City of Culver City, California
Agenda Item Report
RECOMMENDATION:
Staff recommends the City Council approve an Encroachment Permit Agreement
with Andersen Environmental for use of the public right-of-way along Ocean Avenue
(adjacent to 5000 Overland Avenue) for public parking.
BACKGROUND/DISCUSSION:
Ocean Avenue effectively comes to an end at Overland Avenue. However, there is
a small section of City-owned dedicated street right-of-way just beyond that point
(north of Overland Avenue and adjacent to 5000 Overland Avenue). For many
years, this section of right-of-way has been used as a parking lot for the private
property located at 5000 Overland Avenue rather than for right-of-way purposes.
The 5000 Overland Avenueproperty is currently in escrow and the purchaser,
Andersen Environmental, desires to have continued use of this section of right-of-
way for parking. Staff does not anticipate needing to use this small area for right-of-
way purposes at anytime in the foreseeable future and believes that the continued
use of this property as a parking lot will best serve the public interest.
Staff recommends entering into an Encroachment Permit Agreement with Andersen
Environmental to allow for this property to continue to be used as a parking lot. The
Agreement specifies that this parking lot shall be open for public useand preserves
the City’s right to charge the property owner for the use of the lot. To protect the
City’s interests, this Agreement contains provisions requiring that the property
Meeting Date: 02/14/2011 Item Number: C-7
CITY COUNCIL AGENDA ITEM: Approval of an Encroachment Permit Agreement
with Andersen Environmentalfor Use of the Public Right-of-WayAlong Ocean
Avenue(Adjacent to 5000 Overland Avenue) for Public Parking
Contact Person/Dept.: Charles D.
Herbertson/PW
Phone Number: 310-253-5635
Fiscal Impact: Yes [] No [X] General Fund: Yes [] No [X]
Public Hearing: [] Action Item: [] Attachments: [X]
Commission Action Required: Yes [] No [X] Date: _______________
Public Notification: (E-Mail) Agenda and Meetings – City Council (02/09/11)
Department Approval:
Charles D. Herbertson(02/09/11)
City Attorney Approval:
Carol Schwab (by H. Baker) (02/09/11)
Chief Financial Officer Approval:
Jeff Muir (by M. Noller) (02/09/11)
City Manager Approval:
John M. Nachbar (02/09/11) City of Culver City, California
Agenda Item Report
ownerrepair any damage to City property, carry adequate liability insurance, and
indemnify and defend the City if it is sued for damages. Furthermore, the
Agreement contains provisions allowing the City to terminate the Agreement with
notice if the property is needed for a government purpose.
It should be noted that Andersen Environmental has also expressed an interest in a
vacation of this section of right-of-way as a long-term solution to this issue and staff
may be returning to City Council to initiate this process in the future.
FISCAL ANALYSIS:
Staff does not anticipate any fiscal impact from the approval of this Encroachment
Permit Agreement. The Agreement allows for the continued use of the property as
a parking lot. It does not specify a fee to be charged for this lot, as it will be
accessible to the public; however, it preserves the City’s right to charge for its use in
the future.
ATTACHMENT:
1. Proposed Encroachment Permit Agreement
MOTIONS:
That the City Council:
1. Approve an Encroachment Permit Agreement with Andersen Environmental
for use of the public right-of-way along Ocean Avenue (adjacent to 5000
Overland Avenue) for public parking; and
2.Authorize the City Attorney to review/prepare the necessary documents; and,
3. Authorize the City Manager to execute such documents on behalf of the City.
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Encroachment Permit Agreement
City of Culver City and Andersen Environmental
Page 1 of 5
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ENCROACHMENT PERMIT AGREEMENT
PARTIES: City of Culver City, a California municipal corporation
9770 Culver Boulevard
Culver City, California 90232
ATTN: PUBLIC WORKS DIRECTOR/CITY ENGINEER
(“City”)
Andersen Environmental
And/or its assigns
9937 Jefferson Boulevard, Suite 200
Culver City, CA 90232
ATTN: ______________________
(“Property Owner”)
RECITALS:
A. WHEREAS, Property Owner is in escrow on the purchase of that certain real
property located at 5000 Overland Avenue, Culver City, California (the “Overland
Property");
B. WHEREAS, a small section of City-owned dedicated street right-of-way along
Ocean Avenue and adjacent to the Overland Property (the “Subject Property”),
which is illustrated on Exhibit A, has been used as a parking lot by Property
Owner for many years;
C. WHEREAS, the Subject Property is not currently being used for public right-of-
way purposes and terminates at the Subject Property driveway entrance and the
City has no use for it at this time; and
D. WHEREAS, continuance of the use of the Subject Property as a parking lot will
serve the public benefit.
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter contained, the parties hereto agree as follows:
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1. The City hereby grants Property Owner this Encroachment Permit Agreement
(the “Agreement”) to use the Subject Property as a parking lot (the “Parking Lot”) to serve
the businesses located on the Overland Property and the general public.
