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Home My WebLink About18 - Encroachment Agreement - Tract 14989 - Irvine ApartmentMarch 8, 1999 CITY COUNCIL AGENDA ITEM NO. 18 TO: Mayor and Members of the City Council FROM: Public Works Department SUBJECT: TRACT NO. 14989 LOCATION: NORTHEASTERLY CORNER OF JAMBOREE ROAD AND UNIVERSITY DRIVE DEVELOPER: IRVINE APARTMENT COMMUNITIES, L.P., NEWPORT BEACH RECOMMENDATIONS: 1. Approve an encroachment agreement with the Irvine Apartment Communities, L.P., for construction and maintenance of non - standard improvements within the private entry street constructed with Tract No. 14989; authorize the Mayor and City Clerk to execute the encroachment agreement; and, authorize and direct the City Clerk to have the encroachment agreement recorded with the Orange County Recorder. 2. Approve a sewer lateral maintenance agreement with the Irvine Apartment Communities, L.P., which was constructed with Tract No. 14989; authorize the Mayor and City Clerk to execute the agreement; and, authorize and direct the City Clerk to have the agreement recorded with the Orange County Recorder. 3. Approve the improvement plans and specifications and accept the public improvements constructed in conjunction with Tract No. 14989. 4. Authorize the City Clerk to release the faithful performance bond (Bond No. 16- 39-95). 5. Authorize the City Clerk to release the labor and material surety (Bond No. 16- 39-95) in six months, provided no claims have been filed. DISCUSSION: Tract No. 14989 was approved by the Planning Commission on January 5, 1995, as shown in Exhibit "A ". As a part of the development, guard gate improvements (non- standard improvements) were constructed within the private entry road over the public utility easement containing water, sewer and storm drain improvements. An agreement has been prepared (Exhibit "B ") which permits the construction and maintenance of non - standard improvements as approved by the Public Works Department and requires that the Irvine Apartment Communities, L.P., and their successors in interest, be responsible for maintenance and restoration of the improvements. The agreement also SUBJECT: TRACT NO. 14989 March 8. 1999 Page 2 protects the City from liability associated with the presence of the non - standard improvements. The sewer lateral maintenance agreement (Exhibit "C) requires the developer and their successors in interest to maintain the sewer laterals connecting into the 8 -inch sewer mains throughout the project. The developer constructed the sewer laterals in a non- standard configuration and has agreed to maintain the laterals. The private improvements constructed in conjunction with Tract No. 14989 include curb, gutter, sidewalk, street light, street paving and storm drain improvements within the project. These improvements will be maintained by the developer. The public improvements constructed in conjunction with Tract No. 14989 have been inspected and are satisfactory for acceptance. The public improvements include the construction of water and sewer improvements. The sewer improvements will be maintained by the Irvine Ranch Water District, and the water improvements will be maintained by the City of Newport Beach. u L d Don Webb Public Works Director By: Richard L. Hoffstadt, P.E. Development Engineer Attachment: Exhibit "A ", Site plan Exhibit "B", Encroachment Agreement Exhibit "C ", Sewer Lateral Maintenance Agreement F: \Users \PBW\Shared \COUNCIL \FY98- 99\Mar -8 \Tract No. 14989.doc w w Q v vLL I� t M� W 2 rl W 1 i `dl l v ,. LLA W i I1 O1 I ♦�91� h�iV � O� • n I 1 ti W VV pp Vo 0l. s _ �T9� 'At � eM RECORDING REQUESTED AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659 -1768 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (TRACT NO. 14989) Exhibit 'B" THIS AGREEMENT is made and entered into this 8th day of March, 1999, by and between Irvine Apartment Communities, L.P. (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 the existing non- standard improvements located within the Baypoint Development constructed with Tract No. 14989, Newport Beach, Recorded in Book 