1 No Recording Fee
Required Per
Government Code
Section 27383
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CITY OF SAN BERNARDINO
290 North D Street
San Bernardino, California 92401
A.P.N. _________________ (Space Above For Recorder’s Use)
CITY OF SAN BERNARDINO
ENCROACHMENT PERMIT AND COVENANT
THIS ENCROACHMENT PERMIT AND COVENANT (“Permit”) is made as of this 1st day of May, 2024, by and among the CITY OF SAN BERNARDINO, a municipal corporation organized under the laws of the State of California with its principal place of business at 290 North D Street, San Bernardino, California 92401, County of San Bernardino, State of California (“City”) and the San Manuel Band of Mission Indians, a federally recognized Indian tribe, a federally recognized Indian tribe, with its principal place of business at 26569 Community Center Drive, Highland, CA 92346 (“Permittee”).
R E C I T A L S
A. Permittee has requested permission from City to enter upon, use, and construct an Over-Road Wayfinding Sign and a primary directional monument sign, which will include lane assignments, (“Permittee Facilities”) within certain portions of City’s easement (“City Property”) along N Victoria Avenue as shown on Exhibit “A” (the “Encroachment Area”).
B. Permittee’s use of this Encroachment Area will be undertaken for the benefit of the Permittee’s property (the “Benefitted Property”), as described and depicted on Exhibit “B.” Permittee desires to enter upon the Encroachment Area to construct, install, and maintain Permittee Facilities, specifically described as set forth and depicted on Exhibit “C.” C. Replacement, operation, and maintenance responsibilities of the Permittee Facilities belong to the Permittee.
D. Exhibits “A,” “B” and “C” are hereby incorporated herein by this reference as though fully set forth at length.
E. The purpose of this Permit is to document the City’s authorization of the Permittee’s encroachment onto City’s Property, describe the terms and conditions 2 governing such encroachment, and to set forth the Permittee’s covenants to perform certain obligations and to be subject to certain restrictions, as set forth in this Permit.
NOW, THEREFORE, in reliance upon the foregoing facts and the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Permittee and City hereby agree as follows:
AGREEMENT
1. Encroachment Permit. A revocable encroachment permit is hereby granted to Permittee on the Encroachment Area. The proposed encroachment shall not extend on City’s Property to any extent greater than as described and shown in Exhibit “A.”
2. Covenant Running With the Land. The obligations set forth herein shall constitute covenants that shall run with the land and be binding upon and inure to the benefit of the future owners, encumbrances, successors, heirs, personal representatives, transferees, and assigns of the City Property and the Benefited Property.
3. No Easement Granted. By accepting the benefits herein, Permittee acknowledges that whatever rights and obligations are possessed by City with respect to the easement within which the Encroachment Area is located shall remain and continue in full force and effect and shall in no way be affected by City’s grant of permission to encroach.
4. Term. This Permit shall take effect on the date this agreement is executed by both parties and shall remain in effect until City provides the required notice to the Permittee or its successors.
5. No Precedent Established. No action under this Permit establishes a precedent regarding (a) the advisability of permitting any certain type of encroachment to exist within City Property, or (b) to the acceptability of any such permit in any other or future situation.
6. Pre-Construction Meeting and Requirements. Before starting any work on the Permittee Facilities (“Work”) under the Permit, Permittee shall contact City’s Chief Inspector or other designated employee and arrange for a pre-construction meeting. No Work shall be performed prior to the pre-construction meeting. Permittee shall provide at the pre-construction meeting a plan for fugitive dust control in compliance with AQMD Rule 403, if applicable. Unless specifically not required, before starting Work, Permittee shall provide to City the inquiry Identification Number (the number provided by Underground Service Alert (“USA”) to every person who contacts USA pursuant to Section 4215.5 of the Government Code). No work shall be done under the Permit outside of the normal working hours of City employees unless the City inspector is present and Permittee shall have first obtained the consent of City’s Chief Inspector. If the Work is interrupted for two (2) consecutive business days or more, Permittee shall obtain from City’s Chief Inspector consent to resume the Work.
