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Encroachment Agreement No. 15-0003 2016-0353635RECORDED AT THE REQUEST OF CHICAGO TITLE CO. D BY: Jim Qaia AND WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P 0 BOX 789 POWAY, CA 92074 APN: 277 - 171 -34 DOC# 2016- 0353635 II II I I I IIIII Illll I Illll I IIIII II II II I I I II I I I II Jul 15, 2016 08:00 AM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $60.00 PAGES: 16 (THIS SPACE FOR RECORDER'S USE) ENCROACHMENT AGREEMENT NO. 15 -0003 The CITY OF POWAY (herein called CITY) does hereby give permission to MADERAS CC, L.P., a California limited partnership, owner(s) of 17750 Old Coach Road, Poway, CA (herein called PERMITTEE(S)), to encroach within the CITY's Public Right -of -Way for the purposes of installing a private water line. The limits of said encroachment are as shown on Exhibit A, attached hereto and made a part hereof, and described as follows: Installation of an 8" (in 18" casing) PVC private water line crossing the City's Public Right of Way at a location approximately 280 feet north of the southerly property line of APN 277 - 171 -34. Said permission is given subject to PERMITTEE, its heirs, successors or assigns, by accepting the same, agreeing to the following conditions: "CITY" means the City of Poway, a municipal corporation of the State of California, and includes the duly elected or appointed officers, agents, employees and volunteers of the City of Poway, individually or collectively. CITY. "Agency" means any governmental agency or quasi - governmental agency other than the "Agreement" means this "ENCROACHMENT AGREEMENT NO. 15- 0003." "Business Day" means any calendar day, except a Saturday, Sunday, and any Day observed as an official holiday by CITY. For the purposes hereof, if the time in which an act is to be performed falls on a Saturday, Sunday, or any Day observed as an official holiday by CITY the time for performance shall be extended to the following Business Day. "City Manager" means the individual designated as the City Manager for the City under the City Municipal Code, or his /her designee. "Council" means those elected officials which are authorized to exercise the powers granted to and vested in CITY under Government Code Section 37100 et seq. RECORDED AT THE REQUEST Or: CHICAGO TITLE CO D BY: AND WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P 0 BOX 789 POWAY, CA 92074 APN: 277 - 171 -34 (THIS SPACE FOR RECORDER'S USE) ENCROACHMENT AGREEMENT NO. 15 -0003 The CITY OF POWAY (herein called CITY) does hereby give permission to MADERAS CC, L.P., a California limited partnership, owner(s) of 17750 Old Coach Road, Poway, CA (herein called PERMITTEE(S)), to encroach within the CITY's Public Right -of -Way for the purposes of installing a private water line. The limits of said encroachment are as shown on Exhibit A, attached hereto and made a part hereof, and described as follows: Installation of an 8" (in 18" casing) PVC private water line crossing the City's Public Right of Way at a location approximately 280 feet north of the southerly property line of APN 277 - 171 -34. Said permission is given subject to PERMITTEE, its heirs, successors or assigns, by accepting the same, agreeing to the following conditions: "CITY" means the City of Poway, a municipal corporation of the State of California, and includes the duly elected or appointed officers, agents, employees and volunteers of the City of Poway, individually or collectively. CITY. "Agency" means any governmental agency or quasi - governmental agency other than the "Agreement" means this "ENCROACHMENT AGREEMENT NO. 15- 0003." "Business Day" means any calendar day, except a Saturday, Sunday, and any Day observed as an official holiday by CITY. For the purposes hereof, if the time in which an act is to be performed falls on a Saturday, Sunday, or any Day observed as an official holiday by CITY the time for performance shall be extended to the following Business Day. "City Manager" means the individual designated as the City Manager for the City under the City Municipal Code, or his /her designee. "Council" means those elected officials which are authorized to exercise the powers granted to and vested in CITY under Government Code Section 37100 et seq. Encroachment Agreement No. Page 2 "Day" means any calendar day, unless a Business Day is specified. For the purposes hereof, the time in which an act is to be performed shall be computed by excluding the first Day and including the last. "Fee" means any assessment, license, charge, fee, imposition, tax, or levy lawfully imposed by any governmental body. "Law" or "Laws" means any judicial decision, statute, constitution, ordinance, resolution, regulation, rule, tariff, administrative order, certificate, order, or other requirement of any municipal, county, state, federal, or other Agency having joint or several jurisdiction over the parties to this Agreement, in effect either at the time of execution of this Agreement or at any time during the location of the Facilities in the Public Right -of -Way, including, without limitation, any regulation or order of an official entity or body. "PERMITTEE" means Maderas CC, L.P., a California limited partnership, and its lawful successors or assigns. "Person" means an individual, a corporation, a partnership, a sole proprietorship, a joint venture, a business trust, and any other form of business association. "Provision" means any