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HomeMy WebLinkAboutC-3600(A) - Encroachment Agreement (Maintenance of Non-Standard Landscaping in Street Right-of-Way) (for MacArthur Blvd and Bison Avenue - Bluffs Retail Center)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 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, County of Orange Tom Daly, Clerk -Recorder I1111111111111111111111111IIII1111111111111111111111111IIIIIIIIIIIIINo FEE 2003000481070 03:22pm 04/29/03 212 96 Al2 14 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 (Maintenance of Non -Standard Landscaping in Street Right -of Way) This Encroachment Agreement (".Agreement") is made and entered into this /2- day of re-be-wk. -.t , 2003 , by and between the CITY OF NEWPORT BEACH, a California municipal corporation ("City"), and THE IRVINE COMPANY, a Delaware corporation ("Company"). City and Company are sometimes collectively referred to herein as the "Parties." RECITALS A. WHEREAS, City administers and maintains certain public street rights -of -way located within the city limits of City, including rights -of -way for portions of MacArthur Boulevard and Bison Avenue as depicted on Exhibit A attached hereto (the "Rights of Way"). City owns portions of the Rights of Way in fee and portions in easement, as indicated on Exhibit A. B. WHEREAS, Company is the owner of the Bluffs Retail Center (the "Retail Center"), portions of which border the Rights of Way. The Retail Center is legally described on Exhibit B and depicted on Exhibit C attached hereto. C. WHEREAS, in connection with the operation of the Retail Center, Company desires to install and maintain certain landscaping, landscape irrigation systems, lighting, hardscape and related improvements (collectively, the "Companylmprovements") within the portions of the Rights of Way depicted on Exhibit D attached hereto (the "Maintenance Area"), which is located between the property line of the Retail Center and the curb bordering the Rights of Way. The Company JR.C\30209-0032\338793.7 1/20/03 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, stoini drain facilities and/or other public improvements (collectively, the "City Facilities") are located within the Rights of Way; E. WHEREAS, City is willing to allow Company to install the Company Improvements within the Maintenance Area, subject to the teinis and conditions of this Agreement. NOW, THEREFORE, in consideration of the above recitals and for good and valuable consideration, the receipt and sufficiency ofwhich 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 the Company Improvements within the Maintenance Area as 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 Kirby & Company, titled "The Bluffs Retail Center," as more specifically listed on Exhibit E attached hereto, 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 electricity for irrigation of the landscaping and lighting installed within the Maintenance Area in connection with the Company Improvements. 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. -2- JRC\3 0209-003 2`33 8793.7 1/20/03 5. Failure to Perfoini. 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 corrected within thirty (30) 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) 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 perfoinued 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 will remain responsible for maintenance and repair of all City Facilities within the Maintenance Area. In the event that City fmds 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) 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 accomplish the Repairs. 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. 8. Teini. This Agreement shall remain in effect for so long as the Retail Center is operated; provided, however, that (a) City may terminate this.Agreement upon thirty (30) days' prior written notice to Company in the event that Company fails to perfoun or cure any failure to perfouui within -3- JRC\30209-0032`3 3 8793.7 1/20/03 the times provided in Section 5 above, and (b) Company may terminate this Agreement by providing thirty (30) days' prior written notice to City, in 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) days' prior notice to Company, terminate 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 either (a) a commercial association for the Center responsible for maintenance of common areas within the Retail Center, or (b) a subsequent owner of all of the Retail Center (each, a "Successor"). 