HomeMy WebLinkAboutC-7224-3 - Temporary Construction EasementM
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TEMPORARY CONSTRUCTION EASEMENT
(City Improvements next to Bayside Shopping Center)
THIS TEMPORARY CONSTRUCTION EASEMENT (the "Easement Agreement") is made as
of , 2019 (the "TCE Commencement Date") by and between The Irvine
Company LLC, a Delaware limited liability company ("TIC"), and the City of Newport Beach, a
municipal corporation and charter city ("City").
RECITALS
a) TIC 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 "TIC Property"). TIC operates
a retail center known as "Bayside Shopping Center" on the TIC Property. The TIC Property is located
adjacent to Bayside Drive. The portion of the TIC Property that is subject to this Easement Agreement is
depicted on ExhibitA 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"), City desires to perform the following within the Easement Area:
reconstruct the driveway approach to the three (3) entrances to the Bayside Shopping Center in
connection with City's installation of cross gutters from Bayside Drive (the "Project Improvements").
The Project Improvements are more specifically described in those certain plans entitled "Bayside Drive,
Marine Way, Jamboree Road Rehabilitation (C-7224-1)" prepared by Mark Thomas, dated January 15,
2019 (the "Project Plans"), which Project Plans have been approved by TIC prior to execution of this
Easement Agreement. City will obtain access to the Easement Area across and through existing 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
TIC grant to City a temporary easement over the Easement Area for access and construction purposes,
and TIC 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 TIC Property be used for the Project, (b) change the boundaries of
the Easement Area under this Easement Agreement, or (c) change the proposed Project Improvements
(each, a "Proposed Change Affecting TIC Property"), City agrees to provide copies of said proposed
changes to TIC for its review and approval prior to City's implementation of such proposed changes. TIC
agrees to complete its review and provide its comments or suggested changes to same to City within ten
(10) business days of TIC's receipt of any such Proposed Change Affecting TIC Property provided by
City. After receipt of TIC's comments, City shall take any one or more of the following steps: (1) revise
the Project Plans in accordance with TIC's comments and resubmit same to TIC for its approval; or (ii)
revert to the Project design shown on the Project Plans. The Parties will follow the above process until
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TIC approves each Proposed Change Affecting TIC Property. If TIC fails to provide its comments to
City within ten (10) business days of TIC's receipt of any Proposed Change Affecting TIC Property
provided by City, the changes shall be deemed to be approved by TIC. TIC's review of or concurrence in
the course of City's preparation of the Project Plans, or TIC's subsequent review of any Proposed Change
Affecting TIC Property, shall be only as to the conformity of same with the requirements of this Easement
Agreement and their impacts on the TIC 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 TIC Property, TIC 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 TIC.
B. Grant of Temporary Easement.
1. Description of Easement. TIC 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 TIC, subject to the terms and conditions set forth in this Easement Agreement.
2. Character of Easement; Special Construction Conditions.
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;
(iii) 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 TIC Property outside of the Easement Area, including without
limitation the surface of the parking lot located within the TIC Property.
b. Special Construction Conditions. Further, unless otherwise approved in writing by TIC,
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 TIC Property or any
other activities undertaken within the Easement Area that would preclude use of the Bayside Shopping
Center parking lot by the tenants, customers and invitees of the Bayside Shopping Center. To that end,
City shall ensure that when constructing the Project Improvements, City's Contractor shall strictly
comply with the requirements of Section 1.F(v) of the General Provisions set forth on Exhibit B
regarding closure of entry driveways into the Bayside Shopping Center.
C. Nonexclusive. TIC 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.
d. 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
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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 businesses in the Bayside Shopping Center.
e. Limited to the Easement Area. Nothing contained in this Easement Agreement shall be
deemed to grant any rights as to any property owned by TIC other than the Easement Area.
f. 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 TIC Contact Person as the "TCE Termination Date" in
the TCE Closure Form after completion of the Project and TIC'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 TIC; 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.
g. Subiect 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.
h. 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.
i. 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.
