HomeMy WebLinkAboutC-2418 - Settlement Agreement & Release for West Bay Erosion Control & Slope RepairCITY OF NEWPORT BEACH
P.O. BOX 1768, NEWPORT BEACH, CA 92663 -3884
OFFICE OF THE CITY CLERK
(714) 640 -2251
TO: FINANCE DIRECTOR
PUBLIC WORKS
FROM: CITY CLERK
DATE: October 19, 1983
SUBJECT: Contract No. C -2418
Description of Contract Settlement Agreement & Release for
West Bay erosion control & slope repair
Effective date of Contract October.19, 1983
Authorized by Minute Action, approved on October 11; 1983, Res 83 -100
Contract with The Irvine Company
Address 550 Newport Center Drive
Newport Beach, CA 92660 -9959
Amount of Contract See Agreement attached
4" e di *h a -oiti
Wanda E. Andersen
City Clerk
attach.
3300 Newport Boulevard, Newport Beach
t
SETTLEMENT AGREEMENT AND RELEASE
(WEST BAY EROSION CONTROL AND SLOPE REPAIR)
THIS AGREEMENT is made and entered into this /Q�day
of D� , 1983, by and between THE CITY OF NEWPORT BEACH
(hereinafter "City") and THE IRVINE COMPANY, (hereinafter "TIC "),
with respect to the following facts, the materiality and exis-
tence of which are stipulated and agreed to by the parties, as
follows:
A. The parcel of real property, located in the City of
Newport Beach, which is situated between Irvine Avenue and Upper
Newport Bay on the west and east respectively, and between 23rd
St. and University Dr., on the south and north respectively, is
commonly known as the Westbay Parcel (hereinafter "Property ");
B. The property is depicted on a map attached to this
Agreement as Exhibit "A ", and, with the exception of certain
street right -of -way along the westerly boundary of the property,
two relocatable public use easements and a six acre portion of
the property, all of which are owned by the City, the property is
owned by TIC;
C. Certain portions of the property, including areas
within the street right -of -way, have been eroded by the flow of
water originating from sources both within, and outside, the
boundaries of the property;
D. TIC contends that public improvements have increas-
ed the quantity and velocity of water flowing on and over the
property and that the City is liable for any dimunition in the
value of the property caused by the erosion and /or the costs of
repairing the eroded areas and constructing improvements to pre-
vent further erosion;
E. The parties desire, through this Agreement, to
enter into a cooperative arrangement that will result in the
prompt repair or reconstruction of slopes and public improvements
on the property and the adjacent right -of -way, and to resolve, as
of the date of this Agreement, the issue of liability for ero-
sion.
NOW, THEREFORE, the parties hereto agree as follows:
1. TIC shall, through licensed contractors and other
qualified professionals, undertake certain repairs and construc-
tion (hereinafter "the project ") with respect to the property and
adjacent right -of -way, including the following:
(a) Regrade the eroded slopes on public and pri-
vate property;
(b) Construct and extend storm drains, and other
related drainage facilities on both public and
private property;
(c) Install erosion control fabric on the regraded
area where surface waters concentrate;
(d) Administer all construction contracts and
construct improvements in accordance with
plans and specifications approved by City.
2. CITY shall:
(a) Pay the sum of $27,500 to TIC upon completion
of the project; and
(b) Approve the plans and specifications for the
project prior to the commencement of any con-
' struction or repair activity.
3. TIC shall grant, and City shall accept, drainage
easements over portions of the property as generally shown on
Exhibit "A ", the easements to be granted by separate document.
The easements shall be subject to relocation upon the written
consent of the City and TIC shall be responsible for all costs
and expenses incurred by reason of such relocation. TIC shall
control surface on -site waters that could damage the improvements
constructed in the drainage easements, and TIC shall also be
2
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0
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responsible for any damage to the drainage easement, or improve-
ments constructed therein, caused by surface flows which origi-
nate on site. City will be responsible for any loss or damage
caused by any failure of the public improvements constructed
within the drainage easements.
4. City hereby grants a right of entry to TIC to enter
onto public property to make the repairs, and engage in the
activities, described above.