7. Inspection. All Work shall be subject to inspection and approval by City. Permittee shall schedule City Inspection one (1) business day in advance of performing any 3 activities under this Permit. The following items are required in order to schedule Inspection: a) project title, b) inspection number and c) activities to be performed.
Permittee shall notify the Inspection Division when the Work has been completed and obtain a final inspection report. If during any City inspection it is reasonably determined that the Work and/or Permittee Facilities materially and negatively interfere with City's use of the City Property or the holder of any prior rights, City and Permittee shall confer in good faith to determine a solution to such interference. If a mutually agreeable solution is not found within ninety days from the date that the City notifies Permittee of the interference, Permitee shall remove the Permittee Facilities or, in the event Permittee fails to do so, City may elect to complete such removal at Permitee's cost and expense. Such cost shall be paid by Permittee within thirty (30) calendar days' following receipt of an invoice from the City, including reasonable proof of such costs and expenses.
8. Permit and Plans on Job Site. During work, the Permit and construction drawings or copies thereof shall be kept at the job site and must be shown to any representative of City or any law enforcement officer on demand. If the Permit and construction drawings are not on the job site during Work, City may, at its option, require immediate suspension of Work by oral notice to Permittee’s employees, contractors or representatives at the job site.
9. Authorized Permit Users. The Permit may be used and Work under this Permit may be performed only by the named Permittee and its contractors, subcontractors, authorized agents invitees, and representatives. No other parties are authorized to perform Work under this Permit.
10. Conflicting Permits. If an existing encroachment or improvement pursuant to a prior City permit conflicts with the proposed Work, Permittee must arrange, at its sole cost and at no expense to City, for any removal or relocation of such prior encroachment or improvement with the owner/permittee thereof.
11. Additional Approvals; Environmental Compliance. The Work may require that Permittee obtain written orders, approvals, authorizations or consent (collectively “Approvals”) from and/or comply with environmental laws and regulations issued or administered by certain federal, state or local agencies including (without limitation) the U.S. Army Corps of Engineers (“USACE”), California Department of Fish and Wildlife (“DFW”), United States Fish and Wildlife Service (“FWS”), Regional Water Quality Control Board, Colorado River Region (“Regional Board“), California Public Utilities Commission (“PUC”), and/or Cal-OSHA. Compliance with environmental laws may require the obtaining from the DFW of a Streambed Alteration Agreement (Fish and Game Code, Section 1600 et seq.), Regional Board Section 401 Permit, Waste Discharge Requirements, compliance with the California Environmental Quality Act (“CEQA”), Regional Board best management practices, and USACE Section 404 permitting, Permittee is aware that some or all of the Work may take place in regulated waters of the United States or waters of the State of California, requiring Permittee to obtain appropriate permits and Approvals. In addition, to the extent issuance of the Permit or other action triggers the requirement for City or its affiliates to prepare additional environmental review pursuant to CEQA or the National Environmental Policy Act (“NEPA”), Permittee shall be 4 responsible to reimburse and indemnify City for all costs of such compliance.
Authorization to undertake the Work under this Permit is specifically conditioned upon with Permittee’s compliance with all of the terms and requirements of the Approvals. If City is not the fee owner of the City Property, Permittee shall also obtain Approval from the Owner(s) of such property. This Permit shall be effective and Work may commence hereunder only upon receipt by Permittee of all necessary Approvals. Permittee shall abide by stormwater discharge regulations adopted by the U.S. Environmental Protection Agency and by the State Water Resources Control Board.
12. Notice of Intent. In the event of Work including, but not limited to, clearing, grading and excavation results in a land disturbance of one (1) or more acres, Permittee shall:
Submit a Notice of Intent (State Form II) in compliance with the terms of the general permit to discharge stormwater associated with construction activity to the State Water Resources Control Board and to City.
