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HomeMy WebLinkAbout27 - Pelican Hill Road Golf Cart Bridge EncroachmentCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 27 January 10, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Richard Edmonston 949 - 644 -3311 redmonston @city.newport- beach.ca.us SUBJECT: PELICAN HILL ROAD GOLF CART BRIDGE ENCROACHMENT AGREEMENT RECOMMENDATION: Approve an Encroachment Agreement with The Irvine Company for the construction and maintenance of the proposed golf cart bridge and appurtenances within the Pelican Hill Road public right -of -way and authorize the Mayor and City Clerk to execute the Agreement. DISCUSSION: The Irvine Company (TIC) has obtained approvals from the County of Orange to develop its Pelican Hill Inn project on both sides of Pelican Hill Road South from Newport Coast Drive to approximately Pelican Hill Circle. The development includes the construction of a new resort hotel, fractional ownership units, a new Pelican Hill Golf Club, a golf cart bridge (Bridge), and other necessary roadways, utilities, and amenities to serve the Development. The new golf clubhouse will be constructed on the north side of Pelican Hill Road South, westerly of Newport Coast Drive. The golf course is on the southerly side of Pelican Hill Road and requires the Bridge for access between the clubhouse and the golf course. The Irvine Company is now requesting an Encroachment Agreement providing for the construction of the Bridge by TIC and its ongoing maintenance by TIC or any successor owner of the resort property. Staff has worked with TIC on the provisions of the Encroachment Agreement and recommends its approval. PrepAred by Richard M. Edmonston, P.E. Transportation and Development Services Manager Attachment: Encroachment Agreement Subm .¢hen G. Badum blic Works Director RECORDING REQUESTED AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92659 -1768 WITH A CONFORMED COPY TO: The Irvine Company 550 Newport Center Drive Newport Beach, CA 92660 Attn: Brigid McMahon, Legal Department Space ENCROACHMENT AGREEMENT (EPN2005 -� this line for Recorder's use only. THIS ENCROACHMENT AGREEMENT ( "Agreement ") is made and entered into this day of , 20055 by and between The Irvine Company LLC, a Delaware limited liability company (hereinafter "OWNER "), and the City of Newport Beach, California, a municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California (hereinafter "CITY "). OWNER is the owner of property described on Exhibit A and depicted on Exhibit B attached hereto (hereinafter "Owner's Property"). WITNESSETH: WHEREAS, in connection with the operation of its resort and golf course properties in Newport Coast, OWNER desires to construct certain improvements consisting of a bridge and various improvements and appurtenances related thereto as described in Section 1 below (hereinafter, the "Bridge Improvements ") within and crossing over the Pelican Hill Road right - of -way (hereinafter "Right -of- Way ") that is located between and separates the two parcels of Owners Property described on Exhibit A. 30209-0066/354946.6 12/23/05 The Bridge Improvements are considered to be "non- standard improvements" as compared with improvements that CITY typically installs within street rights -of -way; and WHEREAS, the Bridge Improvements may interfere in the future with CITY'S ability to construct, operate, maintain, and replace the public street, utility, sewer, water, street light, storm drains and other public improvements (hereinafter, the "City Facilities' within the Right-of- Way; and WHEREAS, CITY is willing to allow OWNER to install the Bridge Improvements within the Right -of -Way subject to the terms and conditions of this Agreement, and CITY and OWNER desire to enter this Agreement providing for fulfillment of the conditions required by CITY to permit OWNER to construct and maintain the Bridge Improvements. NOW, THEREFORE, in consideration of the above recitals and the mutual promises contained herein, the parties hereto agree as follows: 1. Bridge Im rovements. The Bridge Improvements shall include the bridge and all abutments, footings, supporting columns, lighting, landscaping, landscape irrigation systems and appurtenances related thereto, as described in the plans entitled "Pelican Hill Road Golf Cart Bridge" prepared by Simon Wong Engineering, dated April 6, 2005 (or such later edition of such plans as approved by County), which plans have been approved by the County of Orange and are on file with the Public Works Department of CITY (the "Approved Plans'D. In addition, if OWNER desires, prior to construction of the Bridge Improvements, to change