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HomeMy WebLinkAboutC-7224-2 - Letter Agreement for Implementation of Bayside Drive Rehabilitation ProjectA ATA� 1� N F - January 22, 2019 CITY OF NEWPORT BEACH Public Works Department 100 Civic Center Drive Newport Beach, CA 92660 Attention: Mr. David Webb, Public Works Director Subject: Implementation of Bayside Drive Rehabilitation Project Dear David: The purpose of this letter is to confirm the mutual understandings of Promontory Point Apartments LLC ("PPA") and the City of Newport Beach ("City") regarding the City's construction of improvements for the Bayside Drive, Jamboree Road and Marine Avenue Rehabilitation Project (the "Project") on property owned by PPA (the "PPA Property"). The improvements to be constructed on the PPA Property consist of sidewalk and associated handicapped access ramps, storm drain and related laterals, slope modifications and construction of a retaining wall, and removal and replacement of landscaping and landscape irrigation systems impacted by the slope modification and construction activities (collectively, the "Project Improvements") in the locations shown on the plans entitled "Bayside Drive, Marine Avenue and Jamboree Road Rehabilitation C-7224-1" dated September 10, 2018, and prepared by Arturo Vivar of Mark Thomas (the "Project Plans"). This letter describes the documents to be used to implement the Project and the commitments between PPA and the City regarding implementation of the Project on the PPA property. 1. Construction of Project Improvements. City will, at its sole cost and expense, design and construct the Project Improvements. To implement the construction, PPA and the City will execute a Temporary Construction Easement in the form of Exhibit 1 attached hereto concurrently with execution of this letter agreement. Prior to commencing construction, City will obtain PPA's approval of the Project Plans for the Project, which will be designed and constructed to City standards. City will include indemnity and third party beneficiary provisions in its construction contract with its contractor ("Contractor") as more specifically described in Section 2 below. Upon completion of the Project Improvements and City's acceptance thereof, City will deliver to PPA the TCE Closure Form (attached as Exhibit D to the Temporary Construction Easement), and upon PPA's confirmation of the information on the TCE Closure Form, the parties will insert TCE Termination Date as the "Effective Date" of the Grant of Easement for Sidewalk & Storm Drain Purposes, which is attached hereto as Exhibit 2, which Easement Deed shall be executed by PPA and delivered to City concurrently with this letter agreement. Upon insertion of the Effective Date into the Easement Deed and acceptance of said Easement Deed by City, City will be responsible for recording the Easement Deed in the Official Records of Orange County, California ("Official Records") . 2. Required Provisions in Construction Contract. City shall include the following provisions in its construction contract for the Project Improvements with Contractor: JRC\30110-1010\4851-6985-9717 v.2 1/11/2019 a. Indemnification. To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its elected and appointed officers, agents, officials employees, volunteers and the entity that owns the property (Promontory Point Apartments LLC) upon which Contractor constructs the Project or performs any Services contemplated by this Contract (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a "Claim" and collectively, "Claims"), whether incurred by or made against any Indemnified Party, which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Contract, any Work performed or Services provided under this Contract including, without limitation, defects in workmanship or materials or Contractor's presence or activities conducted on the Project (including without limitation the negligent, reckless and/or willful acts and/or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable for any or all of them. Contractor's obligations under this provision shall survive the completion of the Work and the termination of this Contract until expiration of the applicable statute of limitations as to any Claim arising from or related to the Work or Services. Third Party Beneficiary; Additional Insured. Contractor acknowledges and agrees that Promontory Point Apartments LLC, the owner of the property on which the Work will be performed, shall be a third party beneficiary of this Contract as to all of Contractor's insurance and indemnity obligations contained in this Contract. To that end, City shall require Contractor to name Promontory Point Apartments LLC as an additional insured on any Commercial General Liability Insurance policy provided by Contractor to City in connection with performance of the Work. 3. Maintenance of Project Improvements. Prior to recordation of the Easement Deed in the Official Records, City shall be responsible for maintenance and repair of the Project Improvements. After recordation of the Easement Deed, City will be responsible for maintenance, repair and replacement of the sidewalk and associated handicapped access ramps, main line fifteen (15) inch storm drain and facilities within the Easement Area described in the Easement Deed and within City's street right-of-way, and PPA will be responsible for maintenance, repair and replacement of the retaining wall, storm drain laterals, sub -drain, landscaping and landscaping irrigation systems constructed on the PPA property outside of the Easement Area described in the Easement Deed. Except as otherwise provided in the Temporary Construction Easement and the Easement Deed, each party will be solely responsible for the costs to maintain the Project Improvements as described in the preceding sentence. 4. Setback Variance. In consideration for the agreement by PPA to allow construction of the Project Improvements on PPA property, City acknowledges and agrees that notwithstanding any provisions of the City's municipal or building codes to the contrary, the granting of the Easement Deed by PPA to the City shall not modify the setback requirements for improvements on the PPA property as such setbacks exist on the date of this letter agreement. It is the intent of the parties hereto that any building setback requirements will be determined from the existing right-of-way line for City's adjacent street right-of-way and not from the back of the sidewalk improvements constructed pursuant to the Temporary Construction Easement. If further documentation of the setback requirements for buildings on the PPA property is required beyond this letter agreement, City shall grant any applicable variance or other process or documentation necessary to effect any modification to the City's setback requirements as they apply to the PPA property. 5. Reimbursement of Legal Fees. City acknowledges that Company has incurred legal fees in connection with the preparation of the documents for the Project, and agrees to reimburse Company for the amount of JRC\30110-1010\4851-6985-9717 v.2 1/11/2019 such legal fees not to exceed Seven Thousand Five Hundred Dollars ($7,500.00) within thirty (30) days of City's receipt of Company's invoice for same, which invoice shall be accompanied by copies of the bills received by Company from its legal counsel for such work. 6. Notices. Any notice, demand, request, consent, approval or communication under this letter agreement shall be in writing and either served personally or sent by prepaid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed given (a) upon personal delivery or (b) forty-eight (48) hours from deposit of such notice in the United States mail, postage prepaid. To Ci : CITY OF NEWPORT BEACH 100 Civic Center Drive Newport Beach, CA 92658 Attn: Director of Public Works To PPA: IRVINE COMPANY 550 Newport Center Drive Newport Beach, CA 92660 Attn: Dennis Sullivan 7. Successors in Interest. This letter agreement and the provisions contained herein shall be binding upon and inure to the benefit of City, PPA, and their respective successors and assigns. 8. Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. 