State Water Resources Control Board
Division of Water Quality
Attention: Stormwater Permit Unit
Post Office Box 1977
Sacramento, California 95812
13. Compliance with Laws. All Work, if any, shall be completed at no cost to City in conformance with all laws, rules and regulations of all governmental or quasi- governmental agencies and the owners of the real property upon which the Work is to be accomplished.
14. Drainage Modification. If there is potential for the Work to effect existing drainage or drainage patterns, Permittee will consult with City before Work begins.
15. Clean Up. Permittee shall not deposit asphalt, concrete, organic matter, chemicals, metal, paper, trash or other waste or debris within the City Property. Upon completion of the Work or any subsequent repair or maintenance of Permittee Facilities, all brush, timber, scraps, material, etc., placed at the job site by or on behalf of Permittee shall be removed and Permittee shall restore the City Property to its prior condition as nearly as may be reasonably possible. If, during the course of the Work or thereafter, construction, reconstruction or maintenance work must be performed by City within the City Property, the Work shall, upon request of City, immediately cease and for the time reasonably necessary for the City to complete its necessary construction, reconstruction, and/or maintenance work. In the event that the necessary work cannot be completed by City without relocation of the Work or Permitted Facilities, City shall provide Permittee notice of the necessity of the relocation. In such an instance, Permittee, may be required to relocate the Work or Permitted Facilities at Permittee's sole cost. If Permittee fails to do any of the foregoing, City may elect to complete all or any of such tasks at Permittee’s cost and expense. Such cost shall be paid by Permittee within thirty (30) calendar days following receipt of an invoice from City.
5 16. Mechanics Lien Claims. In its performance of the Work or any other activities associated with this Permit, including operation and maintenance of Permittee Facilities, Permittee shall assure that the City Property is kept free from mechanics lien claims resulting from Permittee's use or Work and shall defend, indemnify and hold City free and harmless from and against any such claims. In the event such a mechanics lien is filed against the City Property, Permittee shall cause such lien to be removed (whether by bonding or otherwise) within thirty (30) calendar days after it is recorded.
17. As-Built Plans. Not later than thirty (30) calendar days following completion of the Work, Permittee shall provide to City a set of “As-Built” drawings from the Engineer of Record with sufficient accuracy to allow City to determine the location of the Permittee Facilities.
18. City Non-liability; Permittee Responsibility. City shall not be liable for the replacement of decorative concrete and other surface improvements, including, but not limited to, alternative paving methods or treatments or the removal of some or all Permittee Facilities which removal may be required in order to gain access to the City Property . City shall not be responsible for seal coating, overlaying or otherwise resurfacing street improvements made by Permittee and Permittee shall be responsible for all such costs. Permittee waives any claim, loss, damage or action against City or its Representatives (as defined below) arising out of or in connection with any Costs (as defined below) or destruction of the Permittee Facilities from the exercise of City of any right with respect to City Property, unless caused by the gross negligence or willful misconduct of City or its Representatives. City shall have no liability or responsibility to restore any Permittee Facilities on City Property to any condition after properly exercising any right with respect to City Property or to pay for loss or destruction of the same and Permittee shall be responsible for all such costs, unless caused by the gross negligence or willful misconduct of City or its Representatives. The term “Representatives” shall mean employees, representatives, agents, contractors, subcontractors, invitees, and other persons directly or indirectly employed by or reasonably under the control of any of the foregoing or for whose acts any of the foregoing may be liable.
19. Defense and Indemnity. Permittee shall defend, indemnify and hold harmless City and its Representatives (the “Indemnified Parties”), from and against all actions, causes of action, demands, liabilities, costs, damages, claims, losses and expenses (including attorneys’ fees) (collectively, “Claims”) of every type and description to which they may be subjected, by reason of, or resulting from: (a) this Permit; (b) any act or omission of Permittee or its Representatives in connection with any matters contemplated by this Permit; (c) any death, bodily injury, property damage or casualty (including, but not limited to death, personal injury, property damage, or casualty resulting from Permittee's use and Work under this Permit to third parties and any damage to any City Property ); (d) any breach by Permittee of its obligations under this Permit; (e) enforcement by City of any provision of this Permit and (f) the maintenance, operation, repair, replacement or improvement of Permittee Facilities, except for Claims ultimately established by a court of competent jurisdiction to have been caused by the gross negligence or willful misconduct of the Indemnified Parties. Except in the case of City’s gross negligence or willful misconduct, Permittee, as a material part of the consideration of this Permit, waives 6 all claims or demands against City and the other Indemnified Parties for any such Claims.
