Loading...
HomeMy WebLinkAboutC-4073(B) - Encroachment Agreement (Pelican Hill Road South: Maintenance of Non-Standard Landscaping in Street Right-of-Way)• ire 1)-)-«o ell RECORDED REQUESTED BY AND WHEN RECORDED, RETURN TO: Public Works Department City of Newport Beach P.O. Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 WITH A COPY TO: The Irvine Company LLC 550 Newport Center Drive Newport Beach, CA 92660 Attn: Brigid McMahon Legal Affairs Department Exempt recording requested per Gov. Code 6103 Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIaIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIINO FEE 2007000068545 12:16pm 02/01/07 116 91 Al2 19 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 (Space above line for Recorder's use only) ENCROACHMENT AGREEMENT (Pelican Hill Road South: Maintenance of Non -Standard Landscaping in Street Right -of Way) Th3 i&.Encroachment Agreement ("Agreement") is made and entered into this 8(st day of (Macey, 2007, by and between the CITY OF NEWPORT BEACH, a California municipal corporation organized and existing under and by virtue of its Charter and the Constitution and laws of the State of California ("City"), and THE IRVINE COMPANY LLC, a Delaware limited liability company ("Company"). City and Company are sometimes referred to herein individually as a "Party" and collectively as the "Parties." RECITALS A. WHEREAS, City owns, administers and maintains certain public street rights -of - way located within the city limits of City, including rights -of -way for the portion of Pelican Hill Road South located between Newport Coast Drive and Pelican Hill Circle as depicted on Exhibit A attached hereto (the "Right -of -Way"). B. WHEREAS, Company is the owner of parcels of property (the "Resort Property") that border both sides of the Right of Way. The Resort Property is legally described on Exhibit B and depicted on Exhibit C attached hereto. C. WHEREAS, in connection with the operation of the Resort Property, Company desires to install and maintain certain landscaping, landscape irrigation systems and related improvements (collectively, the "Company Improvements") within the portions of the Right -of -Way depicted on Exhibit D attached hereto (the "Maintenance Area"), which is located within the medians located in the center of the Right -of -Way. The Company 30209-0066/358967.4 1/12/07 -1- • Improvements, which must be installed in accordance with plans approved by City as provided below, are considered to be "non-standard improvements" as compared with improvements that City typically installs within street rights -of -way. D. WHEREAS, various public utility easements, sewer, water, street light, storm drain facilities and/or other public improvements (collectively, the "City Facilities") are or may be located within the Right- of -Way; E. WHEREAS, City is willing to allow Company to install the Company Improvements within the Maintenance Area, subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the above recitals and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Company agree as follows: AGREEMENT 1. Permit. City will permit Company to construct, reconstruct, install, maintain, use, operate, repair and replace within the Maintenance Area the Company Improvements generally described on Exhibit E attached hereto. City also will allow Company to take all reasonable measures necessary or convenient in accomplishing such activities. 2. Installation of Company Improvements. Company shall install the Company Improvements within the Maintenance Area in accordance with the plans and specifications for such improvements that have been prepared by Burton Landscape Architecture Studio, entitled "Pelican Hill Road (OFF-2) Median Island Landscape Plans," dated April 21, 2006, which plans and specifications are on file with the City (the "Approved Plans"). 3. Standard of Maintenance. Company shall, at its sole cost and expense, maintain the Company Improvements installed within the Maintenance Area in accordance with general prevailing standards of maintenance, and pay all costs and expenses incurred in doing so. Company's maintenance obligation shall also include replacement of the Company Improvements, where necessary. All replacements and repairs shall be at least equal in quality to the Company Improvements described in the Approved Plans. In addition, Company is responsible for the cost of providing water and any other utilities required in connection with the Company Improvements installed within the Maintenance Area. Nothing contained herein, however, shall be construed to require Company to maintain, replace or repair any City Facilities within the Right -of -Way, except to the extent that the Company Improvements cause damage to the City Facilities. 