HomeMy WebLinkAboutC-2489 - MSA for Newport Center Lighting and LandscapeRECEIVED BY PUBLIC WORKS
(31) AUG 17 2017
AMENDMENT NO. ONE TO
LIGHTING & LANDSCAPE MAINTENANCE AGREEMEN"
an' oFNEWPORT BEACH
BETWEEN THE CITY OF NEWPORT BEACH AND
THE IRVINE COMPANY, LLC
THIS AMENDMENT NO. ONE TO LIGHTING & LANDSCAPE MAINTENANCE
MItVENT ("Amendment No. One") is made and entered into as of this 25 day of
', 2017 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a
California municipal corporation and charter city ("City"), and THE IRVINE COMPANY,
LLC, a Delaware limited liability company ("TIC"), whose address is 550 Newport Center
Drive, Newport Beach, California 92660, and is made with reference to the following:
RECITALS
A. TIC and City entered into that certain letter agreement dated February 15, 1985
and that certain Agreement for Modification & Maintenance of Street Lighting
System dated February 13, 1985, each addressing cost and maintenance
responsibilities for trees, landscaping, irrigation, utilities, street lighting, and
related improvements ("Improvements") located within the Fashion
Island/Newport Center shopping area in Newport Beach, California (together, the
"Prior Agreements").
B. On January 28, 2014, City and TIC entered into a Lighting & Landscape
Maintenance Agreement ("Agreement") to revise the responsibilities and other
terms contained in the Prior Agreements to provide City with greater certainty as
to the cost of such responsibilities and otherwise clarify the rights and obligations
of each party as to maintenance, inspection, and other matters relating to the
Improvements.
C. The parties desire to enter into this Amendment No. One to reflect additional
existing Improvements (e.g., decorative concrete bollards and plants)
encroaching within the public right-of-way that were not included in the
Agreement, and this Amendment No. One provides the conditions required by
City to permit TIC to maintain the Improvements within the public right-of-way.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. MAINTENANCE & COST OBLIGATIONS
Section 4 of the Agreement shall be supplemented to include the following
Subsections "F" and "G":
"F. TIC Improvements. TIC shall, at its sole cost and expense, maintain all
TIC Improvements as defined in subparts "(i)" through "(xii)" below.
(i) Sheet 1 of Exhibit G: Adjacent to 400 Newport Center Drive,
Northeast corner of Newport Center Drive/San Miguel Drive
intersection — Decorative concrete paving with hand seeded
exposed aggregate encroaching up to 12-feet into the San Miguel
Drive right-of-way and encroaching up to 14-feet into the Newport
Center Drive right-of-way; and six (6) decorative 24-inch diameter
by 30-in tall concrete bollards encroaching up to 11.7-feet into the
Newport Center Drive and San Miguel Drive rights -of -way;
(ii) Sheet 2 of Exhibit G: Adjacent to 400 & 450 Newport Center Drive,
East side of Newport Center Drive between San Miguel Drive and
San Nicolas Drive — Decorative concrete paving with hand seeded
exposed aggregate encroaching up to 7-feet into the Newport
Center Drive right-of-way; and four (4) decorative 24-inch diameter
by 30-inch tall concrete bollards encroaching up to 4-feet into the
Newport Center Drive right-of-way;
(iii) Sheet 3 of Exhibit G: Adjacent to 450 Newport Center Drive,
Southeast corner of Newport Center Drive/San Nicolas Drive
intersection - Decorative concrete paving with hand seeded
exposed aggregate encroaching up to 12-feet into the San Nicolas
Drive right-of-way and encroaching up to 14-feet into the Newport
Center Drive right-of-way; and six (6) decorative 24-inch diameter
by 30-in tall concrete bollards encroaching up to 12.3-feet into the
Newport Center Drive and San Nicolas Drive rights -of -way;
(iv) Sheet 4 of Exhibit G: Adjacent to 500 Newport Center Drive,
Northeast corner of Newport Center Drive/San Nicolas Drive
intersection — Decorative concrete paving with hand seeded
exposed aggregate encroaching up to 12-feet into the San Nicolas
Drive right-of-way and encroaching up to 14-feet into the Newport
Center Drive right-of-way; and five (5) decorative 24-inch diameter
by 30-in tall concrete bollards encroaching up to 11.9-feet into the
Newport Center Drive and San Nicolas Drive rights -of -way;
(v) Sheet 5 of Exhibit G: Adjacent to 500 & 550 Newport Center Drive,
East side of Newport Center Drive between San Nicolas Drive and
San Rosa Drive — Decorative concrete paving with hand seeded
exposed aggregate encroaching up to 7-feet into the Newport
Center Drive right-of-way;
(vi) Sheet 6 of Exhibit G: Adjacent to 550 Newport Center Drive,
Southeast corner of Newport Center Drive/Santa Rosa Drive
intersection - Decorative concrete paving with hand seeded
exposed aggregate encroaching up to 12-feet into the Santa Rosa
Drive right-of-way and encroaching up to 14-feet into the Newport
Center Drive right-of-way; and five (5) decorative 24-inch diameter
by 30-in tall concrete bollards encroaching up to 12.7-feet into the
Newport Center Drive and Santa Rosa Drive rights -of -way;