9. Exhibits. The following exhibits are attached hereto and incorporated herein by this reference: Exhibit 1: Temporary Construction Easement Exhibit 2: Grant of Easement for Sidewalk & Storm Drain Purposes 10. Counterparts. This letter agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. If the foregoing accurately reflects the City's understandings of each of our respective rights and obligations respecting the matters described herein, please cause the enclosed copy of this letter to be signed by the City Manager and return it to John Boslet at the address for notices set forth in Section 6 above. If you have questions regarding this matter or require additional information, please call John Boslet at (949) 720-2329. [Signature Page Follows] JR0301 1 0-101 0\4851-6985-9717 v.2 1/11/2019 [Signature Page to Letter Agreement] Sincerely, Promontory Point Apartments LLC, a Delaware limited liability company Theresa A. Prestwood Senior Vice President, Community Management Operations Vonny Gillette Assistant Secretary Acknowledgment by City City has reviewed this letter and agrees that its content accurately reflects City's understanding of the rights and obligations of City and PPA regarding the matters described herein. City of Newport Beach, a municipal corporation and charter city By: ace K. Leung City Manager ATTEST: r By: tNUWU/w Leilani I. BrownCl APPROVED AS TO FORM: �ZipORN� By: i � - Aaron C. Harp (Am 0%11,140 City Attorney JRC\30110-101 0\4851-6985-9717 v.2 1/11/2019 Signature Page to LetterA;;reenrentl Sincerely, Promontory Point Apartments LLC, a Delaware limited liability comp< Theresa A. Senior Vice Presi3ent, Community Management Operations By: - . Vonny Gill tt Assistant Secretary Acknowledgment by City City has reviewed this letter and agrees that its content accurately reflects City's understanding of the rights and obligations of City and PPA regarding the matters described herein. City of Newport Beach, a municipal corporation and charter city By: Grace K. Leung City Manager ATTEST: By: Leilani 1. Brown APPROVED AS TO FORM: By: Aaron C. Harp (Am m17,140 City Attorney .IRC%30110-] 01 0\4851-6985-9717 v.2 1/11/2019 cc: Patrick Arciniega, City of Newport Beach Dennis Sullivan, Irvine Company Apartment Communities John Boslet, Irvine Company Shawn Monterastelli, Esq., Irvine Company James Cavanaugh, Esq. .IRC\30110-1010\4851-6985-9717 v2 1/11/2019 EXHIBIT I TEMPORARY CONSTRUCTION EASEMENT JRC\30110-1010\4851-6985-9717 v.2 1/11/2019 TEMPORARY CONSTRUCTION EASEMENT (City Improvements next to Promontory Point Apartments) THIS TEMPORARY CONSTRUCTION EASEMENT (the "Easement Agreement') is made as of January 22, 2019 (the "TCE Commencement Date") by and between Promontory Point Apartments LLC, a Delaware limited liability company ("PPA'), and the City of Newport Beach, a municipal corporation and charter city ("City'). RECITALS A. PPA is the fee owner of certain real property located in the City of Newport Beach, County of Orange, State of California, described as Parcels 1 and 3 as per map filed in Book 49, Page 15 of Parcel Maps, in the Official Records of Orange County, California (the "PPA Property"). PPA operates an apartment community known as "Promontory Point" on the PPA Property. The PPA Property is located adjacent to Bayside Drive and Jamboree Road. The portion of the PPA Property that is subject to this Easement Agreement is described and depicted on Exhibit A attached to this Easement Agreement (the "Easement Area'). B. In connection with City's Bayside Drive, Marine Avenue and Jamboree Road Rehabilitation Project (the "Project'j, City desires to perform the following within the Easement Area: (i) modify the slopes on the PPA Property and construct a retaining wall to create room for adjacent sidewalk improvements, (ii) construct sidewalk and drainage improvements, (iii) perform grading as required to construct the Project, and (iv) remove and replace landscaping and landscape irrigation lines impacted by the construction of the retaining wall, sidewalk and drainage improvements (collectively, the "Project Improvements"). The Project Improvements are more specifically described in those certain plans entitled `Bayside Drive, Marine Avenue and Jamboree Road Rehabilitation C-7224-1" dated September 10, 2018, and prepared by Arturo Vivar of Mark Thomas (the "Project Plans"), which Project Plans have been approved by PPA prior to execution of the Easement Agreement. City will obtain access to the Easement Area across and through existing Jamboree Road and Bayside Drive street right-of-way. C. City desires permission to enter the Easement Area to facilitate construction of the Project pursuant to the Project Plans. D. In connection with City's proposed construction of the Project, City has requested that PPA grant to City a temporary easement over the Easement Area for access and construction purposes, and PPA is willing to provide such temporary easement upon the terms and conditions contained herein to facilitate construction of the Project. AGREEMENT NOW, THEREFORE, in consideration of the promises and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: A. Changes to Project Plans. In the event of any change to the Project Plans that would (a) require that additional portions of the PPA Property be used for the Project, (b) change the boundaries of the Easement Area under this Easement Agreement or under the permanent easement to be conveyed by PPA to City after completion of construction of the Project, or (c) change the proposed Project Improvements, such as changes to drainage or retaining wall footings (each, a "Proposed Change Affecting PPA Property"), City agrees to provide copies of said proposed changes to PPA for its review and approval prior to City's implementation of such proposed changes. PPA agrees to complete its JR030110-101014837-8089-5107 v.3 12/19/2018 review and provide its comments or suggested changes to same to City within ten (10) business days of PPA's receipt of any such Proposed Change Affecting PPA Property provided by City. After receipt of PPA's comments, City shall take any one or more of the following steps: (i) revise the Project Plans in accordance with PPA's comments and resubmit same to PPA for its approval; or (ii) revert to the Project design shown on the Project Plans. The Parties will follow the above process until PPA approves each Proposed Change Affecting PPA Property. If PPA fails to provide its comments to City within ten (10) business days of PPA's receipt of any Proposed Change Affecting PPA Property provided by City, the changes shall be deemed to be approved by PPA. PPA's review of or concurrence in the course of City's preparation of the Project Plans, or PPA's subsequent review of any Proposed Change Affecting PPA Property, shall be only as to the conformity of same with the requirements of this Easement Agreement and their impacts on the PPA Property, and shall not be deemed to be a review of the engineering design or the adequacy or sufficiency of the design or final improvement plans or of the construction contemplated thereby for any use or purpose. Further, by reviewing the Project Plans or approving any Proposed Change Affecting PPA Property, PPA assumes no liability or responsibility therefor or for any defect in the design of the Project or any construction performed by or on behalf of City pursuant to any Project Plans approved by PPA. B. Grant of Temporary Easement. 1. Description of Easement. PPA grants to City a temporary easement (the "Easement") in, on, over and across the Easement Area to construct the Project in accordance with the Project Plans that have been approved by PPA, subject to the terms and conditions set forth in this Easement Agreement. 2. Character of Easement. a. Specific Uses and Purposes. The Easement is granted for and is limited to the following uses and purposes: (i) Construction of the Project Improvements within the Easement Area; (ii) Deposit of tools, implements and other materials necessary in connection with Project construction, but without the right to use the Easement Area for storage of materials, tools or equipment; (v) Ingress and egress over the Easement Area in connection with any of the foregoing activities. All of the uses and activities listed above shall be performed in such a manner that there is no disturbance at any time to any portions of the PPA Property outside of the Easement Area, including without limitation the surface of any parking lot located within the PPA Property or any retail shopping center properties owned by The Irvine Company LLC or any of its affiliates on Bayside Drive (collectively, "Retail Center Property"). Further, unless otherwise approved in writing by PPA, there shall be no barricades (other than as necessary for construction of the Project Improvements in accordance with the Project Plans) of any vehicular or pedestrian entries into the PPA Property or any other activities undertaken within the Easement Area that would preclude use of the parking lots by the tenants and occupants of the apartment buildings on the PPA Property or the Retail Center Property, nor shall there be any parking of vehicles or equipment or storage of materials related to Project construction on the PPA Property or the Retail Center Property. b. Nonexclusive. PPA retains the nonexclusive right to use, and to grant to others the nonexclusive right to use, the Easement Area for all lawful purposes that do not materially interfere with the uses and purposes specified in Section B.2(a) above. 