agreement, clause, condition, covenant, qualifications, restriction, reservation, term, or other stipulation in this Agreement that defines or otherwise controls, establishes, or limits the performance required or permitted by any party to this Agreement. All Provisions, whether covenants or conditions, shall be deemed to be both covenants and conditions. "Public Right -of -Way" means in, upon, along, across, under and over the public streets, roads, lanes, courts, ways, alleys, boulevards, and places, including, without limitation, all public utility easements and public service easements, as the same now or may thereafter exist that are under the jurisdiction of CITY. This term shall not include any property owned by any Person or Agency other than CITY except as provided by applicable Laws or pursuant to an agreement between CITY and any Person or Agency. "Standard Drawings and Standard Specifications" means the general terms and conditions, specifications, and requirements of CITY that governs the design, construction, installation, and maintenance of any improvement within the Public Right -of -Way. Caltrans Standard Plans and Specifications (latest edition) as periodically updated shall be used unless the CITY has other standards that shall then prevail. This term shall include any and all documents entitled, "General Conditions" or words of similar import, now or hereafter existing, which directly pertain to all aspects of general construction work. "Water Facilities" or "Facilities" means without limitation, any and all pipe, vaults, valves, equipment, surface location markers, appurtenances and related facilities owned, leased or licensed by PERMITTEE, located or to be located in the Public Right -of -Way of CITY and used or useful for and in connection with the transmission of water. TERM OF AGREEMENT 1. The term of this Agreement shall commence on the date that is two (2) days following the date of its approval by the City Manager ( "Effective Date "), and shall be for a term of Encroachment Agreement No. Page 3 twenty (20) years. CITY shall give PERMITTEE written notice of City Manager's approval of this Agreement immediately following such approval. Provided that the PERMITTEE is not in default under this Agreement beyond applicable notice and cure periods, and further provided that the CITY has not exercised any right to terminate this Agreement, the term will renew automatically for successive five -year periods of time, unless PERMITTEE provides the CITY with written notice of termination not less than sixty (60) days prior the end of the initial term or the then current renewal term. 2. Failure on the part of the PERMITTEE to cure any default within thirty (30) days after written notice of such default is given to PERMITTEE by CITY shall constitute a default and breach by PERMITTEE under this Agreement; provided, however, if such default is of such a nature that it cannot through the exercise of diligent and reasonable efforts be cured within thirty (30) days, then PERMITTEE shall not be in default in such instance if PERMITTEE promptly commences and diligently pursues the cure of such default to completion. In the event of any default by PERMITTEE beyond applicable notice and cure periods, the CITY shall be entitled to exercise all rights and remedies herby reserved under this Agreement or made available under applicable Laws. 3. CITY shall have the right to terminate this Agreement at any time, for its own convenience. Notice of termination for convenience shall be in writing, and shall be given to PERMITTEE not less than 180 days prior to its effective date. The CITY agrees to comply with the terms of Section 14 below, if applicable, in the event that it terminates this Agreement for its own convenience. LIMITATIONS AND RESTRICTIONS 4. CITY hereby agrees to permit PERMITTEE, subject to reservations, covenants and conditions herein contained, to construct, reconstruct, install, reinstall, repair, maintain and operate, replace, and remove Water Facilities within Public Right -of -Way that is located within the corporate limits of the CITY, subject to obtaining all required permits and approvals, including approvals regarding the specific location and placement of the Water Facilities. The location and general description of the work permitted to encroach in the Public Right -of -Way under this Agreement is more particularly described in Exhibit A attached hereto (the "Work ") and incorporated by this reference. CITY hereby approves the Work in the locations and as generally described in Exhibit A hereto. 5. This Agreement is not a grant by CITY of any property interest but is made subject and subordinate to the prior and continuing right of CITY and its assigns to lawfully use any or all of the Public Right -of -Way for CITY owned facilities in the performance of its duties, including but not limited to, public use as a street and for the purpose of laying, installing, maintaining, repairing, protecting replacing and removing sanitary sewers, water mains, storm drains, gas mains, poles, overhead and underground electric and telephone wires, electroliers, cable television and other utility and municipal uses together with appurtenances thereof and with right of ingress and egress, along, over, across, and in said Public Right -of -Way. No use of any Public Right -of -Way or other interest or property under this Agreement shall create or vest in PERMITTEE, its successors or any other public utility any