Loading...
HomeMy WebLinkAboutC-4073 - Encroachment Agreement (Pelican Hill Road South: Maintenance of Non-Standard Traffic Signal Improvements in Street Right-of-Way)RECORDED REQUESTED BY AND WHEN RECORDED, RETURN TO: The City of Newport Beach P.O. Box 1768 Newport Beach CA 92658-8915 ATTN: CITY CLERK'S OFFICE WITH A COPY TO: The Irvine Company LLC 550 Newport Center Drive Newport Beach, CA 92660 Attn: General Counsel's Office Exempt recording requested per Gov. Code 6103 EXEMPT RECORDING REQUEST PER GOVERNMENT CODE 27383 Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder 1B11111IIBhlh111tl 11N1111111I81111111111IBIf11111111I 111 N0 FEE 2008000327563 12:55pm 07/09/08 112254A1216 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 (Space above line for Recorder's use only) ENCROACHMENT AGREEMENT (Pelican Hill Road South: Maintenance of Non -Standard Traffic Signal Improvements in Street Right -of Way) This Encroachment Agreement ("Agreement") is made and entered into this 11 4 h �v , 2008, by and between the CITY OF NEWPORT BEACH, a California municipal corporation organized and existing under and by virtue of its Charter and the Constitution and laws of the State of California ("City"), and THE IRVINE COMPANY LLC, a Delaware limited liability company("Company). City and Company are sometimes referred to herein individually as a "Party" and collectively as the "Parties." day of RECITALS A. WHEREAS, City owns, administers and maintains certain public street rights -of - way located within the city limits of City, including right-of-way for the portion of Pelican Hill Road South located between Newport Coast Drive and Pelican Hill Circle as depicted on Exhibit A attached hereto (the "Right -of -Way"). B. WHEREAS, Company is the owner of parcels of property (the "Resort Property") that border both sides of the Right of Way. The Resort Property is legally described on Exhibit B and depicted on Exhibit C attached hereto. Hill Road South and the entrance to the Pelican Hill Resort (the "Resort Signal Improvements") and at the intersection of Pelican Hill Road South and the Lower Villas entrance/pedestrian crossing (the "Pedestrian Crossing Improvements"). The Modification Improvements, the Resort Signal Improvements and the Pedestrian Crossing Improvements are sometimes referred to collectively as the "Improvements." The Improvements are located within the portions of the Right -of -Way depicted on ExhibitD attached hereto (the "Maintenance Area"). D. WHEREAS, Company must install the Improvements in accordance with plans approved by City as provided below. Company desires to powder -coat the galvanized and aluminum traffic signal poles, mast arms, controller cabinets and appurtenant improvements as shown on the Approved Plans (as defined below) at the 3 locations within the Maintenance Area described above. Any such powder -coating is considered to be a "non-standard improvement" as compared with improvements that City typically installs within street rights -of -way. E. WHEREAS, any portions of the Improvements within the Right -of -Way that are not powder -coated shall be considered to be standard public improvements to be maintained by the City (collectively, the "City Facilities"), it being the intention of the parties that Company shall only be responsible for maintaining the powder -coating on the Improvements. F. WHEREAS, City is willing to allow Company to powder -coat the Improvements within the Maintenance Area, subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the above recitals and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Company agree as follows: AGREEMENT 1. Permit. City will permit Company to install .and construct the Improvements listed on Exhibit E attached hereto within the Maintenance Area, and to maintain and repair and repaint the powder -coating on the Improvements. City also will allow Company to take all reasonable measures necessary or convenient in accomplishing such activities. 2. Installation of Company Improvements. Company shall install the Improvements within the Maintenance Area in accordance with the plans and specifications for such improvements that have been prepared by Pirzadeh & Associates, Inc., entitled "Pelican Hill Road Street Improvement," dated January 30, 2007 and approved by City on January 31, 2007, which plans and specifications are on file with the City (the "Approved Plans"). 