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Home My WebLink About11 - Tract 15389 Release of BondsAugust 13, 2002 CITY COUNCIL AGENDA ITEM NO. 11 TO: Mayor and Members of the City Council FROM: Public Works Department SUBJECT: RELEASE OF BONDS FOR NON - STANDARD IMPROVEMENTS - TRACT NO. 15389 LOCATION: EASTERLY SIDE OF JAMBOREE ROAD BETWEEN FORD ROAD AND BISON AVENUE DEVELOPER: PACIFIC BAY HOMES, NEWPORT BEACH RECOMMENDATIONS: 1. Approve an agreement with One Ford Road Homeowners Association for construction and maintenance of non - standard decorative street paving in the private streets constructed with Tract No. 15389. 2. Authorize the Mayor and City Clerk to execute the Agreement and direct the City Clerk to have the Agreement recorded with the Orange County Recorder. 3. Approve the improvement plans and specifications and accept the public improvements constructed in conjunction with Tract No. 15389. 4. Authorize the City Clerk to release the faithful performance bond for on -site improvements (Bond No. 5907681). 5. Authorize the City Clerk to release the labor and material bond for on -site improvements (Bond No. 5907681) in six months provided no claims have been filed. DISCUSSION: Non - Standard improvements were constructed within the private street/public easement of Tract No. 15389. The non - standard improvements include patterned pavement, curbs, gutters, sidewalks, and appurtenances. This Agreement permits the construction of the non - standard street improvements as approved by the Public Works Department and requires One Ford Road Homeowners Association (HOA) and their successors in interest be responsible for maintenance and restoration of the improvements. The Agreement also protects the City from liability associated with the presence of these non - standard improvements. SUBJECT: RELEASE OF BONDS FOR NON - STANDARD IMPROVEMENTS —TRACT NO. 15389 Date: August 13, 2002 Page 2 The private improvements constructed in conjunction with Tract No. 15389 include the construction of curb, gutter, sidewalk, streetlight, street paving, and storm drain improvements. These improvements will be maintained by the HOA. The public improvements constructed in conjunction with Tract No. 15389 have been inspected and are satisfactory for acceptance. The public improvements include the construction of water and sewer improvements. These improvements will be maintained by the City. An exhibit is attache showing the non - standard improvements and the location of the subject proje eph n adum PGblic ks Direct r B y ; RichardJ/Hoffstadt, P.E. Development Engineer Attachments: Exhibit Encroachment Agreement c a E- t H W F O a RECORDING REQUESTED AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659 -1768 Space above this line for Recorder's use ENCROACHMENT AGREEMENT (Tract No. 15389) THIS AGREEMENT is made and entered into this �_ day of UL , 2002, by and between One Ford Road Homeowners Association (hereinafter "ASSOCIATION "), 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 "), ASSOCIATION is the owner of property located over public utility easements in Tract No. 15389, Newport Beach, California and legally described as Lot "A" (Honors Drive) and Lot "B" (Oak Tree Drive) all in Tract 15389, as shown on a map recorded in Book 774, Pages 29 through 33 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; WITNESSETH: WHEREAS, ASSOCIATION has constructed certain non - standard improvements (hereinafter "PERMITTED IMPROVEMENTS ") over public utility easements in Tract No. 15389 Newport Beach, California (hereinafter "EASEMENTS ") and legally described as Lot "A" (Honors Drive) and Lot "B" (Oak Tree Drive) all in Tract 15389 (hereinafter "SUBJECT PROPERTY "), as shown on a map recorded in Book 774, Pages 29 through 33 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; and WHEREAS, said PERMITTED IMPROVEMENTS may interfere in the future with CITY'S ability to construct, operate, maintain, and replace CITY and other public facilities and improvements within EASEMENTS; and WHEREAS; the parties hereto desire to execute an agreement providing for fulfillment of the conditions required by CITY to permit ASSOCIATION to construct, reconstruct and maintain said PERMITTED IMPROVEMENTS; follows: NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as 1 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as decorative paving in the street areas, and appurtenances in Lot "A" (Honors Drive) and in Lot "B" (Oak Tree Drive) and as shown on EXHIBIT "A" attached hereto and as approved by the City Engineer. 2. CITY will permit ASSOCIATION to construct, reconstruct, install, maintain, use, operate, repair and replace said PERMITTED IMPROVEMENTS and appurtenances incidental thereto, within a portion of EASEMENTS, all in substantial conformance with plans and specifications on file in the CITY. CITY will further allow ASSOCIATION to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 3. If permitted improvements interfere in the future with CITY's ability to construct, operate, maintain, and replace CITY and other public facilities and improvements within EASEMENTS, then the rights granted under this Agreement may be terminated by CITY at any time by giving 60 days' notice, specifying in said notice the date of termination. CITY shall incur no liability whatsoever in the event of the termination of this Agreement, or subsequent removal of