance Agreement for Projecting Signs
626 N Azusa Ave – The Orchard
Page 4 of 8
CITY: DEVELOPER:
THE CITY OF AZUSA
a California municipal corporation
AZUSA BLOCK 36, LLC
A California limited liability company
By:
_______________________________
Robert Gonzales, Mayor
By:
_________________________________
Jeffrey Paul, Manager
Date:
_____________________________
Date:
_______________________________
ATTEST:
By:
_______________________________
Jeffrey Cornejo, City Clerk
APPROVED AS TO LEGAL FORM:
BEST BEST & KRIEGER, LLP
By:
_________________________________
Marco Martinez, City Attorney
Maintenance Agreement for Projecting Signs
626 N Azusa Ave – The Orchard
Page 5 of 8
Exhibit A
To the Maintenance Agreement for Public Art in Public Right-of-Way
Legal Description of Property
EXHIBIT A
626 N AZUSA AVE ‐ LEGAL DESCRIPTION OF PROPERTY
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES,
CITY OF AZUSA AND DESCRIBED AS FOLLOWS:
LOT 2 OF TRACT NO. 68892, IN THE CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS
PER MAP RECORDED IN BOOK 1347, PAGE(S) 85 AND 86 OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ALL OIL, HYDROCARBON, SUBSTANCES AND MINERALS OF EVERY KIND AND
CHARACTER LYING MORE THAN 500 FEET BELOW THE SURFACE OF SAID LAND, TOGETHER WITH THE
RIGHT TO DRILL INTO, THOUGH, AND TO USE AND OCCUPY ALL PARTS OF SAID LAND LYING MORE THAN
500 FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL PURPOSES INCIDENTAL TO THE
EXPLORATION FOR AND PRODUCTION OF OIL, GAS, HYDROCARBON SUBSTANCES OR MINERALS FROM
SAID LANDS BUT WITHOUT, HOWEVER, THE RIGHT TO USE EITHER THE SURFACE OF SAID LAND OR ANY
PORTION OF SAID LAND WITHIN 500 FEET OF THE SURFACE FOR ANY PURPOSE OR PURPOSES
WHATSOEVER AS RESERVED BY ZODILLA W. SINGLETON, ROBERT M. SINGLETON AND DOROTHY N.
SINGLETON IN DEED RECORDED MAY 16, 1986 AS INSTRUMENT NO. 86‐603413 OF OFFICIAL RECORDS.
APN: 8611‐003‐053
Maintenance Agreement for Projecting Signs
626 N Azusa Ave – The Orchard
Page 6 of 8
Exhibit B
To the Maintenance Agreement for Public Art in Public Right-of-Way
Legal Description Plat
EXHIBIT B
LEGAL DESCRIPTION PLAT
Maintenance Agreement for Projecting Signs
626 N Azusa Ave – The Orchard
Page 7 of 8
Exhibit C
To the Maintenance Agreement for Public Art in Public Right-of-Way
Public Art Site Plan
EXHIBIT C
PUBLIC ART SITE PLAN
Maintenance Agreement for Projecting Signs
626 N Azusa Ave – The Orchard
Page 8 of 8
Exhibit D
To the Maintenance Agreement for Public Art in Public Right-of-Way
City of Azusa Permit to Encroach for Public Art in the Public Right-of-Way
Page 1 of 8
CITY OF AZUSA
PERMIT TO ENCROACH
FOR PUBLIC ART IN THE PUBLIC RIGHT-OF-WAY
I. STANDARD CONDITIONS
A. Permittee or Permittees authorized representative must notify City of Azusa Public
Works Inspector at least forty-eight (48) hours before commencing any work under this
Permit. Permittee or Permittees shall notify by flyer or door knocker one week prior to
commencing work to all residents or business owners whose ingress or egress is affected.
Failure to notify the Inspector is cause for revocation of Permit. Should Permittee fail to
commence the work or project for which this permit was issued within sixty (60) calendar
days from the date of issuance set forth above, or fail to actively and diligently exercise
the privileges of this Permit, the Permit becomes null and void.
