HomeMy WebLinkAboutC-3600 - Landscape Maintenance Agreement/Encroachment Agreement - Construction and Maintenance of Landscape Improvements within Bison Avenue and MacArthur Boulevard right-of-way• •
Amendment to Landscape Maintenance Agreement
Ate, �-2.This Amend ent to Landscape Maintenance Agreement ("Amendment") is entered into as of
tlttl,S 2004, by and between 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 ("City"), and The Irvine Company, a Delaware corporation ("TIC").
Whereas, City and TIC previously entered into that certain "Landscape Maintenance Agreement"
dated February 12, 2003 ("Agreement"), regarding installation and maintenance of landscaping within a
slope area (the "Landscape Area") owned by the State of California Department of Transportation
("Caltrans") adjacent to TIC's property known as The Bluffs Retail Center (the "Center").
Whereas, the Agreement contemplated that the landscaping would be installed and maintained
within the Landscape Area pursuant to a Maintenance Agreement between Caltrans and City, the form of
which was attached as Exhibit D to the Agreement.
Whereas, subsequent to the execution of the Agreement by,City and TIC, Caltrans has advised
that it requires a different form of agreement for maintenance of the Landscape Area instead of the
Maintenance Agreement attached as Exhibit D to the Agreement. The new form of agreement is called
the "State Highway Planting Maintenance Agreement," a copy of which is attached as Exhibit 1 to this
Amendment.
Whereas, to make the exhibits to the Agreement conform with the new form preferred by
Caltrans, City and TIC desire to amend the Agreement to substitute the State Highway Planting
Maintenance Agreement in place of the Maintenance Agreement originally attached as Exhibit D to the
Agreement.
NOW, THEREFORE, in consideration of the above, City and TIC agree as follows:
Substitution of Maintenance Agreement as Exhibit D to Agreement. The form of Maintenance
Agreement attached as Exhibit D to the Agreement and the cover sheet to Exhibit D regarding changes to
the Maintenance Agreement are hereby deleted in their entirety, and the "State Highway Planting
Maintenance Agreement" attached as Exhibit 1 hereto is substituted in their place.
2. Effective Date. This Amendment shall be effective as of the date first set forth above.
3. Counterparts. This Amendment may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same instrument.
4. No Other Changes. Except as expressly set forth in this Amendment, all other terms and
conditions of the Agreement shall remain unchanged and in full force and effect.
THE IRVINE COMPANY,
a Delaware corporation
By: Gee cf./-2,t..s:
Keith C. Eyrich
President, Retail Properties
By:.
Lee Burckle
Assistant Secretary
30209-0032/345856.2
12/22/03
f
CITY OF NEWPORT BEACH,
a California municipal corporation
By:
Homer L. Blud
City Manager
APPROV 1� TO FORM:
//� -/
By:
City Attorney
cz1(b(
Date:
30209-0032/345856.2
12/22/03
•
Exhibit 1
State Highway Planting Maintenance Agreement.
30209-0032/345856.2
12122/03
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STATE HIGHWAY PLANTING MAINTENANCE AGREEMENT
IN THE CITY OF NEWPORT BEACH
This AGREEMENT, made and executed in duplicate this 2 S day of AP1:21L_
20CMis by and between the State of California, acting by and through the
Department of Transportation, hereinafter referred to as "STATE" and the City of
Newport Beach, hereinafter referred to as "CITY."
WITNESSETH:
A. RECITALS
The parties desire to provide for CITY to maintain landscaped areas within
State Highway Right of Way near the southeasterly confluence of the San
Joaquin Hills Transportation Corridor and MacArthur Boulevard as shown on
the attached Exhibit "A" (the "Permit Area"), pursuant to an encroachment
permit (the "Permit") to be issued by STATE to CITY.
B. AGREEMENT: CITY OBLIGATIONS
In consideration of STATE's issuance of a Permit to CITY to allow installation
and maintenance of landscaping within the Permit Area, CITY agrees as
follows:
1. To maintain a separate irrigation system and pay all repairs, water and
electrical cost.
2. To apply fertilizer as necessary to sustain healthy growth while controlling
weeds at a level acceptable to STATE. STATE is allowed access through the
Permit Area.
3. To keep plantings trimmed to eye -pleasing appearance.
4. To use only those pesticides and fertilizers approved by the State of
California and in a safe manner consistent with label and legal restrictions.