The Irvine Company, LLC Page 2
(vii) Sheet 7 of Exhibit G: Adjacent to 600 Newport Center Drive,
Northeast corner of Newport Center Drive/Santa Rosa Drive
intersection - Decorative concrete paving with hand seeded
exposed aggregate encroaching up to 12-feet into the Santa Rosa
Drive right-of-way and encroaching up to 14-feet into the Newport
Center Drive right-of-way; and five (5) decorative 24-inch diameter
by 30-in tall concrete bollards encroaching up to 12-feet into the
Newport Center Drive and Santa Rosa Drive rights -of -way;
(viii) Sheet 8 of Exhibit G: Adjacent to 600 & 610 Newport Center Drive,
East side of Newport Center Drive between San Rosa Drive and
Center Drive — Decorative concrete paving with hand seeded
exposed aggregate encroaching up to 6.4-feet into the Newport
Center Drive right-of-way; four (4) decorative 24-inch diameter by
30-in tall concrete bollards encroaching up to 3.6-feet into the
Newport Center Drive right-of-way; and two (2) 74-inch tall by 72-
inch wide planter walls encroaching up to 1.2-feet into the Newport
Center Drive right-of-way;
(ix) Sheet 9 of Exhibit G: Adjacent to 610 Newport Center Drive,
Northeast corner of Newport Center Drive/Center Drive intersection
— Decorative concrete paving with hand seeded exposed aggregate
encroaching up to 14-feet into the Newport Center Drive right-of-
way; and two (2) decorative 24-inch diameter by 30-in tall concrete
bollards encroaching up to 11.9-feet into the Newport Center Drive
right-of-way;
(x) Sheet 10 of Exhibit G: Adjacent to 650 Newport Center Drive.
Northwest corner of Newport Center Drive/Center Drive intersection
- Decorative concrete paving with hand seeded exposed aggregate
encroaching up to 14-feet into the Newport Center Drive right-of-
way; and two (2) decorative 24-inch diameter by 30-in tall concrete
bollards encroaching up to 12-feet into the Newport Center Drive
right-of-way;
(xi) Sheet 11 of Exhibit G: Adjacent to 650 Newport Center Drive.
North side of Newport Center Drive - Decorative concrete paving
with hand seeded exposed aggregate encroaching up to 5-feet into
the Newport Center Drive right-of-way; and
(xii) Sheet 12 of Exhibit G: Adjacent to 690 Newport Center Drive.
Northeast corner of Newport Center Drive/Santa Cruz Drive
intersection - Decorative concrete paving with hand seeded
exposed aggregate encroaching up to 12-feet into the Santa Cruz
Drive right-of-way and encroaching up to 14-feet into the Newport
Center Drive right-of-way as approved by the Public Works
The Irvine Company, LLC Page 3
Department and as shown on Exhibit G, attached hereto and
incorporated herein by reference.
G. Indemnification for TIC Improvements. TIC shall defend, indemnify and
hold harmless City, its City Council, boards and commissions, officers, volunteers
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 so utilized), regardless of the merit or outcome of any such
claim or suit arising from or in any manner connected with the design,
construction, maintenance, or continued existence of the TIC Improvements."
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
The Irvine Company, LLC Page 4
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to
be executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: ,Sllb�(�
By:
Aaron C. Harp
City Attorney
ATTEST: � �
Date:
(' , )
UM o&"1111111
: BY
Leilani I. Brown
City Clerk
Attachments:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 4.11-"LA
By:
Dave iff
City Manager
TIC: THE IRVINE COMPANY, LLC, a
Delaware limited liability company
Date:
By:
Thomas F. Sullivan
Group Senior Vice President
Development and Construction
Date:
By:
Michael T. Bennett
Senior Vice President Operations
[END OF SIGNATURES]
Exhibit G — TIC Improvements
The Irvine Company, LLC Page 5
ACKNOWLEDGMENT
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.
State of Calfornia
County of Avlale/ } ss.
On W w-Ix,! )c{ , 20 1l before me, r a.theirin- CorrA
Notary Public, personally appeared 111sp44.5 Soo de, n , 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 signatures(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.
kAttku-Z,6\k-)
Signature
CATHERINE CORRAL
Commission # 2116913 i
Notary Public • California z
Orange County
M Comm. Expires Jul 22, 2019
(seal)
ACKNOWLEDGMENT
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.
State of California
County of '(✓riti.yisc, } ss.
On S(0-011)&" , 20 V1 before me, (wkhcrrtn e Cbyr4<
Notary Public, personally appeared t Atchrnc.t 1-• Rc n ne:{'t-
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 signatures(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
CATHERINE CORRAL
4ii.,:.,
Commission # 2116913
.
VIINotary Public - California z
Orange County
"` M Comm. Expires Jul 22, 2019
(seal)
The Irvine Company, LLC Page 6
EXHIBIT G
TIC IMPROVEMENTS
The Irvine Company, LLC Page G-1
EXHIBIT A
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IMAGE OF ENCROACHING IMPROVEMENTS
EXIST.
STAIRS
EXIST. ADDRESS/TENANT SIGN
EXIST.
TRAFFIC SIGNAL
RIGHT OF WAY
EXIST.
