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
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(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.
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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
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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
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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.