5. To remove and replace unhealthy or dead plantings promptly after they are
observed.
6. To keep the entire area policed and free of litter and deleterious material.
7. To maintain, repair and operate CITY's irrigation system in a manner that
prevents water from flooding onto the State Highway.
8..To allow random inspectionby a STATE representative.
30209-0032/345219.2
11/10/03
9. If for any reason CITY is unable to maintain the Permit Area in a manner
satisfactory to STATE, CITY will either (a) re -landscape the Permit Area to a
condition acceptable to STATE, or (b) return the Permit Area to its "original ..
condition" pursuant to Section 11 below at CITY's sole expense.
10. To do all maintenance, protection, repair, restoration, replacement and
renovation removal work at no cost to STATE.
11. To remove landscaping and restore area to original condition prior to this
planting or to a condition acceptable to STATE representatives in the event
this Agreement is terminated pursuant to Section E below.
C. STATE OBLIGATIONS
In consideration of CITY's covenants and agreements herein contained,
STATE agrees to repair and/or replace any damaged landscaping or irrigation
systems within the Permit Area to the extent any such damage was caused
by the acts or omissions of STATE.
D. LEGAL.RELATIONSHIPS AND RESPONSIBILITIES
Nothing in the provisions of this Agreement shall limit CITY's right to enter into
a separate agreement for the maintenance of the Permit Area with a third
party entity or individual. Any subsequent agreement between CITY and a
third party affecting the maintenance of the Permit Area shall be subject to
CITY's obligations under this Agreement.
It is understood and agreed that neither STATE, nor any officer or employee
thereof, is responsible for any damage or liability occurring by reason of
anything done or omitted to be done by CITY under or in connection with any
work performed by CITY under this Agreement. It is also understood and
agreed that, pursuant to Government Code Section 895.4, CITY shall defend,
indemnify and save harmless the State of California, and all of its officers and
employees, from all claims, suits or actions of every name, kind and
description brought for or on account of injuries to or death of any person or
damage to property resulting from anything done or omitted to be done by.
CITY under and in connection with any work performed by CITY under this
Agreement.
E. TERM OF AGREEMENT.
This Agreement shall become effective on the date appearing on the face
sheet and shall remain in full force and effect until amended or terminated at
any time upon mutual consent of the parties thereto. This Agreement may
also be terminated by either party upon sixty (60) days' prior written notice to
the other party subject to the completion of all contracted duties to be
30209-0032/345219.2
11/10/03
performed by that terminating party as a consequence of such termination..
CITY's failure to comply with provisions set forth in Section B would be
grounds for notice of termination by STATE.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
as of the day and year first above written.
CITY OF NEWPORT BEACH,
a California municipal corporation
By:
City Manager
APPRO ED AS TO FORM:
City Attorney
Date:. Lf'(Z 1 I O(i
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
Jam
Dep
Mai
Pinheiro
District Director
nance and Traffic Operations
APPROVED AS TO FORM AND PROCEDURE:
orney
Department of Transportation
3
30209-0032/345219.2
11/10/03
1
EXHIBIT "A"
Depiction of Permit Area
III
0
v Pc:3liLlll �.l':_ti
The Keith Companies
19 Technology Drive, Irvine, CA 92618 049) 923-6000
DATE: 12/70/03 JOB NO. 13497.01.000
a 2, d -.✓A L
• •
LANDSCAPE MAINTENANCE AGREEMENT
This Landscape Maintenance Agreement ("Agreement") is made and entered into this
�-� day of re b r urn ri , 2003 by and between 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 ("City"), and The Irvine Company, a Delaware corporation
("TIC"). City and TIC are sometimes collectively referred to herein as the "Parties."
RECITALS
A. WHEREAS, TIC is the owner of certain real property in Newport Beach, California,
described on Exhibit A and depicted on Exhibit B attached hereto (the "Property'). TIC is
developing and intends to operate a commercial retail center on the Property known as The Bluffs
Retail Center (the "Center").
B. WHEREAS, at TIC's request, City is willing to obtain an encroachment permit and
associated Maintenance Agreement (the encroachment permit and Maintenance Agreement are
sometimes collectively referred to herein as the "Permit") from the State of California Department
of Transportation ("Caltrans") to install landscaping within a slope area owned by Caltrans located
between an on -ramp to the San Joaquin Hills Transportation Corridor and the Property. The affected
slope area is depicted on Exhibit C attached hereto and is hereinafter referred to as the "Landscape
Area."
