HomeMy WebLinkAboutC-9794-1 - Cooperative Agreement for Maintenance of Median Improvements (on Ford Road)COOPERATIVE AGREEMENT BETWEEN THE
CITY OF NEWPORT BEACH AND
BELCOURT HILL HOMEOWNERS ASSOCIATION
FOR THE MAINTENANCE OF MEDIAN IMPROVEMENTS
This Cooperative Agreement ("Agreement") is m a d e a n d entered into this
19th day of November, 2024, by and between the City of Newport Beach, a California
municipal corporation and charter City ("City"), and the Belcourt Hill Homeowners
Association, a California nonprofit corporation ("Association"), with the City and
Association individually referred to as "Party" and collectively referred to as "Parties."
RECITALS
WHEREAS, City is a municipal corporation organized and validly existing
under the laws of the State of California with the power to carry on its business as it
is now being conducted under the statutes of the State of California and the Charter
of the City;
WHEREAS, the Association is an "association" of homeowners as defined
under Civil Code §4080;
WHEREAS, the City and J.M. Peters Co., Inc. ("J.M. Peters") entered into
that certain "Encroachment Agreement and Declaration of Covenants Between
Landowners (Non -Standard Street Median Improvements)," dated April 14, 1982,
which was recorded in the Official Records of the County of Orange on May 20,
1982, a true and correct copy of which is attached hereto as Exhibit A and
incorporated herein by this reference ("Encroachment Agreement");
WHEREAS, the Encroachment Agreement permitted J.M. Peters to construct
and maintain certain street median improvements on Ford Rd., as depicted on
Exhibit A ("Median Improvements");
WHEREAS, J.M. Peters assigned its duties under the Encroachment
Agreement to the Association via that certain "Assignment of Agreement For Non -
Standard Street Improvements Tract No. 10987," dated December 1, 1982, which
was recorded in the Official Records of the County of Orange on December 7, 1982;
and
WHEREAS, the Parties now desire that the City maintain the Median
Improvements in exchange for the Association supplying the City's water
requirements to support maintenance of the Median Improvements.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the Parties hereto agree as follows:
RECITALS
The Parties acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference into this Agreement.
2. INTENT
This Agreement is intended to permit the City to fulfill the maintenance duties
of the Association under the Encroachment Agreement. The City's maintenance of
the Median Improvements pursuant to this Agreement shall be deemed compliance
by the Association with its maintenance duties under the Encroachment Agreement.
In the event of termination of this Agreement, the Encroachment Agreement shall
control.
3. TERM AND TERMINATION
This Agreement shall continue in full force and effect until terminated. Either
Party may terminate this Agreement with or without cause, at any time, by providing
at least one hundred eighty (180) days prior written notice to the other Party.
4. CONSIDERATION
4.1. The Association shall provide all water reasonably necessary to
maintain the Median Improvements, at the Association's sole cost. The Association
shall ensure that adequate water is available to maintain the landscaping within the
Median Improvements. Notwithstanding the preceding, the Association shall not be
responsible for providing water to the extent that this is not reasonably possible due
to circumstances outside the Association's reasonable control, including but not
limited to repair or replacement of the Association's irrigation system or interruptions
in water provided by the local water district. In such cases the Association shall act
in good faith to restore normal water service as soon as reasonably possible.
4.2. The City shall maintain the Median Improvements in accordance with
the terms of this Agreement at its sole cost and expense, except for the cost of water
which shall be borne by the Association.
5. LICENSE
5.1. For the purpose of supporting the maintenance of the landscaping
within the Median Improvements by the City, the Association hereby grants the City
a nonexclusive perpetual license to enter on, over, and under the Association's
property, in the areas depicted on Exhibit B attached hereto and incorporated herein
Belcourt Hill Homeowners Association Page 2
by this reference ("License Area"), to maintain, repair, and replace the connection to
the Association's irrigation facilities. Additionally, the License granted herein shall
include reasonable access to the meter and controller depicted on Exhibit B for the
purpose of adjusting the watering schedule for the Median Improvements, and for
maintenance, emergencies, testing, and other irrigation work.
5.2. The license granted in this Section is solely for the purpose of allowing
the City access to HOA property in the License Area as needed to support the City's
maintenance of the Median Improvements, and does not create any duty or
responsibility on the part of the City to repair or replace the Associations' irrigation
facilities within the License Area or beyond the License Area. The City's duties to
maintain, repair, and replace irrigation facilities shall be limited to the irrigation
facilities within the Median Improvements depicted on Exhibit B, and includes the
irrigation facilities running from Association property under the public street to the
Median Improvements.
6. MAINTENANCE
6.1. The City shall be solely responsible for any and all costs and expenses
for the maintenance of the Median Improvements, with the exception of water.