1RC\301104010\4837-8089-5107 0 12/19/2018 2 C. Use of Easement. Use of the Easement shall be limited to City and its construction manager and its and their employees, invitees, contractors, representatives and agents (the "City Parties'). The Easement Area will not be open to the general public. The Easement Area may be used only during hours specified by City ordinance for construction of public improvements. City's use of the Easement shall at all times be conducted in a manner that minimizes disruption of the ongoing operations of all apartments and businesses on the PPA Property and Retail Center Property. d. Limited to the Easement Area. Nothing contained in this Easement Agreement shall be deemed to grant any rights as to any property owned by PPA other than the Easement Area. e. Term. The term (the "Easement Term") of the Easement shall be from the TCE Commencement Date set forth on the first page of this Easement Agreement until the first to occur of any of the following (the "TCE Termination Date"): (i) The date inserted by the PPA Contact Person as defined herein, as the "TCE Termination Date" in the TCE Closure Form after completion of the Project and PPA's inspection of the Easement Area pursuant to Section H below; or (ii) Use of the Easement Area for any purpose not expressly permitted in this Easement Agreement or violation by City of any material term contained in this Easement Agreement where such unpermitted use or violation is not cured within ten (10) business days of City's receipt of written notice from PPA; provided, however, that if such violation is of a type that cannot reasonably be cured within ten (10) business days, it will be deemed cured if City commences to cure the violation within such period and proceeds diligently thereafter to complete the cure of such deficiency. f. Subject to Existing Conditions. The Easement is subject to all easements, covenants, conditions, restrictions, reservations, rights and rights-of-way, of record, apparent by reasonable inspection, or of which City has actual notice, as such matters now affect the Easement Area. g. Incorporation of General Provisions. The General Provisions Regarding Construction of Project ("General Provisions") attached hereto as Exhibit B shall apply to all work performed pursuant to this Easement Agreement. h. Definition of Easement Activities. As used in this Easement Agreement, "Easement Activities" shall mean any and all acts or omissions which result from or relate to, whether directly or indirectly, the rights granted to, and obligations undertaken by, City and the other City Parties pursuant to the terms of this Easement Agreement, whether occurring before or after the TCE Commencement Date. Condition of Easement Area. a. City acknowledges that neither PPA nor any person or entity acting on behalf of such entity has made any representation or warranty, express or implied, as to the condition of the Easement Area or its suitability for the purposes described in this Easement Agreement, and that PPA has no duty to inspect the Easement Area and no duty to warn any person of any latent or patent defect, condition or risk that might be incurred in the exercise of the rights granted in this Easement Agreement. JR0301 10-101 0\4837-8089-5107 v.3 12/19/2018 b. City further acknowledges that it has inspected the Easement Area, is fully aware of the condition thereof and agrees to accept and use the same, if at all, in its "AS IS" condition with any and all defects. C. Compliance with Law; Maintenance; Protection of Facilities. 1. Compliance with Law. City shall, at its sole cost, comply with all applicable laws, regulations and rules with respect to the use of the Easement Area, including, without Iimitation, any laws, regulations and rules that govern storm water quality and erosion control. Protection of Existing Facilities. a. Protection of Facilities. City shall during the Easement Term, at no cost to PPA, protect in place any existing utilities, pipelines, conduits, irrigation lines, drainage facilities or other improvements existing on the Easement Area, except for any of the foregoing to be altered in accordance with the Project Plans approved by PPA. Unless any temporary or permanent relocation or alteration of such facilities is shown on the Project Plans, any temporary or permanent relocation or alteration of such facilities shall be subject to the prior written approval of PPA. In addition, if applicable, the utility company or any other third party having an existing easement or license over the Easement Area must approve of the temporary or permanent relocation of such facilities. b. Repair of Damage. City shall, at its sole cost, promptly restore (to substantially the same condition as immediately prior to such damage) any improvements located upon, under, over, across or along the Easement Area that are damaged in connection with the Easement Activities, consistent with the requirements of Section 2.13 of the General Provisions. D. Restoration of Easement Area upon Termination; Remedy for Failure to Restore. Upon completion of the Easement Activities within the Easement Area, City shall, at its sole cost, repair or replace utilities, improvements, trees and other landscaping damaged, destroyed or affected by the Easement Activities as nearly as practical to the condition that existed as of the TCE Commencement Date except to the extent such items are required to be altered in connection with construction of the Project Improvements in accordance with the Project Plans. Upon completion of any such restoration work, City shall schedule an inspection of the Easement Area with PPA's Contact Person and submit a copy of the TCE Closure form (completed as to the City portion) in the form of Exhibit C. After PPA inspects the Easement Area and confirms that the restoration has been completed to PPA's reasonable satisfaction, PPA shall execute the TCE Closure Form, insert the TCE Termination Date in the space provided at the bottom of said form, and deliver a signed copy of same to City. The TCE Termination Date shall be the effective date of the Grant of Easement to City, which City shall be responsible to record promptly after insertion of such date and acceptance of the Grant of Easement by City. In the event that City does not accomplish the foregoing restoration work within the time period specified above (or fails to timely undertake any other action required of it under the terms of this Easement Agreement), PPA may provide City with written notice of such failure describing the deficiencies in reasonable detail. If such deficiency is not corrected within ten (10) business days of City's receipt of such notice, PPA 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 City commences to cure the deficiency within such period and proceeds diligently thereafter to complete the cure of such deficiency. If PPA elects to cure the deficiency, City shall reimburse PPA for its costs in curing the deficiency within thirty (30) days of City's receipt of PPA's invoice for such costs, which invoice shall be accompanied by copies of receipts evidencing the actual cost of cure incurred by PPA. Interest shall accrue on any amounts unpaid by City within said thirty -day period at the rate of ten percent (10%) per annum. JR0301 10-10 1 0\4837-8089-5107 v.3 12/19/2018 4 E. Contact Person. The respective contact persons of PPA and City for all matters and other coordination of activities under this Easement Agreement are specified in Section 6 of the General Provisions. F. Miscellaneous. 1. Controlling Law. This Easement Agreement shall be governed by and interpreted in accordance with the laws of the State of California. 2. Notices. All notices, consents, demands, requests and other communications provided herein shall be in writing and shall be deemed to have been duly given if and when personally served or 48 hours after being sent by United States registered mail, return receipt requested, postage prepaid, to the other party at the following respective address (or such other address as PPA or City may designate to the other in writing): If to PPA: Promontory Point Apartments LLC c/o Irvine Company Apartment Communities 131 Theory Irvine, CA 92617 Attn: Dennis Sullivan And to: Irvine Management Company 550 Newport Center Drive Newport Beach, CA 92660 Attn: General Counsel's Office If to City: City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Attn: Director of Public Works. 3. Severability. If any provision of this Easement Agreement, or the application thereof to any - person or circumstances, is found to be invalid, the remainder of the provisions of this Easement Agreement, or the application of such provision to persons or circumstances other than those as to which it is found to be invalid, as the case may be, shall not be affected thereby. 4. Waiver: Remedies. No delay on the part of any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party hereto of any right, power or privilege hereunder operate as a waiver of any other right, power or privilege hereunder, nor shall any single or partial exercise of any right, power or privilege hereunder, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. 