HomeMy WebLinkAboutC-6939 - Encroachment Agreement EPN N2006-0019 for Portion of Pelican Hill Road South07
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
U
Post Office Box 1768
Newport Beach, CA 92659-1768
WITH A CONFORMED COPY TO:
The Irvine Company
550 Newport Center Drive
Newport Beach, CA 92660
Attn: Brigid McMahon, Legal Department
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN20 , - ' 0019 )
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
��
this 1� day of (,(I/�1,Z(� I , 2996, by and between The Irvine Company LLC, a
Delaware limited liability comp y (hereinafter "OWNER"), and the City of Newport Beach,
California, a municipal corporation organized and existing under and by virtue of its Charter and
the Constitution and the laws of the State of California (hereinafter "CITY"). OWNER is the
owner of property described on Exhibit A and depicted on Exhibit B attached hereto
(hereinafter "Owner's Property").
WITNESSETH:
WHEREAS, in connection with the operation of its resort and golf course properties in
Newport Coast, OWNER desires to construct certain improvements consisting of a bridge and
various improvements and appurtenances related thereto as described in Section 1 below
(hereinafter, the "Bridge Improvements") within and crossing over the Pelican Hill Road right-
of-way (hereinafter "Right -of -Way") that is located between and separates the two parcels of
Owner's Property described on Exhibit A. The Bridge Improvements are considered to be
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I
"non-standard improvements" as compared with improvements that CITY typically installs
within street rights -of -way; and
WHEREAS, the Bridge Improvements may interfere in the future with CITY'S ability to
construct, operate, maintain, and replace the public street, utility, sewer, water, street light, storm
drains and other public improvements (hereinafter, the "City Facilities") within the Right -of -
Way; and
WHEREAS, CITY is willing to allow OWNER to install the Bridge Improvements
within the Right -of -Way subject to the terms and conditions of this Agreement, and CITY and
OWNER desire to enter this Agreement providing for fulfillment of the conditions required by
CITY to permit OWNER to construct and maintain the Bridge Improvements.
NOW, THEREFORE, in consideration of the above recitals and the mutual promises
contained herein, the parties hereto agree as follows:
Bridte Improvements. The Bridge Improvements shall include the bridge and
all abutments, footings, supporting columns, lighting, landscaping, landscape irrigation systems
and appurtenances related thereto, as described in the plans entitled "Pelican Hill Road Golf Cart
Bridge" prepared by Simon Wong Engineering, dated April 6, 2005 (or such later edition of such
plans as approved by County), which plans have been approved by the County of Orange and are
on file with the Public Works Department of CITY (the "Approved Plans"). In addition, if
OWNER desires, prior to construction of the Bridge Improvements, to change any of the Bridge
Improvements from the Bridge Improvements described on the Approved Plans, such variations
or changes must be approved in advance by County and copies of same shall be provided to
CITY's Public Works Department and shall be shown on the "As Built" plans. After completion
of construction of the Bridge Improvements and the adjacent resort development, OWNER shall
not materially alter the constructed improvements from their original condition as installed per
the Approved Plans without the prior written approval of CITY. CITY's approval of the
proposed alterations to the improvements shall not be unreasonably withheld or delayed.
In addition to the Bridge Improvements (which shall remain the property of OWNER
after completion), OWNER will construct a new storm drain and traffic control devices within
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the Right -of -Way as shown on the Approved Plans, street plans and/or traffic control plans (the
"Non -Bridge Improvements"), pursuant to a separate encroachment permit to be issued by CITY
separate from the encroachment permit issued by CITY related to the Bridge Improvements.
Unlike the Bridge Improvements, the Non -Bridge Improvements will tie into and become City
Facilities upon acceptance thereof by CITY. OWNER is solely responsible for the costs of any
such Non -Bridge Improvements installed by OWNER that will become City Facilities; however,
after acceptance thereof by CITY, CITY shall be responsible for the operation and maintenance
of such Non -Bridge Improvements at CITY's sole cost and expense.
2. RiLiht-of-Way Affected by Bridle Improvements. CITY will permit OWNER
to construct, reconstruct, install, maintain, use, operate, repair and replace the Bridge
Improvements within the portion of the Right -of -Way described on Exhibit C and depicted on
Exhibit D (hereinafter, the "Affected Area"), all in substantial conformance with the Approved
Plans. Further, CITY will allow OWNER to take all reasonable measures necessary or
convenient in accomplishing the aforesaid activities.
