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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 DRAWING: v:\projects\2042510400\drawing\exhibit_files\510400c—px7007.dwg PLOTTED: 7/29/2016 9:29 AM BY: Chen, Ryan I 450 NEWPORT CENTER DRIVE 400 NEWPORT CENTER DRIVE co i �C __J NEWPORT CENTER IMPROYEaNT AREA LOCATION MAP / T 1/NON-STANDARD CONCRETE BOLLARDS - (24"DIA x 30"HIGH) NON-STANDARD CONCRETE SECTION (4" THICK HAND - SEEDED AGGREGATE) 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 OF 12 0 z co 0 2042 510400 DRAWING: v:\projects\2042510400\drawing\exhibit_files\510400c—px7007.dwg PLOTTED: 7/29/2016 9:20 AM BY: Chen, Ryan i 450 NEWPORT CENTER DRIVE IMPROVEMENT AREA 400 NEWPORT CENTER DRIVE NEWPORT CENTER LOCATION MAP / NON-STANDARD CONCRETE SECTION (4" THICK HAND - SEEDED AGGREGATE) NON-STANDARD CONCRETE BOLLARDS (24"DIA x 30"HIGH) IMAGE OF ENCROACHING IMPROVEMENTS EXIST. EXIST. EXIST.— PLANTER BOX PLANTER BOX STAIRS O LIMITS OF NON-STANDARD DECORATIVE CONCRETE SECTION (364 S.F.) O O o IE 4I- • 53.3' NON-STANDARD BOLLARDS (4 TOTAL) PREPARED BY: Stantec 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 0 Z CO 0 2042 510400 DRAWING: v:\projects\2042510400\drawing\exhibit_files\510400c—px7007.dwg PLOTTED: 7/29/2016 9:23 AM BY: Chen, Ryan i 450 NEWPORT CENTER DRIVE —.J 400 NEWpORT CENTER DRIVE NEWPORT CENTER IMPROVEMENT AREA LOCATION MAP / u NON-STANDARD CONCRETE SECTION (4" THICK HAND - SEEDED AGGREGATE) NON-STANDARD CONCRETE BOLLARDS (24"DIA x 30"HIGH) IMAGE OF ENCROACHING IMPROVEMENTS EXIST. TRAFFIC SIGNAL 12' 0 • • --**0 NON-STANDARD NON-STANDARD BOLLARDS (6 TOTAL) LIMITS OF NON-STANDARD DECORATIVE CONCRETE SECTION (797 S.F.) EXIST. STAIRS IGHT OF WAY 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 OF 12 0 z CO 0 2042 510400 1 "=220' DRAWING: v:\projects\2042510400\drawing\exhibit_files\510400c—px7004.dwg PLOTTED: 10/5/2016 8:54 AM BY: Chen, Ryan 520 NEWPORT CENTER DRIVE 550 NEWPORT 500 NEWPORT CENTER DRIVE CENTER DRIVE Z- 1 0 0 z IMPROVEMENT AREA J NEWPORT CENTER DRIVE EAST LOCATION MAP \-- NON-STANDARD CONCRETE BOLLARDS (24"DIA x 30"HIGH) NON-STANDARD '( CONCRETE SECTION (4" THICK HAND -SEEDED AGGREGATE) IMAGE OF ENCROACHING IMPROVEMENTS 14' EXIST. ADDRESS/TENANT SIGN EXISTING ACCESSIBLE SIGN (1 TOTAL) NEWPORT CENTER ER DRIVE EAST PREPARED BY: Sta me c 38 TECHNOLOGY DRIVE, SUITE 100 IRVINE, CA 92618 949.923.6000 stantec.com EXIST. STAIRS RIGHT OF WAY EXIST. TRAFFIC SIGNAL EXIST. FH O /EXIST. ELEC PB Igo 10 "— O NON-STANDARD BOLLARDS I � i _ — (5 TOTAL) EXIST. TS PB LIMITS OF NON-STANDARD DECORATIVE CONCRETE SECTION (678 S.F.) ENCROACHING IMPROVEMENTS 500 NEWPORT CENTER DRIVE NEWPORT BEACH, CA 1 Z— DATE: 07/29/2016 SHEET 4 OF 12 0 z CO 0 2042 510400 DRAWING: v:\projects\2042510400\drawing\exhibit_files\510400c—px7003.dwg PLOTTED: 7/29/2016 9:19 AM BY: Chen, Ryon 550 NEWPORT CENTER DRIVE 520 NEWPORT CENTER DRIVE IMPROVEMENT AREA NEWPORT CENTER DRIVE EAST 500 NEWPORT 0 1 CENTER DRIVE Z 1— --1 L—_J LOCATION MAP 000( warn, NON—STANDARD CONCRETE SECTION (4" THICK HAND —SEEDED IMAGE OF ENCROACHING IMPROVEMENTS e