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HomeMy WebLinkAbout10 - Tract 15332 Ford One Development EncroachmentJune 12, 2001 CITY COUNCIL AGENDA ITEM NO. io TO: Mayor and Members of the City Council FROM: Public Works Department SUBJECT: ENCROACHMENT AGREEMENT FOR CONSTRUCTION AND MAINTENANCE OF PRIVATE MEDIAN IMPROVEMENTS WITHIN THE FORD ROAD RIGHT -OF -WAY ADJACENT TO TENTATIVE TRACT NO. 15332 (FORD ONE DEVELOPMENT) OWNER: PACIFIC BAY PROPERTIES RECOMMENDATIONS: Approve the application subject to: Execution of an Encroachment Agreement for non - standard improvements. a. Authorize the Mayor and the City Clerk to execute the Agreement. b. Authorize and direct the City Clerk to have the Agreement recorded with the Orange County Recorder. 2. An Encroachment Permit issued by the Public Works Department. DISCUSSION: The developer, Pacific Bay Properties, requests permission to construct and maintain improvements in the median adjacent to the main entrance of the One Ford Road development (see Exhibit "A" on the attached Agreement). The proposed improvements include the installation of twelve Carrotwood trees, seven Canary Pine trees, turf, and an irrigation system. The developer will be responsible for maintenance of the non - standard improvements, will pay all irrigation costs, and will hold the City harmless from liability for any action related to the existence of the proposed improvements. The City previously permitted the construction and maintenance of median island improvements along Ford Road when the Belcourt development was constructed. SUBJECT: Encroachment Agreement for Construction and Maintenance of Private Median Improvements Within the Ford Road Right -of -Way Adjacent to Tentative Tract No. 15332 (Ford One Development) June 12, 2001 Page 2 The General Services Department is aware of this request and will review and approve the final median improvement plans prior to issuance of the Encroachment Permit. Respectfully submitted, QRKS DEPARTMENT Don Webb, Director By: Dick Hoffstadt, P. . Development Engineer Attachment: Encroachment Agreement FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk City of Newport Beach 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92658 -8915 ,9/214 i. AL (Space Above For Recorder's Use) ENCROACHMENT AGREEMENT AND DECLARATION OF COVENANTS BETWEEN LANDOWNERS (NON- STANDARD STREET MEDIAN IMPROVEMENTS) THIS AGREEMENT is made and entered into this 1� day of rv4, 2001, by and between PACIFIC BAY PROPERTIES hereinafter referred to as "COMPANY ", and the CITY OF NEWPORT BEACH, 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 referred to as "CITY". WITNESSETH WHEREAS, CITY administers certain public street rights -of -way located in the City of Newport Beach, County of Orange, State of California, which rights -of -way are more particularly depicted on Exhibit "A" hereto and by this reference incorporated herein ( "Right -of- Ways"); and WHEREAS, COMPANY owns a portion of that certain real property located on the comer of Ford Road and Jamboree Road in the City of Newport Beach, County of Orange, State of California, which real property is more particularly described as Tentative Tract No. 15332 with final Tract No's. 15387, 15388, 15389, 15390, 15391 and 15332, as shown on maps filed in Book 761, pages 35 through 38 of Miscellaneous Maps, filed in Book 774, pages 34 through 39 of Miscellaneous Maps, filed in Book 774, pages 29 through 33 of Miscellaneous Maps, filed in Book 761, pages 44 through 47 of Miscellaneous Maps, filed in Book 761, pages 39 through 43 of Miscellaneous Maps, filed in Book 772, pages 25 through 28 of Miscellaneous Maps, respectively, Records of Orange County, California and which real property is contiguous to the aforesaid Right -of -Ways which also contain public utility easements; and WHEREAS, said street right -of -way also contains public utility easements; and WHEREAS, CITY has sewer, water, street lights and storm drain facilities located within said utility facilities; and 487/015657.0002 163837.04 a04 /19/01 WHEREAS, CITY desires to condition approval of construction of non - standard street median improvements over a portion of the Right -of -Ways containing said utility facilities; and WHEREAS, the parties hereto desire to execute an agreement providing for fulfillment of the conditions required by CITY to permit COMPANY to construct said non - standard median improvements; NOW, THEREFORE, in consideration of their mutual promises, the parties hereto agree as follows: 1. It is mutually agreed that "non- standard street median improvements" shall be defined as any landscaped areas and accompanying irrigation systems and street or median surfacing within the Right -of -Ways which is not constructed of asphalt concrete; Portland cement concrete with only a "broom" or trowel finish; or Bomanite and those landscaping improvements more particularly described on Exhibit `B" attached hereto and incorporated herein by reference. 2. CITY will allow COMPANY to construct, reconstruct, install, maintain, use, operate, repair and replace said non - standard street median improvements and all facilities and appurtenances necessary and incidental thereto, over CITY's utility facilities, all in substantial conformance with plans and specifications therefore on file in the CITY's Public Works Department of the City of Newport Beach, in, on, and across the Right -of -Ways. CITY will further allow COMPANY to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 3. COMPANY and CITY further agree as follows: (a) COMPANY shall construct and install non - standard street median improvements and all facilities and appurtenances necessary and incidental thereto, all in substantial conformance with plans and specifications therefore on file in the CITY's Public Works Department, in, on and across those certain Rights -of -Way depicted on Exhibit "A" attached hereto and incorporated herein by reference. (b) COMPANY shall maintain the aforesaid non - standard street median improvements in accordance with general prevailing standards of maintenance in the surrounding area, and to pay all cost and expenses incurred in doing so. However, nothing herein shall be construed to require COMPANY to maintain, replace or repair any utilities or CITY -owned pipeline, conduit or cable located in or under said non - standard street median improvements. Should a dangerous or defective condition occur in the non - standard street median maintenance improvements (excluding the utilities and CITY -owned improvements), COMPANY understands and agrees that they are responsible for such condition, and further agrees to proceed immediately to correct the condition. In the event the City Council of the City of Newport Beach determines, after a public hearing held on at least thirty (30) days prior written notice to COMPANY, that COMPANY has failed or ceased to maintain the non - standard street median improvements as required by this 497/015657 -0001 167877.04 a04 119/01 —2— paragraph, provided, however, that COMPANY shall have until the date of the public hearing to cure any default under this Agreement. In the event that COMPANY does not cure such default and the CITY determines that the COMPANY is in default under the terms of this paragraph, COMPANY agrees the CITY may, at CITY's option, assume the maintenance thereof and may bill COMPANY directly for the costs of such maintenance. COMPANY agrees to pay the amounts set forth in said bills promptly, upon receipt of such billing. CITY reserves to itself the right to make such emergency repairs to the improvements in the non - standard street median improvements as CITY deems necessary for the immediate protection of the public health and safety. COMPANY agrees to promptly reimburse CITY for the reasonable costs and expenses incurred by CITY in affecting such emergency repairs. (c) That should CITY be required to enter onto any easement areas in favor of CITY to exercise its primary rights associated with said easements, including but not limited to, the maintenance, removal, repair, renewal, replacement or enlargement of the water, sewer, street light or storm drain facilities, the CITY may remove portions of the non - standard street median improvements and in such event: 1. CITY shall notify COMPANY of its intention to accomplish such work unless an emergency exists. 2. COMPANY shall be responsible for arranging for any renewal or restoration of the non - standard street median improvements affected by such work by CITY. 3. CITY agrees to bear only the portion of the cost of any such renewal or restoration of the non - standard street median improvements, which would be incurred for the restoration or renewal of standard street improvements in the surrounding vicinity. 