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HomeMy WebLinkAbout05 - Newport Shores Homeowners Assoc. Landscape0 0 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 5 March 23, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department William Patapoff, P.E. 949 - 644 -3311 bpatapoff @city.newport- beach.ca.us SUBJECT: NEWPORT SHORES HOMEOWNERS ASSOCIATION — APPROVAL OF LANDSCAPE MAINTENANCE AGREEMENT RECOMMENDATIONS: Approve a Landscape Maintenance Agreement with the Newport Shores Homeowners Association for public and private improvements. 2. Authorize the City Manager to Execute the Agreement. 3. Authorize the City Clerk to record the Agreement with the County Recorder. DISCUSSION: The City, in cooperation with the Newport Shores Homeowners Association (NSHA), is proposing to improve City owned property at the west end of Canal Street (see attached Exhibit). This property is currently unsightly and sparsely landscaped. The proposed improvements would also include a small privately owned island located at Canal Street and Canal Circle. The improvements consist of new landscaping, irrigation, walkway, bench, and doggie bag dispenser. Upon the completion of the project NSHA has agreed to maintain the improvements per the attached Agreement. The Newport Shores Street End Improvements -Phase I (Contract No. 3669) was authorized in the FY 03 -04 Capital Improvement Program as part of the Coastal Access and Pedestrian Circulation Improvements. The project is estimated at $40,000.00. Staff is scheduled to advertise for bids this spring with construction anticipated during the summer. Environmental Review: Categorical Exempt under Chapter 3, Article 19, Section 15304, Class 4 (b) of the Title 14 California Code of Regulations. Exemption for new gardening or landscaping. Prepared . William ... City Engineer Attachments: Exhibit and Agreement Submitte Stub -G. Badum Pul)ic'WVorks Director RECORDING REQUESTED AND WHEN RECORDED RETURN TO: City Clerk's Office City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92658 -8915 Space above this line for Recorder's use only. LANDSCAPE MAINTENANCE AGREEMENT THIS AGREEMENT is made and entered into this day of 2004, by and between Newport Shores Community Association, 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 "). WITNESSETH: WHEREAS, CITY owns, maintains and administers a certain public right -of -way located in the City of Newport Beach, County of Orange, State of California, which right -of -way is more particularly described as the access parcel running from the westerly street end of Canal Circle to the adjacent canal, and depicted on Exhibit "A" attached hereto and by this reference incorporated herein (hereinafter "RIGHT -OF WAY "); and WHEREAS, OWNER owns and maintains portions of that certain real property located between Canal Street and Canal Circle in the City of Newport Beach, County of Orange, State of California, which real property forms an island between said roadways, which real property is more particularly described as Tract No. 4601 as shown on a map recorded in Book 175, Pages 26 and 27 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California, and which real property is separated from the aforesaid RIGHT - OF -WAY only by Canal Circle (hereinafter "ISLAND "): and WHEREAS, CITY has storm drain facilities located within said RIGHT -OF -WAY; and 1 WHEREAS, the parties desire to enter into an agreement providing for the creation and maintenance of certain improvements to the RIGHT -OF -WAY and the ISLAND (hereinafter 'IMPROVEMENTS'). NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1. It is mutually agreed that IMPROVEMENTS shall include landscaping, plants and vegetation, an irrigation system, a bench, concrete walkways, planters, doggie bag dispenser and additional hardscape. 2. CITY shall make and pay for all IMPROVEMENTS as shown on the approved Improvement Plan No. P- 5191 -5 for the RIGHT -OF -WAY and the ISLAND. 3. Upon completion of all IMPROVEMENTS by CITY and fifteen (15) days notice from CITY to OWNER of said completion, OWNER shall thereafter maintain the IMPROVEMENTS to the RIGHT -OF -WAY in accordance with the terms detailed hereinafter in Paragraph 5 of this Agreement. CITY will further allow OWNER to is take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. OWNER shall maintain the IMPROVEMENTS to the ISLAND in any manner it deems fit. 4. OWNER shall pay for the water and electricity to be used on all IMPROVEMENTS. 5. OWNER and CITY further agree as follows: (a) OWNER shall maintain the IMPROVEMENTS to the RIGHT -OF -WAY, in accordance with the general prevailing standard of maintenance in the surrounding area, and pay all costs and expenses incurred in doing so. For the plant material specified, OWNER agrees to provide weekly maintenance, which shall include, as needed, weeding, trimming, litter pickup, mowing, hardscape cleaning, irrigation maintenance, electrical maintenance, purchasing and stocking new bags in the doggie dispenser and pest and rodent control. However, nothing herein shall be construed to require OWNER to maintain, replace or repair any CITY -owned pipeline located in or under the RIGHT -OF -WAY. 6 (b) Should a dangerous or defective condition occur in the IMPROVEMENTS to the RIGHT -OF -WAY as a result of OWNER'S negligence in performing or failing to perform its maintenance duties for said area, then OWNER understands and agrees that it is legally responsible for such condition, and further agrees to proceed immediately to correct the condition. Should a dangerous or defective condition occur in the IMPROVEMENTS