5. TIC, in consideration of the payment of $27,500 as
provided herein and in consideration of the agreement of City to
accept the drainage easements across the property, releases, and
discharges, on behalf of itself, and its successors and assigns,
the City, and its employees, officers, agents, representatives,
successors and assigns from any and all rights, claims and
actions, which TIC, or its successors and assigns now have, or
may have in the future, against the City, its employees,
officers, representatives, agents, successors or assigns, that
arise out of, or in any way relate to the flow of waters, which
originate outside of the boundaries of the property, across the
property or any portion thereof; provided, however, this release
does not extend to any loss or damage which is caused by the flow
of water diverted to the property by modifications made by the
City of Newport Beach to the existing storm drain system sub-
sequent to, and independent of, this Agreement, and which flow is
in excess of that which could occur given drainage systems and
patterns in existence as of the date of this Agreement. This re-
lease, notwithstanding the provisions of Section 1542 of the
California Civil Code, which provides that "a general release
does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the re-
lease, which if known by him must have materially affected his
settlement with the debtor," releases City and all persons named
above from any and all injuries, damages, or losses to the pro-
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WESTBAY SITE ® ".... ' '
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Nov,1�
EXHIBIT A
perty, whether known, unknown, foreseen, unforeseen, patent or
latent, which TIC may have, or may in the future have, against
City or any of the persons described above.
6. This Agreement may be terminated, or amended, only
upon the written consent of each of the parties.
7. This instrument contains the entire agreement of
the parties with respect to the matters stated, and no other
agreement, statement or promise made by any party which is not
contained in this Agreement, shall be valid or binding.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement the day and year first above written.
ATTEST:
City Clerk
APPR VED AS TO FO
ty Attorney
APPROVED AS TO FORM:
Attorney for The I ine Company
4
CITY OF NEWPORT BEACH
By:
ayor
TH]
By
VICE
M
i
C -a►� iS
C3g�
BY THE CITY COUNCIL October 11, 1983
CITY Of NEWPORT BEACH
CITY COUNCIL AGENDA
OCT 111983 ITEM NO. F-2(c)
9.
TO: CITY COUNCIL
FROM: Public Works Department
SUBJECT: ' '`JNkif:RJ + WESi`BAY t EROSION GOM'#RO AND SLDPW
RECOMMENDATION:
Adopt a resolution authorizing the Mayor and the City Clerk to exe-
cute a Settlement Agreement and Release (West Bay Erosion Control
Slope Repair).
DISCUSSION:
In November 1982, a study session presentation was made to the City
Council concerning eroded areas on the west bay site (the area between Irvine
Avenue and the bay, and 23rd Street and University Drive). See the attached
Exhibit A. These eroded areas posed a potential hazard to the public using
the public and private trails crisscrossing the site. The Council agreed with
The Irvine Company that temporary fencing should be installed around the eroded
areas, pending repair.
The Irvine Company has prepared plans and specifications in consulta-
tion with the City, engineers, geologists and archeologists for the repair of
the eroded areas and the construction of slope protective measures and drain-
age facilities. The Irvine Company has retained a contractor through a com-
petitive bidding process to construct these improvements and desires to com-
plete the improvements prior to the first of the year and before the major
portion of rainy season.
Two of the eroded areas are downstream of City storm drains that con-
vey drainage from Irvine Avenue and areas northwesterly of the street. The
Irvine Company has claimed that these facilities have been a primary contribu-
tor to the downstream erosion and that the City should participate in the
repair and solution of the problem.
The areas downstream of the storm drains are natural drainage courses
which have historically conveyed runoff from both on site and off site. Some
eroded area existed prior to the construction of the Irvine Avenue storm drains
in 1968. The City normally requires the downstream property owners to main-
tain privately owned drainage courses until they are improved to standards that
the City will accept for maintenance.
The areas immediately downstream of the storm drain outlets are badly
eroded, and are affecting the roadway slopes and sidewalks in two places along
Irvine Avenue. The current budget provides $27,500 for a short extension of
the two storm drains and for repair of the slope areas adjacent to Irvine Avenue.
•
October 11, 1983
Subject: Settlement Agreement and Release (West Bay Erosion Control and Slope
Repair)
Page 2
The Irvine Company project would extend the two storm drains through
the west bay site to the Upper Newport Bay Ecological Reserve. The surface
areas would be regraded to eliminate vertical walls and provide two -to -one
slopes. The swale areas above the new storm drains will be protected by erosion
control fabric. The cost of improving these two drainage courses is $96,400
(including the work in City right of way). The overall cost to The Irvine
Company for the full erosion repair project is approximately $165,000. The
staff has estimated that the cost to repair the Irvine Avenue roadway slopes
and extend the storm drains through the roadway slopes would be $27,500. This
amount was provided for in the current capital improvements budget, as indicated
above.