4. Alteration of Company Improvements. Company shall not substantially alter the Company Improvements from their original condition as installed per the Approved Plans without the prior written approval of City. 5. Failure to Perform. If Company fails to fulfill its maintenance or other responsibilities under this Agreement, City may provide Company with written notice of such failure describing the deficiencies in reasonable detail (the "Deficiency Notice"). If such deficiency is not 30209.0066/358967.4 1/12/07 -2- corrected within thirty (30) calendar days of Company's receipt of the Deficiency Notice, City 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 such period, it will be deemed cured if Company commences to cure the deficiency within such period and proceeds diligently thereafter to complete the cure of such deficiency. If City elects to cure the deficiency, Company shall reimburse City for its actual and reasonable costs incurred in curing the deficiency within. thirty (30) calendar days of Company's receipt of City's invoice for such costs, which invoice shall be accompanied by copies of receipts evidencing the actual cost of cure incurred by City. 6. Liens. Company shall not suffer or permit to be enforced against the Maintenance Area any mechanics, laborers, materialmens, contractors, subcontractors, or any other liens, claims or demands arising from any maintenance or other work performed by Company within the Maintenance Area, but Company shall pay or cause to be paid all of said liens, claims and demands before any action is brought to enforce the same against the Maintenance Area. 7. City Maintenance of City Facilities. City acknowledges that it, or the applicable utility company, will ieuiain responsible for maintenance and repair of all City Facilities within the Maintenance Area. In the event that City finds it necessary to enter the Maintenance Area to maintain, repair, replace, remove or enlarge (collectively, the "Repairs') any of the City Facilities, City may, after ten (10) calendar days prior notice to Company (except in case of emergency, in which event no prior notice is required), remove such portions of the Company Improvements within the Maintenance Area as necessary to accomplish the Repairs. In such event: a. City agrees to minimize, to the extent feasible, the portions of the Company Improvements that must be removed to accomplish the Repairs, and to coordinate with Company regarding cutting of irrigation lines and alterations of Company Improvements so as to minimize disruption of the Company Improvements and the effect of the Repairs on unaffected portions of the Maintenance Area. (The portion of the Maintenance Area affected by the Repairs is referred to herein as the "Affected Area.') b. City shall bear the cost of removing the Company Improvements from the Affected Area to accommodate the City's Repairs. c. Company shall be responsible for arranging for any replacement or restoration of the Company Improvements within the Affected Area, and for all costs associated therewith. In the event that a utility company must enter the Maintenance Area to perform Repairs on its improvements, City shall use best efforts to cause the utility company to comply with the notice, coordination and construction requirements specified above. 8. Term. This Agreement shall remain in effect for so long as the Resort Property is operated; provided, however, that (a) City may terminate this Agreement upon thirty (30) calendar days' prior written notice to Company in the event that Company fails to perform or cure any failure to perform within the times provided in Section 5 above, and (b) Company may terminate this Agreement by providing thirty (30) calendar days' prior written notice to City, in 30209-0066/358967.4 1/12/07 -3- which event Company shall be responsible for removing the Company Improvements and replacing them with City's then standard right-of-way improvements, unless City otherwise directs Company to keep the Company Improvements in place. In addition, if City determines that it needs to use any portion or all of the Maintenance Area where the Company Improvements are located, City may, upon sixty (60) calendar days' prior notice to Company, terminate this Agreement as to all or any portion of the Maintenance Area as needed by City for public use. However, promptly after giving such notice of intended termination to Company, City agrees to meet with Company to discuss alternatives that would avoid or minimize any such termination: The final determination as to whether to adopt or reject any such alternatives shall be made by City in its sole discretion. 