5. Successors. The covenants, terms, conditions and restrictions of this Easement Agreement shall be binding upon and inure to the benefit of the parties hereto and each of their respective successors and assigns. 6. Construction. Headings at the beginning of any section, paragraph and subparagraph are solely for the convenience of the parties and are not a part of this Easement Agreement. Any reference to a section herein includes all paragraphs and subparagraphs thereof. This Easement Agreement shall not be construed as if it had been prepared by either party, but rather as if both parties had prepared the same. JR030110-1010\4837-8089-5107 v.3 12/19/2018 7. Exhibits. Exhibits A through C attached hereto are hereby incorporated herein by this reference as if set forth in full in the body of this Easement Agreement. 8. No Third Party Beneficiaries. No person or entity other than the parties to this Easement Agreement shall be deemed to be a third party beneficiary hereof, and nothing in this Easement Agreement (either express or implied) is intended to confer upon any person or entity (other than parties to this Easement Agreement and their respective successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Easement Agreement. 9. Time of Essence. Time is of the essence of this Easement Agreement and each and every term and provision hereof. 10. Survival. The provisions of this Easement Agreement which by their nature would survive the expiration or earlier termination of this Easement Agreement (including without limitation, the insurance, indemnity and release provisions of Exhibit B shall survive such expiration or earlier termination. [Signature Page Follows] JRC\30110-1010\4837-8089-5107 v.3 12/19/2018 6 Exhibit A Uga—I Description and Depiction of Easement Area .1RG130110-101014837-8089-5107 v.3 12/19/2018 Exhibit B General Provisions Regarding Construction of Proiect The following General Provisions shall apply to activities under this Temporary Construction Easement: Provisions related to Construction of Improvements. A. Changes to Project Plans. In the event of any changes to the Project Plans, City shall not commence construction of any Project Improvements that are the subject of any such changes within until City has complied with the provisions of Section A of this Easement Agreement. B. Liens. City shall not suffer or permit to be enforced against the Easement Area or any other portion of the PPA Property, any mechanics', materialmen's, contractors' or subcontractors liens or any claim for damage (collectively, "Liens") arising from the work of any construction, excavation, survey, tests, grading, repair, restoration, replacement or improvement, or any other work performed by City or any other City Parties in connection with the Project, but City shall pay or cause to be paid all of said liens, claims or demands before any action is brought to enforce the same against the Easement Area or any other portion of the PPA Property. If a Lien is recorded against the Easement Area or any PPA Property as a result of such activities by the City Parties, City shall, immediately at its own expense, either (i) record or file, or cause its Contractor to record and file, in the Official Records, a bond executed by a good and sufficient surety and reasonably approved by PPA, in a sum equal to one hundred twenty-five (125%) of the amount of the Lien, which bond shall guarantee the payment of any amounts that the claimant may recover on the Lien, together with such claimant's cost of suit in the action if the claimant recovers therein, or (ii) otherwise resolve such matter to PPA's reasonable satisfaction. If City fails to accomplish either such action within ten (10) days following City's receipt of notice of recordation of such Lien, PPA may, at its election, either obtain the bond described above or pay all or a portion of the Lien claim. Any amount paid by PPA either for the premium of the bond or for the removal of the Lien, shall be immediately reimbursed by City together with interest thereon at the rate of 10% per annum. Notwithstanding anything to the contrary set forth above, if City shall in good faith contest the validity of any such lien, claim or demand, then City shall, at its expense, defend itself and PPA against the same and shall pay and satisfy any adverse judgment that may be rendered thereon before any enforcement thereof against PPA or the Easement Area or the PPA Property, but only upon the condition that if PPA shall so require, City shall procure and record or furnish to PPA a surety bond or other acceptable security satisfactory to PPA in an amount at least equal to such contested lien, claim or demand indemnifying PPA against liability for the same, and holding the Easement Area and the PPA Property free from the effect of any such lien or claim. C. Notice of Non -Responsibility. PPA shall have the right to post and maintain notices of non -responsibility adjacent to the Easement Area in locations that do not materially interfere with City's construction of the Project. D. Hazardous Materials. No "hazardous or toxic wastes, substances or materials," as such terms are or may from time to time be defined by Federal, state, county or municipal laws, ordinances, orders or regulations applicable to the use of the Easement Area (which regulated materials are collectively hereinafter referred to as "Hazardous Materials") shall be placed or used or allowed to be placed or used on the Easement Area by the City Parties. In the event any Hazardous Materials are discovered or known to exist on the Easement Area or in the groundwater beneath the Easement Area or otherwise to have escaped or emanated from the Easement Area as a result of either or both the activities of the City Parties or the construction of the Project, City shall at its cost diligently arrange for and complete the immediate removal thereof and all clean-up and remedial measures ordered by any applicable governmental agency. City shall JRC\30110-1010\4837-8089-5107 v.3 12/19/2018 Exhibit B Pagel of 5 promptly report to PPA in writing any unusual or potentially important "incidents" involving Hazardous Materials, including spills, fires, revocation of permits and receipts of notices of violation, including but not limited to: (i) all required reports of spills, storage, use or existence of Hazardous Materials, including notices of any release of Hazardous Materials required by Superfund, EPCRA, California Health & Safety Code Section 25359.7, or any other applicable law or regulation, (ii) all spills and other releases of Hazardous Materials and all fires, (iii) all notices of suspension of any permits, (iv) all notices of violation from Federal, state or local authorities, (v) all orders under the Hazardous Waste Control Act and the Hazardous Substance and Account Act, and the corresponding Federal statutes concerning investigations, compliance schedules, clean-up or other remedial action, (vi) all orders under the Porter -Cologne Act, including corrective action orders, cease and desist orders, and clean-up and abatement orders, (vii) any notices of violation from OSHA or Cal -OSHA concerning employees' exposure to Hazardous Materials, and (viii) all complaints and other pleadings filed against any of the City Parties related to the use, storage, disposal or release of Hazardous Materials on or from the Easement Area. E. Protection of Existing Facilities Within Easement Area. City shall, during the term of this Agreement, at no cost to PPA, protect in place any existing utilities, pipelines, sewers, storm drains, irrigation lines, drainage facilities and other improvements (collectively, "Facilities") within the Easement Area of any Temporary Construction Easement (unless as otherwise shown on the Project Plans approved by PPA); provided, however, that City may (a) remove landscaping within the Easement Area provided that it replaces any trees, shrubs or other landscaping with replacement landscaping as specified in the Project Plans, and (b) relocate or otherwise alter existing Facilities after first obtaining approval of same as provided below. Any temporary or permanent relocation or alteration of any Facilities within said Easement Area shall be subject to the prior written approval of PPA and, if applicable, the utility company or any other third party having an existing easement or right over said parcel. With respect to any relocation or alteration of Facilities proposed by City within said Parcel, City shall submit the plans and specifications for the relocation to PPA for review and approval prior to any disruption of the existing Facilities (unless such relocation or alteration is shown on the Project Plans). F. Coordination and Stagina of Construction. City shall, or shall cause its contractors to, coordinate their planned construction within the Easement Area with PPA prior to commencement of work within each Easement Area. City acknowledges that a residential apartment community is located on the PPA Property adjacent to the Easement Area, and City will require its