any of the Bridge Improvements from the Bridge Improvements described on the Approved Plans, such variations or changes must be approved in advance by County and copies of same shall be provided to CITY's Public Works Department and shall be shown on the "As Built" plans. After completion of construction of the Bridge Improvements and the adjacent resort development, OWNER shall not materially alter the constructed improvements from their original condition as installed per the Approved Plans without the prior written approval of CITY. CITY' approval of the proposed alterations to the improvements shall not be unreasonably withheld or delayed. In addition to the Bridge Improvements (which shall remain the property of OWNER after completion), OWNER will construct a new storm drain and traffic control devices within 30209 -0066/354946.6 12/23/05 2 the Right -of -Way as shown on the Approved Plans, street plans and/or traffic control plans (the "Non- Bridge Improvements "), pursuant to a separate encroachment permit to be issued by CITY separate from the encroachment permit issued by CITY related to the Bridge Improvements. Unlike the Bridge Improvements, the Non -Bridge Improvements will tie into and become City Facilities upon acceptance thereof by CITY. OWNER is solely responsible for the costs of any such Non - Bridge Improvements installed by OWNER that will become City Facilities; however, after acceptance thereof by CITY, CITY shall be responsible for the operation and maintenance of such Non -Bridge Improvements at CITY's sole cost and expense. 2. Right -of -Way Affected by Bridge Improvements. CITY will permit OWNER to construct, reconstruct, install, maintain, use, operate, repair and replace the Bridge Improvements within the portion of the Right -of -Way described on Exhibit C and depicted on Exhibit D (hereinafter, the "Affected Area"), all in substantial conformance with the Approved Plans. Further, CITY will allow OWNER to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 3. OWNER's Pre - Construction and Post- Construction Obligations. a. Prior to construction of the Bridge Improvements, OWNER shall: i. Obtain from CITY'S Public Works Department an Encroachment Permit (the "Bridge Encroachment Permit") authorizing the construction of the Bridge Improvements within all portions of the Right -of -Way described in the Bridge Encroachment Permit, and comply with all conditions of the Bridge Encroachment Permit. The Bridge Encroachment Permit shall be separate from the encroachment permit that OWNER must obtain from the CITY for construction of the Non -Bridge Improvements referenced in the second paragraph of Section 1 above. ii. Obtain from CITY's Public Works Department a temporary Street Closure Permit, and comply with all conditions of such permit. iii. Advise its contractor (i) that the contractor will be required under the Bridge Encroachment Permit to obtain commercial liability, automobile, and workers compensation insurance in amounts required by CITY's Public Works 30209 - 0066/354946.6 12/23/05 3 Department and CITY's Risk Manager, and (ii) that CITY must be named as an additional insured on contractor's commercial liability and automobile insurance policies. b. After completion of construction of the Bridge Improvements, OWNER shall grant City an easement for the relocated sidewalks on both sides of Pelican Hill Road that are to be located on Owner's Property, as shown on the Approved Plans. 4. Construction & Maintenance Obligations. OWNER and CITY further agree as follows: a. OWNER may construct and install the Bridge Improvements within the Right -of -Way, in substantial conformance with the Approved Plans and the Bridge Encroachment Permit issued by CITY for such construction. OWNER shall be solely responsible for paying for the costs to construct and install the Bridge Improvements. b. OWNER shall maintain the Bridge Improvements in good condition and repair in accordance with the prevailing standards of maintenance for the surrounding resort property within Newport Coast, and pay all costs and expenses incurred in doing so. All replacements and repairs shall be at least equal in quality to the Bridge Improvements described in the Approved Plans. In addition, OWNER is responsible for the cost of providing water for irrigation of the landscaping and electricity for the lighting installed within the Affected Area in connection with the Bridge Improvements. Nothing contained herein, however, shall be construed to require OWNER to maintain, replace or repair any City Facilities within the Right -of -Way, except to the extent that OWNER damages the City Facilities in connection