HomeMy WebLinkAbout07 - Landscape Maintenance Agreement - Bison & MacArthur Right-of-WayCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 7
February 25, 2003
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Richard Hoffstadt, Contract Engineer
949 - 644 -3311
dhoffstadt@city.newport-beach.ca.us
SUBJECT: ENCROACHMENT AGREEMENT AND LANDSCAPE MAINTENANCE
AGREEMENT FOR CONSTRUCTION AND MAINTENANCE OF
LANDSCAPE IMPROVEMENTS WITHIN BISON AVENUE AND MAC
ARTHUR BOULEVARD RIGHT -OF -WAY WITH THE IRVINE COMPANY
OWNER: THE IRVINE COMPANY
RECOMMENDATIONS:
1. Approve a Landscape Maintenance Agreement, required by Caltrans, between the
City of Newport Beach and The Irvine Company for installation and maintenance
of landscape improvements within the MacArthur Boulevard right -of way.
2. Approve an Encroachment Agreement between the City of Newport Beach and
The Irvine Company requiring The Irvine Company to maintain all landscape
improvements within the MacArthur Boulevard and Bison Avenue right -of -way.
3. Authorize the City Manager and City Clerk to execute the Agreements.
4. Authorize and direct the City Clerk to have the Encroachment Agreement recorded
with the Orange County Recorder.
DISCUSSION:
The Irvine Company is developing the Bluffs Retail Center on the northeasterly comer of
Bison Avenue and MacArthur Boulevard and has requested permission to construct and
maintain landscape improvements along their MacArthur Boulevard and Bison Avenue
frontages.
When landscape improvements are constructed within the Caltrans right -of -way, Caltrans
requires the City be responsible for maintenance. Therefore, the City has required The
Irvine Company to enter into a recordable Encroachment Agreement transferring the
SUBJECT: ENCROACHMENT AGREEMENT AND LANDSCAPE MAINTENANCE AGREEMENT FOR CONSTRUCTION AND
MAINTENANCE OF LANDSCAPE IMPROVEMENTS WITHIN THE BISON AVENUE AND MACARTHUR
BOULEVARD RIGHTS -OF -WAY WITH THE IRVINE COMPANY
February 25, 2003
Page 2
maintenance of the MacArthur Boulevard landscape improvements to The Irvine
Company, as well as the improvements within the Bison Avenue parkway along their
frontage.
Execution of the attached Agreements will allow The Irvine Company to .obtain the
required Caltrans Encroachment Permit so that they can begin construction.
Environmental Review:
Environmental Impact Report No. 156 was prepared and certified for the Bonita Canyon
Planned Community. An Initial Study was prepared for the shopping center project by
staff in conjunction with the approval of the entitlements in July of 2001. A finding was
made that the proposed shopping center and appurtenant structures was in substantial
conformance with the Bonita Canyon Planned Community; that the analysis contained
in EIR No. 156 fully addressed the project as now proposed; and, therefore, EIR No.
156 would serve as the CEQA documentation for the proposed project.
Public Notice: No Public posting /notification.
Prepared by:
Richard L. Hoffstad
Contract Engineer
Submitted
G. Badum
of Public Works
Attachments: Exhibit
Landscape Maintenance Agreement (for Caltrans)
Encroachment Agreement (between City and The Irvine Company)
EXHIBIT
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The Keith Companies I=Mc
2955 ,Red .ill Avenue. Costa wesa. G 92626 !714) 540 -0800
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DATE: 091`81,C2 I JCE NC. J1S777.000
LANDSCAPE MAINTENANCE AGREEMENT
A This Landscape Maintenance Agreement ( "Agreement ") is made and entered into this
1,0 day of -.e b.- ici. N , 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 all 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
I. 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
JRC\30209- 0032VAGRMIV 37141.6
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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 fails to 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 of TIC'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 permit to 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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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. Term. 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 perfonn 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
commercial 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 orotherwork 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- 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.
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JRCU 0209 -0032 W GRMI V 37141.6
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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 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 Landscape Area carved 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 hereundershall
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)..
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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: City of Newport Beach
Public Works Department
3300 Newport Boulevard (P.O. Box 1768)
Newport Beach, California 92658 -8915
Attention: City Engineer
If to TIC: The Irvine Company
550 Newport Center Drive
Newport Beach, CA 92660
Attn: Vice President & General Counsel
Retail Properties
17. Incomoration of Exhibits. Exhibits A, B, C and D, which are attached hereto, are hereby
incorporated herein by this reference.