The Settlement Agreement and Release provides for the City to con-
tribute $27,500 toward the construction of the erosion repair and storm drain
extensions, and for the City to accept drainage easements and the two new
storm drains (approximately 1,100 linear feet). The City would maintain the
storm drains, and be responsible for any damage caused by the failure of storm
drain pipes. The agreement provides for The Irvine Company to prepare plans
and specifications for the project and to administer the construction contact.
In the future, The Irvine Company will also be responsible for the maintenance
of the surface areas over the drainage easements. This agreement settles the
dispute over liability for erosion damage, provides for the repair of erosion
damage, and designates responsibilities in the future for the maintenance re-
sponsibilities.
Incorporating the work provided for in the City budget into The Irvine
Company project will allow for the most expeditious and economical completion
of the erosion repair.
a14�4W�r 4� 44
Benjamin B. Nolan
Public Works Director
DW:jd
Att.
City
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University Dr
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9 Park
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Stormdrain
Easements
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WESTBAY SITE
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Eroded Areas {.
33.7ac.
C3
N4r.1983
EXHIBIT A
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0 •
RESOLUTION NO. 83-100
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH AUTHORIZING THE MAYOR AND
CITY CLERK TO EXECUTE A SETTLEMENT AGREEMENT
AND RELEASE BETWEEN THE CITY AND THE IRVINE
COMPANY CONCERNING WEST BAY EROSION CONTROL
AND SLOPE REPAIR
WHEREAS, the parcel of real property, located in the
City of Newport Beach, which is situated between Irvine Avenue
and Upper Newport Bay on the west and east respectively, and
between 23rd St. and University Dr., on the south and north
respectively, is commonly known as the Westbay Parcel (herein-
after "Property "); and
WHEREAS, the property is depicted on a map attached to
the Settlement Agreement (Exhibit "A ") to this resolution) and,
with the exception of certain street right -of -way along the
westerly boundary of the property, and a six acre portion of the
property, both owned by the City, the property is owned by TIC;
and
WHEREAS, certain portions of the property, including
areas within the street right -of -way, have been eroded by the
flow of water originating from sources both within, and outside,
the boundaries of the property; and
WHEREAS, TIC contends that public improvements have
increased the quantity and velocity of water flowing on and over
the property and that the City is liable for any dimunition in
the value of the property caused by the erosion and /or the costs
of repairing the eroded areas and constructing improvements to
prevent further erosion; and
WHEREAS, the parties desire, through a Settlement
Agreement and Release (Exhibit "B ") to enter into a cooperative
arrangement that will result in a prompt repair and reconstruc-
tion of slopes and public improvements on the property and the
adjacent right -of -way, and to resolve for all time the issue of
liability for erosion; and
WHEREAS, to the extent that the payment called for by
the Settlement Agreement (Exhibit "B ") comes within the purview
of Section 11.10 of the City Charter of the City of Newport
Beach, the execution of this Agreement, and the performance of
the work specified therein, is of urgent necessity for the
preservation of life, health and property in that:
1. Public use easements are located on the property and the
presence of severely eroded areas constitutes a threat
to the health, safety and welfare of persons using the
propery;
2. The failure to commence work prior to the onset of the
rainy season will allow further erosion to occur thereby
increasing the damage to the property owner and the cost
to repair and restore the property;
3. Failure to commence construction, prior to the onset of
the rainy season, with respect to that portion of the
project that includes public right -of -ways, will result
in further erosion of areas adjacent to Irvine Avenue,
and threaten the stability of the roadbed and the safety
of the persons using the roadway.
NOW, THEREFORE, BE IT RESOLVED by the City Council of
the City of Newport Beach be and hereby are authorized to execut-
ed the Settlement Agreement and Release, a copy of which is at-
tached hereto as Exhibit "A" hereto.
2
ADOPTED this l ii -� day of 0' JQ � G 7 , 1983.