B. The City of Azusa Agency shall not be responsible for monitoring the Permittee's
compliance with any laws or regulations. If the Permittee performs any work knowing or
having reason to know that it is contrary to laws or regulations, the Permittee shall bear
all claims, costs, losses, and damages (including but not limited to all fees and charges
of engineers, architects, attorneys, and other professionals and all court or arbitration or
other dispute resolution costs) arising out of or relating to such work.
C. Permittee or Permittees authorized representative shall notify underground service alert
at least forty-eight (48) hours before commencing any excavation necessary to perform
the work authorized by this Permit. Permittee agrees to contact and obtain an Inquiry ID
Number from underground service alert at (800) 422- 4133 at least two (2) working days
prior to commencing work. By signing this Permit application, Permittee acknowledges
that Permitee understands the statutes and regulations pertaining to excavation near or in
the vicinity of underground utilities and agrees to strictly conform all of Permitee's
activities to such requirements. And failure on the part of Permitee to comply with such
requirements shall be grounds for the immediate revocation of this Permit.
D. A copy of this Permit shall be kept at the site of the work throughout the period of
operations within the jurisdictional limits of the Agency and any right-of-way therein
and shall be shown to any Agency employee, agent or duly authorized representative or
any law enforcement officer upon demand.
Page 2 of 8
I. STANDARD CONDITIONS (continued)
E. This Permit is valid only for the purpose specified herein. No change to the scope of work
as identified in the application and/or drawings submitted therewith is permitted except
upon written permission of the Agency Engineer or his/her duly authorized
representative.
F. Compliance with the American with Disabilities Act (ADA): All work shall be conducted
in compliance with all applicable Federal, State, and Local Access Laws, regulations and
guidelines including but not limited to the Americans with Disabilities Act Accessibility
Guidelines (ADAAG), the Public Rights-of-Way Guidelines (PROWG), Design
Information Bulletin 82-05, "Pedestrian Accessibility Guidelines for Highway Projects"
and the Agency 's encroachment permit and encroachment permit packet shall be
approved by the Agency's California Licensed Professional Engineer, Licensed
Architect, or Licensed Landscape Architect, Activities and uses authorized under this
Permit are subject to any instruction of the Agency Engineer or his/her designated
representative , including but not limited to the Public Works Inspector. All instructions
must be strictly observed.
G. Any damage caused to Agency structures by reason of exercise of this Permit shall be
replaced or repaired by Permittee at his/her/its sole expense to the satisfaction of the
Agency. Upon notice of damage to Agency structures arising from the exercise of this
Permit, should Permittee fail to promptly make repairs or replaced the damaged item, the
Agency may make any and all repairs or replacement or have repairs/replacement made
and Permittee will be billed and shall reimburse Agency for all costs incurred.
H. Upon written notice of cancellation or revocation of this Permit for any cause
whatsoever, Permittee shall promptly restore Agency right-of-way and structures to their
condition prior to the issuance of the Permit and then shall vacate Agency property.
Should Permittee fail to promptly restore the premises or structures to a condition
satisfactory to the Agency Engineer or his/her duly authorized representative, the Agency
may make any and all repairs or have repairs made and Permittee will be billed and shall
reimburse Agency for all costs incurred.
I. Unless otherwise specifically provided, all costs incurred by Permittee as a result of the
conditions of the Permit or the exercise by Agency of any right, authority, or reservation
contained therein shall be the sole responsibility of and shall be borne entirely by the
Permittee.
J. Issuance of this Permit shall not be construed as an obligation on the part of the Agency
to assume responsibility for any damages incurred to the Permittee's improvements
and/or for any injury or death to person(s) or damage to property arising out of the
permitted work.
K. The permittee or permittee's authorized representative shall notify the Agency Engineer
when all work is completed.
L. In the event the Permittee fails, neglects, or refuses to make repairs, or the site of an
Page 3 of 8
I. STANDARD CONDITIONS (continued)
excavation is considered hazardous, constitutes a public nuisance, public emergency,
or other imminent threat to the public health, and/or safety, the person(s) identified by
the director as the responsible party shall compensate the department for any reasonable
costs associated with the administration, construction, consultants, equipment,
inspection, notification, remediation, repair, restoration, or any other actual costs
incurred by the department or other departments or agencies of the city made necessary
by reason of the emergency remediation undertaken by the department per A.M.C
Sections 62-94 to 62-99.