9. Assignment. Company may assign its rights and obligations under this Agreement to any person or entity (each, a "Successor") which has, in City's reasonable opinion, the financial capacity and is otherwise capable of performing the maintenance work to be performed hereunder, including but not limited to any commercial or residential association within the Resort Property responsible for maintenance of landscaped or other common areas, a subsequent owner of the Resort Property, or any affiliate of Company (that is, any entity controlling, controlled by or under common control of Company). Any such assignment must be in writing, must contain the Successor's agreement to be fully bound by the terms and provisions of this Agreement, and a copy of such assignment must be delivered to City. After the effective date of any such assignment by Company, Company shall have no further rights or obligations hereunder. 10. Insurance. Any Successor (other than an affiliate of Company) shall obtain, provide and maintain, at its sole cost and expense, a policy or policies of liability insurance of the type and amounts specified below and in form reasonably satisfactory to City, and shall also require in its contracts with any contractors that perform any design, installation, maintenance or other work in the Maintenance Area, that such contractors also provide the same insurance coverage as outlined herein at all times during the performance of any such work, at no cost or expense to City, policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City prior to performance of any work within the Maintenance Area. Except for workers' compensation and any errors and omissions coverage, all insurance policies shall, to the extent coverage is provided under such policies, add City, its elected and appointed officials, officers, agents, representatives and employees as additional insureds for all liability arising from the design, installation and maintenance of the Company Improvements. Insurance policies for the following coverages, with original endorsements related to the Company Improvements and the maintenance work to be performed hereunder, shall be issued by companies approved or licensed to do business in California and assigned Best's A- VII or other rating acceptable to City: a. Workers compensation insurance, including "Waiver of Subrogation" clause, covering all employees of such contractor, per the laws of the State of California. 30209-0066(358967.4 1 / 12/07 -4- • b. Commercial general liability insurance, including additional insured and primary and non-contributory wording, covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be twice the occurrence limit. c. Commercial auto liability and property insurance, including additional insured (and primary and non-contributory wording for waste haulers only), covering any owned and rented vehicles of such contractor in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. d. For any contractors providing design services, professional errors and omissions insurance, which covers the services to be performed in connection with any improvements to be installed within the Maintenance Area, in the minimum amount of $1 million. City may, from time to time, require increases in the amounts of coverage specified above to conform with the levels of insurance required in City landscape maintenance or similar contracts. Said policy or policies shall be endorsed to state that coverage shall not be subject to cancellation or non -renewal without thirty (30) days prior written notice to be delivered to City. All contractors providing insurance as required hereunder shall give City prompt and timely notice of claim made or suit instituted arisingout of contractor's work on the Maintenance Area: Each contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance that in its own judgment may be necessary for its property protection and prosecution of the work. Each contractor will be required to agree that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, contractor shall look solely to its insurance for recovery. The workers compensation policy and any other policy pertaining to the Maintenance Area carried by each contractor will contain a waiver of subrogation with respect to City as to any claims that may be asserted against City by virtue of the payment of any loss under such insurance. 