18. Co�tJr. orate 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 of the 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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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:
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:
City Manager
APPROVED AS TO FORM:
By:
City Attorney
Date:
ATTEST:
City Clerk
Date:
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1RC\30209 -0032 VAGRMT,337141.6
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CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
/n ss.
County of V r& vita
On r- IrUkr�l ��l }CCU, before me,
Date
personally appeared
1 ckscn tie{-c.
le
% personally known to me
❑ proved to me on the basis of satisfactory
evidence
to be the persons) whose name(,a) -is /are
subscribed to the within instrument and
acknowledged to me that helsi,e /they executed
the same in hisfher /their authorized
capacity(Les), and that by his/her /their
signature( on the instrument the person(s), or
the entity upon behalf of which the persons
acted, executed the instrument.
WITNESS my hand and official seal.
Place Notary Seal Above Sign ure of Notary Public
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 Document /�
Title or Type of Document: i�c(SIC -�T kk I h iC.n It nC � Aq (422 M en f
Document Date: 2 b t'lti is r,�Lr� -CD 3 Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual Top of thumb here
❑ Corporate Officer— Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
0 1999 National Notary Aeeoa:ahoa • 9350 be Soto Ave., P.O. Box 2402 • ehatsnoM, CA 91313 2402 • w v mt oaalaolary.otg Prof. No 5907 Reader. call Toll -Free 1- 800,8]6-682]
kk IJ497.00 \DWG\ PRSE0096.DWG
EXHIBIT A
DESCRIPTION OF RiE 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 32G AT PAGES 48
THROUGH 50, INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
The Keith Compenieslm<a
2955 Red Hill Avenue. Costa Mesa, CA 92626 (714) 540 -0800
DATE: 09178102 1 J08 N0. 73497.07.000
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EXHIBIT B
DEPICTION OF Tf1E PROPERTY
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The Keith Companieslln<c
2955 Red Hill Avenue. Costa Mesa. CA 92626 (714) 540 -0800
\1J497.00 \0WG \PRSE0087.0W4 I OA 7E: 09118102 1 JOB NO. 13497.07.000
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EXHIBIT C
DEPICTION OF LANDSCAPE AREA
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2.955 Red Hill Avenue, Costa Mesa, CA 92626 (7f4) 540 -0800
DATE. 08127102 1 JOB 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 open ingparagraph is setup as a 3 -Party Agreement between Caltrans, City and Permittee.
We understand that only the City and Caltrans will be parties to the Permit and the Maintenance
Agreement, so a change to thisparagraph should be made and "City "should be substituted inplace
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.
7RC\3 02 09- 003 2VAGRMT 37141.6
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AUG -07 -2002 14:23
DIST 12 MRINT ENG
949 724 2200 P.02iO4
sTA-rE OFCA - WORNIA- BUSUMS AND TRANSPORTAMON AGENCY MAY DAVIS, Ga M=
DEPARTMENT OF TRANSPORTATION
DISTRICT 12.3337 MR31EiSON DRIVE SUrrE 390
atVAIE.CA 12612 r
MAINTENANCE AGIKUMENT
Permit No:
Location:
This Maintenance Agreement is made and entered into effective this _ day of ,
2002 by and between the State of California, acting by and through Department of
Transportation, District 12, located at. 33371 Michelson Drive, Irvine, Cnlifornia 92612,
hereinafter referred to as "STATE" nr "CAI.TRANS' ; and located at ,
hereinafter referred to as "PERMITTEE ", and the , located at , hereinafter
referred to as "CITY" with reference to the following facts:
Permittee desires to Fund State I3ighway improvements consisting of referred to herein as
"PROJECT'. Permitlee is willing to fund one hundred (100%) of all design, capital outlay,
maintenancc-and staffing costs.
NOW, THEREFORE, in consideration of the foregoing facts and the terms and conditions set
forth below, the Parties agree as follows:
1. Permittee shall apply for a necessary encroachment permit in accordance with State's
standard permit procedures through the Caltrans, District 12, Office of Permits at (949) 724•
2845. Following construction of Project, Permince 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, Perminee shall assume responsibility for all Project
maintenance and the expense thereof, at Permittee's own expense in. P=nittee 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 Permittee.