contractors to use best efforts to minimize interference with the operations of the apartment community and residents thereof during its activities under the Easement Agreement, including but not limited to, compliance with the following: (i) Access to Easement Area. Unless otherwise agreed by PPA in writing, City shall require its contractors to take access to any Easement Area adjacent to PPA Property from the side of the Easement Area closest to the existing public right-of-way and not from the PPA Property side of the Easement Area; (ii) Use of Restrooms. City shall advise its contractors that restrooms in the leasing office or any other building on PPA Property and the Retail Center Property are for the employees, residents and tenants of such properties, and that contractor and its employees shall not use such facilities. (iii) Parkina. Unless otherwise agreed by PPA in writing, City shall require that all City Parties shall not at any time park vehicles or equipment within any portion of the PPA Property or the Retail Center Property. JR030110-1010\4837-8089-5107 v.3 12/19/2018 Exhibit B Page 2 of 5 (iv) Work Hours. City shall require that its contractors and their employees comply with work hours established under City ordinances unless otherwise specified in the Project Plans. (v) Lane Closures. In addition to the requirements of the Project Plans, City agrees that in connection with any work that would impair access to the apartment community on the PPA Property, City's contractor shall coordinate with PPA in advance and when PPA approval has been obtained, shall stage its work so that no more than one lane of traffic into the PPA Property is closed at one time, and then only during the work adjacent to such entry. At the end of each work day, contractor shall cover any excavated area over any access points with steel plates or other devices capable of withstanding the weight of vehicles entering the PPA Property, including delivery trucks, thereby permitting access to business on such property until commencement of contractor's work the following work day. (vi) Storage. City shall advise its contractors that they shall not use any portion of the PPA Property outside of the Easement Area for storage of materials, equipment, trailers, portable toilets or any other materials. (vii) Lessee Coordination. City acknowledges that PPA's conveyance of the Easement does not mean that any lessee or resident of the apartments on the PPA Property or the stores within the Retail Center Property has been notified by PPA or the owner of the Retail Center Property of City's construction activities, and that City shall be responsible for responding to any requests for information raised by such lessees and residents at City's sole cost. (viii) Trash Removal, Street Cleaning. At the end of each work day for all activities next to PPA Property, City's contractors shall clean trash from any portion of the Easement Area that may impede access to the PPA Property, and generally clean the Easement Area so that it maintains a neat appearance. Contractor shall dispose of all trash from the Project at locations off the PPA Property and shall not use any trash receptacle or storage containers on the PPA Property for disposal of Trash. In addition, at the end of each work day and during the work day where project work causes mud or dirt within or outside the entry points to the PPA Property, City's contractors shall sweep or otherwise clean such area and parking lot surface to a neat and clean condition acceptable to PPA. 2. Maintenance. Repair and Restoration Obligations. A. Maintenance. City shall, at its sole cost, keep and maintain the Easement Area in a safe condition at all times, and in accordance with any laws, regulations and rules governing the construction of the Project. B. Repair of Damage, Restoration. City agrees at its sole expense to: (i) Repair or replace any damage to any improvements, including, without limitation, walls and facilities located upon, under, over, across or along the Easement Area, as well as any improvements located on PPA Property outside of the Easement Area, that are in any manner whatsoever damaged or removed in connection with the construction of the Project or the exercise by City of the rights granted under this Easement Agreement or any Exhibit hereto, within five business days of any damage thereto (after PPA's approval of the proposed repair plan). Notwithstanding the foregoing, any improvements within the Easement Area covered by any Temporary Construction Easement that are constructed, removed or changed in order to complete the Project in accordance with the Project Plans shall not be considered to (A) be damaged or to require repair or replacement by City, or (B) have JRC130110-10104837-8089-5107 v.3 12/192018 Exhibit B Page 3 of 5 adversely affected any adjacent PPA Property so long has City has complied with the provisions of this Easement Agreement. (ii) Upon completion of the activities and work within the Easement Area or at such times as otherwise agreed by PPA, City shall (A) perform erosion control and other restoration work within the Easement Area in accordance with the requirements of this Easement Agreement, and (B) certify to PPA in writing that the Easement Area and any other PPA Property damaged during the course of constructing the Project have been repaired and restored in accordance with this subsection. (iii) In addition to the foregoing requirements, after PPA's inspection of the Easement Area upon completion of the Project, City shall provide PPA with any environmental assessment or analysis reasonably requested by PPA to confirm that the Easement Area has not been adversely affected by any activity related to the Project and interim uses of the Easement Area that occurred during the City's activities pursuant to the Easement Agreement. In the event any portion of the Easement Area has been so adversely affected by any of such activities, City shall arrange for, contract with licensed contractors, and pay for the cleanup and restoration of the affected portions of the Easement Area to its original condition (other than for improvements constructed in accordance with the Project Plans), all in accordance with all applicable laws, ordinances, regulations and orders of any nature with respect to Hazardous Materials or environmental contamination as soon as practicable after the completion of the applicable environmental assessment or analysis. In the event that City does not accomplish any repair, replacement or restoration required pursuant to this Section within the time periods specified above, PPA may provide City with written notice of such failure describing the deficiencies in reasonable detail. If such deficiency is not corrected within ten (10) business days of City's receipt of such notice, PPA 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 City commences to cure the deficiency within such period and proceeds diligently thereafter to complete the cure of such deficiency. If PPA elects to cure the deficiency, City shall reimburse PPA for its costs in curing the deficiency within thirty (30) days of City's receipt of PPA's invoice for such costs, which invoice shall be accompanied by copies of receipts evidencing the actual cost of cure incurred by PPA. Interest shall accrue on any amounts unpaid by City within said thirty -day period at the rate of ten percent (10%) per annum. 3. Insurance. City shall comply with the insurance requirements specified in Exhibit B-1 as to insurance required of City, its construction manager and other contractors as described therein. Such insurance shall be obtained prior to commencement of construction of the Project and thereafter maintained at all times until completion of the Project, and in no event will such insurance be terminated or otherwise allowed to lapse prior to City's satisfaction of its obligations under the Easement Agreement or such longer period as may be specified in Exhibit B-1. The insurance required pursuant to the terms of the Easement Agreement shall provide coverage with respect to activities related to the Project occurring both before and after the Commencement Date of the Easement Agreement. 