with OWNEWs construction, operation and maintenance of the Bridge Improvements. C. If City Facilities or other public facilities or improvements are damaged by OWNER's installation, operation and/or maintenance of the Bridge Improvements, OWNER shall be responsible for performing all repairs at OWNER's sole expense. d. After completion of construction of the Bridge Improvements, CITY shall remain responsible for the maintenance of the portions of the Right -of -Way that pass beneath the bridge structure, including but not limited to, the maintenance, removal, repair, renewal, or replacement of the City Facilities; provided, however, that in 30209 - 0066/354946.6 1223/05 4 connection with such activities by CITY, CITY shall do nothing that would damage or impair the structural integrity of the Bridge Improvements. e. In the event that OWNER transfers its ownership interest in Owners Property to any person or entity other than to a subsidiary or affiliate of OWNER, such successor owner (hereinafter "Successor's must, unless otherwise agreed by CITY, comply with the insurance requirements specified on Exhibit E. 5. Failure to Perform. If OWNER fails to fulfill its maintenance or other responsibilities under this Agreement, CITY may provide OWNER with written notice of such failure describing the deficiencies in reasonable detail (the "Deficiency Notice'. If such deficiency is not corrected to City's satisfaction within thirty (30) calendar days of OWNER's receipt of the Deficiency Notice, CITY shall have the right, but not the obligation, to cure the deficiency; provided, however, that if the deficiency is of a type that cannot reasonably be cured within such period, it will be deemed cured if OWNER commences to cure the deficiency within such period and proceeds diligently thereafter to complete the cure of such deficiency. Notwithstanding the foregoing, if the deficiency is of a nature that CITY determines could create a safety problem for the general public, OWNER shall be required to take necessary actions to address such safety problem as soon as practicable after receipt of CITY's notice specifying the nature of same. If CITY elects to cure the deficiency, OWNER shall reimburse CITY for its actual and reasonable costs incurred in curing the deficiency within thirty (30) days of OWNER's receipt of CITY's invoice for such costs, which invoice shall be accompanied by copies of receipts evidencing the actual cost of cure incurred by CITY. 6. Indemnification. OWNER shall defend, indemnify and hold harmless CITY, its City Council, boards and commissions, officers and employees from and against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees when outside attorneys are used (collectively, the "Claims' arising from or related to (a) Company's design, installation and maintenance of the Bridge Improvements, (b) the acts of OWNER or its contractors within the Right -of -Way, and (c) OWNER's performance of its obligations hereunder; provided, however, that OWNER's indemnification obligations hereunder shall not apply to the extent that any Claim is caused by the sole negligence or willful misconduct of CITY or CITY's contractors within the Right -of -Way. 30209-0066/354946.6 1223/05 5 7. Run with the Land. This Agreement and the terms, conditions and covenants contained herein shall be perpetual in nature and shall run with the Owner's Property and the Right -of -Way, and shall be binding upon and inure to the benefit of OWNER and CITY and the successors and assigns of each party, whether the interest held by such party is in fee or otherwise. This Agreement shall be recorded in the Office of the County Recorder of Orange County, California. S. Attorneys' Fees. In any action between the parties seeking enforcement of any of the terms and provisions of this Agreement, the prevailing party in such action shall be awarded, in addition to any damages, injunctive or other relief, its reasonable costs and expenses, including reasonable attorneys' fees. 9. Notices. All Notices required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given if personally delivered or sent by prepaid first class mail, addressed as follows: If to City: City of Newport Beach Public Works Department 3300 Newport Boulevard (P.O. Box 1768) Newport Beach, California 92658 -8915 Attention: City Engineer If to Company: The Irvine Company 550 Newport Center Drive Newport Beach, CA 92660 Attn: Senior Vice President & General Counsel Either party may change its address for notice by providing written notice of such changed address to the other. 10. Incorporation of Exhibits. Exhibits A, B, C, D and E, which are attached hereto, are hereby incorporated herein by this reference. 