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 must carry general liability insurance in the amounts specified below for activities within the Retail Center and the Maintenance Area, and shall also require in its contracts with any contractors that perform any design, installation, maintenance or other work in connection with the Maintenance Area, that such contractors obtain, provide and maintain 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 officials, officers, agents, representatives and employees as additional insures for all liability arising from such work related to the Maintenance Area. Insurance policies for the following coverages, with original endorsements related to the Maintenance Area work, 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. 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 -4- JRC\30209-0032\33 87 93.7 1/20/03 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 shall apply separately to the Maintenance Area, 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 confoiuu 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 or 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 arising out 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 City harmless 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 maintenance of the Company Improvements, (b) the acts of Company or its contractors within the Maintenance Area, and (c) Company's perfoinuance 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 active negligence or willful misconduct of City. -5- JRC\30209-0032\3 3 8793.7 1/20/03 12. Attorneys' Fees. In any action between the parties seeking enforcement of any of the teiuus and provisions of this Agreement, the prevailing party in such action shall be awarded, in addition to any damages, injunctive or other relief, its reasonable costs and expenses, including reasonable attorneys' fees. 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 550 Newport Center Drive Newport Beach, CA 92660 Atli: Vice President & General Counsel Retail Properties Either party may change its address for notice by providing written notice of such changed address to the other. 14. Successors and Assigns. Subject to the provisions of Section 9 above, the terms and provisions of this Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the Parties. 15. Incorporation of Exhibits. Exhibits A, B, C, D and E, which are attached hereto, are hereby incorporated herein by this reference. 16. Corporate Authority. The persons executing this Agreement on behalf of each Party warrant that he/she is duly authorized to execute and deliver this Agreement on behalf of the respective Party for whom they sign, and that by so executing this Agreement, each party is bound by the provisions of this Agreement. 17. Amendment. This Agreement may be amended or teiniinated only by a written instrument approved and executed by the Parties. 18. Entire Agreement. This Agreement and the exhibits attached hereto constitute the entire Agreement between the Parties pertaining to the subject matter hereof, and all prior and -6- JRC\3 02 09-0032\3 3 87 93.7 1/20/03 By: Date: contemporaneous agreements, representations, 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, a Delaware corporation By: l6i2 �Zc� Bv: Keith C. Eyrich President, Retail Properties Lee Burckle Assistant Secretary "City" City of Newport Beach, a California r}zunicipal corporation By: City Manage APPRO 1 AS TO FORM: 00/ ity Attorney City Clerk Date: 3L l./% -7- JRC\30209-0032\338793.7 1/20/03 in and for said State, person the within instrument and that by his or her signa person acted ex cd t WITNE STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On 1-.&,b ma_ rI 19- , 200 3 , before me, 3:rrc1-•t c� :� _ g c .i t,ks c n , Notary Public, personally appeared Keith C. Eyrich and Lee Burckle, personally known to me or proved z� ,,,o_ n+�,o-n-,f oat;cfartnry PST ;r1P„�P to be the personOslwhose nameLO4s/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in lher/their authorized capacity(ies), and that by lrer/their signaturej, , on the instrument, the person, s) or the entity upon behalf of which the person(flacted, executed the instrument. WITNESS my hand and official seal. Notary Public (SEAL) STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) 1 ' ► `I",} -1 kPuLIV- On i 1 b-. +re metthe undersigned, � 1otaryPublic `fit '- U ,°persona1lyknown tome to be the person whose name is subscribed to he executed the same in his authorized capacity, and ent, the person or the entity upon behalf of which the d and official seal. `� -8- Notary Public JRC\30209-0032\338793.7 1/20/03 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 54��.