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P-496 (2)0 TITLE(S) This page is part: of your document - DO NOT DISCARD 06 0046725 € F rnR2DFD /FILED IN OFFICIAL RECORDS I 9.41 AM .IAN 09 2006 III III 111111111111111111 FEE D.T.T. f7F�27 C ..0 cODEn.� 20 CODE 19 CODE 9 Assessor's Identification Number (AIN) To be completed by Examiner OR Title Company in black ink. THIS FORM IS NOT TO BE DUPLICATED 0 Number of AIN's Shown 'I OFFICIAL BUSINESS Document entitled to free Recording per Government Code Section 6103 Recording Requested By and When Recorded Mail To: City of Santa Monica 1685 Main Street, Room 212 Santa Monica, CA 90401 I/ SPACE ABOVE LINE FOR RECORDING USE SOLDIER BEAM SUPPORT LICENSE AGREEMENT THIS SOLDIER BEAM SUPPORT LICENSE AGREEMENT ( "Agreement ") is made on this 12th day of December, 2005, by and between the CITY OF SANTA MONICA, a municipal corporation organized and existing pursuant to the laws of the State of California and its charter ( "City ") and, SANTA MONICA DEVELOPMENT COMPANY, LLC, a California limited liability company ( "Developer "). RECITALS A. Developer is the owner of that certain real property located in the City of Santa Monica, and commonly known as 219 California Avenue, Santa Monica, California and more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference ( "Development Property "). B. City is the owner of certain real property located adjacent to the Development Property, commonly known as Second Court, in the City of Santa Monica, as depicted in Exhibit "B" attached hereto and incorporated herein by this reference ( "City Parcel'). Developer plans to construct a new 3 -story 3 unit condominium project above 1 level of subterranean parking ('Project ") on the Development Property. 1 A� A G 0046725 C. In conjunction with the development of this Project, Developer proposes to install a soldier beam support system and other foundation forms and supports underneath the City Parcel in the areas depicted in the shoring plans for the Project on file with the City ( "Soldier Beam Support License Area" or "License Area "). The License Area is also depicted on Exhibit "B" hereto. D. City and Developer desire to enter into this Agreement in order to set forth the terms and conditions pursuant to which Developer and its representatives shall be permitted to insert and maintain soldier beams and other foundation forms and supports beneath the surface of the City Parcel in the Soldier Beam Support License Area. NOW, THEREFORE, in consideration of the mutual covenants herein contained and for other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows: 1. Grant of Soldier Beam Support License. City hereby grants to Developer a temporary license to perform subsurface excavation in the License Area, to install foundation forms and supports in the License Area, to install a soldier beam support system and underpinnings in the License Area, and to take all reasonable and usual actions necessary in connection therewith. Any excavation and installation shall be at the sole cost, liability and expense of Developer and its agents, employees and independent contractors and shall conform to the drawings approved in conjunction with the issuance by the City of the building permit for the Project. All installations made by Developer in the License Area in connection with the Project shall be made in the fashion that they shall be removable by City after completion of the Project without affecting or compromising the Project in the event that City decides to improve or change the use of the City Parcel at some future date. 2. Indemnification; Hold Harmless. Developer shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees ( "City Entities "), from and against any and all losses, damages, liability, claims, suits, judgments, costs and expenses, whatsoever, including reasonable attorneys' fees, arising from or in any manner connected to: (i) alterations and improvements in the License Area and adjacent Development Property, including but not limited to, all excavation, soldier beam installation and related activities performed by Developer, its agents, employees and independent contractors; (ii) the 2 6 0046725 condition and use of the License Area; (iii) the construction of the Project, and (iv) any negligent or willful acts or omissions of Developer, its agents, employees, independent contractors and invitees, whether such acts or omissions occur in the License Area or outside the License Area, including, but not limited to acts or omissions on the adjacent Development Property. In addition, Developer shall ensure that its contracts with independent contractors performing work in the License Area or on the adjacent Development Property shall include language requiring each such contractor to (i) hold harmless, indemnify and defend the City Entities to the same extent as contractor has agreed to hold harmless, indemnify and defend Developer, and (ii) include the City Entities as additional insureds under policies of insurance covering Developer. 