30209 - 0066/354946.6 12/23/05 6 11. Authority. The parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitutes the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 12. Amendment. This Agreement may be amended only by a written instrument approved and executed by the parties. 13. Priority. OWNER agrees that this Agreement shall always be prior and superior to and shall be recorded prior to any mortgage, deed of trust or any other hypothecation for security hereafter placed on Owners Property. 14. Entire Agreement. This Agreement, together with the Exhibits attached hereto and the Bridge Encroachment Permit to be executed prior to construction of the Bridge Improvements, constitutes the entire agreement between OWNER and CITY pertaining to the subject matter hereof, and all prior and contemporaneous agreements, representations, negotiations and understandings of the parties, whether oral or written, are hereby superseded and merged herein. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, a California municipal corporation C City Attorney By: Mayor ATTEST: City Clerk 30209 - 0066/354946.6 12/23/05 7 OWNER: THE IRVINE COMPANY LLC, a Delaware limited liability company in Ronald J. Keith Executive Vice President Commercial Property Development Investment Properties Group By: Mary K. Westbrook Assistant Secretary 30209 - 00661354946.6 12/23/05 STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On , 2005, before me, 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 has 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 acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State (SEAL) STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On , 2005, before me, personally appeared Ronald J. Keith and Mary K. Westbrook, 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 has 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 acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State (SEAL) 30209 - 0066/354946.6 12/23/05 9 Exhibit A Legal Description of Owner's Property 30209 - 00661354946.6 12(23105 Exhibit C Legal Description of Affected Area of Right- of -Wav 30209 - 0066/354946.6 12/23/05 Exhibit E Insurance Requirements for Successor Owners Any Successor must carry general liability insurance in the amounts specified below for activities within the Right -of -Way, and shall also require in its contracts with any contractors that perform any design, installation, repair, maintenance or other work in connection with the Bridge Improvements within the Right -of -Way, that such contractors obtain, provide and maintain at all times during the performance of any such work, at no cost or expense to City, policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City prior to performance of any work within the Right -of -Way. Except for workers' compensation and any errors and omissions coverage, all insurance policies shall, to the extent coverage is provided under such policies, add City, its elected officials, officers, agents, representatives and employees as additional insures for all liability arising from such work related to the Bridge Improvements within the Right -of -Way. Insurance policies for the following coverages, with original endorsements related to the work on the Bridge Improvements within the Right -of -Way, shall be issued by companies approved, licensed or authorized to do business in California and assigned Best's A- VII or other rating acceptable to City: A. Workers compensation insurance, including "Waiver of Subrogation" clause, covering all employees of such contractor, per the laws of the State of California. B. Commercial general liability insurance, including additional insured and primary and non - contributory wording, covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury and property damage. if commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to the work within the Right -of -Way, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance, including additional insured (and primary and non - contributory wording for waste haulers only), covering any owned and rented vehicles of such contractor in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. D. For any contractors providing design services, professional errors and omissions insurance, which covers the services to be performed in connection with any improvements to be installed within the Maintenance Area, in the minimum amount of $1 million. City may, from time to time, require increases in the amounts of coverage specified above to conform with the levels of insurance required by City for similar types of work or contracts. Said policy or policies