STREET LIGHT
EXIST.
TRAFFIC SIGNAL
LIMITS OF NON-STANDARD
DECORATIVE CONCRETE SECTION
(839 S.F.)
NON-STANDARD BOLLARDS
(6 TOTAL)
PREPARED BY:
Stantec
38 TECHNOLOGY DRIVE, SUITE 100
IRVINE, CA 92618
949.923.6000 stantec.com
ENCROACHING IMPROVEMENTS
400 NEWPORT CENTER DRIVE
NEWPORT BEACH, CA
DATE:
07/29/2016
SHEET 1
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NON-STANDARD
CONCRETE BOLLARDS
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IMAGE OF ENCROACHING IMPROVEMENTS
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38 TECHNOLOGY DRIVE, SUITE 100
IRVINE, CA 92618
949.923.6000 slantec.com
ENCROACHING IMPROVEMENTS
450 NEWPORT CENTER DRIVE
NEWPORT BEACH, CA
RIGHT OF WAY
DATE:
07/29/2016
SHEET 2
OF 12
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(24"DIA x 30"HIGH)
IMAGE OF ENCROACHING IMPROVEMENTS
EXIST. TRAFFIC SIGNAL
12'
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NON-STANDARD NON-STANDARD BOLLARDS
(6 TOTAL)
LIMITS OF NON-STANDARD
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EXIST. STAIRS
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EXIST. ADDRESS/TENANT SIGN'
NEWPORT CENTER DRIVE
PREPARED BY:
Stantec
38 TECHNOLOGY DRIVE, SUITE 100
IRVINE, CA 92618
949.923.6000 stantec.com
ENCROACHING IMPROVEMENTS
450 NEWPORT CENTER DRIVE
NEWPORT BEACH, CA
DATE:
07/29/2016
SHEET 3
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500 NEWPORT CENTER DRIVE
NEWPORT BEACH, CA
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DATE:
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SHEET 4
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38 TECHNOLOGY DRIVE, SUITE 100
IRVINE, CA 92618
949.923.6000 stantec.com
ENCROACHING IMPROVEMENTS
550 NEWPORT CENTER DRIVE
NEWPORT BEACH, CA
DATE:
07/29/2016
SHEET 5
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(834 S.F.)
EXIST.
TRAFFIC SIGNAL
NON-STANDARD BOLLARDS
(5 TOTAL)
PREPARED BY:
Stantec
38 TECHNOLOGY DRIVE, SUITE 100
IRVINE, CA 92618
949.923.6000 stantec.com
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EXIST. STAIRS
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550 NEWPORT CENTER DRIVE
NEWPORT BEACH, CA
DATE:
07/29/2016
SHEET 6
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38 TECHNOLOGY DRIVE, SUITE 100
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949.923.6000 stantec.com
RIGHT OF WAY
EXIST.
STAIRS
EXIST. TS PB
EXIST.
TRAFFIC SIGNAL
NON-STANDARD
BOLLARDS (5 TOTAL)
LIMITS OF NON-STANDARD
DECORATIVE CONCRETE SECTION
(649 S.F.)
EXIST. TRAFFIC SIGNAL
ENCROACHING IMPROVEMENTS
610 NEWPORT CENTER DRIVE
NEWPORT BEACH, CA
DATE:
07/29/2016
SHEET 7
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CENTER DRIVE
— -
IMPROVEMENT AREA
LOCATION MAP
NON-STANDARD PLANTER BOX
NON-STANDARD
CONCRETE SECTION
(4" THICK HAND -
SEEDED AGGREGATE)
NON-STANDARD
CONCRETE BOLLARDS
(24"DIA x 30"HIGH)
IMAGE OF ENCROACHING IMPROVEMENTS
EXIST.
STAIRS
PLANTER BOX
—74"-TALL X 72" WIDE
LIMITS OF NON-STANDARD
DECORATIVE CONCRETE SECTION
(267 S.F.)
NON-STANDARD
BOLLARDS (4 TOTAL)
NON-STANDARD
PLANTER BOX \ �f
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RIGHT OF WAY
NEWPORT CENTER DRIVE
PREPARED BY:
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38 TECHNOLOGY DRIVE, SUITE 100
IRVINE, CA 92618
949.923.6000 slantec.com
ENCROACHING IMPROVEMENTS
610 NEWPORT CENTER DRIVE
NEWPORT BEACH, CA
DATE:
07/29/2016
SHEET 8
OF 12
0
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949.923.6000 stontec.com
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LIMITS OF NON-STANDARD
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610 NEWPORT CENTER DRIVE
NEWPORT BEACH, CA
DATE:
07/29/2016
SHEET 9
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Stantec
38 TECHNOLOGY DRIVE, SUITE 100
IRVINE, CA 92618
949.923.6000 stontec.com
ENCROACHING IMPROVEMENTS
650 NEWPORT CENTER DRIVE
NEWPORT BEACH, CA
DATE:
07/29/2016
SHEET 1 0
OF 12
0
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EXIST.
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EXIST.