to the RIGHT -OF -WAY as a result of any other reason than OWNER'S negligence in performing or failing to perform its maintenance duties for said area, then CITY understands and agrees that it is legally responsible for such condition, and further agrees to proceed immediately to correct the condition. OWNER agrees to give CITY immediate notice of any dangerous or defective condition that it believes the CITY is responsible for repairing. (c) With regard to any dangerous or defective condition that might occur in the IMPROVEMENTS to the RIGHT -OF -WAY solely as a result of OWNER'S negligence in its maintenance duties for said area, CITY reserves to itself the right to make such emergency repairs to the IMPROVEMENTS in the RIGHT -OF -WAY as CITY deems necessary for the immediate protection of the public health and safety. If CITY provides OWNER with written notice of the dangerous or defective condition, and a reasonable period to cure the condition, and OWNER thereafter fails to make such repairs within the time period specified, then OWNER agrees to promptly reimburse CITY for the reasonable costs and expenses incurred by CITY in affecting such emergency repairs. (d) That should the CITY be required to enter onto said RIGHT -OF -WAY to exercise its primary rights associated with said RIGHT -OF -WAY, 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 IMPROVEMENTS, as required, and in such event: 9 c 0 (i) CITY shall provide OWNER with reasonable notice of its intention to accomplish such work, provided that an emergency situation does not exist; and (ii) CITY agrees to bear only the cost of any removal and replacement of the IMPROVEMENTS affected by such work by CITY; 6. 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 OWNER, CITY will hire a contractor to maintain the areas and will bill the OWNER for all reasonable costs. Termination because of breach shall be upon a minimum of ten (10) days' notice, with the notice specifying the date of termination. 7. OWNER 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, 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 IMPROVEMENTS to the ISLAND, and any such claim or suit arising from or in any manner connected with OWNER's performance of its maintenance duties on the RIGHT -OF -WAY or ISLAND. 8. CITY shall defend, indemnify, waive, and hold harmless OWNER from and against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, regardless of the merit or outcome of any such claim or suit arising from or in any manner connected with the design, construction, or continued existence of the IMPROVEMENTS to the RIGHT -OF -WAY. 9. OWNER 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. rd 10. CITY agrees that it shall complete like improvements to the similarly situated access parcel /right -of -way located at the junction of Canal Street and 62n, Street within two (2) years of the execution of this agreement, which improvements will be provided for in a separate written agreement which CITY and OWNER will work diligently to complete with enough time to comply with said time constraint. 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: City Attorney ATTEST: City Clerk I CITY OF NEWPORT BEACH, a Municipal corporation By: City Manager NEWPORT SHORES COMMUNITY ASSOCIATION: By: Gary M. Smith, President Authorized Signature 0 STATE OF CALIFORNIA ) SS: COUNTY OF ORANGE ) On , 200_, 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 , 200_, 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) • F: \USERSIPBW \Shared \Contracts \FY 03- 04 \NPT SHORES STREET ENDS C- 3669 \Landscape Agreement.doc 9 I HIBIT A MIAUN 1+0V I O N LOT 1 i TRACK 772 1 \ LOT 12 LOT 11 SCALE 1 = 40' V -RIGHT OF WAY - ISLAND CANAL ST. -,, CITY OF NEWPORT BEACH NEWPORT SHORES STREE PUBLIC WORKS DEPARTMENT I END IMPROVEMENTS i CITY OF NEWPORT BEACH OFFICE OF THE CITY CLERK LaVonne M. Harkless, CMC March 30, 2004 Orange County Recorder P. O. Box 238 Santa Ana, CA 92702 -0238 Attached for recordation is a Landscape Maintenance Agreement between the Newport Shores Community Association and the City of Newport Beach. Please record the enclosed document and return it to the City Clerk's Office. Thank you. Sincerely, LaVonne M. Harkless, CMC City Clerk Enclosure RECORDING REQUESTED AND WHEN RECORDED RETURN TO: City Clerk's Office City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92658 -8915 Space above this line for Recorder's use only. EXEMPT RECORDING REQUEST PER LANDSCAPE MAINTENANCE AGREEMENT GOVERNMENT CODE 6103 THIS AGREEMENT is made and entered into this � day of 10¢rc h , 2004, by and between Newport Shores Community Association, 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 "). WITNESSETH: WHEREAS, CITY owns, maintains and administers a certain public right -of -way located in the City of Newport Beach, County of Orange, State of California, which right -of -way is more particularly described as the access parcel running from the westerly street end of Canal Circle to the adjacent canal, and depicted on Exhibit "A" attached hereto and by this reference incorporated herein (hereinafter "RIGHT-OF WAY "); and WHEREAS, OWNER owns and maintains portions of that certain real property located between Canal Street and Canal Circle in the City of Newport Beach, County of Orange, State of California, which real property forms an island between said roadways, which real property is more particularly described as Tract No. 4601 as shown on a map recorded in Book 175, Pages 26 and 27 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California, and which real property is separated from the aforesaid RIGHT- NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1. It is mutually agreed that IMPROVEMENTS shall include landscaping, plants and vegetation, an irrigation system, a bench, concrete walkways, planters, doggie bag dispenser and additional hardscape. 