4. Caltrans shall maintain all highway signs, paved drainage structures and othor non - landscape
highway appurtenances installed by Caltrans which are not a part of the Project.
S. 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 pntned on a regular basis using only the hioest
SEP 24 '02 09:30 9498515179 PRGE.02
RUG^07 -2002 14:24 DIST 12 MPINT ENO 949 724 2208 P.03iO4
STATE OF CALtiORNtA - BUSINESS AND TTtANSPORTATION A13ENCY GRAY DAVIS.Gaw
DEPARTMENT OF TRANSPORTATION
DISTRICT 1 t 3,a3r MICIMUON DRME, surre 380
MVPIE. CA 91617 0
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 schedule 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. Permitter- shall provide and maintain all water and irrigation systems and shall pay all utility
costs for Project. Irrigation systems will be 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 Permitter- shall not remove eristin�
plants. add plants, or modify irrigation Systems) without Caltrans' prim written approval.
9. Landscaping, paving or other unplanted areas along the. roadside within the limits shown on
the attached plans. exclusive of paved drainage facilities. wi11 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 he implemented which may Tetluire the removal andfor
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
Permittcc's responsibility depending on whether that replacement landscaping is not part of
project's scope. Upon completion of work, which affects the described limits of
maintenance. a revised Exhibit will be prepared and delivered to PermTiuce by Caltrans for
approval. Once approved, 8xhibit 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 shatl be approved by State in advance of Pormittec 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 and 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 Permittee and City
under or in connection with any work, authority or jurisdiction delegated to Permittee and
City under this Agreement. It is understood and agreed that, pursuant to Government Code
2
SEP 24 102 09:31 9498515179 PRGE.03
RUG -217 -2002 14 =24 DIST 12 NRINT ENO 949 724 2208 P.04iO4
STATE OFCALTFVRN1A - BUSINESS AND TRANSPORTATION AGENCY GRAY DAVIS. Gvvtmrw
DEPARTMENT OF TRANSPORTATION
DISTRICT 113337 MiCHP1SON DRIva, SUITE 390
IRVINE. CA 72012
Section 895.4, Permiltee 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 PeTmittee or
in connection with any work, authority or jtiriadiction delegated to Permittce and City under
this Agreement.
14. It is understood that if Pennittee 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 Caltrans' consent, City will maintain all Proicci improvements. Caltrans shell provide
City with written notice of Pcrrnittee's Failure to renew its annual permit and/or Caltrans'
decision that subject Project is not maintained at a real enable 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 reinove the Project improvements slid
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 actions) 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.
peimirrce:
Signature: _
Prim Name:
Title:
Phone:
Dare:
Cir v
Caltrans
SEP 24 '02 09:31 9498515179
3
PAGE. 04
RECORDED REQUESTED BY AND
WHEN RECORDED, RETURN TO:
Public Works Department
City of Newport Beach
P.O. Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659 -1768
WITH A COPY TO:
The Irvine Company
550 Newport Center Drive
Newport Beach, CA 92660
Arm: Brigid McMahon
Legal Affairs Department
Exempt recording requested per Gov. Code 6103
for Recordefs use only)
ENCROACHMENT AGREEMENT
(Maintenance of Non - Standard Landscaping in Street Right -of Way)
This Encroachment Agreement ( ".Agreement') is made and entered into this (3� day
(
of e -brut ry , 200,-S, by and between the C= OF NT"AIPORT BEACH, a California municipal
corporation ( "City "), and THE MV-LvTE COD /2ANY, a Delaware corporation ( "Company "). City
and Company are sometimes collectively referred to herein as the "Parties."
RECITALS
A. WHEREAS, City administers and maintains certain public street rights -of -way
located within the city limits of City, including rights -of -way for portions of MacArthur Boulevard
and Bison Avenue as depicted on Exhibit A attached hereto (the "Rights of Way "). City owns
portions of the Rights of Way in fee and portions in easement, as indicated on Exhibit A.
B. ',A=P -EAS, Company is the owner of the Bluffs Retail Center (the "Retail Center "),
portions of which border the Rights of Way.. The Retail Center isle 2 ally described on Exhibit B and
depicted on Exhibit C attached hereto.