STAIRS
EXIST. BUS STOP BENCH
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RIGHT OF WAY
PREPARED BY:
Stantec
38 TECHNOLOGY DRIVE, SUITE 100
IRVINE, CA 92618
949.923.6000 stontec.com
ENCROACHING IMPROVEMENTS
650 NEWPORT CENTER DRIVE
NEWPORT BEACH, CA
DATE:
07/29/2016
SHEET 1 1
OF 12
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Stantec
38 TECHNOLOGY DRIVE, SUITE 100
IRVINE, CA 92618
949.923.6000 stontec.com
ENCROACHING IMPROVEMENTS
690 NEWPORT CENTER DRIVE
NEWPORT BEACH, CA
DATE:
07/29/2016
SHEET 12
OF 12
2042 510400
LIGHTING & LANDSCAPE MAINTENANCE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND
THE IRVINE COMPANY LLC
This Lighting & Landscape Maintenance Agreement ("Agreement") is made and entered
into this 28 day of January, 2014, by and between City of Newport Beach, a California municipal
corporation and charter city ("City"), and The Irvine Company LLC, a Delaware limited liability
company ("TIC"). City and TIC are sometimes individually referred to herein as a "Party", and
collectively referred to as the "Parties."
RECITALS
A. TIC and City entered into that certain letter agreement dated February 15, 1985 and
that certain Agreement for Modification & Maintenance of Street Lighting System dated February
13, 1985, each addressing cost and maintenance responsibilities for trees, landscaping, irrigation,
utilities, street lighting and related improvements (collectively, the "Improvements") located within
the Fashion Island/Newport Center shopping area in Newport Beach, California (together, the "Prior
Agreements").
B. TIC and City desire to revise the responsibilities and other terms contained in the
Prior Agreements in order to provide City with greater certainty as to the cost of such responsibilities
and otherwise clarify the rights and obligations of each Party as to maintenance, inspection and other
[natters relating to the Improvements. The various Improvements to be maintained by the Parties
pursuant to this Agreement are located within the portions of the Fashion Island/Newport Center
shopping area depicted on Exhibit A, which locations are referred to collectively in this Agreement
as the "Maintenance Area."
NOW, THEREFORE, in consideration of the above Recitals and the mutual promises
contained herein, TIC and City hereby agree as follows:
AGREEMENT
1. Incorporation of Recitals, The above Recitals are incorporated into this Agreement by this
reference.
2. Effective Date. The terns and provisions of this Agreement shall be deemed effective on
January 1, 2014 (the "Effective Date") and shall continue in effect until terminated as provided
in Section 10 below.
3. Prior Agreements; City Payment Obligations. TIC and City hereby agree to terminate the Prior
Agreements as of the Effective Date; provided however, that the payment and indemnity
obligations of each Party under the Prior Agreements with respect to matters occurring prior to
the Effective Date shall remain in effect. To that end, City shall pay to TIC the sum of Eighty -
Eight Thousand Four Hundred Fifty -Eight Dollars and Eighty -Six Cents ($88,458.86) for water
and utilities owed to TIC under the Prior Agreements, which amount City agrees to pay to TIC
within ten (10) business days of City Council approval of this Agreement. All rights and
obligations of the Parties with respect to the Improvements arising on and after the Effective Date
shall be governed by the terms of this Agreement.
4. Maintenance & Cost Obligations. The following are the respective obligations of each Party
under this Agreement regarding cost and maintenance of the Improvements:
A. Landscape Maintenance.
i. TIC Landscape Maintenance Obligations. TIC shall, at its sole cost and expense,
provide, or cause to be provided, the following:
(a) landscape maintenance of all trees (including, without limitation, replacement
of dead or diseased trees with replacement trees in a thirty-six inch (36") box or larger)
located within the portions of the Maintenance Area depicted on Exhibit B as the "TIC Tree
Areas";
(b) landscape maintenance of all grass, shrubs, bushes and other landscaping
(including, without limitation, replacement of dead or diseased grass, shrubs, bushes and
other landscaping with plants of the same variety and approximate size) located within the
portions of the Maintenance Area depicted on Exhibit B as the "TIC Turf Areas";
(c) maintenance of all landscape irrigation systems (including, without limitation,
repair or replacement of broken, malfunctioning or inoperable irrigation systems) that are not
owned by the water utility that provide water to trees and landscaping in the Maintenance
Area (whether the irrigation systems are located within TIC Tree Areas, TIC Turf Areas or
City Tree Areas); and
(d) maintenance of all signage/entry monuments related to property owned by
TIC in the Maintenance Area.
ii. City Landscape Maintenance Obligations. City shall, at its sole cost and expense,
provide, or cause to be provided, the following:
(a) landscape maintenance of all trees (including, without limitation, replacement
of dead or diseased trees with replacement trees in a thirty-six inch (36") box or larger)
located within the portions of the Maintenance Area located outside of the TIC Tree Areas.
Such City -maintained tree areas are depicted on Exhibit C as the "City Tree Areas";
(b) maintenance of all signage/entry monuments related to City Hall and the City
Library located within the Maintenance Area.