ownership interest in the Public Right -of -Way, streets or other property or interest of CITY. Nothing in this Agreement shall be deemed to grant, convey, create, or vest a perpetual real property interest in land in PERMITTEE, including any fee or leasehold interest in land, easement, or any franchise rights. Encroachment Agreement No. Page 4 6. This Agreement is made subject to all easements, restrictions, conditions, covenants, encumbrances, and claims of title which may affect the Public Right -of -Way, and it is understood that PERMITTEE, at its own cost and expense, shall obtain such permission as may be necessary, consistent with any other existing rights, not otherwise granted by this Agreement. Subject to the Provisions of this Agreement, CITY hereby licenses and permits PERMITTEE to construct, install, repair, maintain, locate, operate, place, protect, reconstruct, reinstall, remove, and replace the Water Facilities underground, and grants PERMITTEE access to these Water Facilities consistent with the rights of third parties under applicable Laws and all existing and future agreements, within the Public Right -of -Way for the purposes of providing a private water line in support of PERMITTEE's business operations, Any work performed pursuant to the rights granted to PERMITTEE under this Agreement shall be subject to the prior review and approval of the City Manager, which approval shall not be unreasonably withheld, conditioned, or delayed. 7. Subject to the approval of the City Manager, the construction, installation, operation, maintenance and removal of said Water Facilities shall be accomplished without material cost or expense to CITY and in such a manner as not to endanger persons or property, or unreasonably obstruct travel on any road, walk or other access thereon within said Public Right -of -Way. COMPLIANCE WITH STANDARDS 8. PERMITTEE agrees to keep said Water Facilities in good and safe condition and free from any nuisance, to the reasonable satisfaction of the City Manager. 9. PERMITTEE shall construct, install, operate and maintain all Water Facilities in accordance and in conformity with all applicable City, State, Federal and regulatory agency laws, ordinances, rules and regulations. rights. NO FRANCHISE RIGHTS CREATED 10. Nothing in this Agreement shall be construed as granting or creating any franchise REMOVAL AND RELOCATION 11. PERMITTEE shall remove or relocate, any Water Facilities installed, used and maintained under this Agreement if and when made necessary by any change of grade, alignment or width of any street, sidewalk or other public facility including the construction, maintenance or operation of any underground subway or viaduct by CITY and /or the construction, maintenance or operation of any other CITY, underground or aboveground facilities. In the event all or any portion of said Public Right -of -Way occupied by said Water Facilities shall be needed by CITY or in the event the existence of said Water Facilities shall adversely affect governmental activities, including but not limited to, interference with CITY construction projects, or is in conflict vertically and /or horizontally with any proposed CITY installation, PERMITTEE shall remove and relocate said Water Facilities to such other location or locations on said Public Right -of -Way as may be designated by CITY and which are reasonably acceptable to PERMITTEE. PERMITTEE shall cause such removal or relocations to be completed within one hundred eighty (180) days of notification by CITY unless exigencies dictate a shorter period for removal or relocation, subject to force majeure pursuant to Section 33 below. In the event said Water Facilities are not removed or relocated within said period of time (subject to force majeure), CITY may cause the same to be done at the expense of PERMITTEE and PERMITTEE shall reimburse the CITY for any and all actual, out -of- pocket expenses incurred by the CITY in connection therewith. If PERMITTEE shall Encroachment Agreement No. Page 5 fail to vacate or otherwise remove the Facilities as required by CITY, CITY shall be entitled to vacate or otherwise remove the Facilities at PERMITTEE's sole cost and expense. Notwithstanding the foregoing, CITY shall provide PERMITTEE with prior written notice of, and consult with PERMITTEE with respect to, any vacation or removal of the Facilities by CITY, and PERMITTEE shall have the right to have a representative present during any such vacation or removal work conducted by CITY. 12. Should CITY intend to authorize or permit installations of a third party (not including any City -owned installations) to the Public Right -of -Way jointly used under this Agreement and should the proposed installation of such third party interfere with, adversely affect or require the rearrangement of any PERMITTEE Water Facilities, CITY shall condition third party installations to provide that such third party shall pay all costs of relocating and reconfiguring the Water Facilities before authorizing or permitting the third party installations, Such third party shall be required to insure that PERMITTEE's Water Facilities are not interrupted during the installation of their facilities. 