C. WHEREAS, in connection with the operation of the Retail Center, Company desires
to install and maintain certain landscaping, landscape irrigation systems, lighting, hardscape and
related improvements (collectively, the "Company lmprovements") within the pond ons of the Rights
of Way depicted on Exhibit D attached hereto (the "Maintenance Area"), which is located between
the property line of the Retail Center and the curb bordering the Rights of Way. The Company
IR030209 -003 T33 S 793.7
'20/03
Improvements, which must be installed in accordance with plans approved by City as provided
below, are considered to be "non- standard improvements" as compared with improvements that Ciiy
typically installs within street rights -of -way.
D. WHEREAS, various public utility easements, sewer, water, street light, storm drain
facilities and/or other public improvements (collectively, the "City Facilities ") are located within
the Rights of Way;
E. WHEREAS, City is willing to allow Company to install the Company Improvements
within the Maintenance Area, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the above recitals and for good and valuable
consideration, the receipt and sufficiency ofwhich is hereby acknowledged, City and Company agree
as follows:
AGREEMENT
1. Permit. City will permit Company to construct, reconstruct, install, maintain, use, operate,
repair and replace the Company Improvements vdthin the Maintenance Area as generally described
on Exhibit E attached hereto. City also will allow Company to take all reasonable measures
necessary or convenieht in accomplishing such activities.
2. Installation ofComnanvlmnrovements. Company shall install the Company Improvements
within the Maintenance Area in accordance with the plans and specifications for such improvements
that have been prepared by Kirby &Company, titled "The Bluffs Retail Center," as more specifically
listed on Exhibit E attached hereto, which plans and specifications are on file with the City (the
".Approved Plans ").
3. Standard of Maintenance. Company shall, at its sole cost and expense, maintain the
Company Improvements installed within the Maintenance Area in accordance with general
prevailing standards of maintenance, and pay all costs and expenses incurred in doing so.
Company's maintenance obligation shall also include replacement of the Company Improvements,
where necessary. All replacements and repairs shall be at least equal in quality to the Company
Improvements described in the Approved Plans. In addition, Company is responsible for the cost
of providing water and electricity for im, gation of the landscaping and lighting installed within the
Maintenance Area in connection with the Company Improvements. Nothing contained herein,
however, shall be construed to require Company to maintain, replace or repair any City Facilities
within the Right -of -Way, except to the extent that the Company Improvements cause damage to the
City Facilities.
4. Alteration of Comnanv Imnrovemems. Company shall not substantially alter the Company
Improvements from their original condition as installed per the Approved Plans wgthout the prior
written approval of City.
JR: ' MO C- 003' -' 7 38103.71
120/03
5. Failure to Perform. If Company fails to fulfill its maintenance or other responsibilities under
this Agreement, City may provide Company with written notice of such failure describing the
deficiencies in reasonable detail ( the "Deficiency Notice "). If such deficiency is not corrected �Athin
thirty (30) days of Company'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
reasonablybe cured within such period, it will be deemed cured if Company 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, Company shall reimburse City for its actual and
reasonable costs incurred in curing the deficiency within thirty (30) days of Company'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. Liens. Company shall not suffer or permit to be enforced against the Maintenance Area any
mechanics, laborers, matenalmens, contractors, subcontractors, or any other liens, claims or demands
arising from any maintenance or other work performed by Company within the Maintenance Area,
but Company 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 Maintenance Area.
7. City Maintenance of City Facilities. City acknowledges that it will remain responsible: for
maintenance and repair of all City Facilities within the Maintenance Area. In the event that City
finds it necessary to enter the Maintenance Area to maintain, repair, replace, remove or enlarge
(collectively, the "Repairs' any of the City Facilities, City may, after ten (10) days prior notice to
Company (except in case of emergency, in which event no prior notice is required), remove such
portions of the Company Improvements within the Maintenance Area as necessary to accomplish
the Repairs. In such event:
a. City agrees to minimize, to the extent feasible, the portions of the Company
Improvements that must be removed to accomplish the Repairs, and to coordinate
with Company regarding cutting of irrigation lines and alterations of Company
Improvements so as to minimi e disruption of the Company Improvements and the
effect of the Repairs on unaffected portions of the Maintenance Area. (The portion
of the Maintenance Area affected by the Repairs is referred to herein as the "Affected
Area.")
b. City shall bear the cost of removing the Company Improvements from the Affected
Area to accomplish the Repairs.
C., Company shall be responsible for arranging for any replacement or restoration of the
Company Improvements within the Affected Area, and for all costs associated
thertwith.