729, Pages 21 through 24 inclusively Miscellaneous Maps in the office of the County Recorder of Orange County, California; WITNESSETH: WHEREAS, OWNER desires to allow and maintain existing non - standard improvements and construct/maintain non - standard improvements (hereinafter "PERMITTED IMPROVEMENTS ") within easements (hereinafter "EASEMENTS ") that are located within Tract No. 14989 in Newport Beach, California; WHEREAS, said PERMITTED IMPROVEMENTS may interfere in the future with CITY'S ability to construct, operate, maintain, and replace CITY and other public facilities and improvements within EASEMENTS; and WHEREAS; the parties hereto desire to execute an agreement providing for fulfillment of the conditions required by CITY to permit OWNER to reconstruct and maintain said PERMITTED IMPROVEMENTS; follows: NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as guard gates and appurtenances in EASEMENTS as shown on EXHIBIT "A" attached hereto and as approved by the City Engineer. 1 2. CITY will permit OWNER to construct, reconstruct, install, maintain, use, operate, repair and replace said PERMITTED IMPROVEMENTS and appurtenances incidental thereto, within EASEMENTS, all in substantial conformance with plans and specifications on file in the CITY. CITY will further allow OWNER to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 3. Rights granted under this Agreement may be terminated by CITY at any time by giving 60 days' notice, specifying in said notice the date of termination. CITY shall incur no liability whatsoever in the event of the termination of this Agreement, or subsequent removal of improvements by CITY. 4. OWNER and CITY further agree as follows: a. OWNER may construct and install PERMITTED IMPROVEMENTS and appurtenances incidental thereto, in substantial conformance with plans and specifications therefor on file in the CITY's Public Works Department, and as described on Exhibit "A" hereto attached. b. OWNER shall maintain the PERMITTED IMPROVEMENTS in accordance with general prevailing standards of maintenance, and pay all costs and expenses incurred in doing so. However, nothing herein shall be construed to require OWNER to maintain, replace or repair any CITY -owned pipeline, conduit or cable located in or under said PERMITTED IMPROVEMENTS, except as otherwise provided herein. c. If City or other public facilities or improvements are damaged by the installation or presence of PERMITTED IMPROVEMENTS, OWNER shall be responsible for the cost of repairs. d. That should CITY be required to enter onto said EASEMENTS to exercise its primary rights associated with said EASEMENTS, including but not limited to, the maintenance, removal, repair, renewal, replacement or enlargement of existing or future public facilities or improvements, CITY may remove portions of the PERMITTED IMPROVEMENTS, as required, and in such event: (i) CITY shall notify OWNER of its intention to accomplish such work, if any emergency situation does not exist. (ii) OWNER shall be responsible for arranging for any renewal or restoration of the PERMITTED IMPROVEMENTS affected by such work by CITY. (iii) CITY agrees to bear only the cost of any removal of the PERMITTED IMPROVEMENTS affected by such work by CITY. (iv) OWNER agrees to pay all costs for renewal or restoration of the PERMITTED IMPROVEMENTS. 2 5. In the event either party breaches any material provision of this Agreement, the other party at its option may, in addition to the other legal remedies available to it, terminate this Agreement, and, in the event the breaching party is OWNER, CITY may enter upon EASEMENTS and remove all or part of the improvements installed by OWNER. Termination because of breach shall be upon a minimum of ten (10) days' notice, with the notice specifying the date of termination. In the event of litigation commenced with respect to any term of condition of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs incurred. 6. OWNER shall 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 so utilized), regardless of the merit or outcome of any such claim or suit arising from or in any manner connected with the design, construction, maintenance, or continued existence of the PERMITTED IMPROVEMENTS. 