3. Condition of Easement Area.
a. City acknowledges that neither TIC 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 TIC 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.
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.
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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 limitation, any laws,
regulations and rules that govern storm water quality and erosion control.
2. Protection of Existing Facilities.
a. Protection of Facilities. City shall during the Easement Term, at no cost to TIC, 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 TIC. 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 TIC. 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 TIC'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 TIC
inspects the Easement Area and confirms that the restoration has been completed to TIC's reasonable
satisfaction, TIC 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.
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), TIC 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, TIC 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 TIC elects to cure the deficiency, City shall
reimburse TIC for its costs in curing the deficiency within thirty (30) days of City's receipt of TIC's
invoice for such costs, which invoice shall be accompanied by copies of receipts evidencing the actual
cost of cure incurred by TIC. Interest shall accrue on any amounts unpaid by City within said thirty -day
period at the rate of ten percent (10%) per annum.
E. Contact Person. The respective contact persons of TIC and City for all matters and other
coordination of activities under this Easement Agreement are specified in Section 6 of the General
Provisions.
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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. Attorneys' Fees. In the event of any controversy, claim or dispute relating to this Easement
Agreement or the breach thereof (including, without limitation, declaratory relief or other litigation), the
prevailing party in such action shall be awarded, in addition to damages, injunctive or other relief, its
costs, expenses and reasonable attorneys' fees.
3. 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 TIC or City may designate to the other
in writing):
If to TIC: The Irvine Company LLC
c/o Irvine Company Retail Properties
110 Innovation
Irvine, CA 92617
Attn: Jennifer Ciccone
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.
4. 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.
5. 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.
6. 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.
7. 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.
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8. Exhibits. Exhibits A throe, -h C attached hereto are hereby incorporated herein by this reference
as if set forth in full in the body of this Easement Agreement.
9. 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.
10. Time of Essence. Time is of the essence of this Easement Agreement and each and every term
and provision hereof.
11. 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\4853-2851-8277 0 1/22/2019
[Signature Page to Easement Agreement]
IN WITNESS WHEREOF, the parties have executed this Easement Agreement as of the day and
year first above written.
CITY OF NEWPORT BEACH,
a municipal corporation
Bv:
G#6 K. Leung (J
&tty Manager
ATTEST:
r1E p0
By:
Leilani I. Brown
City Clerk F ,
APPROVED AS TO FORM: �.yLtF�P
By C�v�,,C -kk)d-
Aaron C. Harp WA 4W 11.1
City Attorney
THE IRVINE COMPANY LLC.
a Delaware limited liabilit} company
By:.
Kenneth M. Gillett
Senior Vic iutLnt. Operations
By:
Gre.,g LaCagnina
Vice President. Facilitv NIana<zement
AC 30I 10-101()+4853-38>1-8277 c.3 1;22,'2019
7
Exhibit A
Depiction of Easement Area
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Exhibit B
General Provisions Re2ardinE 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 TIC 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 TIC Property. If a Lien is recorded against the Easement Area or any TIC 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 TIC, 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 TIC'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, TIC may, at its
election, either obtain the bond described above or pay all or a portion of the Lien claim. Any amount
paid by TIC 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 TIC against the same and shall pay and satisfy any
adverse judgment that may be rendered thereon before any enforcement thereof against TIC or the Easement
Area or the TIC Property, but only upon the condition that if TIC shall so require, City shall procure and
record or furnish to TIC a surety bond or other acceptable security satisfactory to TIC in an amount at least
equal to such contested lien, claim or demand indemnifying TIC against liability for the same, and holding
the Easement Area and the TIC Property free from the effect of any such lien or claim.