13. If any portions of the Water Facilities covered under this Agreement are abandoned for a continuous period in excess of six (6) months, PERMITTEE shall notify CITY and shall either promptly vacate or remove the Facilities at its own expense, or at CITY's discretion, may be allowed to abandon some or all of the Facilities in place. If PERMITTEE is permitted by CITY to abandon its Facilities in place, any such abandoned Facilities shall be deemed conveyed to CITY and PERMITTEE shall have no further obligation to remove, relocate or maintain said Facilities, except as provided in Section 16 hereinafter. Unless specifically permitted by CITY in writing, which permission shall not be unreasonably withheld, conditioned or delayed, all boxes or other facilities exposed to the surface will be required to be removed and the surface restored. 14. CITY understands and agrees that PERMITTEE's design and construction of its Water Facilities is, necessarily, a significant investment in the continued operation of PERMITTEE's real property, directly benefited by the Water Facilities. Likewise, PERMITTEE acknowledges and agrees that CITY cannot commit future legislative bodies of the CITY to continuing to allow PERMITTEE's Water Facilities to be located in the Public Right -of -Way. As additional consideration on the part of the CITY, in exchange for PERMITTEE's capital investment to preserve the viability of its real property and recreational activities on its real property, CITY hereby agrees that should it exercise its right to terminate this Agreement for convenience, PERMITTEE shall be compensated for the loss of its rights to use the Public Right -of -Way, as follows:CITY shall compensate PERMITTEE for all of PERMITTEE's costs incurred to design and construct the Water Facilities, as well as PERMITTEE's costs for relocating the Water Facilities. 15. When PERMITTEE removes or relocates the Water Facilities under this Agreement, Permittee shall also, at its own cost (unless removal is for convenience of City, then City shall be responsible for the cost), repair and return the Public Right -of -Way on which the Facilities were located to safe and satisfactory condition in substantial accordance with the construction - related conditions and specifications as established by City according to its standard practice. Should PERMITTEE remove the Water Facilities from the Public Right -of -Way PERMITTEE shall, within ten (10) business days after such removal, give notice thereof to CITY specifying the right -of -way affected and the location thereof, as well as the date of removal. Before proceeding with removal or relocation work, PERMITTEE shall obtain a Right of Way permit from the CITY. If PERMITTEE does not return the affected site to a safe and satisfactory condition, then CITY shall have the option to perform or cause to be performed such reasonable and necessary work on behalf of Encroachment Agreement No. Page 6 PERMITTEE and charge the actual costs incurred to PERMITTEE. Upon receipt of a demand for payment by CITY, PERMITTEE shall reimburse CITY for such costs. CONSTRUCTION ENCROACHMENT PERMIT AND FEES 16. PERMITTEE shall apply for a Right -of -Way Permit for all work within the Public Right -of -Way and any other regulatory permits required under applicable Law or by any Agency. As a part of the Right -of -Way Permit process PERMITTEE shall furnish detailed plans of the Work to CITY, including a detailed map showing the layout of the proposed Facilities and all existing facilities located in or immediately adjacent to the area to be subject to this Agreement (collectively, the "Plans "). Upon approval of the Right -of -Way Permit the CITY shall approve such Plans, which will include the precise location of the Water Facilities. PERMITTEE shall furnish any other information as reasonably required by the City Manager with respect to the Work, and shall pay or deposit with CITY all actual out -of- pocket applicable costs incurred by CITY in connection with the Work, such as processing fees, field marking, plan review, engineering and inspection fees related to the proposed work, and CITY's actual, out -of- pocket legal fees for the preparation of this Agreement, prior to issuance of permit (or subsequent to work being performed in the case of costs or expenses not covered by a deposit) in accordance with the rates in effect at the time when the Work is performed; provided, however, in no event shall such fees exceed ten thousand dollars ($10,000), and CITY's "in- house" legal and accounting fees shall not be charged to PERMITTEE in connection with such reimbursement. Said improvements shall be constructed and installed in accordance with the City Municipal Code street opening permit general conditions and any specific Encroachment Permit requirements, and as further provided in this Agreement. 17. The Encroachment Permit shall set forth the description of the Water Facilities to be installed and the Public Right -of -Way on which such Facilities are to be located. In addition to the City Municipal Code street opening permit general conditions, CITY shall establish reasonable construction - related conditions and specifications, and these shall also be set forth in the Encroachment Permit. PERMITTEE shall utilize contractors licensed in the State of California to accomplish this work. PERMITTEE and any of its agents working in the CITY shall obtain a current City business certificate. Upon the completion of construction work, PERMITTEE promptly shall furnish to CITY accurate plans and record drawing showing in detail, the exact location, depth, and size of the Water Facilities in the Public- Right -of -Way, including without limitation, the profiles of all street