B. Lighting Maintenance.
i. TIC Light Maintenance Obligations. TIC shall, at its sole cost and expense, maintain
all improvements used to light landscaping, trees and signage/entry monuments other than
those related to City Hall, the City Library and the Street Lighting Improvements defined
below (collectively, "Landscape Lighting Improvements") in the Maintenance Area.
ii. City Light Maintenance Obligations. City shall, at its sole cost and expense, perform
the following during the term of this Agreement:
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(a) maintain, repair and replace all street lights, including, without limitation, all
posts, light bulbs, standards and electrical components other than those related to the
Landscape Lighting Improvements (collectively, the "Street Lighting Improvements")
located in the Maintenance Area. City shall be solely responsible for all maintenance, repair
and replacement of the Street Lighting Improvements regardless of the cause of the damage,
provided the damage is not caused by TIC or its contractors. City shall repaint the painted
portions of the Street Lighting Improvements (I) as required as a result of an inspection
pursuant to subsection 4.B.ii.c below, and (II) as necessary to maintain them in good
condition and appearance.
(b) City shall retain a professional consultant to perform an ultrasonic inspection
of the Street Lighting Improvements once every year commencing on July 1, 2014 during the
term of this Agreement (the "Annual Ultrasonic Inspection"). Upon the written request of
TIC, City shall, or require its consultant to, provide a written report of the requested Annual
Ultrasonic Inspection to TIC within ten (10) business days of City's receipt of TIC's written
request.
(c) Promptly after receipt of each Annual Ultrasonic Inspection report that
designates Street Lighting Improvements that require replacement, repainting or other
maintenance work (and in any event within six (6) months after receipt of such report), City
shall commence the repainting or repair of such designated improvements and diligently
thereafter complete such work in a timely manner.
(d) TIC has previously delivered to City a copy of the Ultrasonic Inspection
report of the Street Lighting Improvements prepared by PEM in October 2013 (the "PEM
Report"). TIC represents and warrants that it shall, within one hundred and eighty (180)
calendar days of the Effective Date, replace, repaint or repair the poles listed on Exhibit D
attached hereto, which are the poles identified in the PEM Report as requiring replacement,
repainting or repairs. In addition, TIC shall, within such one hundred and eighty (180)
calendar day period, inspect and bring the seven (7) electrical service cabinets (located in the
approximate locations depicted on Exhibit E) into good operational condition. TIC shall pay
for the cost of the inspection and report prepared by PEM, as well as the cost of such
replacement, repair and repainting of the poles and the electrical service cabinets, at TIC's
sole cost and expense.
C. Modifications to Street Lighting Improvements. Except as provided in this subsection and
subsection 6(B) below, City shall not modify the design or components of the Street Lighting
Improvements unless such modification has been mutually agreed upon by the Parties. City
shall, however, have the right to change the type of bulbs in the Street Lighting
Improvements upon prior written notice to TIC so long as the new bulbs are of the same or
greater luminosity as the then existing bulbs. Any change in the type of bulbs in the Street
Lighting Improvements to a lower luminosity shall require the mutual agreement of the
Parties. City shall be the sole Party responsible for any election to change the design or
luminosity of the Street Lighting Improvements, and TIC shall bear no liability for City's
decision to make a change, despite any consent or agreement by TIC to any request by City.
D. Cost of Utilities.
i. TIC Utility Cost Obligations. TIC shall, at its sole cost and expense, pay for (a) the
electrical bills for all electricity used for operation of the Landscape Lighting Improvements
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within the Maintenance Area, (b) the cost of electricity supplied to the irrigation meters, and
(c) the water bills for all water delivered to the Maintenance Area for maintenance of the
trees and landscaping described in this Agreement.
11. City Utility Cost Obligations. City shall, at its sole cost and expense, pay for all
electrical bills for all electricity used for operation of the Street Lighting Improvements,
irrigation systems and utility meters (other than the irrigation meters) within the Maintenance
Area.
E. Water Usage in Maintenance Area. To the extent applicable to water usage in the
Maintenance Area, TIC shall comply with the water conservation and supply level
requirements of Chapter 14.16 of the City's Municipal Code, as the same may be amended
from time to time. Subject to its compliance with the City Water Ordinance, TIC shall have
the right to determine, in its sole and absolute discretion, the time and duration of watering
for all trees and landscaped areas within the Maintenance Area, including the TIC Tree
Areas, the TIC Turf Areas and the City Tree Areas.
5. Access to Perform Maintenance. Effective on the Effective Date, the Party that owns the land
where the maintenance activity is to take place (the "Owner Party") hereby grants to the other
Party a nonexclusive right to access the land of the Owner Party required to fulfill the
maintaining Party's obligations set forth in this Agreement, subject to the following conditions:
A. Access Limited. Each entry by the maintaining Party shall be (i) only for the obligations set
forth herein, (ii) limited to the areas of the Owner Party's property as necessary to perform
the maintenance, and (iii) limited in duration to the amount of time during each entry as
reasonably required to fulfill such maintenance obligations.
B. No Interference. The maintaining Party shall perform its maintenance activities in a manner
that minimizes, to the extent reasonably possible, interference with the reasonable use and
enjoyment of the Owner Party's property by the Owner Party and any of its representatives,
lessees or occupants.