6.2. The City shall have the exclusive right to maintain the Median
Improvements as its sees fit in its sole and absolute discretion, including but not
limited to, the type, quantity, and location of any and all landscaping, the removal or
installation of any or all landscaping, the schedule, frequently, and manner of
maintenance of landscaping and other Median Improvements, and the design,
redesign, removal, or replacement of any or all Median Improvements.
6.3. All work shall be performed by City or contractors under the City's
supervision. All work shall be performed in a manner commensurate with community
professional standards and with the ordinary degree of skill and care that would be
used by other reasonably competent practitioners of the same discipline under
similar circumstances. All work shall be performed by qualified and experienced
personnel.
6.4. City shall not be responsible for delay, damages, or be in default or
deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the
failure of Association to furnish approvals or easements promptly, or delay or faulty
performance by Association, its contractors, or agents.
7. REPAIR AND REPLACEMENT RIGHTS
The Association shall act in good faith to grant other licenses to the City, as
reasonably necessary, for the repair and replacement of irrigation facilities
supporting the Median Improvements, including but not limited to, the connection to
Belcourt Hill Homeowners Association Page 3
the Association's irrigation facilities. No costs, expenses, or fees shall be charged by
Association to the City in the preparation, execution, or granting of additional
licenses pursuant to this section. The City shall be solely responsible for recording
fees, if any.
B. INDEMNITY
8.1. Notwithstanding anything herein to the contrary, the City shall
indemnify, defend, and hold harmless the Association, its management agent, and
their respective officers, agents, volunteers, employees, and board members
("Indemnified Parties") from any and all claims arising out of the City and its agents'
negligence or willful misconduct in the performance of this Agreement.
Notwithstanding the foregoing, nothing herein shall be construed to require the City
to indemnify the Indemnified Parties to the extent that any claim arises from the
negligence or willful misconduct of the Indemnified Parties.
8.2. Notwithstanding anything herein to the contrary, the Association shall
indemnify, defend, and hold harmless the City, its elected officials, officers, agents,
volunteers, and employees ("City Indemnified Parties") from any and all claims
arising out of the Association and its agents' negligence or willful misconduct in the
performance of this Agreement. Notwithstanding the foregoing, nothing herein shall
be construed to require the Association to indemnify the City Indemnified Parties to
the extent that any claim arises from the negligence or willful misconduct of the City
Indemnified Parties.
8.3. The City shall promptly restore Association property to substantially
the same condition as it existed immediately prior to the City commencing any
activity or work, including but not limited to plant material, utility installations, and
other improvements. If Association property is damaged arising out of the City's and
its agents' performance of this Agreement, the City shall promptly repair such
damage. If the City fails to repair and restore Association property to the
Association's reasonable satisfaction, the Association shall provide written notice to
the City identifying the damage or conditions that the City has failed to repair or
restore. If the City fails to perform such repair or restoration within thirty (30) days
thereafter to the Association's reasonable satisfaction, the Association may
undertake such repair or restoration on the City's behalf and the City shall promptly
reimburse the Association for its actual costs incurred.
9. INSURANCE
City shall cause to be purchased and maintain in effect insurance or self-
insurance providing coverage against claims which may arise out of or result from
the activities of the City, any contractor or sub -contractor of the City, anyone directly
or indirectly employed by any of them, or anyone for whose acts any of them may
be liable. City shall provide the Association with certificates of all insurance and self-
Belcourt Hill Homeowners Association Page 4
insurance promptly upon full execution of this Agreement. Each policy shall provide
that it may not be cancelled or reduced in coverage until thirty (30) days after written
notice has been given to the Association. All insurance required herein shall name
the Association and its management agent as additional insureds, shall be primary
and non-contributory as to any or all Association policies of insurance, and shall
contain a waiver of subrogation in favor of the additional insureds. Insurance
coverage shall be in the form of commercial general liability with coverage of at least
one million dollars ($1,000,000) per occurrence with two million dollars ($2,000,000)
aggregate, auto liability of at least one million dollars ($1,000,000) per occurrence,
and worker's compensation insurance in accordance with law.
10. NOTICE
All notices, demands, requests or approvals, including any change in mailing
address, to be given under the terms of this Agreement shall be given in writing, and
conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid,
first class mail, addressed as hereinafter provided:
To Association:
Belcourt Hill Homeowners Association
25422 Trabuco Rd., #105-537
Lake Forest, CA 92630
To City:
City of Newport Beach
Public Works Department
Parks Superintendent
100 Civic Center Dr.
Newport Beach, CA 92660
11. PARTY REPRESENTATIVES
11.1. Association shall designate a representative who shall be the point of
contact and coordinate with the City regarding this Agreement. ("Association
Representative"). The Association Representative shall be available to City at all
reasonable times during the Agreement term. The Association has designated
Debbie Boyd of Boyd Management, to be the Association Representative. The
Association may designate additional or different persons to serve as the
Association Representative upon written notice to the City.