crossings. These plans and drawings shall be incorporated in one (1) set of 3 mil minimum thickness, good quality transparent mylar drawings. PERMITTEE shall furnish to CITY electronic disks (which utilize AutoCAD or Geographic Data Systems software) containing the full set of plans and record drawings. To the extent directional boring or other similar methods are used to construct or install the Water Facilities, PERMITTEE also shall pothole all CITY mains and customer service lines prior to crossing over, under, or between such underground Facilities. PERMITTEE shall identify the Water Facilities installed in each Public Right -of -Way by means of an identification method mutually agreed upon by CITY and PERMITTEE. Such identification shall be detectable from ground level without opening the street. DAMAGE TO FACILITIES IN PUBLIC RIGHT -OF -WAY OR ON PRIVATE PROPERTY 18. PERMITTEE shall be responsible for any damage to CITY street pavements, existing public or private utilities, curbs, gutters sidewalks or to any private property or improvements to the extent attributable to its installation, maintenance, repair or removal of its Water Facilities in Public Right -of -Way and shall repair, replace and restore in kind any such damaged facilities at its sole expense and to the approval of CITY. Encroachment Agreement No. Page 7 Any premature deterioration of the surface or subsurface improvements as determined by CITY shall be the responsibility of PERMITTEE to the extent attributable to PERMITTEE's activities; this responsibility shall survive this Agreement or any abandonment of Facilities for a period of two (2) years from the date of PERMITTEE's most recent installation of or improvements on the Facilities. CITY shall notify PERMITTEE of its determination that premature deterioration of the surface or subsurface improvements arises out of PERMITTEE's activities, and allow PERMITTEE a period of ten (10) days within which to meet with CITY representatives to discuss the CITY's determination. At the conclusion of that ten (10) day period, or any mutual extension thereof, CITY may issue its written notice to PERMITTEE that PERMITTEE shall cause the necessary repairs to be made. PERMITTEE shall promptly following written notice from the CITY cause all necessary repairs to be completed. Under no circumstances may the period of time exceed thirty (30) days, provided, however, if such repairs are of such a nature that they cannot, through the exercise of diligent and reasonable efforts be made within thirty (30) days, then PERMITTEE shall not be in default in such instance if PERMITTEE promptly commences and diligently pursues the cure of such repairs to completion. In the event the repairs are not made, the CITY shall make repairs with the cost being billed to PERMITTEE, which expense PERMITTEE shall pay upon demand. 19. Subject to all notice and confer obligations discussed above, if CITY performs any activities to repair damaged CITY facilities, after CITY has demanded that PERMITTEE perform the same and PERMITTEE has failed to do so within a reasonable time stated in the CITY's demand, then PERMITTEE shall pay all of CITY's costs incurred in repairing the damage. PERMITTEE's obligation to pay CITY's costs of repairing the damage is a continuing obligation. If PERMITTEE fails to pay CITY's costs for repairing the damage, CITY may assess a lien on the property or properties of the responsible parties pursuant to the procedures set forth in Poway Municipal Code Chapter 8.72. 20. If Public Right -of -Way to be used by PERMITTEE has preexisting installation(s), PERMITTEE shall assume the responsibility to verify the location of the preexisting installation and notify CITY and any third party of PERMITTEE's proposed installation. The cost of any work required of such third party or CITY to provide adequate space or required clearance to accommodate PERMITTEE's installation shall be borne solely by PERMITTEE. RECORDS AND FIELD LOCATIONS 21. PERMITTEE shall be a member of the regional notification center for subsurface installations (Underground Services Alert) and shall field mark, at its sole expense, the locations of its underground Water Facilities upon notification in accordance with the requirements of section 4216 of the State of California Government Code, as it now reads or may hereinafter be amended. 22. PERMITTEE shall maintain accurate maps and improvement plans of said Water Facilities located within the Public Right of Way of CITY. The maps and plans are to show accurately in detail the location, size, depth and description of all Facilities as constructed. Prior to CITY acceptance of the work, PERMITTEE shall deliver to the office of the City Manager free of charge (and at any subsequent time, upon reasonable request, to other third parties interested in performing work within the same Public Right -of -Way as the Water Facilities for a charge equal to actual costs incurred by PERMITTEE) and within thirty (30) days after such request, such maps and plans of all Water Facilities installed within said Public Right -of -Way. When required by the CITY for the purpose of confirming the location of Water Facilities to accomplish the design or construction of public facilities, PERMITTEE shall, at its sole cost and expense, expose by Encroachment Agreement No. Page 8 potholing to a depth of one (1) foot below the bottom of its subsurface Water Facilities, within thirty (30) days of receipt of a written