C. WHEREAS, TIC desires to install and maintain landscaping within the Landscape
Area to enhance the aesthetic appearance of the Center, and City is willing to allow TIC to perform
such installation and maintenance subject to the terms and provisions of this Agreement.
NOW, THEREFORE, in consideration of the above recitals and the mutual promises
contained herein, TIC and City hereby agree as follows:
AGREEMENT
1. Incorporation of Recitals. The above Recitals are incorporated into this Agreement by this
reference.
2. Effective Date. This Agreement shall be deemed effective on the date first set forth above
(the "Effective Date") and shall continue in effect until terminated as provided herein.
3. Assignment of Permit Rights and Maintenance Obligations. Subject to the terms and
provisions contained herein and in the encroachment permit and associated Maintenance Agreement,
copies of which are attached as Exhibit D, City hereby assigns to TIC (a) the right to install,
maintain, repair and replace the Landscape Improvements (as defined in Section 4 below) during the
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]RC\30209-0032 V.GRMT337141.6
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•
term of this Agreement, and (b) the obligation to maintain the Landscape Improvements in
accordance with the requirements of the Permit during the term of this Agreement.
4. Landscape Plans. Prior to execution of this Agreement, City has approved of TIC's plans
and specifications for the installation of landscaping and landscape irrigation systems (collectively,
the "Landscape Improvements") within the Landscape Area. The Landscape Plans approved by
City are referred to herein as the "Approved Landscape Plans.)
5. Installation of Landscape Improvements. TIC shall install the Landscape Improvements
within the Landscape Area in accordance with the Approved Landscape Plans and all applicable
terms and conditions of the Permit.
6. Standard of Maintenance. TIC shall, at its sole cost and expense, maintain the Landscape
Improvements installed within the Landscape Area in good condition and repair and as required by
the Permit during the term hereof.
7. Alteration of Landscape Improvements. TIC shall not materially alter the Landscape
Improvements from their original condition as installed per the Approved Landscape Plans without
the prior written approval of City. City's approval of the proposed alterations to the Landscape
Improvements shall not be unreasonably withheld or delayed. So long as City approves of the
changes to the Approved Landscape Plans, City shall, to the extent further approvals are required
under the Permit, submit such changes for approval to Caltrans for approval promptly after City's
approval of such changes.
8. Failure to Perform. If TIC failsto fulfill its maintenance or other responsibilities under this
Agreement or the Permit, City may provide TIC with written notice of such failure describing the
deficiencies in reasonable detail (the "Deficiency Notice"). If such deficiency is not corrected within
ten (10) business days of TIC'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 ten (10) business days, it will be deemed cured if TIC 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, it shall be performed at City's standard rates
and prices. TIC shall reimburse City for its costs incurred in curing the deficiency within fifteen (15)
days ofTIC' 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.
9. Liens. TIC shall not suffer or pennitto be enforced against the Landscape Area any
mechanics, laborers, materiahnens, contractors, subcontractors, or any other liens, claims or demands
arising from any maintenance or other work performed by TIC within the Easement Area, but TIC
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 Landscape Area.
10. Renewal of Permit. City and TIC understand that the Permit issued by Caltrans is limited
to a set term of years. Prior to the expiration of the Permit (and prior to the end of any renewed
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JRC130209-0032\AORM7 V 37141.6
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• •
Permit thereafter), City shall apply for a renewal of the Permit to continue with the maintenance of
the Landscape Area so long as TIC has complied with the terms of this Agreement and the Permit.
11. Tenn. This Agreement shall remain in effect from the Effective Date for so long as Caltrans
continues to reissue Permits for maintenance of the Landscape Improvements within the Landscape
Area; provided, however, that (a) City may terminate this Agreement upon ten (10).business days'
prior written notice to TIC in the event that TIC fails to perform or cure any failure to perform as
provided in Section 8 above, and (b) TIC may terminate this Agreement in either of the following
situations: (i) prior to installation of the Landscape Improvements, if TIC finds the Permit conditions
imposed by Caltrans to be unacceptable to TIC, TIC may terminate this Agreement by providing
written notice to City, in which event neither City nor TIC shall have any further obligations
hereunder, or (2) after installation of the Landscape Improvements, TIC may terminate this
Agreement by providing thirty (30) days prior written notice to City, in which event TIC shall be
responsible for restoring the Landscape Area in accordance with the terms of the Permit and with
Caltrans' standard requirements so that City will have no further obligations for maintenance of the
Landscape Area.