3. Standard of Maintenance. Company shall, at its sole cost, and expense, maintain the powder -coating on the Improvements installed within the Maintenance Area in accordance with general prevailing standards of maintenance, and pay all costs and expenses incurred in doing so. Company's maintenance obligation shall also include repainting or replacing of the powder - coating on the Improvements, where necessary. All replacements and repainting shall be at least equal in quality to the powder -coating on the Improvements described in the Approved Plans. Nothing contained herein, however, shall be construed to require Company to maintain, replace or repair the structural, mechanical or internal portions of the City Facilities, the maintenance of which shall be the responsibility of City. 30209-0066/361285.8 5/7/08 -2- 4. Alteration of Company Improvements. Company shall not substantially alter the powder - coating on the Improvements from their original condition as installed per the Approved Plans without the prior written approval of City. 5. Failure to Perform. If Company fails to fulfill its maintenance or other responsibilities under this Agreement, City may provide Company with written notice of such failure describing the deficiencies in reasonable detail (the "Deficiency Notice"). If such deficiency is not corrected within thirty (30) calendar days of Company's receipt of the Deficiency Notice, City shall have the right, but not the obligation, to cure the deficiency; provided, however, that if the deficiency is of a type that cannot reasonably be cured within such period, it will be deemed cured if Company commences to cure the deficiency within such period and proceeds diligently thereafter to complete the cure of such deficiency. If City elects to cure the deficiency, Company shall reimburse City for its actual and reasonable costs incurred in curing the deficiency within thirty (30) calendar days of Company's receipt of City's invoice for such costs, which invoice shall be accompanied by copies of receipts evidencing the actual cost of cure incurred by City. 6. Liens. Company shall not suffer or permit to be enforced against the Maintenance Area any mechanics, laborers, materialmens, contractors, subcontractors, or any other liens, claims or demands arising from any maintenance or other work performed by Company within the Maintenance Area, but Company shall pay or cause to be paid all of said liens, claims and demands before any action is brought to enforce the same against the Maintenance Area. 7. City Maintenance of City Facilities. City acknowledges that it, or the applicable utility company, will remain responsible for maintenance and repair of all City Facilities within the Maintenance Area. In the event that City finds it necessary to enter the Maintenance Area to maintain, repair, replace, remove or enlarge (collectively, the "Repairs") any of the City Facilities, City shall use best efforts to minimize damage to the powder -coating in the course of performing such maintenance and repair to the City Facilities, but Company shall be responsible for refinishing or replacing any portions of the powder -coating on the Improvements affected by City's Repairs. Notwithstanding the foregoing, however, City shall be responsible for reimbursing Company for the cost of such refinishing or replacement in the event that the damage to the powder -coated improvements was caused by the sole negligence or willful misconduct of City's contractor. In the event that a utility company must enter the Maintenance Area to perform Repairs on any of the City Facilities, City shall use best efforts to cause the utility company to minimize damage to the powder -coating on any City Facilities repaired by such utility. 8. Term. This Agreement shall remain in effect for so long as the Resort Property is operated; provided, however, that (a) City may terminate this Agreement upon thirty (30) calendar days' prior written notice to Company in the event that Company fails to perform or cure any failure to perform within the times provided in Section 5 above, and (b) Company may terminate this Agreement by providing thirty (30) calendar days' prior written notice to City, in which event Company shall be responsible for removing the powder -coating from the Improvements and repainting or recoating them with City's then standard coating for such right- of-way improvements, unless City otherwise directs Company to keep the powder -coating on the Improvements in place. 