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
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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.
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ADOPTED this 11th day of October
_ , 1983.
•
a or
ATTES
oe
Crty Clerk
RSP /Webb
•
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•
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
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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
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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,
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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
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City
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c
a
Proposed
Stormdrain
Easements
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University ®r
s
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30.7 ac.
6 ac.
Park
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Eroded Areas
33.7ac.
WESTBAY SITE C3 NOV-1882
EXHIBIT A