HomeMy WebLinkAboutC-7224-4 - Temporary Construction EasementTEMPORARY 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"), 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 Proiect 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
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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.
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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.
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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 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 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.
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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.
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7. 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.
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]
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[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 and charter city
By: 4=
ra K. Leung U
ty Manager
ATTEST:
M
Leilani I. Brown �.,
City Clerk U
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APPROVED AS TO FORM: ��
ORN�P
Aaron C. Harp (kN o�ltz��1
City Attorney
PROMONTORY POINT APARTMENTS LLC,
a Delaware limited liability company
By:
Name: Teresa A. Prestwood
Title: Senior Vice President,
Community Management Operations
By:
Name: Vonny Gillette
Title: Assistant Secretary
JRC\30110-1010\4837-8089-5107 v.3 12/19/2018
7
[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 and charter city
By:
ATTEST:
Leilani 1. Brown
City Clerk
APPROVED AS TO FORM:
Aaron C. Harp fJ►MO�tLL\��
City Attorney
JRCt30110-1010,4537-8089-5107 v.3 12/19/2018
Grace K. Leung
City Manager
PROMONTORY TPA MENTS'
a Delaware limit liability om a
By:
Name: Teresa A.restwood
Title: Senior Vic President,
Community Management Operations
By: 11
Name: Vonnyviecretary
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Title: Assista
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
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.
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I certify under PENALTY OF PERJURY under the laws
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KRISTEN JARECKY
Notary Public • California WITNESS my hand and official seal.
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My Comm. Expires Oct 20, 2021 Signature
Signatur o Notary blic
Place Notary Seal Above
OPTIONAL
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Description of Attached Document
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Exhibit A
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Exhibit B
General Provisions ReEardine Construction of Project
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 (1) 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\301 10-1010\4837-8089-5107 v.3 12/19/2018 Exhibit B
Page 1 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 Staging 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:
(1) 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) Parking. 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.
JRC\30110-1010\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
18030110-1010\4837-8089-5107 v.3 12/19/2018 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 (100/0) 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\301 10-101 0\4837-8089-5107 v.3 12/192018 Exhibit B
Page 4 of 5
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 anv other PPA 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 hldemnitee. Payment of any claim by all 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 equit}. The indemnity obligations hereunder shall survive termination or expiration of
tine 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 Cit- 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 "Reletised 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 orally 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 PPA hereby designate the following persons to act as their respective
representatives for purposes of communications, approvals or other matters under this Easement
Agreenlent and for coordination of any matters related to this Easement Agreement and the Grant of
Easement to be granted fbr the completed sidewalk and drainage improvements. City and PPA 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 parte may substitute another person in place of the
person designated below by providing written notice to the other parte.
Cit' Contact Person:
Patrick Arciniega
City of Newport Beach
100 Civic Center Drive
Newport Beach. CA 92660
Phone: (949) 644-3347
E-mail: PArciniega@newportbeachca.gov
.114'.30110-1010'4837-8080-5107 v.3 12/ 19,12018
PPA Contact Person:
Dennis Sullivan
Irvine Company Apartment Communities
131 Theory
Irvine. CA 92617
Phone: ( 949) 720-2417
E-mail: dsuilivan@.irvinecompaiiy.com
Exhibit B
Page 5 0l';
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 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.
JRC\30110-1010\4837-8089-5107v.3121192018 ExhibitB-I
Page I 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
JR030110-1010\4837-8089-5107 0 12/19/2018 Exhibit B-1
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;
JR030110-1010W837-8089-51070 12/19/2018 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.
JR030110-101014837.3089-5107 v.3 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: David A. Webb
Title: 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:
PAA Contact Person
TCE Termination Date: , 20
JRC\30110-1010\4837-8089-5107 v.3 12/19/2018