30209-0066/361285.8 5/7/08 -3- In addition, if City determines that it needs to use any portion or all of the Maintenance Area where the Company Improvements are located, City may, upon sixty (60) calendar days' prior notice to Company, terminate this Agreement as to all or any portion of the Maintenance Area as needed by City for public use. However, promptly after giving such notice of intended termination to Company, City agrees to meet with Company to discuss alternatives that would avoid or minimize any such termination. The final determination as to whether to adopt or reject any such alternatives shall be made by City in its sole discretion. 9. Assignment. Company may assign its rights and obligations under this Agreement to any person or entity (each, a "Successor") which has, in City's reasonable opinion, the financial capacity and is otherwise capable of performing the maintenance work to be performed hereunder, including but not limited to any commercial or residential association within the Resort Property responsible for maintenanceof landscaped or other common areas, a subsequent owner of the Resort Property, or any affiliate of Company (that is, any entity controlling, controlled by or under common control of Company). Any such assignment must be in writing, must contain the Successor's agreement to be fully bound by the terms and provisions of this Agreement, and a copy of such assignment must be delivered to City. After the effective date of any such assignment by Company, Company shall have no further rights or obligations hereunder. 10. Insurance. Any Successor (other than an affiliate of Company) shall obtain, provide and maintain, at its sole cost and expense, a policy or policies of liability insurance of the type and amounts specified below and in form reasonably satisfactory to City, and shall also require in its contracts with any contractors that perform any design, installation, maintenance or other work in the Maintenance Area, that such contractors also provide the same insurance coverage as outlined herein at all times during the performance of any such work, at no cost or expense to City, policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City prior to performance of any work within the Maintenance Area. Except for workers' compensation and any errors and omissions coverage, all insurance policies shall, to the extent coverage is provided under such policies, add City, its elected and appointed officials, officers, agents, representatives and employees as additional insureds for all liability arising from the design, installation and maintenance of the Company Improvements. Insurance policies for the following coverages, with original endorsements related to the Company Improvements and the maintenance work to be performed hereunder, shall be issued by companies approved or licensed to do business in California and assigned Best's A- VII or other rating acceptable to City: a. Workers compensation insurance, including "Waiver of Subrogation" clause, covering all employees of such contractor, per the laws of the State of California. b. Commercial general liability insurance, including additional insured and primary and non-contributory wording, covering third party liability risks, including without limitation, contractual liability, in a minimum amount of S1 million combined single limit per occurrence for bodily injury and property damage. If 30209-0066/361285.8 5/7/08. -4- commercial general liability insurance or other form with a general aggregate is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be twice the occurrence limit. c. Commercial auto liability and property insurance, including additional insured (and primary and non-contributory wording for waste haulers only), covering any owned and rented vehicles of such contractor in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. d. For any contractors providing design services, professional errors and omissions insurance, which covers the services to be performed in connection with any improvements to be installed within the Maintenance Area, in the minimum amount of $1 million. City may, from time to time, require increases in the amounts of coverage specified above to conform with the levels of insurance required in City landscape maintenance or similar contracts. Said policy or policies shall be endorsed to state that coverage shall not be subject to cancellation or non -renewal without thirty (30) days prior written notice to be delivered to City. All contractors providing insurance as required hereunder shall give City prompt and timely notice of claim made or suit instituted arising out of contractor's work on the Maintenance Area. Each contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance that in its own judgment may be necessary for its property protection and prosecution of the work. Each contractor will be required to agree that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, contractor shall look solely to its insurance for recovery. The workers compensation policy and any other policy pertaining to the Maintenance Area carried by each contractor will contain a waiver of subrogation with respect to City as to any claims that may be asserted against City by virtue of the payment of any loss under such insurance. 