8. Term. This Agreement shall remain in effect for so long as the Retail Center is operated;
provided, however, that (a) City may terminate this Agreement upon thirty (30) days' prior �xTittm
notice to Company in the event that Company fails to perform or cure any failure to perform within
JRC130209- 003733S'793.7
1170/03
the times provided in Section 5 above, and (b) Company may terminate this Agreement by provi ding
thirty (30) days' prior written notice to City, in which event Company shall be responsible for
removing the Company Improvements and replacing them with City's then standard right -of -way
improvements, unless City otherwise directs Company to keep the Company Improvements in place.
In addition, if City determines that it needs to use any portion or all of the Maintenance Area where
the Company Improvements are located, City may, upon sixty (60) days' prior notice to Company,
terminate all or any portion of the Maintenance Area as needed by City for public use. However,
promptly after giving such notice of intended termination to Company, City agrees to meet with
Company to discuss alternatives that would avoid or minimize any such termination. The final
determination as to whether to adopt or reject any such alternatives shall be made by City in its sole
discretion.
9. Assignment. Company may assign its rights and obligati ons under this Agreement to either
(a) a commercial association for the Center responsible for maintenance of common areas within the
Retail Center, or (b) a subsequent owner of all of the Retail Center (each, a "Successor "). Any, such
assignment must be in writing, must contain the Successor'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.
After the effective date of any such assignment b}' Company, Company shall have no further rights
or obligations hereunder.
10. Insurance. Any Successor must carry general liability insurance in the amounts specified
below for activities within the Retail Center and the Maintenance Area, and shall also require in its
contracts with any contractors that perform any design, installation, maintenance or other work in
connection with the Maintenance 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 Maintenance 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 insures for all liability arising from such work related
to the Maintenance Area,
Insurance policies for the following coverages, with original endorsements related to the
Maintenance Area work, shall be issued by companies approved or licensed 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 hability insurance, including additional insured and primary and
non - contributory wording, covering third party liability risks, including without
limitation, contractual liability, in aminimum amount ofS1 million combined single
0
IRC 3G2V- 0032 38703,7
120/03
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 Maintenance 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 aminimum 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 in City landscape maintenance or similar contracts.
Said policy or policies shall be endorsed to state that coverage shall not be subject or
cancellation or non - renewal without thirty (K) 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 Maintenance Area 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 Maintenance Area carried by each contractor will contain a waiver of
subroga tion 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.
11. Indemnification. Company shall indemnify, defend and hold Cityharmless from and agaa st
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 Company Improvements, (b) the acts
of Company or its contractors within the Maintenance Area, and (c) Company's performance outs
obligations hereunder; provided, however, that Company's indemnity obligations under this
Agreement shall not apply to the extent that any Claim is caused by the active negligence or willful
misconduct of City.
-5-
TR030209- 0032L38 ?93. i
120/03
12. Attonnevs' 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.
13. 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: Vice President & General Counsel
Retail Properties
Either party may change its address for notice by providing written notice of such changed address
to the other.
14. Successors and Assigns. Subject to the provisions of Section 9 above, the terms and
provisions of this .Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the Parties.
15. Incorporation of Exhibits. Exhibits A. B. C. D and E, which are attached hereto, are hereby
incorporated herein by this reference.
16. 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 of the respective Parry
for whom they sign, and that by so executing this Agreement, each parry is bound by the provisions
of this Agreement.
17. Amendment. This Agreement may be amended or terminated only by a written instrument
approved and executed by the Parties.
18. 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
IRS
rRC'30209- 0032'338793.7
1o2or03-
contemporaneous agreements, representations, negotiations and understandings of the Parties,
whether oral or written, are hereby superseded and merged herein.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of-the day and year
fast above written.
"Company"
The Irvine Company,
a Delaware corporation
By: CrGuS zcLi ti
Keith C. Eyrich
President, Retail Properties
Lee Burckle
Assistant Secretary
'LcitY93
City of Newport Beach,
a California municipal corporation
By:
City Manager
APPROVED AS TO FORM:
By:
City Attorney
Date:
ATTEST:
City Clerk
Date:
-7-
JRC'30209 -003 -'L3fi 793.7
L70/03
STATE OF CALIFORNIA )
) ss.