C. As Is Condition. The Owner Party shall have no duty to inspect its property and no duty to
disclose or warn the maintaining Party of any latent or patent defect, condition or risk that
might be incurred during the maintaining Party's presence on the property of the Owner
Party. The maintaining Party has inspected or will inspect each area of the Owner Party's
property that the maintaining Party enters and hereby agrees that it accepts the condition of
the Owner Party's property in its "AS IS" condition.
D. Insurance. Prior to any entry on the property of the Owner Party, the maintaining Party shall
comply with the insurance requirements set forth in Section 12 below.
E. Supervision and Control. During entry on the property of the Owner Party, the maintaining
Party and its maintenance contractors shall be under the supervision and control of the
maintaining Party. Each person entering the property of the Owner Party under this
provision shall be considered to be acting as the maintaining Party's agent, and all such
persons shall enter such property at their own risk.
F. Restoration; Repair of Damage. Upon completion of the maintenance activity, the
maintaining Party shall restore and repair any portion of the property of the Owner Party
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affected or damaged in the course of performing the maintenance, including, without
limitation, replacing in kind (with equal or better quality) any improvements located on such
property to at least as good condition as existed prior to the maintenance activity.
6. Standard of Maintenance. Each Party, at its sole cost and expense, shall perform its maintenance
obligations in accordance with the following standards:
A. Landscaping/Tree Standards. All landscaping and trees within the Maintenance Area shall
be maintained in healthy and attractive condition, consistent with the appearance of other
landscaping at TIC's commercial retail shopping center known as Fashion Island/Newport
Center. In any event, the Parties agree that City shall be deemed to be in compliance with the
"attractive condition" requirement of the preceding sentence so long as City maintains the
landscaping and trees for which it is responsible in compliance with ANSI A300 standards
(as amended or updated from time to time) and the trim cycles described on Exhibit F to this
Agreement (as said trim cycles may be amended from time to time upon mutual agreement of
the Parties).
B. Lighting Improvement Standards. All Landscape Lighting Improvements and Street Lighting
Improvements shall be maintained in good and attractive condition, consistent with the
appearance of other lighting improvements servicing commercial properties owned by TIC in
Newport Beach, California. If any light poles in the Street Lighting Improvements require
painting or replacement pursuant to subsection 4.B.ii of this Agreement, City shall (i) either
repaint the poles with epoxy paint to match the existing white color or repaint with another
color that is mutually acceptable to the Parties, and (ii) replace any pole requiring
replacement with an Ameron JS306 single or double -headed (as applicable) galvanized pole
(or like -kind equivalent reasonably acceptable to the Parties) of the same height and color as
the pole being replaced.
7. Maintenance Coordination. With respect to communications between the Parties as to
maintenance, inspection and other matters relating to this Agreement, City and TIC designate the
following persons as their respective contact persons:
A. City Contact Person. City's Municipal Operations Director, telephone (949) 644-3055, shall
be the City's Contact Person.
B. TIC Contact Person. The Operations Manager, Newport Center, telephone (949) 729-1450,
shall be TIC's Contact Person.
City and TIC may, at any time, change their respective representative by providing written notice
to the other Party.
8. Failure to Perform. If either Party fails to fulfill its maintenance or other responsibilities under
this Agreement (the "Defaulting Party"), the other Party may provide written notice to the
Defaulting Party of such failure describing the deficiencies in reasonable detail (the "Deficiency
Notice"). If such deficiency is not corrected within ten (10) business days of receipt of the
Deficiency Notice, the other Party 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 ten (10) business days, it will be deemed cured if the Defaulting Party commences to cure
the deficiency within such period and proceeds diligently thereafter to complete the cure of such
deficiency. If the non -Defaulting Party elects to cure the deficiency, the Defaulting Party shall
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reimburse the non -Defaulting Party for its reasonable actual costs incurred in curing the
deficiency within fifteen (15) calendar days of the Defaulting Party's receipt and approval of the
invoice for such costs, which invoice shall be accompanied by copies of receipts evidencing the
actual cost of cure incurred by the non -Defaulting Party.
9. Liens. Neither Party shall suffer or permit to be enforced against the other Party's property any
mechanics, laborers, materialmens, contractors, subcontractors, or any other liens, claims or
demands arising from any maintenance or other work performed by such Party, and such Party
shall pay or cause to be paid all of said liens, claims and demands before any action is brought to
enforce the same against any portion of the other Party's property or any other land within the
Maintenance Area.
10. Term. This Agreement shall remain in effect from the Effective Date for a period of ten (10)
years, and shall automatically renew for two (2) successive periods of ten (10) years each unless
at least six (6) months prior to the then effective expiration date, the terminating Party delivers
written notice to the other Party of the terminating Party's election not to renew this Agreement.
11. Assignment. Neither Party shall have the right to assign all or any portion of this Agreement
without the prior written consent of the other Party, except that TIC shall have the right to assign
its rights and obligations under this Agreement to any entity controlling, controlled by or under
common control with TIC without consent by City. No assignment shall be effective until the
proposed assignee provides City (or TIC, as the case may be) with certificates of insurance
verifying that the assignee's insurance coverage meets and complies with the insurance
requirements of this Agreement. After the effective date of any such assignment by the Parties,
the assigning Party shall have no further rights or obligations hereunder.