F�VQII_a" kkcl-
Mayor
ATTEST:
City Clerk
RSP,/Webb
0 0
SETTLEMENT AGREEMENT AND RELEASE
(WEST BAY EROSION CONTROL AND SLOPE REPAIR)
THIS AGREEMENT is made and entered into this _ day
of , 1983, by and between THE CITY OF NEWPORT BEACH
(hereinafter "City ") and THE IRVINE COMPANY, (hereinafter "TIC "),
with respect to the following facts, the materiality and exis-
tence of which are stipulated and agreed to by the parties, as
follows:
A. The parcel of real property, located in the City of
Newport Beach, which is situated between Irvine Avenue and Upper
Newport Bay on the west and east respectively, and between 23rd
St. and University Dr., on the south and north respectively, is
commonly known as the Westbay Parcel (hereinafter "Property ");
B. The property is depicted on a map attached to this
Agreement as Exhibit "A", and, with the exception of certain
street right -of -way along the westerly boundary of the property,
and a six acre portion of the property, all of which have
relocatable purchase easements owned by the City, the property is
owned by TIC;
C. Certain portions of the property, including areas
within the street right -of -way, have been eroded by the flow of
water originating from sources both within, and outside, the
boundaries of the property;
D. TIC contends that public improvements have increas-
ed the quantity and velocity of water flowing on and over the
property and that the City is liable for any dimunition in the
value of the property caused by the erosion and /or the costs of
I
repairing the eroded areas and constructing improvements to pre-
vent further erosion;
E. The parties desire, through this Agreement, to
enter into a cooperative arrangement that will result in a prompt
1 4
i •
repair and reconstruction of slopes and public improvements on
the property and the adjacent right -of -way, and to resolve, as of
the date of this Agreement, the issue of liability for erosion.
NOW, THEREFORE, the parties hereto as follows:
I. TIC shall, through licensed contractors and other
qualified professionals, undertake certain repairs and construc-
tion (hereinafter "the project ") with respect to the property and
adjacent right -of -way, including the following:
(a) Regrade the eroded slopes on public and pri-
vate property;
(b) Construct and extend storm drains, and other
related drainage facilities on both public and
private property;
(c) Install erosion control fabric on the regraded
area where surface waters concentrate;
(d) TIC shall administer all construction
contracts and construct improvements in accor-
dance with plans and specifications approved
by City.
2. CITY shall:
(a) Pay the sum of $27,500 to TIC upon completion
of the project; and
(b) Approve the plans and specifications for the
project prior to the commencement of any con-
struction or repair activity.
3. TIC shall grant, and City shall accept, drainage
easements over portions of the property as generally shown on
Exhibit "A ", the easements to be granted by separate document.
The easements shall be subject to relocation upon the written
consent of the City and TIC shall be responsible for all costs
and expenses incurred by reason of such relocation. TIC shall
control surface waters that originate on the property and which
might damage the improvements constructed in the drainage
2
5
easements, and TIC shall also be responsible for any damage to
the drainage easement, or improvements constructed therein,
caused by surface flows which originate on site. City will be
responsible for any loss or damage caused by any failure of the
public improvements constructed within the drainage easements.
4. City hereby grants a right of entry to TIC to enter
onto public property to make the repairs, and engage in the
activities, described above.
5. TIC, in consideration of the payment of $27,500 as
provided herein and in consideration of the agreement of City to
accept the drainage easements across the property, releases, and
discharges, on behalf of itself, and its successors and assigns,
the City, and its employees, officers, agents, representatives,
successors and assigns from any and all rights, claims and
actions, which TIC, or its successors and assigns now have, or
may have in the future, against the City, its employees,
officers, representatives, agents, successors or assigns, that
arise out of, or in any way relate to the flow of waters, which
originate outside of the boundaries of the property, across the
property or any portion thereof. Provided, however, this release
does not extend to any loss or damage which is caused by the flow
of water diverted to the site by modification to the existing
storm drain system subsequent to, and independent of, this
Agreement, which flow is in excess of that which could occur
given drainage sysems and patterns in existence as of the date of
this Agreement. This release, notwithstanding the provisions of
Section 1542 of the California Civil Code, which provides that "a
general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor," releases City and all
persons named above from any and all injuries, damages, or losses
to the property, whether known, unknown, foreseen, unforeseen,
6 3
0 0
patent or latent, which TIC may have, or may in the future have,
against City or any of the persons described above.
6. This Agreement may be terminated, or amended, only
upon the written consent of each of the parties.
7. This instrument contains the entire agreement of
the parties with respect to the matters stated, and no other
agreement, statement or promise made by any party which is not
contained in this Agreement, shall be valid or binding.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement the day and year first above written.
CITY OF NEWPORT BEACH
ATTEST:
City Clerk
APPROVED AS TO FORM
City Attorney
APPROVED AS TO FORM:
Attorney for The Irvine Company
7
4
By:
Mayor
THE IRVINE COMPANY
By:
President
By:
Assistant Secretary
City
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30.7 ac.
d
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Proposed
Stormdrain
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WESTBAY SITE ' J ® """"""
Nov,7 Y82
EXHIBIT A