4. Indemnification. City hereby agrees to indemnify, defend with counsel reasonably satisfactory to PPA, protect and hold harmless PPA, The Irvine Company LLC and any person or entity controlling, controlled by or under common control with either such entity, and each of their respective owners, shareholders, partners, members, divisions, officers, directors, employees, representatives and agents, and all of their respective successors and assigns (collectively, the "Indemnitees" and each, an "Indemnitee"), and each of them, and its and their property from all claims, losses, liabilities, damages, penalties, fines, orders, judgments, liens, costs and expenses (including but not limited to, attorneys' fees, court costs and expert witness fees) of any nature (collectively, "Claims"), whether incurred by or made against any Indemnitee, arising out of, based upon or relating to (a) the Project and all other activities JRC\30110-1010\4837-8089-5107 v.3 12/192018 Exhibit B Page 4 of 5 related to the construction of' the Project, includin_-, but not limited to mechanics liens and claims ul'am nature related to I laZardOWS Nilaterials. (b) the use of, the Easement Area. (c) the presence ol'the City anis the Cite Parties on the Easement ,Area and an% other PPA Property. or (d) the performance or nonperformance by City ul' its Obligations under the Easement Agreement: provided. however. that nothin" contained in this Section shall operate to relieve an Indemnitee from any Claim to the extent determined b\ a court of competent jurisdiction to be proximate) caused by the ne`_lk once or ccillfil misconduct of such Indemnitee. Payment of anv claim by an Indernnitee shall not be a condition precedent to CO's obligations under this Section. City's oblivations under this Section shall not be construed as to negate or uthen\ ise reduce am other richt or obli-ation of indemnitN that \\ ould otherwise exist at law or in equit\. The indemnity obligations hereunder shall survive termination or expiration of the Easement Aureement until expiration of the applicable statute of limitations for am Claim. �. Release.. City releases each and all of the Indemnitees of and from and any and all Claims related to matters arising under this Easement Aureement or the Project. Miether knomi or - unknown. which ma\ exist as of the date of the Easement Agreement or thereafter. which Cite has ever had or claimed to have had or now has or claims to have or hereafter may have or claim to have asainst the Indemnitees (tile "Releused Cluinn"): provided. however. that the Released Claims shall not include. and no Indernnitee shall be released from. anv Claim to the extent determined by a court of competent jurisdiction to have been caused by the negligence or cc illful misconduct ofsuch Indemnitee. Cite covenants that it \\ ill nut briny, any action. suit or proceeding in law or in equity against the Indemnitees with respect to any Released C'lainns. City ackno\%ledges that it has been informed by its attorneys and advisors of the provisions of California Civil Code Section 1542 and that it is familiar with and expressly \yaives the provisions of said Section, and any sinnilar statute, code, la\\. ur re"ulation of an\ state of the United States. or ol'the United States, to the fullest extent that it may waive such rk,hts and benefits. Said Civil Code Section reads as follows "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN 13Y HIM OR HER MUST HAVE MATERIALLY .AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." 6. Contact Person. City and PPA hereby designate the following persons to act as their respective representatives for purposes of communications. approvals ur other matters under this E.asennent Agreement and for coordination of any matters related to this Easement Agreement and the Grant of Easement to be ,ranted for the completed side\\alk and drainage improvements. Cite and PPA agree that execution ol' any approynl or written connIII Lill ical ion by such person shall be binding, on the parte upon whose befall' the Contact Person is signing. Either parte max substitute another person in place of the person designated helm\ b\ providin, \�ritten notice to the other part. Cite Contact Person: Patrick ArcinieL,a Cite of'Ne\\port Beach 100 Civic Center Drive Newport Beach. CA 92660 Phone: (9 19) 644-33-17 E-mail: PArcinie ga(uAnew1-2urtbea�hca.euI IIZ( ailln-lulu-!Xt' I' lu;''(ilY f:xhibit 13 PPA Contact Person: Dennis Sullivan Irvine Company Apartment Connmunities 131 Theory Irvine. CA 92617 Phone: (919) 720-2417 E-mail: dsullivanl-ci>irvineconu?any.com Exhibit B-1 Insurance Requirements Insurance Types. (a) Prior to commencement of construction of the Project, City shall obtain, or shall cause its contractor or third party construction manager ("Contractor'l to obtain, all insurance required to be obtained pursuant to the terms of this Exhibit. In addition, City shall require any other contractors undertaking work in connection with the Project on behalf of City ( "Other Contractors') to carry the levels of insurance specified in Section 12 below, and shall cause Contractor and the Other Contractors to comply with the provisions of Paragraphs 11 and 12 below. (b) All insurance described in this Exhibit will be maintained at no expense to PPA with insurance carriers authorized to do business in California, having a general policyholder's rating of not less than an "A" and financial rating of not less than "VII" in the most current Best's Key Rating Guide. In no event will such insurance be terminated or otherwise allowed to lapse prior to City's completion of the Project or such longer period as may be specified herein. The insurance described in this Exhibit may be provided in whole or in part through a policy or policies covering other liability and projects; provided, however that (a) the aggregate limit contained in any such policy or policies providing general liability or environmental liability coverage shall apply exclusively to the subject matter of this Easement Agreement, and (b) all such policies shall contain, permit or otherwise unconditionally authorize the waiver contained in Paragraph 9 below. The various limits of liability specified in this Exhibit may be provided by any combination of primary and excess liability insurance policies. 2. Evidence of Insurance. As evidence of specified insurance coverage, City shall deliver, or cause to be delivered, and PPA will accept: (a) certificates issued by the appropriate insurance carrier (not insurance agents) showing such policies in force for the specified period, together with (b) policy endorsements signed by the appropriate insurance carrier (not insurance agents) evidencing: (i) the notice requirements specified below in this Paragraph 2, (ii) the Contractual Liability coverage specified in Paragraph 5 below, (iii) the waiver of subrogation specified in Paragraph 9 below, and (iv) the coverage with respect to "Additional Insureds" required pursuant to Paragraph 10 below; but PPA has the right to require to be submitted for PPA's review certified policies. Such evidence shall be delivered to PPA prior to the Effective Date. Each policy and certificate shall be subject to reasonable approval by PPA and shall provide that such policy shall not be subject to cancellation/non-renewal without thirty (30) days' prior notice in writing to be delivered by registered mail to PPA at the address set forth in the Agreement. IR030110-1010\4837-8089-5107v.312/192018 Exhibit 13-1 Pagel of 4 From the cancellation section of the certificate of insurance shall be deleted the words "endeavor to" and "the failure to mail such notice shall impose no obligation or liability of any kind upon PPA." Should any policy expire or be cancelled before the expiration of the period during which the same was to be maintained and City fails immediately to procure, or cause the procurement of, other insurance as specified, PPA reserves the right, but shall have no obligation, to procure such insurance, and any amount paid by PPA for the premium thereof shall be immediately reimbursed by City together with interest thereon at the rate of 10% per annum. 3. Damages. Nothing contained in these insurance requirements is to be construed as limiting the type, quality or quantity of insurance City or any other party should maintain or the extent of City's or such other party's responsibility or liability for payment of damages resulting from Claims (as defined in Exhibit B to this Easement Agreement). The carrying of the insurance as specified herein shall not be construed to be a limitation of liability on the part of the City or any other party, nor shall it relieve City or any other party from any liability under this Easement Agreement or as a matter of law. Further, nothing herein shall be interpreted to waive any rights PPA may have as to City's or any other party's insurance, nor shall PPA be required to make a claim against such insurance. Without limiting the generality of the foregoing, any deductible limit shall be timely satisfied by City, at its sole cost. 4. Workers' Compensation Insurance. There shall be maintained workers' compensation insurance, including: (a) employer's liability at a minimum limit of one million dollars ($1,000,000) for all persons employed in connection with the Project, and (b) a waiver of subrogation by the insurance carrier with respect to PPA. Such insurance shall be in strict accordance with the requirements of the most current and applicable workers' compensation insurance laws in effect from time to time for projects in the City of Newport Beach. 