7. OWNER agrees that this Agreement shall remain in full force and effect from execution thereof; shall run with the land; shall be binding upon the heirs, successors, and assigns of OWNERS' interest in the land whether fee or otherwise, and shall be recorded in the Office of the County Recorder of Orange County, California. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first -above written APPROVED AS TO FORM: By: City Attorney ATTEST: City Clerk CITY OF NEWPORT BEACH, a Municipal corporation Dennis O'Neil, Mayor MAIN" 0 F:\Users\PBW\DHoffstadt\AG\trl49B9cno-agt.doc 3 Exhibit "C" RECORDING REQUESTED AND WHEN RECORDED RETURN TO: City Clerk City of Newport Beach Post Office Box 17618 3300 Newport - Boulevard Newport Beach, CA 92659 -1768 Space above this line for Recorder's use only. SEWER LATERAL MAINTENANCE AGREEMENT This Sewer Lateral Maintenance Agreement (hereinafter "Agreement ") is made and entered into this 1st day of December , 1998 , by and between the City of Newport Beach, a municipal corporation of the State of California (hereinafter "City") and Irvine Apartment Communities, L.P., a Delaware limited partnership (hereinafter "Owner "). RECITALS A. Owner is the owner of that certain apartment project within the city limits of City in Tract 14989 commonly known as the Baypointe Apartments (hereinafter "Project "). B. In connection with the development of the Project, various private sewer lateral lines (hereinafter "Laterals ") were constructed by Owner within the Project. Although not constructed to City standards, the Laterals were permitted by City so long as Owner agreed to be responsible for the permanent maintenance and repair of the Laterals. C. The Laterals connect into the 8 inch public sewer lines throughout the Project. Maintenance of the public sewer lines (hereinafter "Main Sewer Lines ") is not the responsibility of Owner. The depictions attached as Exhibit "A" and "B" to this agreement illustrate the typical locations of the laterals and of the Main Sewer Lines throughout the Project. D. City cannot release the bonds posted with the City in connection with the Project without Owner's agreement to be responsible for maintenance and repair of the Laterals. 110398 -1631 / P90000-001 / 94989.4 -1- AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: 1. Maintenance of Laterals. Owner agrees to provide, at its sole cost and expense, all necessary maintenance and repair of the Laterals for so long as the Project continues as apartments or condominiums on the Project site; provided, however, that if (a) Owner transfers or conveys its ownership interest in the Project (or in the case of a condominium project, transfers fee title to the common areas where the Laterals are located) and assigns to the transferee the maintenance and repair obligations of Owner under this Agreement, and (b) the transferee agrees to accept such assignment and assumes Owner's obligations under this Agreement, then Owner shall be relieved of such obligations as of the effective date of such assignment. Owner acknowledges that unless the agency or entity responsible for maintenance of the Main Sewer Lines agrees otherwise, no public agency or entity shall be responsible for the maintenance of the Laterals within the Project. 2. Compliance with Standards. In the performance of its obligation relating to the maintenance and operation of the Laterals, Owner shall comply with all applicable laws, ordinances, rules and regulations (collectively hereinafter, the "Standards ") of City and /or the public agency responsible for maintenance of the Main Sewer Lines, Owner shall perform all maintenance and repair at a level consistent with the Standards. 3. No Rights in Public. Nothing herein contained shall be deemed a gift or dedication of any portion of the Project to or for the general public, It being the intention of the parties that this Agreement shall be strictly limited to and for the purpose herein expressed.' 