2. CITY shall make and pay for all IMPROVEMENTS as shown on the approved Improvement Plan No. P- 5191 -5 for the RIGHT -OF -WAY and the ISLAND. 3. Upon completion of all IMPROVEMENTS by CITY and fifteen (15) days notice from CITY to OWNER of said completion, OWNER shall thereafter maintain the IMPROVEMENTS to the RIGHT -OF -WAY in accordance with the terms detailed hereinafter in Paragraph 5 of this Agreement. CITY will further allow OWNER to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. OWNER shall maintain the IMPROVEMENTS to the ISLAND in any manner it deems fit. 4. OWNER shall pay for the water and electricity to be used on all IMPROVEMENTS. 5. OWNER and CITY further agree as follows: (a) OWNER shall maintain the IMPROVEMENTS to the RIGHT -OF -WAY, in accordance with the general prevailing standard of maintenance in the surrounding area, and pay all costs and expenses incurred in doing so. For the plant material specified, OWNER agrees to provide weekly maintenance, which shall include, as needed, weeding, trimming, litter pickup, mowing, hardscape cleaning, irrigation maintenance, electrical or failing to perform its maintenance duties for said area, then OWNER understands and agrees that it is legally responsible for such condition, and further agrees to proceed immediately to correct the condition. Should a dangerous or defective condition occur in the IMPROVEMENTS to the RIGHT -OF -WAY as a result of any other reason than OWNER'S negligence in performing or failing to perform its maintenance duties for said area, then CITY understands and agrees that it is legally responsible for such condition, and further agrees to proceed immediately to correct the condition. OWNER agrees to give CITY immediate notice of any dangerous or defective condition that it believes the CITY is responsible for repairing. (c) With regard to any dangerous or defective condition that might occur in the IMPROVEMENTS to the RIGHT -OF -WAY solely as a result of OWNER'S negligence in its maintenance duties for said area, CITY reserves to itself the right to make such emergency repairs to the IMPROVEMENTS in the RIGHT -OF -WAY as CITY deems necessary for the immediate protection of the public health and safety. If CITY provides OWNER with written notice of the dangerous or defective condition, and a reasonable period to cure the condition, and OWNER thereafter fails to make such repairs within the time period specified, then OWNER agrees to promptly reimburse CITY for the reasonable costs and expenses incurred by CITY in affecting such emergency repairs. (d) That should the CITY be required to enter onto said RIGHT -OF -WAY to exercise its primary rights associated with said RIGHT -OF -WAY, 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 IMPROVEMENTS, as required, and in such (ii) CITY agrees to bear only the cost of any removal and replacement of the IMPROVEMENTS affected by such work by CITY; 6. 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 OWNER, CITY will hire a contractor to maintain the areas and will bill the OWNER for all reasonable costs. Termination because of breach shall be upon a minimum of ten (10) days' notice, with the notice specifying the date of termination. 7. OWNER 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, 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 IMPROVEMENTS to the ISLAND, and any such claim or suit arising from or in any manner connected with OWNER's performance of its maintenance duties on the RIGHT -OF -WAY or ISLAND. 8. CITY shall defend, indemnify, waive, and hold harmless OWNER from and against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, regardless of the merit or outcome of any such claim or suit arising from or in any manner connected with the design, construction, or continued existence of the IMPROVEMENTS to the RIGHT -OF -WAY. 9. OWNER 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 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: 1, City Attorney ATTEST: City Clerk CITY OF NEWPORT BEACH, a Municipal corporation By: City Manager NEWPORT SHORES ASSOCIATION: 0 Gary M. 'Smith, Pk6si( Authorized Signature STATE OF CALIFORNIA ) ) ss: COUNTY OF O NGE ) On Y vtrck Y 2901, before e, personally appeared ��.Y l > > E1. pew{} to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(&-) is /are subscribed to the within instrument and acknowledged to me that he /shehas executed the same in his /her /their authorized capacity(iim), and that by his /laap�thretr 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. EVA DE LATORRE Comm[alon # t4BO366 Nolvy Public - Cdffwft orange cowty Not ry Public in and for said State — (This area for official notarial seal) STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On Grp �J 2001, before me, ���1 �✓� `� ��t9� 1'F �nrt ��� �- personally appeared t'� V W��x [� ��� „(�• 0 • Wi'� personally known to me ( to be the perso (s) whose nam s) is are subscribed to the within instrument and acknowledged to me that he /she they as executed the same in his /her heir uthorized capacit (ies and that by his /her their ignature s) on the instrument the person s) r the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. CATHY FISHER' ommission # 1341009 ,14Z Notary public - Califomia zf HIBIT A I F\ M I, r\ `t O V I O I LOT 1 TRACK 772 I \ \ LOT 12 LOT 11 SCALE 1 " _ X4.0' CANAL ST. I \i