improvements by CITY. 4. OWNER and CITY further agree as follows: a. ASSOCIATION may construct 'and install PERMITTED IMPROVEMENTS and appurtenances incidental thereto, in substantial conformance with plans and specifications therefor on file in the CITY's Public Works Department, and as described on Exhibit "A" hereto attached. b. ASSOCIATION shall maintain the PERMITTED IMPROVEMENTS in accordance with general prevailing standards of maintenance, and pay all costs and expenses incurred in doing so. In addition, any new and existing trees, shrubs, and landscaping that are on the adjacent City property shall be maintained at the roof line of the existing structures at all times. However, nothing herein shall be construed to require ASSOCIATION to maintain, replace or repair any CITY -owned pipeline, conduit or cable located in or under said PERMITTED IMPROVEMENTS, except as otherwise provided herein. c. If City or other public facilities or improvements are damaged by the installation or presence of PERMITTED IMPROVEMENTS, OWNER shall be responsible for the cost of repairs. d. That should CITY be required to enter onto said EASEMENTS to exercise its primary rights associated with said EASEMENTS, including but not limited to, the maintenance, removal, repair, renewal, replacement or enlargement of existing or future public facilities or improvements, CITY may remove portions of the PERMITTED IMPROVEMENTS, as required, and in such event: 2 (i) CITY shall notify ASSOCIATION of its intention to accomplish such work, if any emergency situation does not exist. (ii) ASSOCIATION shall be responsible for arranging for any renewal or restoration of the PERMITTED IMPROVEMENTS affected by such work by CITY; (iii) CITY agrees to bear only the cost of any removal of the PERMITTED IMPROVEMENTS affected by such work by CITY; (iv) ASSOCIATION agrees to pay all costs for renewal or restoration of the PERMITTED IMPROVEMENTS. 5. In the event either party breaches any material provision of this Agreement, the other party at its option may, in addition to the other legal remedies available to it, terminate this Agreement, and, in the event the breaching party is ASSOCIATION, CITY may enter upon the EASEMENTS and remove all or part of the improvements installed by ASSOCIATION. Termination because of breach shall be upon a minimum of ten (10) days' notice, unless the breach is cured within such 10 day period, with the notice specifying the date of termination. In the event of litigation commenced with respect to any term of condition of this Agreement, the prevailing party shall be entitled to reasonable attorneys fees and costs incurred. 6. ASSOCIATION shall defend, indemnify, waive, and hold harmless CITY, its City Council, boards and commissions, officers and employees from and against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees (when outside attorneys are so utilized), regardless of the merit or outcome of any such claim or suit arising from or in any manner connected with the design, construction, maintenance, or continued existence of the PERMITTED IMPROVEMENTS. 7. ASSOCIATION shall accept the fact that surface drainage water may enter onto the SUBJECT PROPERTY from EASEMENTS located in the City of Newport Beach, County of Orange, State of California, as depicted on Exhibit °A" attached hereto, whether naturally or as a result of the development or improvement of the EASEMENTS. 8. ASSOCIATION shall accept and waive any and all liability for any damages to the SUBJECT PROPERTY caused by the flow of such surface drainage water onto the SUBJECT PROPERTY. ASSOCIATION shall defend, indemnify, waive and hold harmless CITY, its City Council, boards and commissions, officers and employees from and against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees (when outside attorneys are so utilized), regardless of the merit or outcome of any such claim or suit arising from or in 7 any manner connected to surface drainage water entering the SUBJECT PROPERTY from the EASEMENTS. 9. ASSOCIATION agrees that this Agreement shall remain in full force and effect from execution thereof; shall run with the land; shall be binding upon the heirs, successors, and assigns of OWNERS' interest in the land whether fee or otherwise, and shall be recorded in the Office of the County Recorder of Orange County, California. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. APPROVED AS TO FORM By: City Attorney ATTEST: By: City Clerk FAUSERSIP8W0Hoffstadll GEnc Agt- Tr15389 -2.doc 0 CITY OF NEWPORT BEACH, a Municipal corporation City Manager ASSOCIATION: By: STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On 2002, 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 (This area for official notarial seal) STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On Sk I � 16 2002, before me, Ab(YD Co. %o rL2a l ez- personally appeared —, j 0.mes {2. WVie2l'er , personally known to me ( ) to be the person(Z) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /sheAkey has executed the same in hislhafl#Jierfi authorized capacity(ies), and that by hislberlheir.signature(s) on the instrument the person(g) or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. �, �,;, AURORA GONZALEZ s� Q Comm. #1214388 ��. ,J�s�L1`x �`� ; � .NOTARY PURLICCAUFORNIA �� Nota ry n an Public id for aid State Orange County My Comm. Expires Mar. 29, 2003 F (This area for official notarial seal)