12. Assignment. TIC may assign its rights and obligations under this Agreement to either (a) a
cominercial association for the Center responsible for maintenance of common areas within the
Property, or (b) a subsequent owner of all or a portion of the Property. Any such assignment must
be in writing, must contain the assignee'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. No assignment shall
be effective until the proposed assignee provides City with certificates of insurance verifying that
the assignee's insurance coverage meets and complies with the insurance requirements of this
Agreement. After the effective date of any such assignment by TIC, TIC shall have no further rights
or obligations hereunder.
13. Insurance. TIC shall require in its contracts with any contractors that perform any design,
installation, maintenance or other work in connection with the Landscape 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 Landscape 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 insureds for
all liability arising from such work related to the Landscape Area.
Insurance policies for the following coverages, with original endorsements related to the Landscape
Area work, shall be issued by companies approved or licensed to do business in California and
assigned Best's A- VIE 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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JRC\30209-0032AGRMTV37141.6
10/23/02
• •
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 Landscape 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 Landscape Area, in the minimum amount of
$1 million.
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 Landscape Area. Each
contractor shall also procure and maintain, at its own cost and expense, any additional kinds of
insurance that in its own judgment maybe 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
shalllook solely to its insurance for recovery. The workers compensation policy and any other
policy pertaining to the Landscape 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.
14. Indemnification by TIC. TIC shall indemnify, defend and hold City (and, to the extent
required by the Permit, Caltrans) 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) TIC'S design, installation
and maintenance of the Landscape Improvements, (b) the acts of TIC or its contractors within the
Landscape Area, (c) TIC's performance of its obligations hereunder, and (d) TIC's compliance with
the requirements of the Permit; provided, however, that TIC' s indemnity obligations hereunder shall
not apply to the extent that any Claim is caused by the negligence or willful misconduct of City (or
Caltrans, as the case may be).
3RC00209-0032\ACRMT337141.6
10/23/02
15. Indemnification by City. City shall indemnify, defend and hold TIC harmless from and
against any Claims arising from or related to City's performance of its obligations hereunder;
provided, however, that City's indemnity obligations hereunder shall not apply to the extent that any
Claim is caused by the negligence or willful misconduct of TIC.
16. 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 TIC:
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
Attn: Vice President & General Counsel
Retail Properties
17. Incorporation of Exhibits. Exhibits A, B, C and D, which are attached hereto, are hereby
incorporated herein by this reference.
18. 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 ofthe respective Party
for whom they sign, and that by so executing this Agreement, each party is bound by the provisions
of this Agreement.
19. 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
contemporaneous agreements, representations, negotiations and understandings of the Parties,
whether oral or written, are hereby superseded and merged herein.
[signature page follows]
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JRC 30209-00321.AGRM 11i37141.6
10/23/02
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year
first above written.
"TIC"
The Irvine Company,
a Delaware corporation
By: �Gr.��Z�YGu•
Name: Keith C. Eyrich
Title: President, Retail Properties
By:
Name: Lee Burckle
Title: Assistant Secretary
"City"
City of Newport Beach,
a California municipal corporation
By:
APPROVED AS TO FORM:
By:
Date:
City Clerk
Date: 3 A %I 93
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3RC130209-0032VAGRMT1337141.6 •
1023/02
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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State of Califomia
County of rcz ri� -e-
On 1'.eh ruart.( id-e 9-005, before me, $ClncLra L . Er, C k5 o n %id+a ry
Date Titlel/ Name and Title of Officer (e.g.. "Jane Doe; Notary Public")
personally appeared Kt( C. &LIrie..h Cind I-ee krck1e
Names) of Signers)
'l J personally known to me
0 proved to me on the basis of satisfactory
evidence
SANDRA L 6aCiCCON
Conurissfon# 1245065
Notay Pubic - Colf ada
Cargo County
fIrrCormthisalsDacXre
Place Notary Seal Above
to be the personjs) whose name(a) is/are
subscribed to the within instrument and
acknowledged to me that hefshe/they executed
the same in his/her/their authorized
capacity(jes), and that by his-fifer/their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the personjs)
acted, executed the instrument.
WITNESS my hand and official seal.