II. SPECIAL CONDITIONS
A. Upon the execution of the Public Art Maintenance Agreement between the CITY and
the Owner, the Owner at Owner’s sole expense shall maintain, operate, repair, and
replace the public art located in the public-right-of-way which shall include but not
limited to the sidewalk and parkway improvements as described in the attached Exhibit
A – The Rock The River The Door Art Plan in accordance with all applicable laws in
the State of California and the Special Provisions set forth in this section. Whenever a
reference is made to the “Owner”, it shall be construed as referring to the Owner(s) of
the Development Project known as “The Orchard”, located at 626 N Azusa Avenue.
B. Sidewalk and Parkway Maintenance and Repair: The Owner(s) of lots or portions of
lots abutting on any portion of the sidewalk, including the sidewalk, and gutters,
parkway, landscape and persons in possession of such abutting lands by virtue of any
lease, contract or other form of right shall be jointly and severally obligated to and bound
by the Conditions of this Encroachment Permit to maintain and repair such sidewalk,
landscaping, street furniture, lighting, and other sidewalk amenities and to pay all costs
and expenses thereof as provided herein.
C. Maintenance and Repair of the Sidewalk and Parkway: The maintenance and repair
of the sidewalk and parkway shall include all reasonable measures to promptly inspect,
remove and correct defects or dangerous conditions, but not limited to maintenance and
repair of surfaces including grading, re-leveling, re-surfacing, removal and replacement
of the sidewalk, pavers or portions and the removal and filling or replacement or repair
of sidewalk furniture, trees and landscaping and snow removal.
D. Sidewalk Displacement: A sidewalk shall be repaired if it is in any of the following
conditions: vertical displacement between adjacent pavers or between pavers adjacent
concrete, or gouges in pavers or concrete surfaces, of more than 0.25 inches. Walking
surface cross-slopes shall not exceed 2 percent. In areas of curb ramps slope shall not
exceed 1:12 and vertical rise shall not exceed six inches.
E. City May Perform: If the City Engineer determines that sidewalk, materials or
substances deposited on the sidewalk, create an imminent public safety hazard, the City
may, but is not required to, remedy the conditions forthwith at the cost of Owner(s).
Page 4 of 8
II. SPECIAL CONDITIONS (continued)
F. The Sidewalk: The alteration or removal of the sidewalk by any person or entity without
the prior written approval of the City is prohibited. Owner(s) wishing to modify the
design of a portion of the sidewalk and/or parkway or any modification to the design as
a result of vandalism repair shall prepare and provide to the Planning Division and City
Engineer or designee a set of engineered plans for proposed modifications. The final
approval of the design shall be granted by the Planning Division prior to issuance of any
permits by the Public Works Department. The design shall align with the original
approval by the Art in Public Places Commission. The City reserves the right to charge
a review fee commensurate with administrative costs incurred in such review. The
Planning Division and/or the City Engineer or designee has the right to accept, deny or
modify proposed modifications. This decision may be appealed to the City Council.
G. Obstruction of the Sidewalk: The sidewalk may not be obstructed without the prior
approval of the City. Any activity or use that might obstruct or otherwise impede the
normal passage of pedestrians on the sidewalk shall be prohibited. Such activities or uses
shall include, but not be limited to, the following:
a) the parking of a motor vehicle, except emergency vehicles, on or over any portion of
the sidewalk;
b) the dumping, depositing, or placing [of] refuse, leaves, or snow upon the sidewalk;
c) the growth of trees, bushes, or other plants in such a way that any part of the plant
growing on or over a sidewalk might impede or obstruct the passage of pedestrians or
create a sight distance hazard for uses or the right-of-way.
H. Lighting: The maintenance of public art lighting, replacement bulbs, and payment of
electric bills for the lighting, and any other electrically powered features is the
responsibility of the Owner(s).
I. Graffiti: The removal of graffiti from public art artwork and/or any associated fixtures,
furniture or the sidewalk itself adjacent to the property is the responsibility of the
Owner(s) within a 48-hour time period from the time that the graffiti occurs.