12. Insurance. Each Party shall require in its contracts with any contractors that perform installation,
maintenance or other work in connection with the rights and obligations in this Agreement, that
such contractors obtain, provide and maintain at all times during the performance of any such
work, at no cost or expense to the other Party, policies of liability insurance of the type and
amounts described below. Prior to performance of any work within the Maintenance Area,
certificates of all required policies must be provided to the Owner Party by the maintaining Party.
Except for workers compensation and any errors and omissions coverage, all insurance policies
shall, to the extent coverage is provided under such policies, add the Owner Party, its officers,
agents, representatives and employees as additional insureds for all liability arising from the
work performed by the maintaining Party within the Maintenance Area.
A. Insurance policies for the following coverages shall be issued by companies approved or
licensed to do business in California and assigned A.M. Best's ratings of A- VII or other
ratings acceptable to the Owner Party:
Workers compensation insurance, including "Waiver of Subrogation" clause, covering all
employees of such contractor, per the laws of the State of California, and Employer's
Liability Insurance in the amount of One Million Dollars ($1,000,000) per occurrence for
injuries incurred in performing maintenance or other work hereunder.
ii. 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 Two Million Dollars
($2,000,000) single limit, per occurrence, for bodily injury and property damage,
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including coverage for products and completed operations. If commercial general
liability insurance or other form with a general aggregate is used, either the general
aggregate shall apply separately to the Maintenance Area, or the general aggregate limit
shall be twice the occurrence Limit.
iii. Commercial automobile liability and property insurance, (including owned, non -owned,
leased and hired vehicles used in connection with the work) in the amount of Two
Million Dollars ($2,000,000) single limit, per occurrence for bodily injury and property
damage. The policy shall be written on a "date of occurrence" and not a "claims made"
basis.
City and TIC may, from time to time, require increases in the amounts of coverage
specified above in connection with maintenance work on their respective properties to
conform with the levels of insurance required in landscape maintenance or similar
contracts used by such Party.
B. The liability insurance policy shall be written by a good and solvent insurance company
authorized to do business in the State of California or which is approved in writing by City
and TIC; and shall contain clauses specifying that (i) such insurance is primary and City's
and TIC's respective insurance is excess and noncontributing with such primary coverage;
(ii) the insurer waives all rights of subrogation against City and TIC; (iii) coverage shall not
be suspended or cancelled without the responsible Party providing at least thirty (30) days
prior written notice to the other Party of such suspension or cancellation; (iv) City and TIC
are listed as additional insureds thereunder, and that there are no special limitations on the
scope of protection afforded to City, TIC and any of their respective officers, officials,
employees, directors, shareholders, parent and affiliated companies.
13. Indemnification. Each Party shall indemnify, defend and hold the other Party harmless from and
against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, including
without limitation reasonable attorneys' fees (collectively, the "Claims"), whether incurred by or
made against the indemnified Party, arising from or related to the performance or failure to
perform the obligations of the indemnifying Party set forth in this Agreement, including without
limitation the acts or omissions of such Party and its contractors within the Maintenance Area;
provided, however, that each Party's indemnity obligations hereunder shall not apply to the
extent that any Claim is caused by the active negligence or willful misconduct of the other Party
or any of such other Party's officers, officials, employees, directors or shareholders.
14. 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: City of Newport Beach
100 Civic Center Drive
Newport Beach, California 92660
Attention: Municipal Operations Director
If to TIC: Irvine Company Office Properties
620 Newport Center Drive, Suite 150
Newport Beach, CA 92660
Attn: Operations Manager, Newport Center
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With a copy to: The Irvine Company LLC
550 Newport Center Drive
Newport Beach, CA 92660
Attn: Group Senior Vice President & General Counsel
15. Incorporation of Exhibits. Exhibits A B, C, D, E and F, which are attached hereto, are hereby
incorporated herein by this reference.
16. 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.
17. 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.
18. No Third Party Beneficiaries. This Agreement is not intended, and shall not be deemed or
construed, to confer any rights, powers or privileges on any person, firm, partnership, corporation
or other entity that is not a Party hereto.
19. Amendment. This Agreement may be amended only by a written instrument approved and
executed by the Parties.
20. No Attorneys Fees. In the event of any dispute arising under this Agreement, the prevailing party
shall not be entitled to its attorneys' fees.
21. Entire Agreement. This Agreement and the exhibits attached hereto constitute 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]
8
By:
[Signature Page to Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set
forth at the top of page I of this Agreement.