11. Indemnification. Company shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees when outside attorneys are used (collectively, the "Claims') arising from or related to (a) Company's design, installation and/or maintenance of the Company Improvements, (b) the acts of Company or its contractors within the Maintenance Area, and (c) Company's performance of its obligations hereunder; provided, however, that Company's indemnity obligations under this Agreement shall not apply to the extent that any Claim is caused by the negligence or willful misconduct of City or City's contractors within the Right -of -Way. 30209-0066/358967.4 1/12/07 -5- • 12. Run with the Land. This Agreement and the terms, conditions and covenants contained herein shall be perpetual in nature and shall run with the Resort Property and the Right -of -Way, and shall be binding upon and inure to the benefit of Company and City and the successors and assigns of each party, whether the interest held by such party is in fee or otherwise. This Agreement shall be recorded in the Office of the County Recorder of Orange County, California. 13. Notices. All Notices required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given if personally delivered or sent by prepaid first class mail, addressed as follows: If to City: If to Company: City of Newport Beach Public Works Department 3300 Newport Boulevard (P.O. Box 1768) Newport Beach , California 92658-8915 Attention: City Engineer The Irvine Company LLC 550 Newport Center Drive Newport Beach, CA 92660 Attn: Group Senior Vice President & General Counsel Either party may change its address for notice by providing written notice of such changed address to the other. 14. Incorporation of Exhibits. Exhibits A, B, C, D and E, which are attached hereto, are hereby incorporated herein by this reference. 15. Authority. The Parties represent and warrant that this Agreement has been duly authorized and executed and constitutes the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 16. Amendment. This Agreement may be amended only by a written instrument approved and executed by the Parties. 17. Priority. Company agrees that this Agreement shall always be prior and superior to and shall be recorded prior to any mortgage, deed of trust or any other hypothecation or security hereafter placed on the Resort Property. 18. Controlling Law and Venue. The laws of the State of Califomia shall govem this Agreement and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 19. Entire Agreement. This Agreement, together with the Exhibits attached hereto and the Encroachment Permit for the Company Improvements to be executed prior to construction of the Company Improvements, constitutes the entire Agreement between the Parties pertaining to the subject matter hereof, and all prior and contemporaneous agreements, representations, 30209-0066/358967.4 1 / 12/07 -6- • negotiations and understandings of the Parties, whether oral or written, are hereby superseded and merged herein. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written. "Company" The Irvine Company LLC, a Delaware limited liability company By: By: "City" Ronald J. Keith Executive Vice President Commercial Property Development Investment Properties Group k\c1 Mary K. Westbrook Assistant Secretary City of Newport Beach, a California municipal corporation By: Homer Bludau City Manager ATTEST: City Clerk APPROVED AB TO FORM: (g \ By: City Attorney 30209-0066/358967.3 1/5/07 -7- STATE OF CALIFORNIA COUNTY OF ORANGE • )ss. • On .. knij a n g-a , 2007, before me, Sd.narc, L. r i e_k_a art , Notary Public, personally appeared Ronald J. Keith and Mary K. Westbrook, personally known to me or pnaved to top an the rmis of catisfactnry evidenre to be the person(s)_whose namas) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hishh€r/their authorized capacity(isA and that by his/her/their signature® on the instrument, the person(s) or the entity upon behalf of which the personaacted, executed the instrument. WITNESS my hand and official seal. (SEAL) — — — s SANDRA L. ERICKSON r �' CoWIYtn a11SE038i ^,; C Notary Paplc - Callanla f Orange County STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE ) t1ic On , 2007, before me, Notary Public, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same in his authorized capacity, and that by his/her signature on the instrument, the person or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (SEAL) 30209.