HomeMy WebLinkAboutC-3669(B) - Right-of-Way Agreement (Newport Shores) (Eastern End of Canal Street)COO
AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH
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THE NEWPORT SHORES COMMUNITY ASSOCIATION
THIS AGREEMENT is made and entered into as of this *- Y 1• J-- day of /A r./ c h ,
2006, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation
( "City"), and the NEWPORT SHORES COMMUNITY ASSOCIATION, a California
corporation, ( "Association "), and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly 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 City.
B. City maintains a public right -of -way running from the easterly street end of
Canal Street to the adjacent canal which is depicted on Exhibit A attached
hereto and incorporated by this reference ( "City Right -of- Way "). The City's
Right -of -Way is currently unimproved property.
C. The Newport Shores Community Association is an incorporated
homeowners association that represents a total of 440 homeowners who live
in the Newport Shores Community, located north of Coast Highway in the
City of Newport Beach.
D. Association owns and maintains real property in the Newport Shores
Community located at 500 Canal Street, Newport Beach, California
including, but not limited to the real property located at the eastern end of
Canal Street in the Newport Shores Community. The portion of Association
property depicted and described as the "Association Property" on Exhibit A
shall hereinafter be referred to as the "Association Property." Hereinafter,
the City Right -of -Way and Association Property shall be collectively referred
to as the "Access Parcel."
E. The parties hereto desire to enter into an agreement which provides for
the construction of public improvements for the benefit of the public. To
accomplish this desire, the parties are entering into this Agreement which
provides for: (1) the granting,of a non - exclusive permanent easement by
the Association to the City on, over, across and under the Association
Property for storm drain and drainage purposes and for the purpose of
allowing the general public access for pedestrian, bicycle, recreational and
other public uses and for the construction and installation of sidewalks,
benches, landscape, irrigation, storm drain, drainage and other appurtenant
improvements; and (2) the maintenance of the public improvements (with
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the exception of the underground storm drain facilities) by the Association,
all of which are subject to the terms and conditions set forth herein.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
Time is of the Essence. Time is of the essence in the performance of this
Agreement.
Grant of Easement for Public Access and Storm Drain Facilities.
Concurrent with its execution of this Agreement, Association shall execute
and deliver to the City the grant of easement attached hereto as Exhibit B
( "Grant of Easement ") which is incorporated herein by this reference.
3. Construction of Public Improvements.
(a) After the Grant of Easement is recorded, the City shall prepare
construction documents, process all necessary permits, select a
contractor and fund the construction of the landscape, irrigation,
and other improvements on the Access Parcel.
(b) No construction work as called for by Section 3(a) above shall
interfere with or cause damage to the properties adjacent to the
Access Parcel. Any such damage shall be repaired at the expense
of the City's contractor.
(c) The City shall construct the storm drain in such a manner as to not
compromise the foundation of the tennis court facility.
4. Maintenance and Indemnity Agreement.
Upon completion of the improvements, Association shall maintain the
public improvements including, but not limited to, the walkways, bench,
landscape, irrigation, and surface drainage improvements at its sole cost
and expense. To this end, concurrent with its execution of this
Agreement, Association shall execute and deliver to the City the
Maintenance and Indemnification Agreement attached hereto as Exhibit C.
City shall bear the cost of maintaining the underground storm drain
facilities.
5. