HomeMy WebLinkAboutCC 15 RIGHTS/OBLIGAT'NS 2-20-90t'.
DATE:
TO:
FROM:
SUBJECT:
FEBRUARY 5, 1990
WILLIAM HUSTON, CITY MANAGER
PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION
CONSENT CALENDAR NO. 15
2-20-90
Inter - Com
AGREEMENT REGARDING ASSIGNMENT OF RIGHTS AND DELEGATION OF
OBLIGATIONS - LAURELWOOD R.V. STORAGE AREA RECONSTRUCTION
RECOMMENDATION:
That the City Council, by motion, approve and authorize the mayor and City
Clerk to execute subject agreement.
The City of Tustin, the Irvine Company and the Laurelwood Homeowners
Association are working together to provide right of' -way for the widening of
I-5 and the construction of the Tustin Ranch Road Overcrossing. The
construction of a replacement R.V. Storage Area for Laurelwood is a part of
that cooperative effort. The City of Tustin is preparing to construct the R.V.
Storage Area and subject agreement covers assignment of rights relating to
entry onto the parcel and the construction activity.
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Bob eL dendecker
Director Public Works/City Engineer
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- AGREEMENT REGARDING ASSIGNMENT OF RIGHTS
AND DELEGATION OF OBLIGATIONS
THIS AGREEMENT REGARDING ASSIGNMENT OF RIGHTS AND DELEGATION
OF OBLIGATIONS ("Agreement") is entered into this day of
, 1989 by and between The Irvine Company, a Michigan
corporation (the "Company") and the City of Tustin, a municipal
corporation ("Tustin"). The effective date of this Agreement
("Effective. Date") is the date set forth hereinabove, regardless
of the date that any party hereto signs this Agreement. The
Company and Tustin may sometimes be referred to herein individually
as "Party" and collectively as "Parties".
R E C I T A L S
A. "Laurelwood" is a planned development, as defined in
California Civil Code Section 1351(k), consisting of five hundred
twenty-three (523) residential lots (the "Project"). The
Laurelwood Homeowners Association (the "Association") has certain
rights, duties and obligations regarding the Project as more
particularly set forth in that certain "Master Declaration of
Covenants, Conditions and Restrictions for Laurelwood in Tustin"
recorded on April 17, 1973 in Book 10649, Page 1, et sea. of the
Official Records of Orange County, as amended (the "Master
Declaration");
B. In accordance with the Master Declaration, the
- Association owns, maintains and controls Lot A and Lots 1 -RV
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-- through 37 -RV, inclusive, of Tract 8029 as shown on a Map recorded
on September 6, 1973 in Book 331, Pages 37 et sea. of Miscellaneous
Maps of Orange County (the "Subject Lots");
C. All or a portion of the Subject Lots, together with the
various improvements thereto (including perimeter walls, pavement,
wrought iron gate and other related improvements) are used as a
storage area for recreational vehicles (the "Old RV Area") as
generally shown and depicted on Exhibit "A" attached hereto and
incorporated herein by this reference;
D. The Company owns certain real property adjacent to the
Project, as shown and depicted on Exhibit "B" attached hereto and
incorporated herein by this reference (the "Company Property");
E. The California Department of Transportation is in the
process of widening the I-5 freeway and constructing additional
improvements ("Freeway Improvements") including a ramp and
adjoining right-of-way area for the new Tustin Ranch Road, which
Freeway Improvements will be constructed over a portion of the Old
RV Area;
F. In order to facilitate the construction of the Freeway
Improvements, the Company entered into an agreement with the
Association on or about November 161 1988 (the "RV Facility
Agreement"), whereby the Company agreed to improve the Company
Property with a new storage area for recreational vehicles (the
"New RV Area") to replace the portion of the Old RV Area affected
by the construction of the Freeway Improvements;
G. In conjunction with the RV Facility Agreement and to
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facilitate the implementation of the terms thereof, on or about
November 16, 1988, the Association and the Company entered into an
agreement for right of entry ("Right of Entry Agreement") whereby
the Association granted the Company and its employees, contractors,
agents and assigns a non-exclusive right of entry onto the Old RV
Area for the purpose of conducting surveys, studies and tests in
connection with the construction of the New RV Area, and/or Freeway
Improvements;
H. Under the RV Facility Agreement, the Association has
agreed to convey the Old RV Area to Tustin at such time as the
Company conveys the New RV Area to the Association; and
I. The Company desires to delegate to Tustin certain of its
obligations under the RV Facility Agreement and is willing to
assign to Tustin certain of its rights under the RV Facility
Agreement and Right of Entry Agreement, and Tustin is willing to
assume such obligations and desires to obtain such rights, subject
to the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the foregoing
Recitals and the mutual covenants set forth hereinbelow, the
Parties do hereby assign certain rights and delegate certain
obligations and otherwise agree as follows:
1. Delegation of Obligations. The Company hereby delegates
to Tustin the following obligations under the RV Facility Agreement
and the Right of Entry Agreement.
(a) Construction and completion of the New RV Area in
conformance with the approved Plans and in accordance with
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- Paragraphs 3 and 4 of the RV Facility Agreement;
(b) Defense and indemnification of the Association, its
board of directors, officers, members, and residents in
accordance with Paragraph 8 of the RV Facility Agreement, and
Paragraph 3 of the Right of Entry Agreement; and
(c) Verification that all contractors engaged by Tustin
to perform work for the New RV Area have insurance in effect
in accordance with Paragraph 9 of the RV Facility Agreement.
2. Assignment of Rights Under the Right of Entry Agreement.
The Company hereby assigns to Tustin the Right of Entry granted to
the Company under Paragraph 1 of the Right of Entry Agreement for
the purpose of performing the delegated obligations set forth in
Paragraph l above. Such assignment shall be deemed non-exclusive
so that the Company, its employees and agents may have access over
the Old RV Area to perform any obligations not delegated to Tustin
or exercise any of the Company's rights.
3. Assignment of Rights Under the RV Facility Agreement.
The Company hereby assigns to Tustin the right to enforce the
provisions of Paragraph 7 of the RV Facility Agreement which
requires the Association to convey the Old RV Area to Tustin upon
the Company conveying the New RV Facility to the Association.
4. City's Rights of Enforcement. The parties acknowledge
and agree that all obligations not delegated to and assumed by
Tustin as provided herein shall remain the obligations of - the
Company. The Company hereby covenants that it shall fully and
-- faithfully perform all of its obligations in accordance with the
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terms and provisions of the RV Facility Agreement and Right of
Entry Agreement which have not been delegated to and assumed by
Tustin as provided herein. The Company further acknowledges and
agrees that if the Company shall breach the foregoing covenant,
Tustin shall be entitled to initiate such proceedings as Tustin
may deem appropriate pursuant to Paragraph 9(c) below for damages
and/or to compel the Company to perform its obligation(s).
5. Acceptance of Delegation of Obligations. Tustin hereby
accepts the delegation of the Company's obligations as set forth
in Paragraph 1 hereinabove, and agrees to fully and faithfully
perform each and all of said obligations in accordance with the
terms and provisions of the RV Facility Agreement and Right of
Entry Agreement. Save and except for the obligations accepted by
Tustin as provided herein, Tustin shall not have any other
obligations or responsibilities under the RV Facility Agreement nor
Right of Entry Agreement whatsoever.
6. Acceptance of Assignment of Rights. Tustin hereby
accepts the assignment of the Company's rights as set forth in
Paragraphs 2 and 3 hereinabove. Save and except for the rights
accepted by Tustin as provided herein, Tustin shall not have any
other rights under the Right of Entry Agreement nor the RV Facility
Agreement and all rights not assigned to and accepted by Tustin as
provided herein, shall remain the rights of the Company.
7. Indemnification.
(a) Indemnification by the Company. The Company agrees
to indemnify and hold Tustin and its employees, contractors
5
and agents, free and harmless from and against any and'all
claims, liens, damages, costs and other liability (including
attorneys' fees) for damage to property or injury or death of
any person resulting directly or indirectly from (i) any
negligent or intentional acts or omissions, or other conduct
by the Company, its employees, contractors or authorized
agents in the performance of any obligations or the exercise
of any rights not delegated or assigned to Tustin as provided
herein and occurring prior to the delegation of the Company's
obligations to Tustin hereunder; and (ii) any other negligent
or intentional acts or omissions, or other conduct by the
Company, its employees, contractors or authorized agents which
arose or otherwise relate to obligations not delegated and
rights not assigned hereunder in connection with the RV
Facility Agreement and the Right of Entry Agreement.
(b) Indemnification by Tustin. Tustin agrees to
indemnify and hold the Company, it employees, contractors and
authorized agents, free and harmless from and against any and
all claims, liens, damages, costs and other liability
(including attorneys' fees) for damage to property or injury
or death of any person resulting directly or indirectly from
(i) any negligent or intentional acts or omissions or other
conduct by Tustin, its employees, contractors or authorized
agents which relate to or otherwise arise subsequent to the
acceptance by Tustin of any of the obligations delegated
and/or to the exercise of any of the rights assigned to Tustin
6
as provided herein; and (ii) any breach of this Agreement by
Tustin.
8. Term of the Agreement. This Agreement shall commence as
of the Effective Date set forth above, and shall terminate and be
of no further force or effect at such time as all of the
obligations delegated to Tustin as provided herein have been
completed and accepted by the Association, the Company and any
applicable governmental agencies. Notwithstanding the foregoing,
the indemnification obligations set forth herein shall survive the
termination of this Agreement.
9. General Provisions.
(a) Entire Agreement. This Agreement constitutes the
entire Agreement between the parties and supersedes all prior
negotiations, arrangements, representations and
understandings, if any, made by or among the parties with
respect to the subject matter hereof. No amendments or other
modifications of this Agreement shall be binding unless
executed in writing by both parties hereto, or their
respective successors, assigns or grantees.
(b) Attorneys' Fees. In the event any legal proceeding
is filed between either of the parties to enforce the terms
hereof, to declare rights hereunder or to resolve any
controversy, claim or dispute regarding the terms -and
provisions set forth herein, the prevailing party shall be
entitled to recover from the losing party its costs of suit,
including reasonable attorneys' fees, as may be fixed by the
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court.
(c) Enforcement. The Parties hereto shall each have the
right to enforce, by proceedings at law or in equity, all of
the terms and provisions of this Agreement, which right shall
include, without limitation, the right to prosecute a
proceeding against the person or entity who has violated, or
is attempting to violate, any of said terms and/or provisions,
to enjoin or prevent them from doing so, to cause said
violation to be remedied and/or to recover damages for said
violation.
(d) Waiver. The failure of either party hereto to
enforce any term or provision set forth herein shall not
constitute a waiver of their right to enforce the same term
or provision, or any other term or provision hereafter. No
waiver of any provision herein shall be deemed or shall
constitute a waiver of any other provision herein (whether or
not similar), nor shall such waiver constitute a continuing
waiver.
(e) Cooperation. The parties shall each execute and
deliver any and all documents and perform any acts that are
reasonably necessary to effectuate the provisions of this
Agreement.
(f) Notice. Any notice, payment or instrument required
or permitted by this Agreement to be given to either party
shall be deemed to have been received when personally
delivered or within two (2) days after deposit in the United
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-- States mail,
addressed to:
registered or certified, postage prepaid,
TUSTIN: City of Tustin
City Hall
300 Centennial Way
Tustin, California 92680
Attn:
COMPANY: The Irvine Company
550 Newport Center Drive
Third Floor
Newport Beach, California 92658-8904
Attn: General Counsel
Land Development Companies
(g) Governing Law. The laws of the State of California
shall govern this Agreement.
(h) Time of Essence. Time is of the essence of each and
every term and provision of this Agreement.
(i) Inurement. This Agreement shall be binding upon and
inure to the benefit of the Company and Tustin, and their
respective successors, assigns and grantees.
(j) Construction. This Agreement, the RV Facility
Agreement and the Right of Entry Agreement shall be
interpreted and construed, to the extent possible, to be
consistent and complementary in order to achieve the
construction of the New RV Facility and the Freeway
Improvements.
IN WITNESS WHEREOF, this Agreement shall be effective on the
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day and year first above written.
APPROVED AS TO FORM:
City Attorney
CFI:tw:R:11/20/89:9cfi.tw
CFI:cj:R:12/27/89:9cfi.tw
CFI:cj:R:01/11/90:9cfi.tw
"COMPANY"
THE IRVINE COMPANY,
a Michigan orporation
BY : 13 ?�
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"TUSTIN" cD 'Gy,
W ti
THE CITY OF TUSTIN,
a municipal corporation
BY:
Its: Mayor
STATE OF CALIFORNIA )
Sao
COUNTY OF )
On this day of , in the year �, be me, 'the s ed, a
Notary Public in and*for said ate, person}y care Alta J
and 0 - /� . ,
personally known to me (or proved to me on the basis sa isfstory evidence) to
Pe the rsous who zecuted the within instrument as and
/1.QD respectively, on behalf of the corporatio therein named
and acknowledged to me that the corporation executed it.
S my hand and official seal.
1 �
otary Public in and for said State
OFFICIAL - SEAL
PATRI CE CHURCHILL
hrs ° • NOTARY PUBLIC -'CALIFORNIA
0111AGE COUNTY
1S92
My comm. expires I40V 6;'
EXHIBIT "A"
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DEPICTION OF OLD RV AREA
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EXHIBIT "B"
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