11. Indemnification. Company shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damage, liability, claims, .suits, costs and expenses whatsoever, including reasonable attorneys' fees when outside attorneys are used (collectively, the "Claims"), whether incurred by or made against City or made by any third party, arising from or related to (a) Company's design, installation or maintenance of the Company Improvements, (b) the acts of Company or its contractors within the Maintenance Area, and (c) Company's performance of its obligations hereunder; provided, however, that Company's indemnity obligations under this Agreement shall not apply to the extent that any Claim is caused by the sole negligence or willful misconduct of City or City's contractors within the Right -of -Way. 12. Run with the Land. This Agreement and the terms, conditions and covenants contained herein shall be perpetual in nature and shall run with the Resort Property and the Right -of -Way, and shall be binding upon and inure to the benefit of Company and City and the successors and 30209-0066/361285.8 5/7/08 -5- assigns of each party, whether the interest held by such party is in fee or otherwise. This Agreement shall be recorded in the Office of the County Recorder of Orange County, California. 13. Notices. All Notices required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given if personally delivered or sent by prepaid first class mail, addressed as follows: If to City: If to Company: City of Newport Beach Public Works Department 3300 Newport Boulevard (P.O. Box 1768) Newport Beach , California 92658-8915 Attention: City Engineer The Irvine Company LLC 550 Newport Center Drive Newport Beach, CA 92660 Attn: General Counsel Either party may change its address for notice by providing written notice of such changed address to the other. 14. Incorporation of Exhibits. Exhibits A, B, C, D and E, which are attached hereto, are hereby incorporated herein by this reference. 15. Authority. The Parties represent and warrant that this Agreement has been duly authorized and executed and constitutes the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 16. Amendment. This Agreement may be amended only by a written instrument approved and executed by the Parties. 17. Priority. Company agrees that this Agreement shall always be prior and superior to and shall be recorded prior to any mortgage, deed of trust or any other hypothecation or security hereafter placed on the Resort Property. 18. Controlling Law and Venue. The laws of the State of California shall govern this Agreement and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 19. Entire Agreement. This Agreement, together with the Exhibits attached hereto and the Encroachment Permit for the Company Improvements to be executed prior to construction of the Company Improvements, constitutes the entire Agreement between the Parties pertaining to the subject matter hereof, and all prior and contemporaneous agreements, representations, negotiations and understandings of the Parties, whether oral or written, are hereby superseded and merged herein. [Signature page follows] 30209-0066/361285.8 5/7/08 -6- [Signature page to Encroachment Agreement] IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written. "Company" The Irvine Company LLC, a Delaware limited liability company By: By: "City" Ronald J. Keith Executive Vice President Commercial Property Development Investment Properties Group N I Mary K. Westbrook Assistant Secretary City of Newport Beach, a California municipal corpor..'on By: Homer Bluu u City Manager ATTEST: City Clerk APPROVED AS TO FORM: By: 41-. C. g to L City Attorney 30209.0066/361285.8 5/7/08 -7- STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On J “,n e ll , 2008, before me, Sand ra- 1. - &r i C-ICS o n , a Notary Public in and for said State, personally appeared Ronald J. Keith, who proved to me on the basis of satisfactory evidence to be the person(e) whose names) is/ale subscribed to the within instrument and acknowledged to me that he/site/They executed the same in his/he# heir authorized capacity(iee), and that by his/her/their signature(s) on the instrument the person(e), or the entity upon behalf of which the person(s) acted, executed the instrument. 