shall be endorsed to state that coverage shall not be subject or cancellation or non - renewal without thirty (30) days prior written notice to be delivered to City. 30209 - 0066/354946.6 12/23/05 All contractors providing insurance as required hereunder shall give City prompt and timely notice of claim made or suit instituted arising out of contractor's work within the Right -of -Way. Each contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance that in its own judgment may be necessary for its property protection and prosecution of the work. Each contractor will be required to agree that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, contractor shall look solely to its insurance for recovery. The workers compensation policy and any other policy pertaining to the Bridge Improvements carried by each contractor will contain a waiver of subrogation with respect to City as to any claims that may be asserted against City by virtue of the payment of any loss under such insurance. 30209-0066/354946.6 12/23/05 EXHIBIT A LEGAL DESCRIPTION OF OWNER'S PROPERTY THAT CERTAIN REAL PROPERTY IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: PARCEL 1 LOT 2 OF TRACT NO. 14131 PER MAP FILED IN BOOK 662, PAGES 42 THROUGH 46, INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA. PARC17J, 9. PARCEL 3 OF LOT LINE ADJUSTMENT NO. LL 2003 -026 RECORDED JUNE 24, 2004 AS INSTRUMENT NO. 2004000575812 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA. 1 OF 1 V \PROJECTS' 13575201SURMAP10 LEGAIS OW ERS PROPERTY D C C a _ 0 N W V U N C O N 2 D o 0 � o_ Z a D z ^n o S r C) o D p 0 -a r m rn OX. 3 O O -4 W Z O n -DC t N c) p Tx - F 0 �1 z n rn Z 70 0 U+ O 7�0 7v r O0 mN '4 tp y b '{ D m Z Oco O L Z m ' 1- w Ul ,m �- -{ o O 3 'P n n to o m2 < Z C 9�� O ,. In 0., �� a N � � Q < w�oZ m > o m m N m D n1 O Ul U EXHIBIT C LEGAL DESCRIPTION OF AFFECTED AREA OF RIGHT —OF —WAY BEING A PORTION OF PELICAN HILL ROAD SOUTH, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED IN RESOLUTION NO. 94 -1253 OF THE BOARD OF SUPERVISORS OF ORANGE COUNTY, CALIFORNIA, RECORDED JANUARY 11, 1995 AS INSTRUMENT NO, 95- 0012329, AS APPROVING AND ACCEPTING THE "IRREVOCABLE OFFER TO CONVEY EASEMENT - LOWER LOOP ROAD" RECORDED OCTOBER 4, 1990 AS INSTRUMENT NO. 90- 530348, DECEMBER 18, 1991 AS INSTRUMENT NO. 91- 694962 AND MARCH 12, 1992 AS INSTRUMENT NO. 92- 149749, ALL OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, LYING WITHIN A STRIP OF LAND 27.00 FEET WIDE, THE CENTERLINE OF SAID STRIP BEING DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTERLINE INTERSECTION OF NEWPORT COAST DRIVE (FORMERLY PELICAN HILL ROAD) AND PELICAN HILL ROAD SOUTH (FORMERLY COAST CLUB DRIVE) AS SHOWN ON TRACT NO. 14131 PER MAP FILED IN BOOK 662, PAGES 42 THROUGH 46, INCLUSIVE, OF MISCELLANEOUS MAPS, IN SAID OFFICE OF THE COUNTY RECORDER; THENCE, ALONG SAID CENTERLINE OF PELICAN HILL ROAD SOUTH, NORTH 19 011'00" EAST, 116.30 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 550.00 FEET; THENCE, NORTHEASTERLY 160.47 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 16 043'00" AND TO WHICH A RADIAL LINE BEARS NORTH 54 006'00" WEST; THENCE, LEAVING SAID CENTERLINE OF PELICAN HILL ROAD SOUTH, SOUTH 53 016'00" EAST, 46.16 FEET TO THE SOUTHEASTERLY LINE OF SAID PELICAN HILL ROAD SOUTH AND THE POINT OF BEGINNING; THENCE, NORTH 53 016'00" WEST, 91.96 FEET TO THE NORTHWESTERLY LINE OF SAID PELICAN HILL ROAD SOUTH. THE SIDELINES OF SAID STRIP SHALL BE LENGTHENED OR SHORTENED TO BEGIN AT SAID SOUTHEASTERLY LINE OF PELICAN HILL ROAD SOUTH AND TO END AT SAID NORTHWESTERLY LINE OF PELICAN HILL ROAD SOUTH. ALSO AS SHOWN ON EXHIBIT D ATTACHED HERETO AND HEREBY MADE A PART HEREOF. PREPARED BY: THE KEITH COMPANIES �NALLAHOSU UNDER THE DIRECTION OF: 0. STfjy�9GF`o J s-. Eq. i?131)06 JAMES O. STEINES, P.L.S. 6086 No.6086 REVISED DECEMBER 21, 2005 OF CA��E OCTOBER 5, 2005 J.N. 13575.22.000 1 OF 1 V,TROME 135 751MURMAPMOMRfi�EDAREA OF 0.OW.DOC EXH1131T D SHEET I OF I A PORTION OF PELICAN HILL ROAD SOUTH. IN THE CITY OF NEWPORT BEACH. COUNTY OF ORANGE. STATE OF CALIFORNIA DEPICTION OF AFFECTED AREA OF RIGIIT -OF -WAY ��o ,O O0 QP� 1h Oh 00 Off` ,LO 13.0.5. RE50LUTION NO. 94 -1253 PER O.R. 95- 0012329 ACCEPTING •'IRREVOCABLE OFFER TO CONVEY EASEMENT - LOWER LOOP ROAD' PER O.R. 90- 530348. O.R. 91- G449G2. AND O.R. 92- 149749. I VA't/fs I l/ 'A,,,-s 40� W/ .0 \ 2 P.O.G. �°ORT CpaST Dftr 47 O� U 4e k�f9 Na6086 �\P* o \ L . �OF CAUFO� J JAMES 0. STEINES. P.L.S. GO8G V: \\pprorojjeecctts s \\11JJ557755..220 0 \\SSUURRMMAAPP \ \DWG \SYhfE0002dxg 1212112005 1:58:21 PM /O - P.O.B. SCALE, I'• = GO' NO N2 �O Cn(�Z LINE TABLE NO. BEARING LENGTH LI N53'IG'00 "W 91.9G'