request from CITY to do so. HOLD HARMLESS AND INDEMNIFICATION 23. PERMITTEE, jointly and severally, for itself, its successors, agents, contractors and employees, hereby agrees to hold harmless, defend (with counsel selected by PERMITTEE and reasonably satisfactory to CITY) and indemnify CITY, its officers, councilmembers, employees and agents (all of the above hereinafter collectively known as "Indemnitees "), from and against all claims, causes of action, proceedings, losses, damages, liability, cost, and expense (including, without limit, any fines, penalties, judgments, litigation costs, reasonable attorney's fees and consulting, engineering and construction costs) for actual loss of or damage to property and for injuries to or death of any person (including, but not limited to, the property and employees of each party) ( "Liability ") when caused by, arising out of or related to the Water Facilities described in this Agreement. The duty of PERMITTEE to indemnify and hold harmless includes the duties to defend as set forth in section 2778 of the Civil Code. It is the express intent of the parties that PERMITTEE will indemnify and hold harmless Indemnitees from any and all claims, suits or actions arising from any cause whatsoever as set forth above regardless of the existence or degree of fault or negligence on the part of CITY, PERMITTEE or any subcontractor or employee of any of these except to the extent the Liability was the result of the gross negligence or willful misconduct or criminal acts of the CITY, its directors, officers, employees and agents. Should any discharge, leakage, spillage, emission or pollution of any type occur upon or from the Public Right -of -Way attributable to PERMITTEE's use or occupancy, PERMITTEE at its expense, shall clean all affected property to the reasonable satisfaction of CITY and any governmental body having jurisdiction. PERMITTEE shall indemnify, hold harmless and defend Indemnitees (with counsel selected by PERMITTEE and reasonably satisfactory to CITY) against all Liability incurred by CITY as a result of PERMITTEE's breach of this section or as a result of any such discharge, leakage spillage, emission or pollution, regardless of whether such Liability, cost or expense arises during or after the term of this Agreement. The obligations of PERMITTEE under this Section 23 shall survive termination of this Agreement. 24. Except to the extent of CITY's gross negligence, willful misconduct or criminal acts, under no circumstances shall the CITY be liable or otherwise responsible to PERMITTEE or its customers for any loss of service downtime, lost revenue or profits, or third -party damages. INSURANCE 25. Any person, firm or corporation PERMITTEE authorizes to work upon the Public Right -of -Way, including any subcontractor, shall be deemed to be PERMITTEE's agent and shall be subject to all the applicable terms of this Agreement. Prior to entry upon the Public Right -of- Way by such agents, PERMITTEE shall provide CITY with satisfactory evidence (in the form of a Certificate of Insurance) that it and its contractors or other agents who will obtain access to the Public Right -of -Way pursuant to this Agreement are insured in accordance with the following, which insurance shall remain in effect throughout the term of this Permit and shall be at the sole cost and expense of PERMITTEE (or its agents). Prior to the start of the work or entry onto the Public Right -of -Way, PERMITTEE agrees to procure and maintain, and to require its contractor (s) Encroachment Agreement No. Page 9 to procure and maintain, at its (or its contractors') sole cost and expense (and to prove to CITY's reasonable satisfaction that it remains in effect throughout the work), the kinds of insurance described below: a. Workers' Compensation PERMITTEE shall secure the payment of Workers' Compensation in accordance with the provisions of section 3700 of the California Labor Code (and any amendments thereto or successor acts or statues) and PERMITTEE shall furnish CITY with a certificate evidencing such coverage. b. Comprehensive General Liability Insurance PERMITTEE shall at its own cost and expense, also procure and maintain Comprehensive General Liability insurance with the following coverages: $1,000,000 per person /per occurrence $2,000,000 aggregate per occurrence $1,000,000 property damage per occurrence c. Automobile Liabilitv Insurance PERMITTEE shall, at its own cost and expense, procure and maintain Automobile Liability insurance including owned, hired, and non -owned vehicles with the following coverages: $500,000 per person /per occurrence $1,000,000 aggregate per occurrence $100,000 property damage per occurrence d. Endorsements Endorsements shall be obtained so that each policy required above contains the following provisions: (i) Additional Insured. The CITY must be named as an Additional Insured on the policy, in an endorsement containing the following language: "City of Poway and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject property and contract with the City ". (ii) Primary Coverage. The policy provides primary coverage to CITY and its elected and appointed boards, officers, agents, and employees. It is not secondary or in any way subordinate to any other insurance or coverage maintained by the CITY. (iii) Company Size /Rating. The issuing company shall be an admitted surety or an insurance company listed by the State Insurance Commissioner, and shall have a