HomeMy WebLinkAboutC-4073(B) - Encroachment Agreement (Pelican Hill Road South: Maintenance of Non-Standard Landscaping in Street Right-of-Way)•
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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
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2007000068545 12:16pm 02/01/07
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(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
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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
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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
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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.
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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.
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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,
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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
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STATE OF CALIFORNIA
COUNTY OF ORANGE
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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
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f Orange County
STATE OF CALIFORNIA
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COUNTY OF ORANGE )
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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
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Notary Public
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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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):
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Signer Is Representing
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DATE' 7/18/06
J.N. 2042 357522
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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.
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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.
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i.
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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.