2. Property Owner shall not limit parking in the Parking Lot to tenants and
visitors of the Overland Property. Property Owner shall not exclude the general public from
using the Parking Lot for parking purposes. City agrees that, without a written modification
of this Agreement, it shall not place signs on the Subject Property indicating public parking
nor advertise or otherwise suggest that the Parking Lot is available for public parking.
3. The rights granted by this Agreement are granted based upon the above-
referenced representations. If Property Owner uses the Subject Property for purposes
other than public parking, the City may immediately terminate this Agreement after
providing Property Owner written notice and an opportunity to cure its non-permitted use
within 10 days of receipt of such notice.
4. City reserves the right to charge Property Owner reasonable compensation
consistent with applicable law for the use of City's rights-of-way. By entering into this
Agreement, City does not waive any rights, either legal or equitable, to which it may
otherwise be entitled.
5. Property Owner, at its sole cost and expense, shall be responsible for the
maintenance of the Subject Property and any and all damage to the Subject Property shall
be repaired by Property Owner at no cost or expense to City and to the reasonable
satisfaction of City’s Public Works Director. In the event Property Owner declines to make
repairs reasonably deemed necessary, the City may immediately terminate this Agreement
without prior notice.
6. The permission granted under this Agreement shall not in any event
constitute an easement on or an encumbrance against the public rights-of-way. No right,
title or interest in the public rights-of-way, or any part thereof, shall vest or accrue to
Property Owner or any other entity or person by reason of this Agreement, the issuance of
an encroachment permit or the exercise of the privileges given thereby.
7. Except as otherwise provided herein, this Agreement may be terminated by
the City upon 180-days written notice, if the City determines the termination of the
Agreement is necessary to protect the public health, safety or welfare, or when made
necessary by either the installation, abandonment, change of grade, alignment or width of
any street, sidewalk or other public facility or the construction, maintenance or operation of
any other City or other public agency underground or aboveground facilities (including, by
way of example and not limitation, any sewer, storm drain, conduits, gas, water, electric or
other utility system or pipes), provided that City or other public agency is acting in its
governmental capacity. In the event all or any portion of the Subject Property is needed by
City or other public agency for a governmental purpose or in the event the use of the
Subject Property by Property Owner shall be considered detrimental to the public health,
safety or welfare or to governmental activities including, but not limited to, interference with Encroachment Permit Agreement
City of Culver City and Andersen Environmental
Page 3 of 5
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City or other public agency construction projects, or is in conflict vertically and/or
horizontally with any proposed City or other public agency installation, Property Owner shall
cease use of the Subject Property or the involved part of it, without cost or expense to City.
Upon receipt of the notice of termination, Property Owner shall have 180
days to cease use of the Subject Property. In the event of termination of this Agreement,
Property Owner hereby waives and releases any and all rights or claims for cost
reimbursement, inverse condemnation, relocation benefits or any other legal or equitable
action the Property Owner may otherwise have against City. Should termination occur, if
requested by City’s Public Works Director, Property Owner shall repair and restore the
Subject Property to a condition satisfactory to City’s Public Works Director within 30 days
of such request.
In the event of an emergency, as reasonably determined by City’s Public
Works Director or other public agency, City may require Property Owner to immediately
cease use of the Subject Property without prior notice, provided that Property Owner is
provided with written notice within a reasonable period thereafter.
8. Without limiting any other obligation set forth in this Agreement, Property
Owner shall provide City with a Certificate of Insurance in the amount of Two Million Dollars
($2,000,000) for General Liability (the “Policy”) (see insurance requirements attached as
Exhibit B to this Agreement). That amount may be provided by two separate One Million
Dollar ($1,000,000) policies provided the aggregate limits are $2,000,000. The Policy(ies)
shall provide, or be endorsed, with an endorsement approved by the City Attorney’s Office,
which shows City and its officers and employees are additional insureds under the Policy,
the Policy is primary, the Policy has a severability provision and any other City-policy is
non-contributing.
9. Property Owner and its successors and assigns shall and do hereby
indemnify, hold harmless and defend City, its elected and appointed officials, officers,
employees, agents and representatives (“Indemnitees”) from any and all suits and causes
of action, claims, charges, damages, judgments, demands, civil fines, penalties or losses
of any kind or nature whatsoever, including attorney fees and court costs, which may arise
against any or all Indemnitees by reason of any real or personal property damage,
personal injury or death arising or resulting directly or indirectly from Property Owner’s use
of the Subject Property. This indemnity and obligation to hold harmless shall apply
regardless of whether or not City prepared, supplied, or approved plans or specifications or
inspected any work, repairs or improvements installed or constructed on the Subject
Property.
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10. In the event Property Owner’s purchase of the Overland Property falls
through, this Agreement shall become null and void.
11. If litigation arises out of this Agreement for the performance thereof, then the
court shall award costs and expenses, including attorney’s fees, to the prevailing party. In
awarding attorney’s fees, the court shall not be bound by any court fee schedule, but shall
award the full amount of costs, expenses and attorney’s fees paid or incurred in good faith.
12. The terms of this Agreement shall be interpreted according to the laws of the
State of California. If litigation occurs, then venue shall be in the Superior Court of Los
Angeles County.