Belcourt Hill Homeowners Association Page 5
11.2. This Agreement will be administered by the City's Parks
Superintendent. City's Parks Superintendent or designee shall be the City's point of
contact and shall have the authority to act for City under this Agreement.
12. STANDARD PROVISIONS
12.1. Compliance with all Laws. Each Party shall, at its own cost and
expense, comply with all statutes, ordinances, regulations and requirements of all
governmental entities, including federal, state, county or municipal, whether now in
force or hereinafter enacted.
12.2. Waiver. A waiver by either Party of any breach, of any term, covenant
or condition contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained herein,
whether of the same or a different character.
12.3. Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the Parties, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
12.4. Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and any attachments attached hereto, the
terms of this Agreement shall govern.
12.5. Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for
or against either Party by reason of the authorship of the Agreement or any other
rule of construction which might otherwise apply.
12.6. Amendments. This Agreement may be modified or amended only by a
written document executed by both Parties and approved as to form by the City
Attorney.
12.7. Severability. If any term or portion of this Agreement is held to be
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions of this Agreement shall continue in full force and effect.
12.8. Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating
to this Agreement shall be adjudicated in a court of competent jurisdiction in the
County of Orange, State of California.
Belcourt Hill Homeowners Association Page 6
12.9. Equal Opportunity Employment. Association represents that it is an
equal opportunity employer and it shall not discriminate against any subcontractor,
employee or applicant for employment because race, religious creed, color, national
origin, ancestry, physical handicap, medical condition, marital status, sex, sexual
orientation, age or any other impermissible basis under law.
12.10. No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing Party shall not be entitled to attorneys' fees.
12.11. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together
shall constitute one (1) and the same instrument.
12.12. Assignment. Neither Party shall assign its performance of this
Agreement, nor any part thereof, without the prior written consent of the non -
assigning Parties.
12.13. Non -Appropriation. This Agreement is subject to the City's availability
of funds appropriated for this purpose by the City, and nothing herein shall be
construed as obligating the City to expend money or enter into any contract or other
obligation for future payment of money in excess of appropriations authorized by
law.
12.14. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the Parties and their respective heirs, personal
representatives, successors and assigns.
12.15. No Third Party Rights. The Parties do intend to create in or grant
remedies to, any third party as a beneficiary of this Agreement, or of any duty,
covenant, obligation or undertaking established herein.
12.16. Cooperation. Each Party agrees to cooperate with the other and, in
that regard, to sign any and all documents which may be reasonably necessary,
helpful, or appropriate to carry out the purposes and intent of this Agreement
including, but not limited to, releases or additional agreements.
[SIGNATURES ON NEXT PAGE]
Belcourt Hill Homeowners Association Page 7
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By: tJ I>
on C. Harp A-0\a vD-
Cit Attorney
ATTEST: 1
Date: / �a�'•�
By:
Leilani I. Brown
City Clerk
Pp\
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 11/1 f /zvzy
Will O'Neill
Mayor
ASSOCIATION: Belcourt Hill
Homeowners Association, a California
nonprofit corporation
Date:
Signed in Counterpart
Bv:
Pete Compton
Chief Executive Officer
Date:
Signed in Counterpart
Bv:
•.:�__�_ Michael Bloch
�P Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Encroachment Agreement
Exhibit B — License Area
Belcourt Hill Homeowners Association Page 8
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: ls�l2�IZK
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By: 1j,0 By:
fiton C. Harp Will O'Neill
COY Attorney Mayor
ATTEST: ASSOCIATION: Belcourt Hill
Date: Homeowners Association, a California
nonprofit corporation
Leilani i, Brown
City Clerk
Attachments:
Date: I Zr Ln 2
By:
ete Compton
Chief Executive Officer
Date: to'2t1?)oZ`f
By: LA4,.Aa
Michael Bloch
Secretary
(END OF SIGNATURES]
Exhibit A — Encroachment Agreement
Exhibit B — License Area
Belcourt Hill Homeowners Association Page 8
Exhibit A
ENCROACHMENT AGREEMENT
(See attached)
Belcourt Hill Homeowners Association Page A-1
r;!F', FtCORE 3 RETURN TO: / / SCO► 1'l
r� City Clerk
I' City of Newport Beach
3300 Newport Boulevard
M P. 0. Box 1768 �• R 82-1746
' Newport Beach, CA 92663-3884
U
Space above this line for recorder's use only.
ENCROACHMENT AGREEMENT AND DECLARATION OF COVENANTS BETWEEN LANDOWNERS
(NON-STANDARD STREET MEDIAN IMPROVEMENTS)
THIS AGREEMENT is made and entered into this ) q Tl1 day of
1982, by and between the CITY OF NEWPORT BEACH, a municipal
corporation, hereinafter referred to as "CITY" and the J. M. PETERS CO., INC.,
a California Corporation, hereinafter referred to as "COMPANY."