C. Notice of Non -Responsibility. TIC 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
promptly report to TIC in writing any unusual or potentially important "incidents" involving Hazardous
JRC\30110-1010\4853-2851-8277 v.3 1/22/2019 Exhibit B
Page 1 of 5
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 TIC, 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 TIC); 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 TIC 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 TIC 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 Staging of Construction. City shall, or shall cause its
contractors to, coordinate their planned construction within the Easement Area with TIC prior to
commencement of work within the Easement Area. City acknowledges that a retail shopping center is
located on the TIC Property adjacent to the Easement Area, and City will require its contractors to use
best efforts to minimize interference with the operations of the retail shopping center and its tenants,
customers and invitees 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 TIC in writing,
City shall require its contractors to take access to any Easement Area adjacent to TIC Property from the
side of the Easement Area closest to the existing public right-of-way and not from the TIC Property side
of the Easement Area;
(ii) Use of Restrooms. City shall advise its contractors that restrooms in any
stores within the Bayside Shopping Center are for the tenants, employees, customers, and invitees of the
shopping center, and that contractor and its employees shall not use such facilities.
(iii) Parkin. Unless otherwise agreed by TIC in writing, City shall require
that all City Parties shall not at any time park vehicles or equipment within any portion of the TIC
Property.
(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.
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(v) Entry Driveway Closures; Advance Notice of Work. In addition to the
requirements of the Project Plans, City agrees that in connection with any work that would impair access
to the retail shopping center on the TIC Property, City or its contractor shall provide TIC's Contact
Person with at least five (5) business days' advance written notice of the date(s) on which work will be
performed by City's contractor on any entry way to the shopping center. Further, City's contractor shall
stage its work so that no more than one lane of traffic into the TIC 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 TIC 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 TIC Property outside of the Easement Area for storage of materials, equipment, trailers,
portable toilets or any other materials.
(vii) Lessee Coordination. City acknowledges that TIC's conveyance of the
Easement does not mean that any tenant of the stores within the retail shopping center has been notified
by TIC of City's proposed construction activities.. Therefore, after City or its contractor provides notice
to TIC's Contact Person five (5) business days prior to commencement of work as provided in subsection
(v) above, TIC's Contact Person shall be responsible for notifying any tenants of the retail shopping
center of the planned work dates and for responding to any requests for information raised by such
tenants. City and its contractor shall cooperate with TIC's Contact Person by providing any information
requested by tenants of the retail shopping center regarding the proposed work, the dates of work and
anticipated duration thereof.
(viii) Trash Removal; Street Cleaning. At the end of each work day for all
activities next to the TIC Property, City's contractors shall clean trash from any portion of the Easement
Area that may impede access to the TIC 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 TIC
Property and shall not use any trash receptacle or storage containers on the TIC 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 driveways to the TIC Property, City's contractors shall sweep or
otherwise clean such area and parking lot surface to a neat and clean condition acceptable to TIC.
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, utilities and facilities located upon, under, over, across or along the Easement Area, as well as
any improvements located on TIC 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 TIC'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
JRC\30110-1010\4853-2851-8277 v.3 1/22/2019 Exhibit B
Page 3 of 5
shall not be considered to (A) be damaged or to require repair or replacement by City, or (B) have
adversely affected any adjacent TIC 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 TIC, 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 TIC in writing that the Easement Area and any other TIC 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 TIC's inspection of the
Easement Area upon completion of the Project, City shall provide TIC with any environmental
assessment or analysis reasonably requested by TIC 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, TIC 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, TIC 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 TIC elects to cure the deficiency, City shall reimburse TIC for its costs in curing the deficiency within
thirty (30) days of City's receipt of TIC's invoice for such costs, which invoice shall be accompanied by
copies of receipts evidencing the actual cost of cure incurred by TIC. 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 TIC, protect and hold harmless TIC 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
JRC\30110-1010\4853-2851-8277 v.3 1/22/2019 Exhibit B
Page 4 of 5
of, based upon or relating to (a) the Project and all other activities related to the construction of the
Project, including but not limited to mechanics liens and claims of any nature related to Hazardous
Materials, (b) the use of the Easement Area, (c) the presence of the City and the City Parties on the
Easement Area and any other TIC Property, or (d) the performance or nonperformance by City of its
obligations under the Easement Agreement; provided, however, that nothing contained in this Section
shall operate to relieve an Indemnitee from any Claim to the extent determined by a court of competent
jurisdiction to be proximately caused by the negligence or willful misconduct of such Indemnitee.