3. OWNER's Pre -Construction and Post -Construction Obligations.
a. Prior to construction of the Bridge Improvements, OWNER shall:
i. Obtain from CITY's Public Works Department an Encroachment
Permit (the "Bridge Encroachment Permit") authorizing the construction of the
Bridge Improvements within all portions of the Right -of -Way described in the
Bridge Encroachment Permit, and comply with all conditions of the Bridge
Encroachment Permit. The Bridge Encroachment Permit shall be separate from
the encroachment permit that OWNER must obtain from the CITY for
construction of the Non -Bridge Improvements referenced in the second paragraph
of Section 1 above.
ii. Obtain from CITY's Public Works Department a temporary Street
Closure Permit, and comply with all conditions of such permit.
iii. Advise its contractor (i) that the contractor will be required under
the Bridge Encroachment Permit to obtain commercial liability, automobile, and
workers compensation insurance in amounts required by CITY's Public Works
30209-0066/354946.6 12/23/05 3
Department and CITY's Risk Manager, and (ii) that CITY must be named as an
additional insured on contractor's commercial liability and automobile insurance
policies.
b. After completion of construction of the Bridge Improvements, OWNER shall
grant City an easement for the relocated sidewalks on both sides of Pelican Hill Road that are to
be located on Owner's Property, as shown on the Approved Plans.
4. Construction & Maintenance Obligations. OWNER and CITY further agree as
follows:
a. OWNER may construct and install the Bridge Improvements within the
Right -of -Way, in substantial conformance with the Approved Plans and the Bridge
Encroachment Permit issued by CITY for such construction. OWNER shall be solely
responsible for paying for the costs to construct and install the Bridge Improvements.
b. OWNER shall maintain the Bridge Improvements in good condition and
repair in accordance with the prevailing standards of maintenance for the surrounding
resort property within Newport Coast, and pay all costs and expenses incurred in doing
so. All replacements and repairs shall be at least equal in quality to the Bridge
Improvements described in the Approved Plans. In addition, OWNER is responsible for
the cost of providing water for irrigation of the landscaping and electricity for the lighting
installed within the Affected Area in connection with the Bridge Improvements. Nothing
contained herein, however, shall be construed to require OWNER to maintain, replace or
repair any City Facilities within the Right -of -Way, except to the extent that OWNER
damages the City Facilities in connection with OWNER's construction, operation and
maintenance of the Bridge Improvements.
C. If City Facilities or other public facilities or improvements are damaged
by OWNER's installation, operation and/or maintenance of the Bridge Improvements,
OWNER shall be responsible for performing all repairs at OWNER's sole expense.
d. After completion of construction of the Bridge Improvements, CITY shall
remain responsible for the maintenance of the portions of the Right -of -Way that pass
beneath the bridge structure, including but not limited to, the maintenance, removal,
repair, renewal, or replacement of the City Facilities; provided, however, that in
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connection with such activities by CITY, CITY shall do nothing that would damage or
impair the structural integrity of the Bridge Improvements.
e. In the event that OWNER transfers its ownership interest in Owner's
Property to any person or entity other than to a subsidiary or affiliate of OWNER, such
successor owner (hereinafter "Successor") must, unless otherwise agreed by CITY,
comply with the insurance requirements specified on Exhibit E.
5. Failure to Perform. If OWNER fails to fulfill its maintenance or other
responsibilities under this Agreement, CITY may provide OWNER with written notice of such
failure describing the deficiencies in reasonable detail (the "Deficiency Notice'. If such
deficiency is not corrected to City's satisfaction within thirty (30) calendar days of OWNER'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 OWNER commences to cure the deficiency within
such period and proceeds diligently thereafter to complete the cure of such deficiency.
Notwithstanding the foregoing, if the deficiency is of a nature that CITY determines could create
a safety problem for the general public, OWNER shall be required to take necessary actions to
address such safety problem as soon as practicable after receipt of CITY's notice specifying the
nature of same. If CITY elects to cure the deficiency, OWNER shall reimburse CITY for its
actual and reasonable costs incurred in curing the deficiency within thirty (30) days of
OWNER'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. Indemnification. OWNER shall defend, indemnify 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 maintenance of the Bridge Improvements, (b) the acts of
OWNER or its contractors within the Right -of -Way, and (c) OWNER's performance of its
obligations hereunder; provided, however, that OWNER's indemnification obligations hereunder
shall not apply to the extent that any Claim is caused by the sole negligence or willful
misconduct of CITY or CITY's contractors within the Right -of -Way.