rating in the latest Best's Rating Guide of "A" or better and Class VI or better, or be "treasury listed" for the size of risk to be undertaken. Encroachment Agreement No. Page 10 NOTIFICATIONS 26. PERMITTEE shall, prior to the issuance of an Encroachment Permit or consistent with of the provisions of the Encroachment Permit, certify to CITY that it has provided or will provide written notification of its intent to perform work to the property owners of all properties adjacent to streets and /or right(s) -of -way where PERMITTEE will be excavating. Unless otherwise agreed by CITY, said notice, shall be mailed to the property owner as listed on the most recent assessor's tax roll at least seven (7) days prior to the issuance of an Encroachment Permit. ASSIGNMENT 27. The Agreement shall not be assignable by PERMITTEE without the explicit written approval of CITY, which approval shall not be unreasonably withheld, provided, however, that PERMITTEE may assign the rights granted herein to a parent, successor, subsidiary, joint venture or affiliate of PERMITTEE now or hereinafter existing, by only providing notice to CITY of such assignment. However, this Agreement shall be binding on successors and assigns and shall be disclosed to assignee. ENTIRE AGREEMENT 28. This Agreement contains the entire understanding between the parties with respect to the subject matter herein. There are no representations, agreement or understandings (whether oral or written) between or among the parties relating to the subject matter of this Agreement that are not fully expressed herein. This agreement may not be amended except pursuant to a written instrument signed by all parties. SEVERABILITY 29. If any one or more of the covenants or agreements or portions thereof provided in this Agreement shall be held by a court of competent jurisdiction in a final judicial action to be void, voidable or unenforceable, such covenant or covenants, such agreement or agreements, or such portions thereof shall be null and void and shall be deemed separable from the remaining covenants or agreements or portions thereof and shall in no way affect the validity or enforceability of the remaining portions of this Agreement, and the parties shall negotiate in good faith to replace any such covenant, agreement or portion found to be null and void. TERMINATION 30. This Agreement may be terminated by CITY upon thirty (30) days written notice to PERMITTEE in the event of a default by PERMITTEE beyond applicable notice and cure periods. 31. This Agreement may be terminated by CITY in the event of nonuse or abandonment, defined in Section 10, upon thirty (30) days written notice to the PERMITTEE. 32. This Agreement may be terminated by CITY for its convenience as permitted in Section 3, upon 180 days written notice to the PERMITTEE. 33. Upon termination of this Agreement, and upon written request by City, PERMITTEE, at its own cost and expense, agrees to remove or, at CITY's discretion, abandon in place some or all of its Water Facilities from the Public Right -of -Way as set forth in the Removal and Relocation provisions of this Agreement. Should PERMITTEE in such event fail, neglect or refuse to make Encroachment Agreement No. Page 11 such removals or restoration within one hundred eighty (180) days of CITY's written request, at the sole option of CITY, such removal and restoration may be performed by CITY at the expense of PERMITTEE which expense PERMITTEE agrees to pay to CITY upon demand. NOTICE 34. All notices given or which may be given pursuant to this Agreement shall be in writing and transmitted by United States Postal Service, or by private delivery systems, or by facsimile if followed by United States Postal Service, or by private delivery systems as follows: To CITY at: City of Poway Attention Steve Crosby, City Engineer 13325 Civic Center Drive Poway, CA 92064 Facsimile: (858) 668 -1212 To PERMITTEE at: Maderas CC, L.P. Attention Uri Feldman 4445 Eastgate Mall, Suite 400 San Diego, CA 92121 Facsimile: (858) 362 -8448 IN LIEU FEES 35. PERMITTEE shall pay to the CITY an in -lieu fee for use of the CITY's Right -of -Way in the amount of $4.72 for each square foot of Right -of -Way used for the 20 year maximum term of this agreement for a total amount of eight thousand, four hundred ninety -six dollars ($8,496.00), payable within thirty days of the Effective Date of this Agreement. Thereafter, upon each renewal of this Agreement beyond the initial 20 year maximum term, extended by written agreement of the Parties for an additional 5 -year term, PERMITTEE shall pay to CITY a new in -lieu fee equal to the amount of the prior in -lieu fee paid for the immediately preceding 5 -year term, plus an amount equal to the percentage increase in the Revised Consumer Price Index for all Urban Consumers, published by the U.S. Department of Labor Statistics for San Diego, California, All Items (1982- 84 =100) during the immediately preceding 5 -year term of this Agreement, with such period ending as of July 31 of the year in which renewal of this Agreement occurs; provided, however, in no event shall the in -lieu fee increase by more than four percent (4 %) per renewal. Such adjusted in -lieu fee shall be paid to CITY within thirty days of the commencement of each renewal term under this Agreement. Each adjustment shall apply to the in -lieu fee to be paid for the then current term of this Agreement until the next renewal and adjustment occurs and no additional in -lieu fees shall be payable unless and until the next renewal of this Agreement for an additional 5 -year term, if any, occurs. If the index is discontinued or revised during the term, it shall be replaced with a comparable government index or computation, as determined by the CITY's Director of Administrative Services. Force Maleure 33. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lock -outs, labor troubles, inability to procure materials, failure of power, governmental moratorium or other governmental action or inaction (including failure, refusal or delay in issuing permits, approvals and /or authorizations), injunction or court order, riots, insurrection, war, fire, earthquake, flood or other Encroachment Agreement No. Page 12`, natural disaster or other reason of a like nature not the fault of and not within the reasonable control of the party delaying in performing work or doing acts required under the terms of this Lease (but excluding delays due to financial inability), then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. z s This Agreement is granted pursuant to action taken by the CITY OF POWAY on the ' day of , 2016. Property Ownes(s B ri Feldman, Executive Vice President Sunroad G.P., Inc. Managing Partner for Maderas CC, L.P. Approved as to Form: Office of the City Attorney Morg L. F ley, "yAorney CITY OF POWAY eve . Crosby, P.E. City Engineer (Signatures must be notarized.) Approved on Date Set Forth Above: �-c Daniel A. Singer, City a w EXHIBIT "A" o- �1 SCALE. 1 20 MADERAS GOLF COURSE PM 17989 APN 277 - 171 -34 ❑ i 1 li N07'44'09 "W 256.05' -- - - -___ _ _ - ; - EX R /W-- -L _ ------------ - -- --------------------------- /\- -_ - -- JT- - 5 80 3 -- - - - - -- - - -- - - -_ -_ - -. 56 56k2 CONSTRUCTION CL FOR EX. IMPS. PER TM89 -13R OLD i _ _S_�COACH 57 ROAD CL OLD COACH ROAD -I-s-__ - D _ PROPOSED PVT. 8" WATER LINE IN 18" CASING -W- ----------------------- - - - - -- --------- - - - - - - - - - - - - - - - - - - - - - - - ----- - - - - - -- - -- - ------- - - - - -- - 3 EX LODGE POLE FENCE-- -4- D= 2523'21 " EX R/W _ N07'44'09 "W 256.05' R =970' L_429.83' PCL I PM 19449 APN 277- 071 -15 PRIVATE 8" WATER LINE IN 18" CASING SCALE: 1 " =20' x\2G13\I3OI6\CAD\CE\I3OI6 EN'ROACMMENT PERMIT.dny 3/31/2016 11'39 -52 AM PDT CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL O. A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of Sa✓t h� ICGj 0 ) On6 ?-"(1 ZO 1 t before me, �fSOI Ci . p�p� lC�a� rA k? 1 i C Date Here Insert Ndme and Title of e Officer / personally appeared �` et Fe (G(m a All Names) of Signer(s - who proved to me on the basis of satisfactory evidence to be the personft whose names) isFare- subscribed to the within instrument and acknowledged to me that he /sheA ey executed the same in his/hter authorized capacity(ies}; and that by his /herftheir signature(ej on the instrument the person( , or the entity upon behalf of which the person* acted, executed the instrument. LISA A. SNYDER Commission # 2050328 Z a " =s Notary Public - California z Z San Diego County My Comm. Expires Dec 25, 2017 Place Notary Seal Above I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature 46� d -44- -- Signature of Notarifiublic OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document / -_ Title or Type of Document:cro�j 'f_�Document Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by ner(s) Signer's Name: 0 r �eo 1 d P-14'" 2;6'orporate Officer — Title(s): y ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Date: QP r 1 `f , 2014o Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee Guardian or Conservator ❑ Other: Signer Is Representing: ©2014 Naticnal Notary Association • www.NationalNotarr.org • 1- 800 -US NOTARY (1 -800- 876 -6827) Item #5907 CALIFORNIA • • •D Ct. �• �. �. �. �. �. �. �. �.. a.�..�..�•�.�.�t�C�..aC�C�e�.�. •�c�•�.�C.aQ .�C •�..aCa...�.�•�.�:� �: •. A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On S h 9 i 1 u before me, Date Here Insert Name and Title of the Officer personally appeared of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. MONICA I. MARTINEZ ComaNsSion # 2115964 Notary PuDNc - California San Dipo Coumy Mv Corns. Ewkea Jun 18 2019 I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. i Signature Signature of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Number of Pages: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact" ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: California All- Purpose Acknowledgment CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF SAN DIEGO On July 13, 2016 before me, Carol S. Legg, Notary Public, personally appeared Daniel Singer, who proved to me on the basis of satisfactory evidence to be the person{} whose name{, is /afe subscribed to the within instrument and acknowledged to me that he /s4e /they executed the same in his /#ei= /t#eif authorized capacity(+es), and that by his /4ei= /4K*. signatures on the instrument the person{4, or the entity upon behalf of which the persons} acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. CAROL S. LEGG Commission N 2105416 Notary Public • California son Dlpo County Comm.E inr Ig 20 2010 Carol S. Legg, Notary PLOW OPTIONAL Title or type of document: Encroachment Agreement #15 -0003 Document Date: undated Number of Pages: 12 plus a one -page exhibit Signers Other Than Named Above: Uri Feldman for Sunroad /Maderas and Steven Crosby Poway City Engineer. Poway City Attorney Morgan Foley Approved as to Form.