Payment of any claim by an Indemnitee shall not be a condition precedent to City's obligations under this
Section. City's obligations under this Section shall not be construed as to negate or otherwise reduce any
other right or obligation of indemnity that would otherwise exist at law or in equity. The indemnity
obligations hereunder shall survive termination or expiration of the Easement Agreement until expiration
of the applicable statute of limitations for any Claim.
5. Release. City releases each and all of the Indemnitees of and from and any and all
Claims related to matters arising under this Easement Agreement or the Project, whether known or
unknown, which may exist as of the date of the Easement Agreement or thereafter, which City has ever
had or claimed to have had or now has or claims to have or hereafter may have or claim to have against
the Indemnitees (the "Released Claims'; provided, however, that the Released Claims shall not include,
and no Indemnitee shall be released from, any Claim to the extent determined by a court of competent
jurisdiction to have been caused by the negligence or willful misconduct of such Indemnitee.
City covenants that it will not bring any action, suit or proceeding in law or in equity against the
Indemnitees with respect to any Released Claims.
City acknowledges 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 waives the provisions of said
Section, and any similar statute, code, law, or regulation of any state of the United States, or of the United
States, to the fullest extent that it may waive such rights 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 BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
6. Contact Person. City and TIC hereby designate the following persons to act as their respective
representatives for purposes of communications, approvals or other matters under this Easement
Agreement and for coordination of any matters related to this Easement Agreement and the Grant of
Easement to be granted for the completed sidewalk and drainage improvements. City and TIC agree that
execution of any approval or written communication by such person shall be binding on the party upon
whose behalf the Contact Person is signing. Either party may substitute another person in place of the
person designated below by providing written notice to the other party.
City Contact Person:
Patrick Arciniega
City of Newport Beach
150 Civic Center Drive
Newport Beach, CA 92660
Phone: (949) 644-3347
E-mail: parcinieg_a@newportbeachca.gov
JR0301 10-101 0\4853-2851-8277 v.3 1/22/2019
TIC Contact Person:
Jennifer Ciccone
Irvine Company Retail Properties
110 Innovation
Irvine, CA 92617
Phone: (949) 720-3138
E-mail: jciccone@irvinecompany.com
Exhibit B
Page 5 of 5
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") 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 TIC
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 TIC 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 TIC has the right to require to be submitted for TIC's review certified policies. Such evidence shall
be delivered to TIC prior to the Effective Date.
Each policy and certificate shall be subject to reasonable approval by TIC 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 TIC at the address set forth in the Agreement. From
JRC\30110-10 1 0\4853-2851-8277 v.3 1/22/2019 Exhibit B-1
Page I of 4
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 TIC." 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, TIC reserves the right, but shall have no obligation, to procure such insurance, and any amount
paid by TIC 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 TIC may have as to City's or any other party's
insurance, nor shall TIC 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 TIC. 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 TIC, 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
JRC\30110-101 0\4853-2851-8277 v.3 1/22/2019 Exhibit B-1
Page 2 of 4
acceptable to TIC: (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 TIC 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: The Irvine Company, 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 liability for
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 TIC 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 TIC 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;
JRC\30110-1010\4853-2851-8277 v.3 1/22/2019 Exhibit B-1
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 TIC, prior to the TCE Commencement
Date, such Other Contractors' written agreement to the terms of Paragraph 9 of this Exhibit.
JRC\301 10- 101 0\4853-2851-8277 v.3 1/22/2019 Exhibit B -I
Page 4 of 4
Exhibit C
TCE CLOSURE FORM
To: Jennifer Ciccone,
TIC 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
TIC, and (b) that upon the TCE Termination Date inserted below after TIC'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: David A. Webb
Title: Public Works Director
[Space below Double Line to be completed by TIC Contact Person]
The undersigned representative of TIC 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:
TIC Contact Person
TCE Termination Date:
2019