"City"
City of Newport Beach,
a California municipal corporation
2
Rush N. Hill, II
Mayor
ATTEST:
By:
Date:
i I. Brown
City Clerk
APPROVIED AS TO FORM:
By:
Aaron C. Harp
City Attorney
Date: (7L 2-7/Lf
"TIC"
The Ir
a Del
By:
By:
c
Company LLC,
nited liaabi
er J. Poprna
Vice President
9
Exhibit A
DEPICTION OF THE MAINTENANCE AREA
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Maintenance Area
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EXHIBIT A
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August `, 2013
Exhibit B
DEPICTION OF TIC TREE AREAS AND TIC TURF AREAS
WITHIN MAINTENANCE AREA
• TIC Tree Areas
ID TIC Turf Areas
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EXHIBIT B
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August 5, 2013
Exhibit C
DEPICTION OF CITY TREE AREAS
WITHIN MAINTENANCE AREA
EXHIBIT C
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Exhibit D
LIST OF POLES TO BE REPLACED, REPAINTED OR REPAIRED
A. Light Poles to be Replaced
#20 #114
#22 #136
#25 #137
#34 #176
#68 #178
#100 #204
#102 #205
#107 #206
#113 #220
B. Light Poles to be Repainted or Repaired
#14 #100
#15 #105
#16 #106
#17 #107
#18 #129
#21 #150
#24 #170
#26 #188
#34 #193
#36 #194
#96 #195
#97 #216
#99 #225
Exhibit E
LOCATIONS OF SEVEN ELECTRICAL SERVICE CABINETS
EXHIBIT E
LOCATIONS OF SEVEN ELECTRICAL SERVICE CABINETS
as
Electrical Service Cabinets
Exhibit F
CITY LANDSCAPE MAINTENANCE TRIM CYCLE SCHEDULE
1. Ficus Trees: trim trees at least once every two (2) years.
2. Palm Trees: trim all palm trees located outside of the TIC Tree Areas as follows:
a. trim palm fronds once per year between June 1 and August 31; and
b. in pruning fronds on each tree, remove fronds below 2:00 and 10:00 (do not
prune fronds higher than 2:00 and 10:00).
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AGREEMENT FOR MODIFICATION & MAINTENANCE
OF
STREET LIGHTING SYSTEM
THIS AGREEMENT, entered into this :day of fG
1985, by and between THE CITY OF NEWPORT BEACH, a Municipal
Corporation and Charter City (hereinafter "City") and THE IRVINE
COMPANY, a Michigan Corporation, duly authorized and existing
under and by virtue of the Taws of the State of Michigan,
(hereinafter ("TIC"), is made with reference to the following
facts:
A. City owns, operotes and maintains a street lighting
system within public utilities easements located in Newport
Center;
B. The precise location of the street lighting systems
covered by the terms of this Agreement are as set forth as
Exhibit "A";
C. TIC, the principal owner of property within Newport
Center, is presently engaged in refurbishment of certain
improvements within the shopping center ond, in conjunction with
that project, would like to make certain minor modifications to
the street lighting system;
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D. In consideration of City's permission to make
changes to the street lighting system and amounts paid by the
City to TIC pursuant to Paragraph 3 hereof, TIC will operate and
maintain the system subject to City compensating TIC for certain
fixed energy costs;
E. This Agreement is in the public interest in that
City will be relieved of the costs incurred in the maintenance
and repair of the system, and the appearance of the area will be
improved with the modifications to be made by TIC pursuant to
this Agreement.
NOW, THEREFORE, BE IT RESOLVED the parties agree as
follows:
1. City hereby permits TIC to construct or Install certain
minor modifications, including but not limited to the
replacement of the luminaire, conduit and wiring, to the
street lighting system within Newport Center as shown on
Exhibit "A" hereto. The modifications shall be made in
conformance with the plans and/or specifications
required by the Utilities Director of the City of
Newport Beach.
2
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2. TIC, In consideration of the rights granted by this
Agreement, agrees to do the following:
(a) Maintain and repair the street lighting system,
shown on Exhibit "A". TIC"s obligation to maintain
and repair the system shall extend to all
maintenance and repairs, irrespective of cost,
necessary to keep the system In good working order
and condition;
(b) Except as provided in Paragraph 3, TIC shall pay
all costs and expenses that relate, in any way, to
the installation of modifications and the operation
and maintenance of the street lighting system,
including but not limited to electrical bills and
charges;
(c) TIC shall Indemnify, defend and hold City harmless
with respect to any claim, loss, damage or injury
that arise out of, or Is in any way related, to the
performance by TIC, or its officers, agents,
employees or representatives, of any of the duties
or acts authorized by this Agreement;
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3. In consideration of TIC's agreement to the terms and
conditions contained herein, City shall, within 30 days
from the receipt of a monthly invoice pay the sum of
Twenty Three Thousand, One Hundred Seventy Dollars and
no Cents (523,170.00). This amount shall be adjusted on
a monthly basis to reflect percentage increases or
decreases in energy rates charged to TIC, which become
effective after the date of this Agreement.
4. TIC shall have the right to take ail reasonable action
necessary or convenient to perform its duties and
obligations under this Agreement including the right to
enter onto City -owned property and remove portions of
street or sidewalk surfacing. Any work done by TIC
within any street or sidewalk shall be performed
pursuant to permit issued by City and TIC agrees to
restore'any surface area affected by its activities to
substantially the some condition as existed prior to the
commencement of work.
5. City reserves the right to make emergency repairs to the
street lighting system as it may deem necesary for the
immediate protection of the public health and safety.
TIC agrees to reimburse City for any reasonable costs
and expense incurred in effecting such repairs.
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• •
6. This Agreement constitutes the entire understanding of
the parties hereto and may be amended only by a writing,,
executed by authorized representatives of the parties.
Executed the day and year first above written at
Newport Beach, California.
City Attorney
AGP/Devlin
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CITY
CITY OF NEWPORT BEACH
1
Mayor
ONVIUU
TIC
THE IRVINE COMPANY
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