13. All notices required or provided for under this Agreement shall be in writing,
delivered in person or by certified mail, return receipt requested, or by a nationally
recognized overnight delivery service addressed to the parties as indicated on the first
page of this Agreement. Any notice so delivered shall be effective upon the date of
personal delivery or, in the case of mailing, upon delivery. Any party may change its
address for notice by giving 10-days notice of such change in the manner provided for in
this Paragraph.
14. Property Owner shall not transfer or assign this Agreement without the prior
written consent of City.
15. A waiver by either party of any breach of any term, covenant, or condition
contained in this Agreement shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant, or condition contained in this Agreement whether
of the same or different character.
16. As set forth in Paragraph 6, the parties agree that no possessory interest is
created by this Agreement. However, to the extent that a possessory interest is deemed
created, Property Owner acknowledges that notice is and was hereby given to Property
Owner, pursuant to California Revenue and Taxation Code Section 107.6, that use or
occupancy of any public property pursuant to the authorization herein set forth may create
a possessory interest which may be subject to the payment of property taxes levied upon
such interest. Property Owner shall be solely liable for, and shall pay and discharge prior
to delinquency, any and all possessory interest taxes or other taxes levied against Property
Owner’s right to possession, occupancy, or use of any public property pursuant to any right
of possession, occupancy or use created by this Agreement.
17. Property Owner shall comply with all applicable federal, state and local laws,
rules and regulations.
18. If any part of this agreement is held invalid, the remaining terms and
conditions shall not be affected unless their enforcement under the circumstances would
be unreasonable, inequitable, or otherwise frustrate the purposes of this agreement.
Encroachment Permit Agreement
City of Culver City and Andersen Environmental
Page 5 of 5
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19. This agreement, including the exhibits attached hereto, constitutes the entire
agreement between the parties and supersedes any previous oral or written agreements
with respect to the subject of this Agreement.
IN WITNESS WHEREOF, the parties have caused this agreement to be
executed by their respective duly authorized representatives as of the dates indicated
below.
"City" "Property Owner"
CITY OF CULVER CITY, a Andersen Environmental
Municipal Corporation
By: ________________________ By: __________________________
John Nachbar
City Manager Name (Print):
Title: __________________________
Date: _______________________ Date: __________________________
Approved as to Form and Legal Content
Carol A. Schwab, City Attorney
By:__________________________________
Heather Baker, Assistant City Attorney
Date: _______________________________
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EXHIBIT B
ENCROACHMENT PERMIT AGREEMENT BETWEEN
CITY OF CULVER CITY AND ANDERSEN ENVIRONMENTAL
INSURANCE REQUIREMENTS
A. Policy Requirements.
Property Owner shall submit duly executed certificates of insurance for
the following:
1. An occurrence based Comprehensive General Liability ("CGL")
policy, at least as broad as ISO Form CG 0001, in the minimum amount of
One Million Dollars ($1,000,000) each occurrence, with not less than Two
Million Dollars ($2,000,000) in annual aggregate coverage.
The CGL Policy shall have the following requirements:
a. The policy shall provide coverage for personal injury, bodily
injury, death, accident and property damage and advertising
injury, as those terms are understood in the context of a CGL
policy. The coverage shall not be excess or contributing with
respect to City's self-insurance or any pooled risk
arrangements;
b. The policy shall provide $1,000,000 combined single limit
coverage for owned, hired and non-owned automobile
liability;
c. The policy shall include coverage for liability undertaken
by contract covering, to the maximum extent permitted by
law. Property Owner's obligation to indemnify the
Indemnitees as required under Paragraph 9 of this
Agreement;
d. The Policy shall not exclude coverage for Completed
Operations Hazards; and
e. The City of Culver City, members of its City Council, its
boards and commissions, officers, agents, and employees
will be named as an additional insured in an endorsement
to the policy, which shall be provided to the City and
approved by the City Attorney.
2. Workers' Compensation limits as required by the Labor Code of the
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State of California with Employers' Liability limits of One Million Dollars
($1,000,000.00) per accident, if the Agreement will have Property Owner
employees using the Subject Property.
B. Waiver by City.
City may waive one or more of the coverages listed in Section A,
above. This waiver must be express and in writing, and will only be made
upon a showing by the Property Owner that its operations in and with respect
to City are not such as to impose liability within the scope of that particular
coverage.
C. Additional Insurance Requirements.
1. All insurance listed in Paragraph A shall be issued by companies
licensed to do business in the State of California, with a claims paying ability
rating of "BBB" or better by S&P (and the equivalent by any other Rating
Agency) and a rating of A:VII or better in the current Best's Insurance
Reports;
2. Property Owner shall provide City with at least thirty (30) days prior
written notice of any modification, reduction or cancellation of any of the
Policies required in Paragraph A, or a minimum of ten (10) days notice for
cancellation due to non-payment.
3. City may increase the scope or dollar amount of coverage required
under any of the policies described above, or may require different or
additional coverages, upon prior written notice Property Owner.