COUN= OF ORANGE )
On F� br"ru 1?- 200 8, before me, &kx\r nc- t . G-7`.' C.1r5e n , Notary
Public, personally appeared Keith C. Eyrich and Lee Burckle, personally known to me erred
xa =P es 41P bftRis A€g2tisfarto , ddence to be the person whose nameLs) -is /are subscribed to
the within instrument and acknowledged to me that ;fie /they executed the same in his. r /their
authorized capacity ie§j and that byh s$er /their signature,(,5,) on the instrument, the persons orthe
entity upon behalf of which the persons acted, executed the instrument.
uTPlr'ESS my hand and official seal.
Notary Public
SANDRA L ERICISON
(SEAL) - CWWrd = 1245M
3 NofoyRbic- Cagfomin
MY �D�acT.?Omr
STATE OF CALIFORNIA )
) ss.
COL-TTY OF ORANGE )
On 200_. before me, the undersigned, a NotaryPublic
in and for said State, personally appeared , personally knoum to me
or proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to
the within instrument and acknowledged that he executed the same in his authorized capacity, and
that by his or her signature on the instrument, the person or the entity upon behalf of which the
person acted, executed the instrument.
R'TTNESS my hand and official seal.
(SEAL)
511
Notary Public
.R C 30209- 0032`235792.7
1.20/02
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EXHIBIT A
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LEGEND
CITY .FEE
CITY EASEMENT
I 3150,N aV�NU_ I
The Keith Czmpaniesrin<c
2:55 Red �01 Avenue, cesic Nesc, G 52625 (7)4) 540 -0800
r -•, IS457.00 \Dn,lp ?55005210r I Gk TE.- 0 ?/ 5/02 1 JOB N0. i3457.01.000
I C °. :7!5 ^."•.O, DRV•� °�'"DOE_.DYr..
EXHIBIT B
u L DL- S T 10 IN OF DL UFFS KE I "'IL :.ffNT;=rR
ALL THAT REAL PROPERTY STUATED IN THE CITY OF NEWPORT 5EACH,
COUNTY OF ORANGE, STATE OF CALIFORNIA, MING St DWN AS PARCEL
ONE OF PARCEL MAP NO. 2001 -140, FILED IN 3O0K 32G AT PAGES 48
TrIROUG61 50, INCLUSIVE OF FARCEL MAPS. IN T`I_` OFFICE OF 761E
COUNTY RECORDER OF SAID COUNTY.
The Keith Companies
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2555 Ace Kl A"wc. cstc Mesa, :A S2E2f (71 41? 540 -0800
5A7: 05115/0= I JOE" NO. 7:zc7.0;.000
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EXHIBIT C
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D>= FICTION OF BLUE r 5 RrE T AIL CENTER
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The Keith Companies���
2955 Red KL' avenue, C,sic Mesa CA 52626 OIA) 640 -0800
r' s�-o ow^� arooe mr (
DA 7-E: 091 iE /C2 I JD° N0. i,sfr7.D7.000
EXHIBIT a
DEPICTION OF MAINTENANGE AREA
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The Keith Compecie =_I=n<c
2888 Fed HiC Avenue, ^cs¢ )A x. CA M26 "714) W -0800
Exhibit E
Description of Company Improvements; Plans & Specifications
Description of Company Improvements
The Company Improvements shall consist of such landscaping, landscape irrigation systems,
lighting, signage, sidewalks and other improvements as more specifically described in the Plans and
Specifications described below.
Plans and Specifications
Plans and Specifications entitled "TheBluffs Retail Center," prepared by Kirby & Company,
more specifically described as follows:
a. Sheet Number L0.1, Title Sheet, dated 2/5/03.
b. Sheet Number L2.1, Irrigation Plan, dated 11/20/02.
C. Sheet Number L2.2, Irrigation Plan, dated 2 /5/03.
d. Sheet Number L2.4, Irrigation Legends & Notes, dated 9/5/02.
e. Sheet Number L2.5, Irrigation Details, dated 9/5/02.
f Sheet Number L2.6, Irrigation Details, dated 9/5/02.
9. Sheet Number L3.1, Planting Plan, dated 2/5/03.
h. Sheet Number L3.2, Planting Plan, dated 2/5/03.
i. Sheet Number L3.5, Planting Details, dated 11/20/02.
j. Sheet Number L3.6, Planting Details, dated 11 /20/02.
k. Sheet Number L3.7, Planting Details, dated 12/6/02.
JR030209- 0032\335793.7
1/20'03