. `�°" Sign reM Notary Public
71
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 pocument
Title or Type of Document: AA 6 6243 c Mat n'ICA a ne re c n't en f
Document Date: re h raft rti 13-( -00 3
Number of Pages
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — 0 Limited ❑ General
❑ Attomey in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing
O 1999 National Nolan/ Association • 9350 De Soto Ave., P.O. 9or 2.102 • Ch
CA 91313-2402 • wwaeatoeefwmryorg
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Prod. No. 5907 Reorder Cell TbFFree 1-800d76E927
EXHIBIT A
DESCRIPTION OF Tf1E PROPERTY
ALL THAT REAL PROPERTY SITUATED IN THE CITY OF NEWPORT BEACH,
COUNTY OF ORANGE, STATE .OF CALIFORNIA, BEING SHOWN A5 PARCEL
ONE OF PARCEL MAP NO. 2001-140, FILED IN BOOK 326 AT PAGES 48
THROUGH 50, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE. OF THE
COUNTY RECORDER OF SAID COUNTY.
The Keith Companies C
2955 Red 1 71 Avenue, Costa Meso, C4 92626 (714) 540-0800
IC\ 1,H97.00\014C\PRSE0086.0 $V
DATE: 09/18/02
J08 N0. 73497.01.000
/
I/
1
EXHIBIT B
DEPICTION OF THE PROPERTY
/
„, THEb BLUFFS
R TAILSHOPPINGaGE1NT'ER
% 1 n ,a
BIS N AVENUE
The Keith Compeniesl1
2955 Red Hi8 Avenue, Costa Mesa. t4 92626 (714) 540-0800
K:\ 17497.DOSOWC PR ED087.DWG
DATE: 09/18/02
JOB N0. 13497.01.000
• EXHIBIT C
•
DEPICTION OF LANDSCAPE AREA
BISON AVENUE
The Keith Companies{C
2955 Red H97 Avenue, Costa Meeo, CAII 92626 (774) 540-0800
K173497.00101401P7ao0880MC
DATE: 08/27/02
J08 NO.. 13497.01.000
• •
Exhibit D
COPY OF ENCROACHMENT PERMIT & MAINTENANCE AGREEMENT
Note: Only the Maintenance Agreement is attached since that is all TIC has received at this time.
The attached Maintenance Agreement is acceptable to TIC subject to two changes:
1. The opening paragraph is set up as a 3-Party Agreement between Caltrans, City and a Permittee.
We understand that only the City and Caltrans will be parties to the Permit and the Maintenance
Agreement, so a change to this paragraph should be made and "City" should be substituted in place
of "Permittee" throughout the Agreement.
2. In Section 3, change the words "resulting from accident, storm, neglect or actions of third
parties" to "resulting from storm or neglect." TIC is willing to accept responsibility for matters
resulting from storms or its own neglect, but does not wish to waive claims against drunk drivers,
vandals, etc. that may cause damage to the Project.
3RC130209.00321AGRMT1337141.6
10/23/02
09/24/02 09:16 PIRZADEH 8 ASSOCIATES. INC. 4 3990361
. i11:UG67-2002 14:23T 12 MAINT ENG
STA1E OFCM.IPORNLt-BUSHIHSS AND TRANSPORTATION AGENCY
DEPARTMENT OF TRANSPORTATION
DISTRICT 12.3337 MKSIEISOH un SURE 380
BAWL CA 92612
Permit No:
Location:
NO.542 P02
949 724 2288 P.02104
CRAY DAVIS. Cosner
MAINTENANCE AGREEMENT
This Maintenance Agreement is made and entered into effective this __ day of ,
2002 by and between the State of California, sting by and through Department of
Transportation, District 12,1ucated at 3337 Michelson Drive, Irvine, California 926112,
hereinafter referred to as "STATE" or "CALTRANS"; and , located at ,
hereinafter referred to as "PERMJTTEE", and the , located at , hereinafter
referred to as "CITY" with reference to the following facts:
Permittee desires to Fund State Highway improvements consisting of , referred to herein as
"PROJECT". Permiuee is willing to fund one hundred (100%) of all design, capital outlay,
maintenanctand staffing costs.
NOW, THEREFORE, in consideration of the foregoing facts and the terms and conditions set
fonh below. the Parties agree as follows:
1. Pernittee shall apply for a necessary encroachment permit in accordance with State's
standard permit procedures thmugh the Caltrans, District 12, Office of Permits at (949) 724-
2445. Following construction of Project, Permittee shall also apply for a maintenance permit,
on an annual basis or as otherwise specified in a prior permit, one (1) month prior to
expiration of that previous encroachment permit.