J. Successors: In the case of an assignment or transfer to which City consents, this
Encroachment Permit shall be binding on and inure to the benefit of the successors and
assigns of the parties. Except for assignment or transfer to which City consents, this
Encroachment Permit as set forth previously is non-transferable and non-assignable.
Remedies not Exclusive: The use by either party of any remedy specified herein for the
enforcement of this Encroachment Permit is not exclusive and shall not deprive the party
using such remedy of, or limit the application of, any other remedy provided by law.
K. Notices: Any notices, statements, reports, approvals, or requests or other communications
that are required either expressly or by implication to be given by either party to the other
under this Encroachment Permit shall be in writing and signed for each party by such
officers as each may, from time to time, authorize in writing to so act. All such notices
shall be deemed to have been received on the date of delivery if delivered personally or
Page 5 of 8
II. SPECIAL CONDITIONS (continued)
three days after mailing is enclosed in a properly addressed and stamped envelope and
deposited in a United States post office for delivery.
L. Interpretation of this Agreement: The parties acknowledge that each party has
reviewed, negotiated and revised the Standard and Special Conditions and that the normal
rule of construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of the Conditions or any
document executed and delivered by any party in connection with the transactions
contemplated by this Encroachment Permit.
M. Term: The Initial Term and any Additional Terms, if applicable, shall be referred to
herein as the “Term.” All Additional Terms shall be subject to the same terms as the
Initial Term unless otherwise amended in writing by the Parties. The Initial Term of this
Encroachment Permit shall commence upon receipt of the Certificate of Occupancy (the
“Effective Date”) and terminate on the tenth (10th) anniversary of the Effective Date.
Developer shall have the option to extend the Initial Term by two (2) consecutive 10-
year terms if mutually agreed. Developer shall provide a written renewal notice to the
City no later than ninety (90) days prior to the end of the Initial Term or Additional
Term(s), as applicable. Upon failure to provide a written renewal notice to the City, the
Initial Term and other subsequent Additional Terms shall be automatically extended for
successive one (1) year periods, unless either party provides written notice of non-
renewal at least ninety (90) days prior to the end of the initial term, applicable additional
terms, or one-year extension thereof.
These Special Conditions in conjunction with the Maintenance Agreement for Public Art
in the Public Right-of-Ways shall be construed in accordance with the laws of the State
of California and represents the entire agreement of the parties with regards to its terms
and supersede and replace all previous oral or written understandings or representations.
N. Removal of Public Art: Should the property owner or the City request to remove the
public art found within the public-right-of-way, Planning Division and Art in Public
Spaces Commission shall grant the approval prior to any changes and/or removal. If the
removal of the public art in the public-right-of-way is granted, the sidewalk and parkway
shall be restored to the original condition to include but not limited sidewalk detail to
match existing and additional landscape in the parkway. The ultimate restoration work
shall be approved by the Public Works Department.
These Special Provisions in conjunction with the Maintenance Agreement for Public Art
in the Public Right-of-Way shall be construed in accordance with the laws of the State
of California and represents the entire agreement of the parties with regards to its terms
and supersede and replace all previous oral or written understandings or representations.
Page 6 of 8
III. INSURANCE
A. Permittee, at his/her/their sole cost and expense, shall maintain public liability insurance
in the amount of at least one million dollars ($1,000,000) and aggregate coverage and
property damage insurance in the amount of at least two million dollars ($2,000,000),
insuring City, its officers, employees, agents, and volunteers against all liability, claims,
demands, or losses arising out of or in connection with this Encroachment Permit. The
insurance shall be endorsed to name City, its officers, officials, employees, agents and
volunteers as additional insured’s regarding liability arising out of this Encroachment
Permit. The policy must include coverage for contractual liability that has not been
amended. Any endorsement restricting standard ISO "insured contract" language will not
be accepted. Any insurance proceeds available to Permittee in excess of the minimum
limits and coverage set forth in this Permit and which is applicable to a given loss or
claim shall be deemed by this Permit to be applicable to the Agency. A certificate of
insurance evidencing this coverage shall be submitted to the City Engineer every year,
starting on the month the Certificate of Occupancy is issued and continue thereafter for
the Term of the Encroachment Permit. The Agency's Risk Manager may from time to
time increase the limits of the required insurance coverage.