�S wSf�S.�4:w�,n�,aa4,-aS �C�aa,�.S�s a.:�4 was w��as �aL��c•��.5, State of California County of y_— SS. On k a i 3 , before me,C\u�f t/.am %-1J 1J a�-Z�(� L� t/.�i,(, Date , and Title of Officer (e.g., Jane Doe, Notary Puh1i ) personally appeared NN-J- L , ✓-3i} 1.4 `+ L(..001^1/4,- c"r`,l-( )S Name(s) of Signer(s) I l personally known to me ❑ proved to me on the basis of satisfactory evidence CATHY FISHER Commission # 1341009 Notary Public - California Orange County My Comm. Expires Feb 21, 2006 Place Notary Seal Above to be the perso whose nam subscribed to th- within instr acknowledged to me that he/di i the sa r _ in his/her capacity and that •y his/her signatur-(�on the instrument the perso the entity upon behalf of which the person acted, executed the instrument. is/ ent and xecuted authori ESS my hand and o icial seal. OPTIONAL Signature •f Notary Public 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 Drotcument �'' Title or Type of Document: t/e0 r�� �t J�f ,-e 4 Document Date: Signer(s) Other Than Named Above: Number of Pages: 3 Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee El Guardian or Conservator ❑ Other: Signer Is Representing: © 1999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.nationalnotary.org RIGHTTHUI OF SIG PRINT R Top of thumb here Prod. No. 5907 Reorder Call Toll -Free 1-800-876-6827 EXHIBIT A DEPICTION BISON A VENUE Or IGI�tTS OF WAY h / e�� / ago LEGEND ' THE BLUEE5 RETAIL SHOPPING GENTEF� CITY FEE CITY EASEMENT The Keith Companies K:\ IJ497.00\DWG\P,RSE0082.DWG 2955 Red Hill Avenue, Costa Mesa, CA 92626 (714) 540-0800 DATE: 09/18/02 JOB NO. 13497.01.000 EXHIBIT B LEGAL DE SGRIPTI O OP BLUFFS DETAIL OE TES ALL THAT REAL PROPERTY SITUATED IN ThE CITY OF NEWPORT BEAGI-f, COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING SI-tOWN AS PARCEL ONE OF PARCEL MAP NO. 2001-140, FILED IN BOOK 32G AT PAGES 48 THROUGH 50, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF . SAID COUNTY. The Keith Companies C K:\IJ497.00\DWG\PRSE006J.DWG 2955 Red Hill Avenue, Costa Mesa, CA 92626 (714) 540-0800 DATE: 09/7 8/02 JOB NO. 73497.01.000 EXHIBIT C DEPIGTIO / /r .OF 3LUFFS RETAIL DE Tht BLUFFS i ETAIL SHOPPING' CENTER BISON AVENUE TER _-, The Keith Companies C K:\IJ497.00\DWG\PRSE0084.DWG 955 Red Hill Avenue, Costa Mesa, CA 92626 (714) 540-0800 DATE: 09/18/02 JOB N0. 1349 7.01.000 i� I I I III I I lI /1 w EXHIBIT. D DEPICTION OF MAINTENANCE AREA I/' .• BISON AVENUE LEGEND ►iiiiiiii' MAINTENANCE AREA -- The Keith Companies C K\ 13497.00\DWC1 PRSE0085.DWC 2955 Red Hill Avenue, Costa Mesa, CA 92626 (714) 540-0800 DATE: 11/19/02 JOB NO. 13497.01.000 Exhibit E Description of Company Improvements; Plans & Specifications 1. Description of Company Improvements The Company Improvements shall consist of such landscaping, landscape irrigation systems, lighting, signage, sidewalks and other improvements as more specifically described in the Plans and Specifications described below. 2. Plans and Specifications Plans and Specifications entitled "The Bluffs Retail Center," prepared by Kirby & Company, more specifically described as follows: a. Construction Set, Sheet Number L0.1, Title Sheet, dated 11/20/02. b. Bulletin L1, Sheet Number L2.1, Irrigation Plan, dated 11/20/02. c. Bulletin L1, Sheet Number L2.2, Irrigation Plan, dated 9/6/02. d. Construction Set, Sheet Number L2.4, Irrigation Legends & Notes, dated 5/20/02. e. Construction Set, Sheet Number L2.5, Irrigation Details, dated 5/20/02. f. Construction Set, Sheet Number L2.6, Irrigation Details, dated 5/20/02. g. Bulletin L1, Sheet Number L3.1, Planting Plan, dated 11/20/02. h. Bulletin L1, Sheet Number L3.2, Planting Plan, dated 11/20/02. i. Bulletin Ll, Sheet Number L3.5, Planting Details, dated 11/20/02. j. Bulletin L1, Sheet Number L3.6, Planting Details, dated 11/20/02. k. Bulletin L1, Sheet Number L3.7, Planting Details, dated 11/20/02. JRC\30209-0032\338793.7 1/20/03