1 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. mar; (SEAL) J. SAUDRA L. Commission 1771017 Piston, Public • CaliforniaOrange ■ MMGVnn COW* ■ Notary Public man for said State STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On I -One, 2008, before me, �IY�t m•h �1n a Notary Public in and for said State, personally appeared Mary K. Westbrook, 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 ihe/she/thoy executed the same in his/her/tkeir 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. (SEAL) 1 DIANA M. NOWLIN COMM.01539570 m Notary PublkLaRAonaa to ORANGE COUNTY 3 Ay Comm. Exp. Dao.30, MOS wvliAkta Notary Public in and for said State 30209-0066/361285.8 5/7/08 -8- STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) ` J� On 1101C/) 2 , 2008, before me, 1,6 lam-[ 1. ftj fr‘✓1 , a Notary Public in and for said State, personally appeared Homer Bludau, who proved to me on the basis of satisfactory evidence to be the person* whose name($- is/ar4 subscribed to the within instrument and acknowledged to me that he/sheftkey executed the same in his/her heir authorized capacity(ies); and that by his/her/thoir signature($ on the instrument the person(s), 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. G1 W4K i Notary Public in and for laid State (SEAL) LEON! I. GROWN Commission # 1693477 Nolan/ Public - California Orange county - 9^-*1 1Ny Comm. Expires Jan 25. 2010 30209-0066/361285.8 5/7/08 -9- ExrtIDIT a IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE. STATE OF CALIFORNIA DEPICTION OF PELIGAN HILL ROAD SOUTH RIGHT-OF-WAY RIGHT-OF-WAY •♦ • ♦ >� SOUR' ♦+PELICAN HLearearriall- RO /�% • ♦• • /% PACIflC COAST (HIGHWAY V:\projects\ 13575.20\SURMAP\OWG\SYME0041.dwg 2/25/2008 12:52:03 PM PST SHEET 1 OF 1 SCALED 1" = 700' STANTEC CONSULTING INC. �, 19 TECHNOLOGY DRIVE IRVINE, CA 92618 St8I1teC 949.923.6000 Slan1K.r0111 J.N. 2042 357522 DATES 2/25/08 EXHIBIT B LEGAL DESCRIPTION OF RESORT PROPERTY THAT CERTAIN REAL PROPERTY IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: PARCEL 1 TRACT NO. 16566 PER MAP FILED IN BOOK 887, PAGES 21 THROUGH 26, INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA. PARCEL 2 TRACT NO. 16567 PER MAP FILED IN BOOK 886, PAGES 41 THROUGH 44, INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA. PARCEL 3 TRACT NO. 16568 PER MAP FILED IN BOOK 882, PAGES 48 THROUGH 50, INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA. PARCEL 4 PARCEL 2 OF LOT LINE ADJUSTMENT NO. LL 2003-027 RECORDED JUNE 24, 2004 AS INSTRUMENT NO. 2004000575815 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA. PARCEL 5 PARCEL 3 OF LOT LINE ADJUSTMENT NO. LL 2003-026 RECORDED JUNE 24,2004 AS INSTRUMENT NO. 2004000575812 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA. PARCEL 6 LOT 2 OF TRACT NO. 14131 PER MAP FILED IN BOOK 662, PAGES 42 THROUGH 46, INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA. 1 OF 1 V iPRDJECIS\l 3573 IDISURMAP\DOPLECALS\RESORT PROPERTY 200E DOC EXHIBIT G IN THE CITY OF NEWPORT BEACH. COUNTY OF ORANGE. STATE OF CALIFORNIA DEPICTION OF RE SORT PROPERTY L.L.A. LL 2Op3-°27 PARCEL DE 2p04000515515 PELICAN till- ROAD L L A. LL zoo °2C2 PARCEL 3 O R 2p04000575512 PACIFIC COAST I1IGttWAY V:\projects\ 13575.20\SURMAP\DWG\SYME0042.dwg 2/25/2008 12:52:54 PM PST ‘71) Stantec SHEET 1 OF 1 SCALE: 1" = 700' STANTEC CONSULTING INC. 19 TECHNOLOGY DRIVE IRVINE, CA 92618 949.923.6000 sbmeccom J.N. 2042 357522 DATE: 2/25/0b Exhibit D Depiction of Locations of Improvements Within the Maintenance Area 1 N.T.S. Maintenance Area 1/19/2007 Exhibit D Maintenance Area Pelican Hill Road Improvements Pirzadeh Exhibit E Description of Improvements The Improvements shall consist of the following traffic signal and other improvements as more specifically described in the Plans and Specifications described below as described on the following pages of the Approved Plans: a. Sheet Number 1 of 4, Title Sheet, dated January 30, 2007. b. Sheet Number 2 of 4, Traffic Signal Plan, Pelican Hill Road/Resort Entry, dated January 30, 2007. c. Sheet Number 3 of 4, Traffic Signal Plan, Pelican Hill Road/Lower Villas, dated January 30, 2007. d. Sheet Number 4 of 4, Traffic Signal Modification Plan, Newport Coast Drive/Pelican Hill Road, dated January 30, 2007.