2. Upon completion of construction work, Permittee shall assume responsibility for all Project
maintenance and the expense thereof, at Permittee's own expanse in. Permittee shall notify
State's Permit Inspector a minimum of two (2) working days prior to the start of any Project
landscape maintenance work.
3. Damage to Project resulting from accident, storm, neglect or actions of third parties is the
responsibility of the Pe nittee.
4. Caltrans shall maintain all highway signs, paved drainage structures and other non -landscape
highway appurtenances installed by Caltrans which ere not a part of the Project.
5. All planting shall be maintained by the Permittee in such condition that it does not interfere
with the free flow of traffic, including maintaining adequate site distances and visibility of all
State signs. Trees must be maintained to avoid falling branches and to avoid obscuring
advertising signs. Trees shall be pruned on a regular basisusing only the highest
SEP 24 '02 09:30
1
9498515179 PAGE.02
09/24/02 09:16
RUG-07-2ee2 14124
PIRZADEH & ASSOCIATES, INC. 4 3990361
dT 12 mum. ENG
STATE OF CALWORNIA - 9USIDWSa AND TRANSPORTATION AGENCY GRAY DAMS, Gewscr
NU.4L WU3
949 724 2208 P.03/04 '
DEPARTMENT OF TRANSPORTATION
DISTRICT 12.3337 MiCHE SON DRIVE, SUnE 310
IRVINRcA 02612
Professionally accepted standards and in a manner that will encourage good development
while preserving the health, structure and natural appearance of those trees.
•
6. A monthly aohedule of planned landscape maintenance settling out the dates and approximate
times when work is to be performed, including names and telephone numbers for 24-hour
emergency contact, shall be provided to the State Permit Inspector following the issuance of
the permit.
7, Pennittee shall provide and maintain all water and irrigation systems and shall pay all utility
costs for Project. Irrigation systems will he maintained and operated to avoid slope damage
and water run-off or spray onto the pavement and traffic.
8. By execution of this Agreement, it is understood that Permittcc shall not remove existing
plants, add plants,or modify irrigation system(s) without Cahrans' prior written approval.
9. Landscaping. paving or other unplanted areas along the roadside within the litnits shown on
the attached plans, exclusive of paved drainage facilities, will be maintained so as not to
obstruct the flow of water. Caltrans will be responsible for maintaining paved drainage
structures.
10. Various futures Caltrans projects may be implemented which muy require the removal and/or
modification to all or a portion of Project. Any replacement landscaping installed by
Caltrans as part of that work, including new or revised irrigation facilities, may become
Perinince's responsibility depending on whether that replacement landscaping is not part of
project's scope. Upon cotnpletionof work, which affects the described limits of
maintenance, a revised Exhibit will be prepared and delivered to Pcrmittee by Caltrans for
approval. Once approved, Exhibit will supersede the original limits shown on the original
permit plans.
11. Any changes to the Project affecting public safety or public convenience, all design and
specification changes, and all major changes including removal, pruning, or addition of either
planting or irrigation system shall be approved by State in advance of Permittee performing
work. Unless otherwise directed by the State Permit Inspector, changes authorized will
require an encroachment permit. Failure to notify Caltrans of such changes shall result in the
immediate removal of Project or portions of Project at Permittee's expense.
12. Upon notice of completion of all work under this Project, ownership end title to material,
equipment and such appurtenances installed within State's right-of-way will automatically be
vested in State. No further agreement will be necessary to transfer ownership.
13. Neither Caltrans nor any officer or employee thereof is responsible for any damage or
liability occurring by reason of anything done or omitted to be done by Pennittee and City
under or in connection with any work, authority or jurisdiction delegated to Pennine and
City under this Agreement. It is understood and agreed that, pursuant to Government Code
SEP 24 '02 09:31
2
9490515179 PAGE.03
09/24/02 09:16 PIRZADEH 8 ASSOCIATES, INC. a 3990361
. 1 PO-87-2002 14:24 illT 12 MRINT ENS
.STATEOFCALDXWODA-DUSD7£ss ANDTRANEPORTATIDN AGENCY
DEPARTMENT OF TRANSPORTATION
DISTRICT 1, 3337 MIC ELSON DRIVE, SUITE MO
MINE. CA 72612
NO.542 D04
949 724 2208 10.04/04
GRAY DAV1S, Uovenlor
Section 895.4, Permittee and City shall defend, indemnify and hold harmless the State of
California and Caltrans, all officers and employees from all claims, suits or actions brought
for or on account of injury (as defined in Government Code Section 810.8) occurring by
reason of any action taken or omission of an act required by this agreement by Permittee or
in connection with any work. authority or jyrisdiction delegated to Permittee and City under
this Agreement.