B. The insurance is to be placed with insurers having an A.M. Best Company rating of no
less than A:VIII and licensed to do business in California, unless otherwise acceptable to
City. Prior to the effective date of this Encroachment Permit, Owner(s) shall provide to
City endorsements evidencing this insurance signed by a person authorized to bind
coverage on behalf of the insurer(s). The certificates and policies shall provide that 30
days’ written notice of any material, change, reduction of coverage or cancellation of the
insurance policies will be provided to City. The requirements as to the types, limits, and
City approval of insurance coverage to be maintained by Owner(s) are not intended to
and shall not in any manner limit or qualify the liabilities and obligations assumed by
Owner(s) under this Encroachment Permit. In addition, in the event any change in made
in the insurance carrier, policies or nature of coverage required under this Encroachment
Permit, Owner(s) shall notify City prior to making such changes.
C. The Agency is to be named as an additional insured with an endorsement in favor of the
Agency.
D. Coverage provided by Permittee shall be primary and any insurance or self-insurance
procured or maintained by Agency shall not be required to contribute with it. The limits
of insurance required herein may be satisfied by a combination of primary and umbrella
or excess insurance. Any umbrella or excess insurance shall contain, or be endorsed to
contain a provision that such coverage shall also apply on a primary and non-contributory
basis for the benefit of Agency before the Agency's own insurance or self-insurance shall
be called upon to protect it as a named insured.
E. A severability of interests provision must apply for all additional insureds ensuring that
Permittee's insurance shall apply separately to each insured against whom claim is made
or suit is brought, except with respect to the insurer's limits of liability. The policy(ies)
shall not contain any cross- liability exclusions.
Page 7 of 8
III. INSURANCE (continued)
F. None of the coverages required herein will be in compliance with these requirements if
they include any limiting endorsement of any kind that has not been first submitted to
Agency and approved in writing.
G. If Permittee maintains higher limits than the minimums shown above, Agency requires
and shall be entitled to coverage for the higher limits maintained by Permittee. Any
available insurance proceeds in excess of the specified minimum limits of insurance and
coverage shall be available to Agency.
H. Permittee must also maintain worker's compensation insurance as required the State of
California.
IV. INDEMNITY AGREEMENT
A. Permittee shall indemnify, defend, and hold harmless Agency, its officers, employees,
and agents from any and all losses, costs, expenses, claims, liabilities, actions, or
damages, including liability for injuries to any person or persons or damage to property
arising at any time during and/or arising out of or in any way connected with Permittee's
authorized activities under the terms of this permit, except to the extent that such claim
or demand results from the negligence or willful misconduct of the Agency , its officers,
employees, or agents.
B. It is expressly understood and agreed between the parties to this Encroachment Permit
that this is an agreement and permit for access to and for certain events to occur or work
to take place on Agency property. This Agreement and Encroachment Permit is not a
construction contract or an agreement for design professional services as those terms are
defined or used under Title 12 of the California Civil Code (§§ 2772 et. seq.).
V. DUTY TO DEFEND
A. As an express and material term of Agency's issuance of this Permit, Permittee agrees to
defend, at its sole expense, the indemnitees from and against any and all Claims arising
out of or related to the permitted encroachment. Permittee's duty to defend shall apply
immediately upon demand from the indemnitees for any injury or death to persons or
damage to property occasioned by reason of or arising out of the acts or omissions of the
Permittee, his/her/its agents, employees, contractors and subcontractors and/or any other
person or entity performing work authorized by this Permit, except to the extent that such
claim or demand results from the negligence or willful misconduct of the City or the
City’s officials, officers, agents, servants or employees.
B. In the event of any controversy , claim or dispute arising out of or relating to this
Permit or the violation of any covenant contained herein, the prevailing party shall
be entitled to receive from the losing party reasonable expenses, including
attorney's fees and costs.
Page 8 of 8
V. DUTY TO DEFEND (continued)
C. The Agency Engineer or his/her designated representative may, either at the time
of the issuance of this permit or at any time thereafter until the completion of the
work, prescribe such additional conditions as he/she may deem necessary for the
protection of the public property or for the prevention of undue interference with
traffic or to assure public safety .