W I T N E S S E T H
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 described in Exhibit "A" hereto and by this
reference incorporated within; and
WHEREAS, COMPANY owns a portion of that certain real property located
on the corner 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 Tract No. 10987 as shown on a map filed in Book 477, pages 31 through 36 of
Miscellaneous Maps, Records of Orange County, California and which real property
is contiguous to the aforesaid street right-of-way as shown on Exhibit "A"; and
WHEREAS, said street right-of-way also contains public utility ease-
ments; and
WHEREAS, CITY has sewer, water, street lights, and storm drain facili-
ties located within said street right-of-way; and
WHEREAS, CITY desires to condition approval of construction of non-
standard street median improvements over a portion of said street right-of-way
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 con-
struct said non-standard median improvements;
1 of 4
NOW, THE .ORE, in consideration of their itual 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 public street right-of-way which is not con-
structed of asphalt concrete, Portland cement concrete with only a "broom" or
trowel finish or Bomanite.
2. CITY will allow COMPANY to construct, reconstruct, install, main
tain, use, operate, repair and replace said non-standard street median improve-
ments and all facilities and appurtenances necessary and incidental thereto,
over CITY's utility facilities, all in substantial conformance with plans and
specifications therefor on file in the CITY's Public Works Department of the City
of Newport Beach, in, on, and across those certain rights -of -way described in
Exhibit "A" hereto. 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 therefor
on file in the CITY's Public Works Department, in, on, and across those certain
rights -of -way described in Exhibit "A" hereto.
(b) COMPANY shall maintain the aforesaid non-standard street
median improvements and facilities in accordance with general prevailing stan-
dards of maintenance, and to pay all costs and expenses incurred in doing so.
However, nothing herein shall -be construed to require COMPANY to maintain, -re-
place or repair any CITY -owned pipeline, conduit or cable located in or under
said non-standard street median improvements.
Should a dangerous or defective condition of said improvements
occur, COMPANY understands and agrees that they are responsible for such con-
dition, 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
aforesaid improvements and facilities as required by this paragraph, COMPANY
agrees that 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.
2of4
CITY reF yes to itself the right to makE ich emergency
repairs to the improvements and facilities installed by COMPANY pur-
suant hereto as it deems necessary for the immediate protection of
the public health and safety. OWNER agrees to promptly reimburse
CITY for the reasonable costs and expenses incurred by CITY in ef-
fecting such emergency repairs.
(c) That should CITY be required to enter onto any
easements owned by 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 re-
move portions of the non-standard street median improvements and
in such event:
1) CITY shall notify COMPANY of its intention to ac-
complish such work;
2) COMPANY shall be responsible for arranging for
any renewal or restoration of the non-standard street median im-
provements affected by such work by CITY:
3) CITY agrees to bear the portion of the costs of
any such renewal or restoration of the non-standard street median
improvements not in excess of the cost which would be incurred
for the restoration or renewal of standard street improvements
in the same location;
4) COMPANY agrees to pay any costs of renewal or
restoration of the non-standard street improvements in excess of
the costs to be paid by CITY.
(d) COMPANY agrees to indemnify, hold harmless, and de-
fend CITY, its officers, agents and employees, from any and all
demands, claims, losses or liability that arise from, or are in
any way related to, the maintenance, renewal, restoration or re-
placement of the non-standard street median improvements. COMPANY
is not obligated hereunder to indemnify, hold harmless or defend
CITY or its officers, agents or employees for injuries, claims,
losses or damages that arise out of the existence of the street
median or non-standard street median improvements.
4. COMPANY agrees to bear the cost of providing water for ir-
rigating the median improvements.
5. COMPANY agrees that if the CITY should ever need to use
the right-of-way over which the non-standard street improvements
3of4
are established, together with the 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 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 modi-
fied, 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 unenforce-
ability 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 bind-
ing upon the heirs, successors and assigns of COMPANY and shall be
recorded in the Office of the County Recorder of Orange County,
California; provided, however-, that COMPANY may, without CITY's
consent, assign its right and obligations under this assignment
to a community association responsible for the maintenance of the
adjacent private streets and upon such assignment, COMPANY shall
` be relieved of any obligations to CITY hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agree-
ment to be executed on the day and year first above written.
CITY OF NEWPORT BEACH,
a Municipal Corporation
ATTEST 404��% �/`%�� By
C`// 1�Iayor PiKo Tem
City Clerk
J.M.ERS CO., INC.,
a Ca if rnia Corporation
APP�vJED RS T FORM:
r' Y By
Ja M. Peters a dez
City Attorney
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Belcourt Hill Homeowners Association Page B-2