No provision of this Permit shall in any way limit the responsibility of Permittee for payment of damages resulting from its operations or the operations of any of its Representatives.
Permittee further covenants and agrees to pay, or to reimburse the Indemnified Parties for all Claims arising out of or in connection with Permittee’s obligations pursuant to this Permit, except Claims arising through the gross negligence or willful misconduct of the Indemnified Parties. The Indemnified Parties shall have the right, at Permittee’s expense, to commence, to appear in, or to defend any action or proceeding, arising out of and in connection with the Permit, and in connection therewith, may pay all necessary expenses if Permittee fails upon reasonable notice to so commence, appear in or defend any action or proceeding with counsel reasonably acceptable to City. Permittee shall be furnished with copies of bills relating to the foregoing upon request.
20. Damage to City Property. If the City Property is damaged or destroyed as a result of the exercise of the rights provided in this Permit, the Work, construction, operation and maintenance of the Permittee Facilities or any other cause associated with or arising out of the existence of the Permit, Permittee shall be responsible for all costs associated with the reconstruction or repair of the affected City Property and shall reimburse the same within thirty (30) calendar days following written demand from City.
21. Insurance. Notwithstanding the Effective Date of this Permit, this Permit shall not take effect or become binding on City until Permittee has complied with the insurance requirements, which may be reasonably amended from time to time with not less than thirty (30) days' prior notice to Permittee.. In addition, Permittee shall not allow any subcontractor to commence work within the Encroachment Area until it has secured all insurance required under this section.
(a) Additional Insured. The City of San Bernardino, its officials, officers, employees, agents, and volunteers shall be named as additional insureds on Permittee’s and its subpermittees’ policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents (b) Commercial General Liability.
(i) The Permittee shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City.
(ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following: Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. (iii) Commercial General Liability Insurance must include coverage for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
7 (3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX)
exclusion deleted
(7) Contractual Liability with respect to this Contract (8) Broad Form Property Damage
(9) Independent Permittees Coverage
(iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.
(v) The policy shall give City, its elected and appointed officials, officers, employees, agents, and City-designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured.
(c) Automobile Liability.
(i) At all times during the performance of the work under this Agreement, the Permittee shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City. (ii) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(iii) The policy shall give City, its elected and appointed officials, officers, employees, agents and City designated volunteers additional insured status. (iv) The automobile liability program may utilize deductibles of not more than $50,000.00, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention.
(d) Workers’ Compensation/Employer’s Liability.
(i) Permittee certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the 8 provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(ii) To the extent Permittee has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Permittee shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Permittee shall require all subpermittees to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section. (e) Professional Liability (Errors and Omissions). At all times during the performance of the work under this Agreement the Permittee or Permittee’s contractor/subcontractor shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Permittee. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend.
(f) Intentionally Omitted.
(g) Minimum Policy Limits Required.
(i) The following insurance limits are required for the Agreement:
Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/$4,000,000 aggregate for bodily injury, personal
injury, and property damage
Automobile Liability $1,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $1,000,000 per claim and aggregate (errors and omissions)
(ii) Defense costs shall be payable in addition to the limits. 9 (iii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement.
(h) Evidence Required. Prior to execution of the Agreement, the Permittee shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.
(i) Policy Provisions Required.
(i) Permittee shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Permittee shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of the premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Permittee shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. (ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Permittee’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss. (iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Permittee shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Permittee shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. (iv) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to provide waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Permittee or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Permittee hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subpermittees.