14. It is understood that if Permittee at some future date decides to not renew maintenance permit
required herein, or if the landscape planting is not maintained at an acceptable level subject
to Caltran.' consent, City will maintain all Project improvements. Caltrans shall provide
City with written notice of Pcrmittee's failure to renew its annual permit and/or Caltrans'
decision that subject Projcct is not maintained at a reasonable level and City shall respond
within thirty (30) days of receipt of said notice by describe the action to be Laken by City to
bring the affected areas back into compliance or to remove the Project improvements and
restore said areas to the pre -landscaped condition. In the event City does not provide such
response and take any action, Caltrans will Take the necessary action(s) to remove the Project
and restore the affected areas to their pre -landscaped condition at City's sole expense.
IN WITNESS WHEREOF, the parties have executed this Maintenance Agreement in duplicate
as of the day and year stated above.
Peimitree:
Signature:
Print Name:
Title:
Phone:
Date:
City Caltruns
SEP 24 '02 09:31
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1p r. P64
9498515179 PAGE.04.
FILE COPY
Amendment to Landscape Maintenance Agreement
This Amend ent to Landscape Maintenance Agreement ("Amendment") is entered into as of
P1 4 1 72 , 200 by and between 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 ("City"), and The Irvine Company, a Delaware corporation ("TIC").
Whereas, City and TIC previously entered into that certain "Landscape Maintenance Agreement"
dated February 12, 2003 ("Agreement"), regarding installation and maintenance of landscaping within a
slope area (the "Landscape Area") owned by the State of California Department of Transportation
("Caltrans") adjacent to TIC's property known as The Bluffs Retail Center (the "Center").
Whereas, the Agreement contemplated that the landscaping would be installed and maintained
within the Landscape Area pursuant to a Maintenance Agreement between Caltrans and City, the form of
which was attached as Exhibit D to the Agreement.
Whereas, subsequent to the execution of the Agreement by City and TIC, Caltrans has advised
that it requires a different form of agreement for maintenance of the Landscape Area instead of the
Maintenance Agreement attached as Exhibit D to the Agreement. The new form of agreement is called
the "State Highway Planting Maintenance Agreement," a copy of which is attached as Exhibit 1 to this
Amendment.
Whereas, to make the exhibits to the Agreement conform with the new form preferred by
Caltrans, City and TIC desire to amend the Agreement to substitute the State Highway Planting
Maintenance Agreement in place of the Maintenance Agreement originally attached as Exhibit D to the
Agreement.
NOW, THEREFORE, in consideration of the above, City and TIC agree as follows:
Substitution of Maintenance Agreement as Exhibit D to Agreement. The form of Maintenance
Agreement attached as Exhibit D to the Agreement and the cover sheet to Exhibit D regarding changes to
the Maintenance Agreement are hereby deleted in their entirety, and the "State Highway Planting
Maintenance Agreement" attached as Exhibit 1 hereto is substituted in their place.
2. Effective Date. This Amendment shall be effective as of the date first set forth above.
3. Counterparts. This Amendment may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same instrument.
4. No Other Changes. Except as expressly set forth in this Amendment, all other terms and
conditions of the Agreement shall remain unchanged and in full force and effect.
THE IRVINE COMPANY,
a Delaware corporation
By: (.:,,,t =.--...A
Keith C. Eyrich
President, Retail Properties
—tom
By:
Lee Burckle
Assistant Secretary
30209-0032/345856.2
12/22/03
CITY OF NEWPORT BEACH,
a California municipal corporation
By: - e
Homer L. Bluda '
City Manager
APPROVEth, TO FORM:
If I
9 fs�
By:
Date:
City Attorney
ATTEST:
ems-;
By:
Clerk
Date:
30209-0032/345856.2
12/22/03
Exhibit 1
State Highway Planting Maintenance Agreement
30209-0032/345856.2
12/22/03
STATE HIGHWAY PLANTING MAINTENANCE AGREEMENT
IN THE CITY OF NEWPORT BEACH
This AGREEMENT, made and executed in duplicate this 2 S day of UU
20� is by and between the State of California, acting by and through the
Department of Transportation, hereinafter referred to as "STATE" and the City of
Newport Beach, hereinafter referred to as "CITY."