4. Notices. All notices or other communications between the Parties shall be made by hand - delivery, prepaid first -class mall, or telecopies, as follows: If to City: City of Newport Beach Public Works Department 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92658 -8915 Attn: Development Engineer Fax No. (949) 644 -3318 If to Company: Irvine Apartment Communities 550 Newport Center Drive Newport Beach, CA 92660 Attn: Richard E. Lamprecht Fax No. (949) 720 -5550 All such notices shall be deemed to have been duly given: when delivered by hand, if personally delivered; two business days after being deposited in the mail, postage pre -paid, if mailed as aforesaid; and when receipt acknowledged, if telecopied. 11039 &1631 / P90000 -001 / 94989.4 -2- 5. Successors. This Agreement shall binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. 6. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 7. Entire Agreement. This Agreement contains the entire agreement between the parties relating to the subject matter hereof. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above. APPROVED AS TO FORM: By: City Attorney ATTEST: By: City Clerk CITY OF NEWPORT BEACH a municipal corporation IM City Manager OWNER: Irvine Apartment Communities, L.P., a Delaware limited partnership By: Irvine Apartment Communities, Inc., a Maryland corporation, general partner By: '�/ / - Name: Title: DWbpmeM Name: Title: RICHARD E. I AMPRFCUT Senior Vice P_resid :..,. 11039 8-16311 P90000-001 194989.4 Irvine Ranch Div r, � . ,- sident -3- CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of I County of 0� r 4= (i On �C� ^� Lr� h I (�01 o before me, (� "o,'Rc n `1 Q�f) SQ -1--- Date Name and Title of Officer (e.g., 'Jane Doe, Notl personally appeared t�iG��l� La �r`��1 cv+tek KZl n��, Name(s) of Signer(s) personally known to me – OR – ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she/they executed the SHARON JENSL N�� same in his/her /their authorized capacity(ies), and that by NOTARY PUULIC • CALIFORNIA L COMMISSION 01122411 his/her /their signature(s) on the instrument the person(s), ORANGE COUNTY My Cam. EqL Malg! 3,2001 or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Sik nature o Notary Poblk OPTIONAL Though the information below is not required bylaw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document �� Title or Type of Document: S� � L'6` � hip (\4�c-,2_ Document Date: UC.Q yyX.6\ 1, 1998 Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ■ I Individual Corporate Officer Title(s): Partner — ❑ Limited ❑ General Attorney -in -Fact Trustee Guardian or Conservator Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Signer's Name: Individual Corporate Officer Title(s): Partner — ❑ Limited ❑ General Attorney -in -Fact Trustee Guardian or Conservator Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER 0 1994 Natknal Notary Aasociaean • 8236 Remmel Ave.. P.O. Box 7184 • CanWa Park, CA 91309 -7184 Prod. No. 5907 Reorder: Call Toll -Free 1.800- 8764U7 STATE OF ) ss. COUNTY OF ) On , 1998, before me, , Notary Public, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their, authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Notary Public (SEAL) STATE OF ) ss. COUNTY OF ) On , 1998, before me, , Notary Public, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Notary Public (SEAL) 11039 8-1671 1 P90000-001 194989.4 -4- "oh.[ +1 ''o, V1, , ; , , I I r'! II U. 31 CLEANOUT (TYP.) PRIVATELY AbUNTAINCO �8'—TpUSUC.L 4' SEWER LATERAL (TV.) PRIVATELY "NIA)NED CLEANO MATELY —w— PUBLIC-LSEWER-r- 4' SEWER LATERAL (TYP-) PRIVATELY AW14TAINED 7 --. -A w--- EXHIBIT 'A' I m NL i II ZS S`_ -S- - r- , = 1. PRIVATELY UAINUNED SANITARY SEWER LATERAL PUBLIC AWNTMED SANITARY SEWER MAN LINE SEWER LATERALS (TYP VATELY AWNIAWED LATERALS (TYP. AWMTAJJVED JOB NO. 94-996 DATE: OCTOBER 28. 19961 'Vl.I ,'U • , "I .. I .. .. .... EXHIBIT 'B' 8'�- PUBLlC— SEINER V SEWER LATERAL (T P.),�1 PRNATELY A/AWrAiu[n -- 4' SEWER LATERAL PRNATELY "A(TAINED 6"- -PU6LIC -SEWER - - - - - - PRNATELY AMMTNNED SANITARY SEWER LATERAL PUBLIC AIALMaNED SANTTARY SEINER AWN LINE JOB NO. 94 -996 DATE. OCTOBER 28, 1996 TOTAL T'.03