J 14' EXIST. SCE VENT EXIST. ELEC VAULT NEWPORT CENTER DRIVE EAST 46'-1" i 1"=20' Z- RIGHT OF WAY Mama _Olusw14kman EXIST. STAIRS SCE VENT LIMITS OF NON—STANDARD DECORATIVE CONCRETE SECTION (315 S.F.) PREPARED BY: Stantec 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 OF 12 0 z 0 2042 510400 DRAWING: v:\projects\2042510400\drawing\exhibit_files\510400c—px7002.dwg PLOTTED: 10/5/2016 8:53 AM BY: Chen, Ryan to DZ 550 NEWPORT CENTER DRIVE 72. q___ 520 NEWPORT CENTER DRIVE __ i T 500 NEWPORT CENTER DRIVE L _ _ _ IMPROVEMENT AREA NEWPORT CENTER DRIVE EAST LOCATION MAP NON-STANDARD CONCRETE BOLLARDS (24"DIA x 30"HIGH) NON-STANDARD CONCRETE SECTION ,... (4" THICK HAND -SEEDED AGGREGATE) IMAGE OF ENCROACHING IMPROVEMENTS N 3 73 O N 3' 4' WIDE SCE ESMT O.R. 2013000470697 EXIST. SD MH EXIST. TS PB EXIST. TRAFFIC SIGNAL LIMITS OF NON-STANDARD DECORATIVE CONCRETE SECTION (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 RIGHT OF WAY EXIST. STAIRS EXIST. TS PB 1 "=20' Z EXISTING ACCESSIBLE SIGN '(1 TOTAL) NEWp0RT CENTER ORNE EAST ENCROACHING IMPROVEMENTS 550 NEWPORT CENTER DRIVE NEWPORT BEACH, CA DATE: 07/29/2016 SHEET 6 OF 12 0 Z 0 2042 510400 DRAWING: v:\projects\2042510400\drawing\exhibit_files\510400c—px7006.dwg PLOTTED: 7/29/2016 9:25 AM BY: Chen, Ryan 610 NEWPORT CENTER DRIVE \in (11 tiopORI COleg IMPROVEMENT AREA LOCATION MAP NON-STANDARD CONCRETE SECTION (4" THICK HAND - SEEDED AGGREGATE) IMAGE OF ENCROACHING IMPROVEMENTS NON-STANDARD CONCRETE BOLLARDS (24"DIA x 30"HIGH) EXIST. ADDRESS/TENANT SIGN EXIST. PoRXIST. FH RIV�ENTER PREPARED BY: Stantec 38 TECHNOLOGY DRIVE, SUITE 100 IRVINE, CA 92618 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 OF 12 0 z m 0 2042 510400 DRAWING: v:\projects\2042510400\drawing\exhibit_files\510400c—px7006.dwg PLOTTED: 10/5/2016 8:56 AM BY: Chen, Ryan 610 NEWPORT 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 74" TALL X 72" WIDE RIGHT OF WAY NEWPORT CENTER DRIVE PREPARED BY: Stantec 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 0 2042 510400 DRAWING: v:\projects\2042510400\drawing\exhibit_files\510400c—px7006,dwg PLOTTED: 7/29/2016 9:35 AM BY: Chen, Ryan 610 NEWPORT CENTER DRIVE , ° I ty�W p OR.T — — — J. CENTER IMPROVEMENT AREA LOCATION MAP co NON-STANDARD CONCRETE SECTION (4" THICK HAND - SEEDED AGGREGATE) NON-STANDARD CONCRETE BOLLARDS (24"DIA x 30"HIGH) IMAGE OF ENCROACHING IMPROVEMENTS G 73 n(.) 1 RIGHT OF WAY EXIST. TS PB EXIST. TRAFFIC SIGNAL PREPARED BY: ® Stantec 38 TECHNOLOGY DRIVE, SUITE 100 IRVINE, CA 92618 949.923.6000 stontec.com EXIST. TS PB NON-STANDARD BOLLARDS (2 TOTAL) LIMITS OF NON-STANDARD DECORATIVE CONCRETE SECTION 17-S.F.) DER og\vE PORE cEN NEW LIMITS OF NON-STANDARD DECORATIVE CONCRETE SECTION (207 S.F.) ENCROACHING IMPROVEMENTS 610 NEWPORT CENTER DRIVE NEWPORT BEACH, CA DATE: 07/29/2016 SHEET 9 OF 12 0 CO 0 2042 510400 DRAWING: v:\projects\2042510400\drawing\exhibit_files\510400c—px7005.dwg PLOTTED: 10/5/2016 8:59 AM BY: Chen, Ryan u N_ •1' CENTER DRIVE • • - NEWPORT CENTER LOCATION MAP EXIST. TRAFFIC SIGNAL NON-STANDARD -' CONCRETE SECTION (4" THICK HAND - SEEDED AGGREGATE) IMAGE OF ENCROACHING IMPROVEMENTS / / RIGHT OF WAY >4- LIMITS OF NON-STANDARD 4' DECORATIVE CONCRETE SECTION EXIST. ADDRESS/TENANT �d ,, (16 S.F.) SIGN 1 EXIST. TS PB LIMITS OF NON-STANDARD DECORATIVE CONCRETE SECTION EXIST. TRAFFIC SIGNAL ORT (199 S.F.) cRA ITFR 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 0 OF 12 0 z m 0 2042 510400 DRAWING: v:\projects\2042510400\drawing\exhibit_files\510400c—px7005.dwg PLOTTED: 7/29/2016 9:29 AM BY: Chen, Ryan 660 NEWPORT CENTER DRIVE N\ 650 NEWPORT 690 NEWPORT CENTER DRIVE A CENTER DRIVE .y NEWPORT CENTER -� — IMPROVEMENT AREA LOCATION MAP LIMITS OF NON-STANDARD DECORATIVE CONCRETE SECTION (165 S.F.) NEWPORT EW PpRT CENTER DRIVE Mlaiivt pIV 112 r 1 IT RI Awvustsrs +a VI q NON-STANDARD CONCRETE SECTION (4" THICK HAND - SEEDED AGGREGATE) IMAGE OF ENCROACHING IMPROVEMENTS EXIST. UTILITY VAULT EXIST. STAIRS EXIST. BUS STOP BENCH AND OVERHEAD STRUCTURE EXIST. BUS STOP SIGN 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 2042 510400 DRAWING: v:\projects\2042510400\drowing\exhibit_files\51O4OOc—px7OO5.dwg PLOTTED: 7/29/2016 9:34 AM BY: Chen, Ryan /IMPROVEMENT AREA ,.. ,..; NON-STANDARD CONCRETE SECTION (4" THICK HAND - SEEDED AGGREGATE) IMAGE OF ENCROACHING IMPROVEMENTS EXIST. TRAFFIC SIGNAL h LIMITS OF NON-STANDARD DECORATIVE CONCRETE SECTION (252 S.F.) RIGHT OF WAY EXIST. ADDRESS/TENANT SIGN EXIST. TS PB EXIST. TRAFFIC SIGNAL EXIST. TS PB N� G°N,C� 0NPo 1 »J O� PREPARED BY: 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: 2 (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 3 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 4 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 5 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, 6 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 7 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 Fi:JFr1<f9 Maintenance Area PACK OCEAN L.\C$,Pro EXHIBIT A ILAYSIPE on. August `, 2013 Exhibit B DEPICTION OF TIC TREE AREAS AND TIC TURF AREAS WITHIN MAINTENANCE AREA • TIC Tree Areas ID TIC Turf Areas PACu1c: OCEAN A Diti3 Gs.. .aaa EXHIBIT B F,. w . ..u. •.�li6R&K BAYSIM DR AO NOT !Mar August 5, 2013 Exhibit C DEPICTION OF CITY TREE AREAS WITHIN MAINTENANCE AREA EXHIBIT C 11111111111111111111111.1111111111111111111111.11111 1 :AN 1 '9 L42pACM 0 I 11 11 1 • 1 • •• • ♦ ♦♦a $ a•“ • City Tree Areas PACIFIC i7C'F.A e r4ai s • I • // • ;Is 1 1 •11♦•11, '1 •){ ls II♦ III •\I III \tea i, • a••"• 11 I t . II• II• aaa) •I• •11 /•• • • • I•• • ; I • I ♦♦♦• •• a a ♦ : rR♦♦ra••• %• I a •♦ �1LNAY i••• 1 • 0 • •• •• • y •• • • • ♦♦ •rS''�r/F • a ♦• •• I ♦ • • r ••••, ••♦ • ) as I ♦ I /05,k`901rotsu July 26, 2013 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). 15 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; 19 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 20 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; 3 21 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. 4 22 • • 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 5 CITY CITY OF NEWPORT BEACH 1 Mayor ONVIUU TIC THE IRVINE COMPANY 23