4. COMPANY agrees to pay any cost of renewal or restoration of the non - standard street median improvements in excess of the costs to be paid by CITY. (d) COMPANY agrees to 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 or outcome of any such claim or suit that arise from, or are in any way related to, the installation, maintenance, renewal, restoration or replacement of the non - standard street median improvements. COMPANY is not obligated hereunder to indemnify CITY or its officers, agents or employees for injuries, claims, losses or damages that arise out of the sole negligence or willful misconduct of CITY, its officers or employees. 4. COMPANY agrees to provide and maintain the irrigation system at no cost to the CITY and bear the cost of providing water for irrigating the non - standard street median improvements. 5. COMPANY agrees that if the CITY should ever need to use the right -of -way over which the non - standard street median improvements are established, together with the 487/015657 -0002 163837 04 x05/19/01 -3- landscaped areas, CITY can cause the improvements to be removed and face no liability to COMPANY for the loss of use of the landscaped materials and the non - standard street median improvements. 6. No breach of the covenants, conditions or restrictions herein contained shall defeat or render invalid the lien of any deed of trust, lease or lawful encumbrance made in good faith and for value, but all of said covenants, conditions and restrictions shall be binding upon and effective against any owner whose title is derived through foreclosure or trustee's sale or otherwise. 7. These restrictions, covenants and agreements may be modified, amended or terminated jointly by the parties hereto, or their heirs, assigns or successors, expressed in writing and recorded in the Office of the County Recorder of Orange County, California. 8. The provisions hereto shall be deemed independent and severable, and the invalidity or partial invalidity or unenforceability of any one provision or portion thereof shall not affect the validity or enforceability of any other provisions hereof. 9. It is mutually agreed that this Agreement shall be binding upon the heirs, successors and assigns of COMPANY and shall be recorded in the Office of the County Recorder of Orange County, California. COMPANY may at any time, without CITY's consent, assign its rights and obligations under this Agreement to a community association or homeowners' association who shall be responsible for maintenance of the non - standard street median improvements. Upon such assignment,.COMPANY shall be relieved of any obligations to CITY hereunder. 48]/01565] -0002 167877.04 a04 /19/01 -4- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. ATTEST: City Clerk 487/015657 -0002 163837.04 a04/19/01 'S' CITY OF NEWPORT BEACH, a Municipal Corporation Mayor COMPANY PACIFIC BAY PROPERTIES, a California corporation By: WS. Its: O(L V CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California ss. (I IP County of � On 1W 0,r' l , before me, i personally appeared , Narrre(a) of Sig.,(6) personally known to me -evidence — ZOMYCLINDA1 LARNSON to be the person( whose name( is /a* CorrimiZion #121692D z subscribed to the within instrument and crrm Not�yPUblic- Co G'omia acknowledged to me that he /stp(-/they executed OrangeCuumy the same in his /"J /tl*ir authorized Er,.vesAkry21,2J03r• capacity(iK), and that by his /Ily([ /thkir signature(lS,l on the instrument the person(%or the entity upon behalf of which the person(14 acted, executed the instrument. WITNRb Yyl/� hand � an)dM� official seal. Place Notary Seal Above Sig nature olNGt ry Public OPTIONAL Though the information below is not required by law, fY 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: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: O Individual Top of Thumb here C7 Corporate Officer — Title(s): O Partner — O Limited O General O Attorney in Fact O Trustee G Guardian or Conservator G Other: Signer Is Representing: 0 ta99 Nnudul Naary Acwciau -9050 De Sao Ave. P0. BOX 2402 - Chaar-mb. CA 9t919-2402•- vr-,Mti Inaary n Plea NO. 5907 RaoNa,. Can 1.11-Free 1.a9b676i s� F 0 00 EXHIBIT 99A99 FORD ROAD N oG ®NON- STANDARD STREET MEDIAN IMPROVEMENTS EXHIBIT "A TO ENCROACHMENT AGREEMENT ADD DECLARATION OF COVENANTS BETWEEN LANDOWNERS EXHIBIT `B" DESCRIPTION OF NON - STANDARD MEDIAN MAINTENANCE IMPROVEMENTS 1. Turf areas to be Double Dwarf Tall Fescue such as Medallion III 2. Tree planting includes twelve (12) Cupaniopsis anacardioides (Carrotwood) and seven (7) Pinus canarienses (Canary Island Pine) 3. No shrub planting in median 4. Accompanying irrigation system Note: Colored stamped concrete (Bomanite) —a standard street median improvement —is installed on the outer perimeter of median. 487/015657.0002 163837.04 a04/19/01 EXHIBIT `B"