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7. Run with the Land. This Agreement and the terms, conditions and covenants
contained herein shall be perpetual in nature and shall run with the Owner's Property and the
Right -of -Way, and shall be binding upon and inure to the benefit of OWNER 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.
S. Attorneys' Fees. In any action between the parties seeking enforcement of any of
the terms 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.
9. 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: City of Newport Beach
Public Works Department
3300 Newport Boulevard (P.O. Box 1768)
Newport Beach, California 92658-8915
Attention: City Engineer
If to Company: The Irvine Company
550 Newport Center Drive
Newport Beach, CA 92660
Attn: Senior Vice President & General Counsel
Either party may change its address for notice by providing written notice of such changed
address to the other.
10. Incorporation of Exhibits. Exhibits A, B, C, D and E, which are attached
hereto, are hereby incorporated herein by this reference.
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11. Authori . The parties to this Agreement 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.
12. Amendment. This Agreement may be amended only by a written instrument
approved and executed by the parties.
13. Priori . OWNER 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 for
security hereafter placed on Owner's Property.
14. Entire Agreement. This Agreement, together with the Exhibits attached hereto
and the Bridge Encroachment Permit to be executed prior to construction of the Bridge
Improvements, constitutes the entire agreement between OWNER and CITY pertaining to the
subject matter hereof, and all prior and contemporaneous agreements, representations,
negotiations and understandings of the parties, whether oral or written, are hereby superseded
and merged herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
APPROVED AS TO FORM:
By: C
ity Attorney
ATTEST:
/1
City Clerk WPp
Rr
U T
e.�
cq<i FO VL
CITY OF NEWPORT BEACH, a California
municipal corporation
By: _( Q, coo
Mayor
30209-0066/354946.6 12/23/05 7
OWNER:
THE IRVINE COMPANY LLC,
a Delaware limited liability company
Mot
Ronald J. Keith
Executive Vice President
Commercial Property Development
Investment Properties Group
By: KU4W)AAUA',
Mary K. V estbrook
Assistant Secretary
30209-0066/354946.6 12/23/05
STATE OF CALIFORNIA
ss:
COUNTY OF ORANGE )
n�
On A Vi I,( G11'ti � Z 20f '5, before me, �t 1ii 001 � . ✓ vk 10' N
personally appeare 00
personally known to me ( ac ory evi en to be the
person(s) whose namefs) is/4asubscribed to the within instrument and acknowledged to me that
he/s h,-.* has executed the same in his/h ' authorized capacity(.io4, and that by
his/k*r,444k-signature(s) on the instrument the person) or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
k42�� R.
Notary Public in and for said State
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
LEILANI I. BROWN
Commission # 1336673 Z
z
Notary Public - Calftnnia
Z Urrnr County
1 Gcrnr.;. e�{ irea Jan 25, 200�
(SEAL)
On 2005, before me,
personally appeared Ronald J. Keith and Mary K. Westbrook, personally known to me {or
to be the personas') whose name) is/are
subscribed to the within instrument and acknowledged to me that lic4%he/they has executed the
same in hider/their authorized capacity(i@e), and that by lamer/their signature(A on the
instrument the person(s) or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
424dA,- V. C
otary Public in and for said State
(SEAL)
UNM L ERCICSON
COMMOM 0145M
Notary PubNc - Cww-do
Orange County
tvly Comm. Expires Dec 7, 2007
30209-0066/354946.6 12/23/05 9
EXHIBIT A
LEGAL DESCRIPTION OF OWNER'S PROPERTY
THAT CERTAIN REAL PROPERTY IN THE CITY OF NEWPORT BEACH, COUNTY OF
ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL 1
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.
PARCEL 2
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.