WITNESSETH:
A. RECITALS
The parties desire to provide for CITY to maintain landscaped areas within
State Highway Right of Way near the southeasterly confluence of the San
Joaquin Hills Transportation Corridor and MacArthur Boulevard as shown on
the attached Exhibit "A" (the "Permit Area"), pursuant to an encroachment
permit (the "Permit") to be issued by STATE to CITY.
B. AGREEMENT: CITY OBLIGATIONS
In consideration of STATE's issuance of a Permit to CITY to allow installation
and maintenance of landscaping within the Permit Area, CITY agrees as
follows:
1. To maintain a separate irrigation system and pay all repairs, water and
electrical cost.
2. To apply fertilizer as necessary to sustain healthy growth while controlling • .
weeds at a level acceptable to STATE. STATE is allowed access through the
Permit Area.
3. To keep plantings trimmed to eye -pleasing appearance.
4. To use only those pesticides and fertilizers approved by the State of
California and in a safe manner consistent with label and legal restrictions.
5. To remove and replace unhealthy or dead plantings promptly after they are
observed.
6. To keep the entire area policed and free of litter and deleterious material.
7. To maintain, repair and operate CITY's irrigation system in a manner that
prevents water from flooding onto the State Highway.
8. To allow random inspection by a STATE representative.
30209-0032/345219.2
11/10/03
9. If for any reason CITY is unable to maintain the Permit Area in a manner
satisfactory to STATE, CITY will either (a) re -landscape the Permit Area to a
condition acceptable to STATE, or (b) return the Permit Area to its "original
condition" pursuant to Section 11 below at CITY's sole expense.
10. To do all maintenance, protection, repair, restoration, replacement and
renovation removal work at no cost to STATE.
11. To remove landscaping and restore area to original condition prior to this
planting or to a condition acceptable to STATE representatives in the event
this Agreement is terminated pursuant to Section E below.
C. STATE OBLIGATIONS
In consideration of CITY's covenants and agreements herein contained,
STATE agrees to repair and/or replace ahy damaged landscaping or irrigation
systems within the Permit Area to the extent any such damage was caused
by the acts or omissions of STATE.
D. LEGAL RELATIONSHIPS AND RESPONSIBILITIES
Nothing in the provisions of this Agreement shall limit CITY's right to enter into
a separate agreement for the maintenance of the Permit Area with a third
party entity or individual. Any subsequent agreement between CITY and a
third party affecting the maintenance of the Permit Area shall be subject to
CITY's obligations under this Agreement.
It is understood and agreed that neither STATE, nor any officer or employee
thereof, is responsible for any damage or liability occurring by reason of
anything done or omitted to be done by CITY under or in connection with any
work performed by CITY under this Agreement. It is also understood and
agreed that, pursuant to Government Code Section 895.4, CITY shall defend,
indemnify and save harmless the State of California, and all of its officers and
employees, from all claims, suits or actions of every name, kind and
description brought for or on account of injuries to or death of any person or
damage to -property resulting from anything done or omitted to be done by
CITY under and in connection with any work performed by CITY under this
Agreement.
E. TERM OF AGREEMENT
This Agreement shall become effective on the date appearing on the face
sheet and shall remain in full force and effect until amended or terminated at
any time upon mutual consent of the parties thereto. This Agreement may
also be terminated by either party upon sixty (60) days' prior written notice to
the other party subject to the completion of all contracted duties to be
2
30209-0032/345219.2
11/13/03
performed by that terminating party as a consequence of such termination.
CITY's failure to comply with provisions set forth in Section B would be
grounds for notice of termination by STATE.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
as of the day and year first above written.
CITY OF NEWPORT BEACH,
a California municipal corporation
By:
City Manager
APPROVED AS TO FORM:
City Attorney
Date:
0-
u -/
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
Jam b$ Pinheiro
Dep f District Director
Main nance and Traffic Operations
APPROVED AS TO FORM AND PROCEDURE:
Department of Transportation
3
30209-0032/345219.2
11/10/03
EXHIBIT "A"
Depiction of Permit Area
19 Technology Drive, Irvine, CA 92618 (949) 923-6000
DATE: 12/10/03 JOB NO. 13497.01.000