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HomeMy WebLinkAbout83-100 - West Bay Erosion Control & Slope RepairRESOLUTION NO. 83 -100 A RESOLUTION OF THE CITY COUNCIL OF THE CITY • OF NEWPORT BEACH AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A SETTLEMENT AGREEMENT AND RELEASE BETWEEN THE CITY AND THE IRVINE COMPANY CONCERNING WEST BAY EROSION CONTROL AND SLOPE REPAIR WHEREAS, the parcel of real property, located in the City of Newport Beach, which is situated between Irvine Avenue and Upper Newport Bay on the west and east respectively, and between 23rd St. and University Dr., on the south and north respectively, is commonly known as the Westbay Parcel (herein- after "Property "); and WHEREAS, the property is depicted on a map attached to the Settlement Agreement (Exhibit "A ") to this resolution) and, with the exception of certain street right -of -way along the westerly boundary of the property, and a six acre portion of the property, both owned by the City, the property is owned by TIC; and WHEREAS, certain portions of the property, including areas within the street right -of -way, have been eroded by the flow of water originating from sources both within, and outside, the boundaries of the property; and WHEREAS, TIC contends that public improvements have increased the quantity and velocity of water flowing on and over the property and that the City is liable for any dimunition in the value of the property caused by the erosion and /or the costs of repairing the eroded areas and constructing improvements to prevent further erosion; and 41 WHEREAS, the parties desire, through a Settlement Agreement and Release (Exhibit "B") to enter into a cooperative arrangement that will result in a prompt repair and reconstruc- tion of slopes and public improvements on the property and the adjacent right -of -way, and to resolve for all time the issue of liability for erosion; and WHEREAS, to the extent that the payment called for by the Settlement Agreement (Exhibit "B ") comes within the purview of Section 11.10 of the City Charter of the City of Newport Beach, the execution of this Agreement, and the performance of the work specified therein, is of urgent necessity for the preservation of life, health and property in that: 1. Public use easements are located on the property and the presence of severely eroded areas constitutes a threat to the health, safety and welfare of persons using the propery; 2. The failure to commence work prior to the onset of the rainy season will allow further erosion to occur thereby increasing the damage to the property owner and the cost to repair and restore the property; 3. Failure to commence construction, prior to the onset of the rainy season, with respect to that portion of the project that includes public right -of -ways, will result in further erosion of areas adjacent to Irvine Avenue, and threaten the stability of the roadbed and the safety of the persons using the roadway. NOW, THEREFORE, BE IT RESOLVED by the City Council of • the City of Newport Beach be and hereby are authorized to execut- ed the Settlement Agreement and Release, a copy of which is at- tached hereto as Exhibit "A" hereto. 2 ADOPTED this 11th day of October _ , 1983. • a or ATTES oe Crty Clerk RSP /Webb • 3 • SETTLEMENT AGREEMENT AND RELEASE (WEST BAY EROSION CONTROL AND SLOPE REPAIR) THIS AGREEMENT is made and entered into this day Of , 1983, by and between THE CITY OF NEWPORT BEACH (hereinafter "City ") and THE IRVINE COMPANY, (hereinafter "TIC "), with respect to the following facts, the materiality and exis- tence of which are stipulated and agreed to by the parties, as follows; A. The parcel of real property, located in the City of Newport Beach, which is situated between Irvine Avenue and Upper Newport Bay on the west and east respectively, and between 23rd St. and University Dr., on the south and north respectively, is commonly known as the Westbay Parcel (hereinafter "Property "); B. The property is depicted on a map attached to this Agreement as Exhibit "A ", and, with the exception of certain street right -of -way along the westerly boundary of the property, and a six acre portion of the property, all of which have relocatable purchase easements owned by the City, the property is owned by TIC; C. Certain portions of the property, including areas within the street right -of -way, have been eroded by the flow of water originating from sources both within, and outside, the boundaries of the property; D. TIC contends that public improvements have increas- ed the quantity and velocity of water flowing on and over the •property and that the City is liable for any dimunition in the value of the property caused by the erosion and /or the costs of repairing the eroded areas and constructing improvements to pre- vent further erosion; E. The parties desire, through this Agreement, to enter into a cooperative arrangement that will result in a prompt 4 T repair and reconstruction of slopes and public improvements on the property and the adjacent right -of -way, and to resolve, as of • the date of this Agreement, the issue of liability for erosion. NOW, THEREFORE, the parties hereto as follows: 1. TIC shall, through licensed contractors and other qualified professionals, undertake certain repairs and construc- tion (hereinafter "the project ") with respect to the property and adjacent right -of -way, including the following: (a) Regrade the eroded slopes on public and pri- vate property; (b) Construct and extend storm drains, and other related drainage facilities on both public and private property; (c) Install erosion control fabric on the regraded area where surface waters concentrate; (d) TIC shall administer all construction contracts and construct improvements in accor- dance with plans and specifications approved by City. 2. CITY shall: (a) Pay the sum of $27,500 to TIC upon completion of the project; and (b) Approve the plans and specifications for the project prior to the commencement of any con - struction or repair activity. 3. TIC shall grant, and City shall accept, drainage easements over portions of the property as generally shown on • Exhibit "A ", the easements to be granted by separate document. The easements shall be subject to relocation upon the written consent of the City and TIC shall be responsible for all costs and expenses incurred by reason of such relocation. TIC shall control surface waters that originate on the property and which might damage the improvements constructed in the drainage 2• :5 easements, and TIC shall also be responsible for any damage to the drainage easement, or improvements constructed therein, caused by surface flows which originate on site. City will be responsible for any loss or damage caused by any failure of the public improvements constructed within the drainage easements. 4. City hereby grants a right of entry to TIC to enter onto public property to make the repairs, and engage in the activities, described above. 5. TIC, in consideration of the payment of $27,500 as provided herein and in consideration of the agreement of City to accept the drainage easements across the property, releases, and discharges, on behalf of itself, and its successors and assigns, the City, and its employees, officers, agents, representatives, successors and assigns from any and all rights, claims and actions, which TIC, or its successors and assigns now have, or may have in the future, against the City, its employees, officers, representatives, agents, successors or assigns, that arise out of, or in any way relate to the flow of waters, which originate outside of the boundaries of the property, across the property or any portion thereof. Provided, however, this release does not extend to any loss or damage which is caused by the flow of water diverted to the site by modification to the existing storm drain system subsequent to, and independent of, this Agreement, which flow is in excess of that which could occur given drainage sysems and patterns in existence as of the date of this Agreement. This release, notwithstanding the provisions of Section 1542 of the California Civil Code, which provides that "a • general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor," releases City and all persons -named above from any and all injuries, damages, or losses to the property, whether known, unknown, foreseen, unforeseen, 3 patent or latent, which TIC may have, or may in the future have, against City or any of the persons described above. • 6. This Agreement may be terminated, or amended, only upon the written consent of each of the parties. 7. This instrument contains the entire agreement of the parties with respect to the matters stated, and no other agreement, statement or promise made by any party which is not contained in this Agreement, shall be valid or binding. IN WITNESS WHEREOF, the parties hereto have executed this - Agreement the day and year first above written. CITY OF NEWPORT BEACH By: ay or ATTE T: City Clerk APPROVED AS TO FORM City Attorney THE IRVINE COMPANY By: President By: Assistant Secretary APPROVED AS TO FORM: • Attorney for The Irvine Company 4 7 City d c a Proposed Stormdrain Easements 0 University ®r s • • • 30.7 ac. 6 ac. Park c L Eroded Areas 33.7ac. WESTBAY SITE C3 NOV-1882 EXHIBIT A