1 OF 1
V:\PROJECTS\13575.20\SURMAP\DOC\LEGALS\OWNER'S PROPERTY.DOC
EXHIBIT C
LEGAL DESCRIPTION OF AFFECTED AREA OF RIGHT-OF-WAY
BEING A PORTION OF PELICAN HILL ROAD SOUTH, IN THE CITY OF NEWPORT
BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED IN RESOLUTION
NO. 94-1253 OF THE BOARD OF SUPERVISORS OF ORANGE COUNTY, CALIFORNIA,
RECORDED JANUARY 11, 1995 AS INSTRUMENT NO. 95-0012329, AS APPROVING
AND ACCEPTING THE "IRREVOCABLE OFFER TO CONVEY EASEMENT - LOWER LOOP
ROAD" RECORDED OCTOBER 4, 1990 AS INSTRUMENT NO. 90-530348, DECEMBER
18, 1991 AS INSTRUMENT NO. 91-694962 AND MARCH 12, 1992 AS INSTRUMENT
NO. 92-149749, ALL OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, LYING WITHIN A STRIP OF LAND 27.00 FEET WIDE,
THE CENTERLINE OF SAID STRIP BEING DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTERLINE INTERSECTION OF NEWPORT COAST DRIVE
(FORMERLY PELICAN HILL ROAD) AND PELICAN HILL ROAD SOUTH (FORMERLY
COAST CLUB DRIVE) AS SHOWN ON TRACT NO. 14131 PER MAP FILED IN BOOK
662, PAGES 42 THROUGH 46, INCLUSIVE, OF MISCELLANEOUS MAPS, IN SAID
OFFICE OF THE COUNTY RECORDER;
THENCE, ALONG SAID CENTERLINE OF PELICAN HILL ROAD SOUTH,
NORTH 19011'00" EAST, 116.30 FEET TO THE BEGINNING OF A CURVE CONCAVE
SOUTHEASTERLY HAVING A RADIUS OF 550.00 FEET;
THENCE, NORTHEASTERLY 160.47 FEET ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 16043'00" AND TO WHICH A RADIAL LINE BEARS
NORTH 54006'00" WEST;
THENCE, LEAVING SAID CENTERLINE OF PELICAN HILL ROAD SOUTH,
SOUTH 53016'00" EAST, 46.16 FEET TO THE SOUTHEASTERLY LINE OF SAID
PELICAN HILL ROAD SOUTH AND THE POINT OF BEGINNING;
THENCE, NORTH 53016'00" WEST, 91.96 FEET TO THE NORTHWESTERLY LINE OF
SAID PELICAN HILL ROAD SOUTH.
THE SIDELINES OF SAID STRIP SHALL BE LENGTHENED OR SHORTENED TO BEGIN
AT SAID SOUTHEASTERLY LINE OF PELICAN HILL ROAD SOUTH AND TO END AT
SAID NORTHWESTERLY LINE OF PELICAN HILL ROAD SOUTH.
ALSO AS SHOWN ON EXHIBIT D ATTACHED HERETO AND HEREBY MADE A PART
HEREOF.
PREPARED BY: THE KEITH COMPANIES
UNDER THE DIRECTION OF:
L JAMES 0. STEINES, P.L.S. 6086
REVISED DECEMBER 21, 2005
OCTOBER 5, 2005
J.N. 13575.22.000
1 OF 1
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EXHIBIT 1) SHEET 1 OF 1
A PORTION OF PELICAN HILL ROAD 5OUTH,
IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, 5TATE OF CALIFORNIA
DEPICTION OF AFFECTED AREA OF RIGHT—OF—WAY
B.0.5. RESOLUTION NO. 94-1253
PER O.R. 95-0012329 ACCEPTING
"IRREVOCABLE OFFER TO CONVEY A
EASEMENT - LOWER LOOP ROAD"
PER O.R. 90-530348, O.R. /
91-G949G2, AND O.R. 92-149749.
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Exhibit E
Insurance Requirements for Successor Owners
Any Successor must carry general liability insurance in the amounts specified below for
activities within the Right -of -Way, and shall also require in its contracts with any contractors
that perform any design, installation, repair, maintenance or other work in connection with the
Bridge Improvements within the Right -of -Way, 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
Right -of -Way. 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 Bridge Improvements within the Right -of -Way.
Insurance policies for the following coverages, with original endorsements related to the work on
the Bridge Improvements within the Right -of -Way, shall be issued by companies approved,
licensed or authorized 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 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 work
within the Right -of -Way, 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 by City for similar types of work or 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.
30209-0066/354946.6 12/23/05
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 within the Right -of -Way.
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 Bridge Improvements 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.
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