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Home My WebLink About04 - 882 Avocado Avenue Non-Standard Improvements. December 13, 1999 CITY COUNCIL AGENDA ITEM NO. 4 TO: Mayor and Members of the City Council FROM: Public Works Department SUBJECT: AGREEMENT FOR MAINTENANCE OF NON - STANDARD IMPROVEMENTS IN CORONA DEL MAR PLAZA LOCATED AT 882 AVOCADO AVENUE (PARCEL 1 OF PARCEL MAP 90 -361 AS RECORDED IN BOOK 270, PAGES 15 THROUGH 18 INCLUSIVELY OF PARCEL MAPS AS FILED IN THE OFFICE OF THE COUNTY OF ORANGE COUNTY) DEVELOPER: THE IRVINE COMPANY RECOMMENDATIONS: 1. Approve an agreement for non - standard improvements over portions of Parcel 1 of Parcel Map 90 -361 as recorded in Book 270, Pages 15 through 18 inclusively of Parcel Maps in the office of the County of Orange County. 2. Authorize the City Manager and City Clerk to execute the agreement. 3. Authorize and direct the City Clerk to have the agreement recorded with the Orange County Recorder. DISCUSSION: The Irvine Company, with the development of the Tommy Bahamas Restaurant, has constructed non - standard patio paving, pilasters, a fountain, planters and appurtenances over an existing easement containing water and sewer facilities serving Corona del Mar Plaza as shown in the attached agreement. The agreement permits the construction of the non - standard improvements as approved by the Public Works Department and requires that The Irvine Company and their successors in interest to be responsible for maintenance and restoration of the improvements. Re ectfully, Don Webb Public Works Director Richard L. Hoffstadt, P.E. Attachments: Encroachment Agreement f: \usersfpbMsheredfcoundl %fy9 Wecember- 13 %ecdm plane gr.d= RECORDING REQUESTED AND WHEN RECORDED RETURN TO: City Clerk 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 THIS AGREEMENT is made and entered into this day of 11999, by and between The Irvine Company, a Delaware Corporation (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 located at 882 Avocado Avenue, Newport Beach, California and legally described as a portion of Parcel 1 of Parcel Map 90 -361 (hereinafter "SUBJECT PROPERTY "), as shown on a map recorded in Book 270, Pages 15 through 18 inclusively of Parcel Maps in the office of the County Recorder of Orange County, California; WITNESSETH: WHEREAS, OWNER desires to construct and maintain certain non - standard improvements (hereinafter "PERMITTED IMPROVEMENTS ") within a portion of an existing 25 -foot and 10 -foot easements, for water facility purposes (hereinafter "EASEMENTS ") serving Parcel 1, Parcel Map 90 -361, as shown on a map recorded as Document No. 19990356366 of Official Records in the office of the County Recorder of Orange County, California; and 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 i WHEREAS; the parties hereto desire to execute an agreement providing for fulfillment of the conditions required by CITY to permit OWNER to construct, reconstruct and maintain said PERMITTED IMPROVEMENTS. 0 NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as Odecorative brick and concrete patio paving, low walls, pilasters, fountain, planters and appurtenances in the 25 -foot and 10 -foot EASEMENTS as shown on EXHIBIT "A" attached hereto and as approved by the City Engineer. 2. CITY will permit OWNER to construct, reconstruct, install, maintain, use, operate, repair and replace said PERMITTED IMPROVEMENTS and appurtenances incidental thereto, within a portion of 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. If permitted improvements interfere in the future with CITY's ability to construct, operate, maintain, and replace CITY and other public facilities and improvements within EASEMENTS, then the rights granted under this Agreement may be terminated by CITY at any time by giving 60 days' notice (provided, however, that prior to such notice of termination the parties agree to meet and confer in good faith to promptly resolve any issues respecting such interference and OWNER has been given the opportunity to cure the same), 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. 2 d. That should CITY be required to enter onto said EASEMENT 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) by giving 60 days prior written notice and the parties agree to meet and confer in good faith to minimize any damage to the permitted improvement or any interference to the operation of the subject property. (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. 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 the EASEMENTS and remove all or part of the improvements installed by OWNER. Termination because of breach shall be upon a minimum of thirty (30) days' notice, unless the breach is cured within such 30 day period, 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 attorneys fees and costs incurred. 6. OWNER shall defend, indemnify, waive, 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 of any such claim or suit to the extent arising from or in any manner connected with the design, construction, maintenance, or continued existence of the PERMITTED IMPROVEMENTS. 7. OWNER shall accept the fact that surface drainage water may enter onto the "SUBJECT PROPERTY" from "EASEMENTS" located in the City of Newport Beach, County of 3 0 Orange, State of California, as depicted on Exhibit "A" attached hereto, whether naturally or as a result of the development or improvement of the "EASEMENTS ". 8. OWNER shall accept and waive any and all liability for any damages to the "SUBJECT PROPERTY" caused by the flow of such surface drainage water onto the "SUBJECT PROPERTY". OWNER shall defend, indemnify, waive 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 of any such claim or suit to the extent arising from or in any manner connected to surface drainage water entering the "SUBJECT PROPERTY" from the "EASEMENTS ". 9. 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 executed on the day and year first -above written. APPROVED AS TO FORM: CN City Attorney ATTEST: By. City Clerk AgXCDM -Plaza W 6'a 4 hereto have caused this Agreement to be CITY OF NEWPORT BEACH, a Municipal corporation By: City Manager OWNER: IRVINE RETAIL PROPERTIES COMPANY a Division of THE IRVINE COPANY a Delaware corporation 0 ,�Xe 1�txfAf Keith C. Eyrich, Vice President Development By` %%`�13�_ Thomas P. Lynch, Vice President Project Management CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT No, 5907 State of California County of Orange On October 19, 1999 before me, Ana R. Gutierrez DATE NAME, TITLE OF OFFICER - E.G., `JANE DOE, NOTARY PUBLIC" personally appeared Keith C. Eyrich and Thomas P. Lynch NAME($) Or SIGNER(S) ER personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and ac- knowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the ANA ILCUn8tttz L person(s) acted, executed the instrument. COMeMAon # 1194206 Notary Pubec -Cag will Orange MCmxdy 1142M2 WITNESS my hand and official seal. C SIGNATURE OF NOTAFA OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ry INDIVIDUAL Encroachment Agreement with City of CORPORATE OFFICER Newport Beach - Tommy Bahamas V.P. Development - IRPC CoronfnV@bftWPEr BOCUMENT TITLI 9M, ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ GUARDIAN /CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON($) OR ENTITY(IES) Irvine Retail Properties Company a clivision at e Irvine Company — a— Detavvar 3 Pages NUMBER OF PAGES October 19, 1999 DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION • 8236 Hemmer Ave., P.O. Box 7184 • Canoga Park, CA 91369 -71 B4 9