10 (v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Permittee from liability in excess of such coverage, nor shall it limit the Permittee’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. (j) Qualifying Insurers.
(i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements:
(1) Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
(k) Additional Insurance Provisions.
(i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Permittee, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Permittee pursuant to this Agreement, including, but not limited to, the provisions concerning indemnification. (ii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Permittee or City will withhold amounts sufficient to pay premium from Permittee payments. In the alternative, City may cancel this Agreement. (iii) The City may require the Permittee to provide complete copies of all insurance policies in effect for the duration of the Project. (iv) Neither the City nor the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. (l) Subpermittee Insurance Requirements. Permittee shall not allow any subcontractors or subpermittees to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subpermittees shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same 11 coverage. If requested by Permittee, City may approve different scopes or minimum limits of insurance for particular subcontractors or subpermittees. (m) If required insurance coverage expires, is canceled or otherwise terminates prior to the completion of the Work or otherwise prior to the intended expiration of this Permit, all uncompleted Work shall cease until required insurance coverage is reinstated.
If Work has been completed but this Permit remains in effect with respect to the operation and maintenance of Permittee Facilities, failure by Permittee to maintain required insurance coverage shall be a material default by Permittee hereunder, as a result of which City may elect to terminate this Permit and upon such termination, to require the immediate removal of all Permittee Facilities and restoration of the City Property to its prior condition. Notwithstanding an election by City to terminate this Permit in accordance with the provisions of this section, Permittee will remain liable to City for all obligations as set forth in this Permit.
(n)
22. Cost of Work. Unless otherwise stated in this Permit, all costs associated with the Work and/or Permittee’s use of the City Property shall be the sole responsibility of Permittee. Permittee waives all claims for indemnification or contribution from City for such Work and/or use.
23. Intentionally Omitted.
24. Termination. This Permit may be terminated by City upon ninety (90) calendar days written notice to the Permittee. Upon such termination (whether by written notice or for any other reason or in any other manner) Permittee shall, at City’s election, remove some or all Permittee Facilities (as determined by City) and restore the City Property to its prior condition, all at Permittee’s sole cost. If Permittee fails to remove Permittee Facilities and restore the City Property as required by City, City may effect such removal and restoration, after which Permittee will reimburse City for the cost thereof within thirty (30) calendar days following City’s written demand.
25. City Rights and Responsibilities. If the Permit involves Work or Permittee Facilities within any City stormwater channel or other flood protection facilities (“Channel”), the provisions of Paragraphs (a) and (b) following, shall apply. (a) City reserves the right to maintain and operate the channel, removing therefrom any Permittee Facilities (or portions thereof), installation, obstruction or interference (collectively “Obstruction”) when such Obstruction substantially interferes with the free flow of the Channel waters or, in City’s sole discretion, interferes with performance by City of its public duties and responsibilities. CITY also reserves the right to realign the Channel, changing the course and depth thereof and/or to make other changes and improvements to the Channel, as City deems necessary. Any such removal of Permittee Facilities shall, at City’s election, be at Permittee’s sole cost and expense, to be reimbursed by Permittee to City within thirty (30) calendar days following receipt of written demand. 12 (b) Permittee recognizes the responsibility of City to make changes to the Channel as described above and to maintain the integrity of the Channel during periods of stormwater runoff. Permittee therefore waives and releases City and City Indemnitees from all claims for damage to or destruction of the Permittee Facilities caused by City or its Representatives. Any removal of debris and silt resulting from or exacerbated due to the Work or the Permittee Facilities or repairs, reconstruction, restoration, or relocation of the Work or Permittee Facilities damaged or destroyed as defined herein shall be performed by and at the sole expense of Permittee.
26. Assignment. This permit shall not be assigned or transferred without the written consent of City, which consent shall not be unreasonably withheld, conditioned or delayed. Any such purported assignment or transfer without the written consent of City shall be void and of no effect.