-0066/358967.4 1/12/07 -8- Notary Public CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT Aa,ii.‘4,av;,p,Goa ¢,.at! 933.!S> B5S At£»Y:.3#3S3,.v.< c�5?atr . S I� 1) Ce LNG'.�'.i.�.�}v4'N}�'n'3+".-'9.}�J}v}":v$�2\✓:`✓.%n�}\?eC�.✓"':�.ayCV'".c.tr 34\it�a'J}�'✓,<ei3v}`e4�✓}"✓' .%.�.T4'vNn✓r✓}'d'`Y:KJ» State of California County of 0glinl6e OnijWI(xtr e 312a�1 before me, Llld1AN"allgiI4l/i/OTd'VLL 1AIOTf Name and Mlle of Mgr te.g.. "Jone Doe. Nmayvuhlial f , UOA U Nemelsl ofagrarlsl «personally known to me proved to me on the basis of satisfactory evidence personally appeared '%%! 1- WASHING- ASHIN TTOra— Comfniulon 11556962 IiS Notary Public - CaWiINo i los sCorMy My Comm. Expires Mare.2004 bmc to be the person whose name» 09 g, subscribed to the within instrument and acknowledged to me that he executed the same in his/l�f/ it authorized capacit , and that by hislWmlC signature on the instrument the persof*, or the entity upon behalf of which the person* acted, executed the instrument. WIT h: d • d official seal. Swan of Notary Pubic OPTIONAL Though the information below Is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: ❑ Individual ❑ Corporate Officer - Title(s): ❑ Partner - 0 Limited 0 General O Attomey-in-Fact O Trustee O Guardian or Conservator ❑ Other: Signer Is Representing RIGHT THUG' DPRINT OF SIGNER Topof thumb here 01999.National Notary Arsodalion • 9350 Da Soto Ave.. P.D. Box 2902 • Clanwohh, CA 9131$32402 • www.natlonahOttary.org Prod. No. 5907 Reorder: Cat Tol-Free 1.00087GA927 • SttEET 1 OF I. 1-03 t 3 a u O o � 1— IQ 14.1 ▪ 52 o � 16 CIoa r z� nc o 0 0 ✓ t a PI 0 112 °a- z • it_ o z >- 0 u ~ V rrt- r- Q z 4 6 g DATE' 7/18/06 J.N. 2042 357522 • EXHIBIT B LEGAL DESCRIPTION OF RESORT PROPERTY THAT CERTAIN REAL PROPERTY IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: PARCEL 1 ALL OF TENTATIVE TRACT NO. 16566. PARCEL 2 ALL OF TENTATIVE TRACT NO. 16567. PARCEL 3 ALL OF TENTATIVE TRACT NO. 16568. PARCEL 4 PARCEL 2 OF LOT LINE ADJUSTMENT NO. LL 2003-027 RECORDED JUNE 24, 2004 AS INSTRUMENT NO. 2004000575815 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA. PARCEL 5 PARCEL 3' OF LOT LINE ADJUSTMENT NO. LL 2003-026 RECORDED JUNE 24, 2004 AS INSTRUMENT NO. 2004000575812 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA. PARCEL 6 LOT 2 OF TRACT NO. 14131 PER MAP FILED IN BOOK 662, PAGES 42 THROUGH 46, INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA. 1 OF 1 Y:InROSECIIuSSIS.SOMIRMAPIDO EOALSCILESORT IROPBRTY.DOC 1 to to to a: 0 pL O Q 0 0 DATEt 7/I8/06 J.N. 2042 357522 Exhibit E Description of Company Improvements The Company Improvements shall consist of such landscaping, landscape irrigation systems and other improvements as more specifically described in the Plans and Specifications described below as described on the following pages of the Approved Plans: a. b. c. d. e. f. g• h. i. 3. k. 1 m. n. o. p. Sheet Number Sheet Number Sheet Number Sheet Number Sheet Number Sheet Number Sheet Number Sheet Number Sheet Number Sheet Number Sheet Number Sheet Number Sheet Number Sheet Number Sheet Number Sheet Number L-0.01, Title Sheet, dated 4/21/06. LI-0.01, Irrigation Legend, dated 4/21/06. LI-1.02, Irrigation Plan, dated 4/21/06. LI-1.03, Irrigation Plan, dated 4/21/06. LI-1.04, Irrigation Plan, dated 4/21/06. LI-1.05, Irrigation Plan, dated 4/21/06. LI-5.01, Irrigation Details, dated 4/21/06. LI-5.02, Irrigation Details, dated 4/21/06. LP-0.01, Fire Fuel Modification Legend and Notes, dated•4/21/06. LP-0.02, Landscape Tree & Shrub Planting Legend & Notes, dated 4/21/06. LP-1.01, Landscape Tree & Shrub Planting Plan, dated 4/21/06. LP-1.02, Landscape Tree & Shrub Planting Plan, dated 4/21/06. LP-1.03, Landscape Tree & Shrub Planting Plan, dated 4/21/06. LP-1.04, Landscape Tree & Shrub Planting Plan, dated 4/21/06. LP-1.05, Landscape Tree & Shrub Planting Plan, dated 4/21/06. LP-5.01, Landscape Tree & Shrub Planting Details, dated 3/10/06.