5. Commercial General Liability Insurance. There shall be maintained with respect to all work in connection with the Project, commercial general liability insurance on an "occurrence" basis, with deductibles reasonably acceptable to PPA, with a combined single limit for bodily injury and property damage of five million dollars ($5,000,000), or limit carried, whichever is greater, covering, without limitation: (a) Operations, (b) Independent Contractors, (c) Products and Completed Operations, (d) Broad Form Contractual Liability, (e) Broad Form Property Damage, (f) Separation of Insureds clause (the policy shall not contain any cross liability clause or endorsement that excludes lawsuits between any insured parties), (g) Personal Injury, and (h) Explosion, Collapse and Underground Hazards (X, C, U). 6. Automobile Liability Insurance. There shall be maintained owned, hired and non -owned automobile liability insurance on an "occurrence" basis, with reasonably acceptable deductibles, covering all use of all automobiles, trucks, and other motor vehicles utilized in connection with the Project with a combined single limit for bodily injury and property damage of five million dollars ($5,000,000), or limit carried, whichever is greater. 7. Professional Liability Insurance. With respect to all architectural, design or engineering services undertaken as a part of the Project, there shall be maintained a policy of professional liability insurance, on a claims -made basis, with reasonably acceptable deductibles, with a limit of not less than one million dollars ($1,000,000), or limit carried, whichever is greater, covering prior acts. Such insurance shall be maintained for a period of at least five (5) years after the termination or expiration of this Agreement. 8. Environmental Impairment Liability Insurance. There shall be maintained, with respect to all activities in connection with the Project, environmental impairment insurance on a claims made basis, with reasonably acceptable deductibles, with a combined single limit for bodily injury and property damages of one million dollars ($1,000,000), or limit carried, whichever is greater, covering in substance JR0301 10-1010\4837-8089-5107 v.3 12/19/2018 ExhibitB-I Page 2 of 4 acceptable to PPA: (a) injuries to persons due to actual or alleged exposure to Hazardous Materials, and (b) damage to soil, water, air or other property from Hazardous Materials (including, without limitation, any and all response or remediation costs). 9. Waiver of Subrogation. City hereby waives, on behalf of itself and all contractors and subcontractors performing work in connection with the Project, all rights against the Indemnitees for Claims to the extent covered by City's required policies of insurance. All policies of insurance required herein shall contain a provision under which the insurance carrier waives the right of subrogation with respect to PPA and such other parties specifically listed as "Additional Insureds" below. 10. Additional Insureds. The commercial general liability and the environmental impairment liability insurance policies required to be maintained pursuant to this Exhibit shall contain a provision naming as additional insureds the Indemnitees (collectively, the "Additional Insureds'). For purposes of naming the Indemnitees as additional insureds, the following provisions shall be included within each applicable policy: "It is understood and agreed that coverage afforded by this Policy shall also apply to the following persons as additional insureds, but only with respect to liabilities or claims caused by, resulting from, or arising out of the work of the named insured or of others performing the work on behalf of the named insured.- Promontory Point Apartments LLC, a Delaware limited liability company, Irvine Management Company, and any person or entity controlling, controlled by or under common control with either such entity, together with their respective owners, shareholders, partners, members, division, officers, directors, employees, representatives and agents, and all of their respective successors and assigns. This insurance is primary and any other insurance or self-insurance maintained by such additional insureds is noncontributing with this insurance as respects claims or liability caused by, arising out of or resulting from the acts or omissions or work of the named insured, or of others who performed work on behalf of the named insured. Any of .such additional insureds may, at his/her/its election, pay any self-insured retention or deductible amount in connection with any claim or liabilityfor which coverage is or may be provided by such insurance, notwithstanding any other provision of the policy." In addition, such policies shall contain a provision that the naming of an additional insured shall not negate any right that the additional insured would have had as a claimant under the policy if not so named. 11. Contractor Agreements. If Contractor obtains any of the foregoing required insurance, prior to the date of the Easement Agreement, City shall deliver to PPA a copy of Contractor's written agreement to the terms of Paragraph 9 of this Exhibit. Further, prior to the commencement of any construction activity by Contractor and each Other Contractor, City shall deliver to PPA an indemnification and release from Contractor and each Other Contractor in form and substance identical to the indemnity and release set forth in Sections 4 and 5 of Exhibit B. 12. Other Contractor Insurance. The levels of insurance required to be carried by each Other Contractor for the following types of insurance shall be as follows (unless City or Contractor requires higher levels of insurance from such Other Contractors): (a) Workers Compensation: Same as required in Section 4 of this Exhibit. (b) Commercial General Liability: $2,000,000 General Aggregate, $1,000,000 Products and Completed Operations Aggregate; $1,000,000 Personal Injury Liability. Any Contractor responsible for work involving trenching or other work over five feet in depth shall carry $5,000,000 per occurrence and aggregate liability coverages; (c) Automobile Liability: $1,000,000 each occurrence; 1R030110-101OW837-8089-5107 v.3 12/192018 Exhibit B -I Page 3 of 4 (d) Professional Liability: $1,000,000 per claim, and $2,000,000 in the aggregate. In addition to the above, City shall deliver to PPA, prior to the TCE Commencement Date, such Other Contractors' written agreement to the terms of Paragraph 9 of this Exhibit. 1RC\30110-1010\4837-8089-5107 0 12/19/2018 Exhibit B -I Page 4 of 4 Exhibit C TCE CLOSURE FORM To: Dennis Sullivan, PPA Contact Person Re: Bayside Drive, Jamboree Road and Marine Avenue Rehabilitation Project Temporary Construction Easement With respect to the above -referenced Temporary Construction Easement, City hereby confirms that (a) it has completed its activities under said easement and makes the following representations to PPA, and (b) that upon the TCE Termination Date inserted below after PPA's confirmation of the restoration of the Easement Area, City shall have no further right, title or interest in the Easement Area: City Response City City's (circle one) Representation Initials Yes No City has removed all of its materials, equipment, trash or debris from the Easement Area. Yes No N/A All restoration work (including but not limited to erosion control and repair and replacement of damaged improvements and landscaping), has been completed in compliance with the requirements of the Temporary Construction Easement. Yes No All terms of the Temporary Construction Easement have been met by City. Date of Completion of Activities: CITY OF NEWPORT BEACH By: Name: Title: David A. Webb Public Works Director [Space below Double Line to be completed by PPA Contact Person] The undersigned representative of PPA hereby confirms that the above matters have been completed satisfactorily, and that the date set forth beneath the signature below shall be the TCE Termination Date for all purposes under this Temporary Construction Easement. Date: PPA Contact Person TCE Termination Date: , 20 JRC\301 10-101 0\483 7-8089-5107 v.3 12/19/2018 EXHIBIT 2 GRANT OF EASEMENT FOR SIDEWALK & STORM DRAIN PURPOSES JRC\301 10-101 0\485 1 -6985-9717 v.2 1/11/2019 RECORDING REQUESTED AND WHEN RECORDED RETURN TO: CITY OF NEWPORT BEACH CITY CLERK'S OFFICE 100 CIVIC CENTER DRIVE Newport Beach, CA 92658-1768 WITH A CONFORMED COPY TO: PROMONTORY POINT APARTMENTS LLC c/o Irvine Company 550 Newport Center Drive Newport Beach, CA 92660 Attn: General Counsel's Office Recording Fee: Exempt (Government Code — Section 6103) (Space above this line for Recorder's use) GRANT OF EASEMENT FOR SIDEWALK & STORM DRAIN PURPOSES FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, PROMONTORY POINT APARTMENTS LLC, a Delaware limited liability company ("Grantor"), owner of certain real property described herein situated in the City of Newport Beach, County of Orange, State of California, hereby grant(s) to the CITY OF NEWPORT BEACH, a municipal corporation and charter city ("Grantee"), a non-exclusive easement (the "Easement") for sidewalk, main line fifteen (15) inch storm drain and facilities (collectively, the "Facilities") in, under, over, along, and across certain real property in the City of Newport Beach, County of Orange, State of California, more specifically described on Exhibit A and depicted on Exhibit B attached hereto (the "Easement Area"). This Easement is non-exclusive, is granted subject to all prior easements and encumbrances of record, and Grantor reserves the right to grant to others easement rights in and to the Easement Area, provided that such future easement rights shall not substantially interfere with the easement rights granted hereunder. Grantor reserves to itself the right to use the surface of the Easement Area for maintenance, repair and replacement of (a) the slope and the retaining wall and footings located on Grantor's property adjacent to the Easement Area, and (b) any landscaping, landscape irrigation systems and other improvements on Grantor's property adjacent to the Easement Area; provided that Grantor shall not erect, place or construct any permanent buildings or structures within the Easement Area (other than for those, if any, that exist as of the date of recordation of this Grant of Easement), without the prior approval of Grantee. Grantee shall maintain the Facilities within the Easement Area in proper working condition at all times. Grantee shall be liable for its own negligence and willful misconduct and that of its employees, agents and independent contractors in connection with the exercise of Grantee's rights under this Easement. Grantee shall pay Grantor for any damage to the property of Grantor, including without limitation the slope, landscaping, landscape irrigation, drainage facilities and retaining wall on Grantor's property adjacent to the Easement Area, caused by or arising from Grantee's use of the Easement Area or maintenance activities under this Easement. Grantee assumes all risk arising out of its use of the Easement. JRC/301 10-10 1 0\4832-0319-7827 v.4 12/19/2018 CERTIFICATE OF ACCEPTANCE This CERTIFICATE OF ACCEPTANCE is to certify that the interest in real property conveyed by this Grant of Easement dated 20_, by and between the City of Newport Beach, a municipal corporation and charter city, as Grantee, and Promontory Point Apartments LLC, a Delaware litnited liability company, as Grantor, is hereby accepted on , 20_, by the undersigned officer on behalf of the City of Newport Beach pursuant to authority conferred by Resolution No. 1992-82 of the City Council adopted on July 27, 1992. The City consents to the recordation of said document in the Office of the Recorder of Orange County, State of California. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By:,�s _ Aaron C. Harp aM 00%Z40 City Attorney ATTEST: By: Leilani 1. Brown, City Clerk JRG30110-10101483200319-7827c4 12%104018 CITY OF NEWPORT BEACH, a municipal corporation and charter cite By: Grace K. Leung City Manager 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 ORANGE On 20_, before me, , a Notary Public, personally appeared , 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 signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public (SEAL) JRC/30110-1010\483200319-7827 v.4 12/19/2018 Exhibit A Legal Description of Easement Area JRCGOI 10-10101483200319-7827 v.4 12/192018 EXHIBIT "A" LEGAL DESCRIP'T'ION All that real property situate in the City of Newport Beach, County of Orange, State of California, being a portion of Parcel 1 as shown on a map filed in Book 49, Page 15 of Parcel Maps, in the office of the County Recorder of said county, more particularly described as follows: Beginning at a point on the northerly right of way line of Bayside Drive as shown on said Parcel Map which bears South 75°34'57" East, 277.64 feet from a 2" Brass disk in monument well on the centerline of Bayside Drive as shown on said Parcel Map, also being the westerly terminus of a curve concave northerly having a radius of 799.98 feet with a radial bearing of North 33'20'13" East, a central angle of 28'12'14", and a length of 393.79 feet as shown on said Parcel Map; thence leaving said northerly right of way line North 13'09'11 " East, a distance of 3.50 feet to the beginning of a non -tangent curve concave northerly and concentric with and lying 3.50 feet northerly, measured at right angles from said right of way, having a radius of 753.48 feet with a radial bearing of North 13002'06" East; thence easterly along said concentric curve through a central angle of 07054'07", a distance of 103.92 feet to the beginning of a line parallel with and lying 3.50 feet northerly, measured at right angles from said right of way; thence along said parallel line South 84°52'01" East, a distance of 100.00 feet to the beginning of a tangent curve concave southwesterly and concentric with and lying 3.50 feet northerly, measured at right angles from said right of way having a radius of 846.47 feet; thence easterly along said concentric curve through a central angle of 27'36'13", a distance of 407.81 feet to the beginning of a reverse curve concave northerly having a radius of 18.50 feet with a radial bearing of North 32°44' 13" East; thence easterly through a central angle of 52028'17", a distance of 16.94 feet along said curve to the beginning of a non -tangent curve concave southerly having a radius of 853.83 feet with a radial bearing of South 33°43'17" West; thence southeasterly through a central angle of 03°38'08", a distance of 54.18 feet along said curve to the beginning of a non -tangent curve concave northeasterly having a radius of 19.00 feet with a radial bearing of South 84°22'19" East; thence southeasterly through a central angle of 57°11'57", a distance of 18.97 feet along said curve to a point on said northerly right of way line of Bayside Drive, which bears North 11 115'38" East, 50.96 feet from a 2" Brass disk in monument well per said Parcel Map, also being the easterly terminus of a curve concave southwesterly with a radius of 799.98 feet, a central angle of 34°57'45", and a length of 488.16 feet as shown on said Parcel Map, also being the beginning of a non -tangent curve concave southerly and having a radius of 844.97 feet with a radial bearing of South 38°2544" West; thence along said northerly right of way line of Bayside Drive the following three (5) courses: 1) Northwesterly through a central angle of 02'50'19", a distance of 41.86 feet along said curve, 2) Non -tangent South 35°35'25" West, a distance of 2.00 feet to the beginning of a non - tangent curve concave southwesterly having a radius of 842.97 feet with a radial bearing of South 35°3525" West, 3) Northwesterly through a central angle of 30°27'26", a distance of 448.11 feet along said curve, 4) North 84°52'01" West, a distance of 100.00 feet to the beginning of a tangent curve concave northerly having a radius of 756.98 feet and 5) Northwesterly through a central angle of 07°54'09", a distance of 104.41 feet along said curve to the Point of Beginning. Containing a total of 2,795 square feet more or less The Basis of Bearings for this survey is based on the bearing between OCS Horizontal Control Station GPS No. 6266 and Station GPS No. 6280 being North 83°18'32" West per Records on file in the office of the Orange County Surveyor. Coordinates are based on the California Coordinate System (CCS83), Zone VI, 1983 NAD, (2007.00 Epoch OCS GPS Adjustment). All distances are grid, multiply all distances by 1.00002923 to obtain ground distances. This legal description was prepared by me or under my direction, in accordance with the Professional Land Surveyors Act. All as more particularly shown on Exhibit B attached hereto and made part hereof. Subject to: Covenants, conditions, reservations, restrictions, rights of way and easements of record, if any. l AND 1 BRANDON BENTON Brandon Benton, PLS 8679 Ik 'F W No. 8679 �9ff OF CA01 Page 2 of 2 Date Exhibit B Depiction of Easement Area JRC/30110-10101483200319-7827 v.4 12/192018 LEGEND A PORTION OF PARCEL 1 POB POINT OF BEGINNING PER P,M.Fi 49 !15 (R) RADIAL FOUND MONUMENT AS NOTED O DIMENSION POINT F7,771 AREA DESCRIBED — - — TIE LINE THE BASIS OF BEARINGS FOR THIS SURVEY IS BASED ON THE BEARING BETWEEN OCS HORIZONTAL CONTROL STATION GPS NO. 6266 AND STATION GPS NO. 6280 BEING NORTH 83'18'32" WEST PER RECORDS ON FILE IN THE OFFICE OF THE ORANGE COUNTY SURVEYOR. COORDINATES ARE BASED ON THE CALIFORNIA COORDINATE SYSTEM (CCS83), ZONE VI, 1983 NAD, (2007.00 EPOCH OCS GPS ADJUSTMENT). ALL DISTANCES ARE GRID, MULTIPLY ALL DISTANCES BY 1.00002923 TO OBTAIN GROUND DISTANCES, 4/') 0 2" BRASS CAP IN WEI (P.M.B. 49/15) & NORTHERLY TERMINUS NORTHERLY RIGHT OF WAY LINE ,3 t AND S��L\ BRANDON BENTON J'�9TFNo. 8679 0 0 Cp\ CURVE TABLE R= 753.48' C1 4= 07 54'07" L =103.92' R= 756.98' C5 a=07 54'09" L=104.41' LINE TABLE L1 N1309'11'E• 3.50' L2 S84 52'01 "E 100.00' L4 N84 52'01 "W 100.00' PEDESTRIAN INGRESS/EGRESS EASEMENT TO CITY OF NEWPORT BEACH PER / 11218/770 OR. PROMONTORY POINT L APARTMENTS LLC. P6rcd/1 ct)%.W! 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