27. Rights of Permittee Successors. The terms and provisions set forth herein shall be deemed provisions, terms and/or covenants running with the City Property and Permittee Facilities in accordance with applicable law, including, without limitation, Section 1468 of the California Civil Code and shall pass to and be binding upon the successor Permittees of the City Property. As such, all successor Permittees of the City Property will have all of the rights, responsibilities and liabilities of Permittee as if such person or entity originally executed this Permit in the place and stead of Permittee.
Permittee and/or successor Permittees shall notify City in writing within ten (10) business days when ownership of the Permittee Property has changed resulting in a successor Permittee. Permittee shall be solely responsible to notify any successor in writing regarding this Permit and the obligations of the Permittee Facilities hereunder.
28. Assumption of Risk. Storm, surface, ground, nuisance, or other waters may be encountered at various times during Permittee Work/Activity. Permittee hereby acknowledges and agrees that there are certain inherent risks and dangers associated with such waters; and that, except as expressly set forth herein, it knowingly and voluntarily accepts and assumes responsibility for, each of these risks and dangers, and all other risks and dangers that could arise out of, or occur during, Permittee’s Work/Activity. Such inherent risks and dangers include, but are not limited to: flooding, health hazards, slippery ground, uneven surfaces, and debris and known and unknown risks of serious personal injury, including death, and damage to or loss of Permittee Facilities. CITY EXPRESSLY DISCLAIMS AND PERMITTEE EXPRESSLY ASSUMES
ANY AND ALL LIABILITY FOR DEATH, PERSONAL INJURY OR PROPERTY DAMAGE
TO THIRD PARTIES OR TO PERMITTEE WHICH ARE DIRECTLY RELATED TO
PERMITTEE'S USE OR WORK UNDER THE PERMIT AND ARE NOT DIRECTLY
CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF CITY, AS DETERMINED BY A COURT OF COMPETENT JURISDICTION.
29. Subordination. The Work and the Permittee Facilities are subordinate to any operations of City and shall be coordinated with the work of City forces or City contractors so that there shall be no delay to or interference with essential City operations. 13 30. Location of Other Facilities. Permittee shall be fully responsible to ascertain the location of all facilities constructed by others, and to locate and construct the Permittee Facilities or perform the Work in a manner which will not damage, conflict or interfere with any existing encroachment, improvement or facility. Prior to making any excavation, Permittee shall call Underground Service Alert at 1-800-422-4133.
31. Real Property Interests. This Permit and permission granted herein extends only to those real property interests held by City in the subject real property. No warranty is made that City possesses all of the rights or title necessary for Permittee to accomplish work under this Permit and Permittee is cautioned to satisfy itself that it has obtained all necessary rights or permits prior to commencement of work. This Permit does not constitute a grant of any real property interest from City to Permittee.
32. Taxable Possessory Interest. Permittee acknowledges that a taxable possessory interest may have been created by this Permit and in such event, Permittee may become subject to payment of possessory interest taxes levied on such interest. Payment of possessory interest taxes, if any, will be the sole responsibility of Permittee.
33. Miscellaneous. The following additional provisions apply:
(a) Time is of the essence of this Permit and each and every term and provision thereof.
(b) This Permit shall be construed as if prepared by all of the parties hereto.
Accordingly, any rule of law (including California Civil Code Section 1654) or legal decision that would require interpretation of any ambiguities in this Permit against the party that has drafted it is not applicable and is waived. (c) No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver by any party of any right, power or privilege hereunder operate as a waiver of any other right, power or privilege, nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise of any other right, power or privilege.
(d) Each person executing this Permit represents and warrants that he or she has full power and authority to execute this Permit on behalf of the named parties. (e) Any action or proceeding to enforce or relating to this Permit shall be brought in a court of competent jurisdiction in San Bernardino County. (f) This Permit, together with the exhibits attached hereto and other writings referenced herein, contains the entire agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements between the parties, oral or written, and any amendments thereto. Any oral representations or modifications concerning this Permit are of no force and effect except a subsequent modification in writing, signed by the parties to be charged. 14 (g) In the event of any litigation or other action between the parties arising out of or relating to this Permit or the breach thereof, the prevailing party shall be entitled, in addition to such other relief as may be granted, to its reasonable costs and attorneys’ fees.