3. Removal and Ownership of Soldier Beams. Before completion of the Project, Developer must remove all soldier beams to a depth of five (5) feet below the existing surface grade of the License Area, including all appurtenant shoring materials located within the five -foot area. With the exception of these requirements, Developer shall not be obligated to remove the soldier beam support system and underpinnings or any other materials installed in the License Area pursuant to this Agreement. However, if the City undertakes a project located in the License Area, Developer agrees to remove, at Developer's cost, all portions of the soldier beam support system and underpinnings or any other related materials installed in the License Area to the extent deemed necessary by the City. Such removal shall occur in a time frame, which allows the City project to proceed as scheduled, provided that the City shall provide Developer with sufficient notice of the need for such removal. 4. Access to Install Soldier Beams. Developer may, through its agents, employees or independent contractors, enter upon the License Area at various times for the purposes described in this Agreement. Developer may, to facilitate the construction of the Project, temporarily invade the air space above the License Area by construction cranes and other construction equipment, but Developer shall not unreasonably interfere with the public's use of the surface of the License Area. Developer hereby warrants that its agents, employees and independent contractors shall limit their entry upon the License Area to those instances where the activities requiring entry may not reasonably be performed exclusively on the Development Property. Developer further warrants that 3 at no time shall the activities contemplated under this Agreement impair normal ingress or egress to the surface of the License Area. 5. Installation of Soldier Beams; Project Completion. All work and entry upon or over the License Area shall be done under the supervision of Developer. Installation of soldier beams will be completed in a timely manner. Developer anticipates that construction of the Project should be completed eight (8) months after execution of this Agreement. The time periods set forth in this Section 5 are estimates only. Developer's failure to commence or complete the work described in this Section 5 in the time periods set forth in this Section 5 shall in no way whatsoever adversely affect Developer's rights as granted pursuant to this Agreement. 6. "As- Built" Drawings. Upon completion of the Project, Developer agrees to provide City with "as- built" drawings indicating the actual installed location of all subterranean encroachments into the License Area arising from the work contemplated under this Agreement. Developer hereby warrants that City may rely on the "as- built" drawings for any future construction that City may undertake within the License Area. 7. Nature of Shoring Licenses. The licenses and permissions granted herein shall commence upon execution of this Agreement and shall continue for such time as is reasonably necessary for the purposes set forth herein. These licenses and permissions shall not constitute, in any event, an easement or encumbrance against the License Area. 8. License Fee. Developer agrees to pay City the fees for each soldier beam installed in the License Area in accordance with the applicable City fee schedule. The final cost shall be calculated based upon the shoring design approved by the City Engineer. 9. Relationship of Parties. It is understood and agreed that Developer is an independent contractor and not the agent of City. 10. Attorneys' Fees and Costs. If legal action by either party is brought because of breach of this Agreement or to enforce a provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs. 11. Notices. All written notices and demands of any kind which either party may be required or may desire to serve on the other in connection with this Agreement may be served as an alternative to personal service by 0 I q I) G 0046725 registered or certified mail. Any such notice or demands served by registered or certified mail shall be deposited in the United States mail with postage thereon fully prepaid, addressed to the party to be served and delivered to the party if not by personal service, as follows: If to Developer: Santa Monica Development Company, LLC 2512 Washington Avenue Santa Monica, CA 90403 Attn: Wayne Lai, Managing Partner If to City: City Manager City of Santa Monica 1685 Main Street, Room 209 Santa Monica, California 90401 With a copy to: City Attorney City of Santa Monica 1685 Main Street, Room 310 Santa Monica, California 90401 Service of any notice or demand made by mail shall be deemed complete on the date of actual delivery as shown by the addressee's certified or registered receipt or upon the expiration of the second day after the date of mailing, whichever is earlier in time. Any party hereto may, from time to time by notice in writing served upon the other party as aforesaid, designate a different mailing address or a different person to whom all notices and demands are thereafter to be addressed. 12. Waivers. Waiver by any party hereto of any breach of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or different character. N1 G 00467 13. Other Agreements. This Agreement does not in any way affect the terms or validity of other agreements between the City and the Developer. 14. Assignment. This Agreement shall not be severable from Developer's interest in the Development Property. This License Agreement and the covenants, conditions and restrictions contained herein shall run with the land and shall burden the Development Property for the benefit of the City and shall bind Developer and its heirs, successors and assigns and every successor -in- interest of the Development Property. Any transfer of the Development Property shall automatically operate to transfer the benefits and burdens of this Agreement. Developer may freely sell, transfer, exchange or otherwise dispose of its interests in the Development Property or the Project without the consent of the City, but shall provide City prior written notice of any such transfer. 15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. L 6 004672 IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the date herein first above written in the City of Santa Monica. CITY OF SANTA MONICA, a municipal -corporation By: for on R. Anderson Interim Cytiy, Mariager -----ATTEST: . j DEVELOPER: City Clerk APPROVED AS TO FORM SANTA MONICA DEVELOPMENT COMPANY, LLC, a California limited liability company A K a .. Title: Manag'f Partner 7 t • r - : .•- u LEGAL DESCRIPTION OF DEVELOPMENT PROPERTY (219 California Avenue, Santa Monica, CA) • Exhibit A Page 1 of 1 0 EXHIBIT B SOLDIER . SUPPORT 1' -9' MAX ENCROAC- lMeRg'I �y. INTOPURI.IC R QW. ! V� �i n n r � J 7 ry a u Gt z O iri I ^ :G'W L N 219 GAHI ORNIA AVE. Lol Y Block 74 T*,v of same Monks parcel Map 27171 CALIFORNIAAVENUE 190' RIGHT OF WAY PI, FZ 2nd Coat l I P. I- ao.00 PLAN VIEW 1. c 20' -0* Y. I remova all so?d'et plies io 5' lmlvw Misn grado cantlovorcd shodn0 pYr., y 59 -u' SECTION VIEW 1. _ 2C -0, 9 ii a ( EXHIBIT "B" ENCROACHMENT AGREEMENT 219 CALIFORNIA AVENUE SANTA MONICA CA �F 06 0046725 ALI STATE OF CALIFORNIA ) ss. COUNTY OF LOS ANGELES On I,9- bey, 2005, before me, J(t /S- y , the undersigned, a Notary Public in and for said State, personally appeared � . +t 1 -41 p ce — OR — proven to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity as property owner. WITNESS my hand and official seal. r ALEXANDRA KELSEY] C0MM.41596227 a -�7 N0 ARYPUBLICCALIFORNIA 'Notary Public in and for said State LOS ANGELES COUNTY ,� My Comm. Exp. July 21, 2009 Description of Instrument Title: SOLDIER BEAM SUPPORT LICENSE AGREEMENT Property Location: 219 California Avenue, Santa Monica, California Document Date: , 2005 Number of Pages: 7, plus Exhibits A and B 10 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California } SS. County of Los � i S 1 On before me, eo k c' l Date Name and Title of Officer (e.g., "Jane Doe, Notary Public personally appeared MARIA M. STEWART S Commission # 1559697 3 . -01 Notary Public - California L Los Angeles County My Comm. Expbesivar 15, 2 0 Names) of *personally known to me ❑ 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. TNESS rand official seal. Place Notary Seal Above �y q Signature of otary Public ®i TI®NNL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Title or Type of Document: '. Document Date: E­� V,24 65 - .10ii 0r, 1, Number of Pages: 1`"V - cot 3 Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer— Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER 0 Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): _ ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact i Trustee Guardian or Conservator Other: Signer Is Representing: RIGHTTHU PRINT. OF SIGNER 0 2004 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313 -2402 Item No. 5907 Reorder: Cell Toll -Free 1 -800- 876 -6827