(h) The invalidity or illegality of any provision, term, covenant, agreement or condition of this Permit shall not affect the remainder of the Permit. (i) If Permittee requests that City review or execute assignments, estoppels or other documents related to this Permit and its continued validity, Permittee shall be solely responsible for costs incurred by City to respond to such request. (j) All questions concerning the validity, interpretation and performance of any of its terms or provision or any of the rights or obligations of the parties hereto shall be governed by and resolved in accordance with the laws of the State of California. (k) Permittee must notify City’s Chief Surveyor at least forty-eight (48) hours prior to removing or replacing any Survey Monuments. All monuments must be replaced at Permittee’s expense and must be replaced in accordance with sections 8771 and 8772 of the Business and Professions Code.
(l) Unless otherwise provided herein, any notice to be given by any party hereunder must be given in writing and delivered in person, or by a reputable nationwide overnight courier (e.g., Federal Express), or forwarded by certified or registered mail, postage prepaid, return receipt requested, or transmitted by electronic mail, unless the party giving such notice has been notified, in writing of a change of address:
City: City of San Bernardino
Vanir Tower
290 North D Street
San Bernardino, California 92401
Attn: City Manager
City of San Bernardino
Vanir Tower
290 North D Street
San Bernardino, California 92401
Attn: City Attorney
Permittee: Name:___________________
Address:___________________
Telephone: _________________
Email:_____________________
Attn:______________________
15 Any such notice is effective on the date on which such notice is delivered, if notice is given by personal delivery or overnight courier, or electronic transmission (with electronic confirmation of receipt) or if notice is sent through the United States mail, on the date of actual delivery as shown by the addressee’s receipt or upon the expiration of three (3) calendar days following the date of mailing, whichever first occurs.
34. Recordation. THIS INSTRUMENT SHALL BE RECORDED IN THE OFFICE OF
THE RECORDER OF SAN BERNARDINO COUNTY, CALIFORNIA, AND SHALL RUN
WITH THE LAND AND SHALL BE BINDING ON ALL PARTIES HAVING OR
ACQUIRING ANY RIGHT, TITLE OR INTEREST IN OR TO THE PROPERTY OR ANY PORTION THEREOF, AND SHALL CONSTITUTE NOTICE OF PROPERTY OWNERS’ OBLIGATIONS AND CITY’S RIGHTS WITH RESPECT TO THE ENCROACHMENT AREA. THE COVENANT HEREIN CONTAINED IS UNDERSTOOD AND AGREED TO BE, AND SHALL BE TAKEN AND HELD TO BE, FOR THE BENEFIT OF CITY.
35. Electronic Signature. Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature.
[SIGNATURES ON FOLLOWING PAGE]
SIGNATURE PAGE FOR ENCROACHMENT PERMIT AND COVENANT
BETWEEN THE CITY OF SAN BERNARDINO
AND THE SAN MANUEL MISSION BAND OF INDIANS
IN WITNESS WHEREOF, the Parties hereto have executed this Permit and Covenant as of the date first written above.
CITY OF SAN BERNARDINO
APPROVED BY:
Charles A. Montoya
City Manager
ATTESTED BY:
Genoveva Rocha, CMC
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
PERMITTEE
Signature
Patrick Dupont
Name
Vice President, Finance and Accounting
Title
ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
COUNTY OF )
On _______________ before me,
__________________________________________________, Notary Public, personally appeared ________________________________________________, 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.
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 ________________________ (Seal)
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.
EXHIBIT “A”
EXHIBIT A
Victoria Avenue, North of Lynwood Drive, Southwest of Piedmont Drive
LEGAL DESCRIPTION
EXHIBIT “B”
EXHIBIT B
EXHIBIT “C”
EXHIBIT C
Over-Road Wayfinding Sign & Primary Directional Monument Sign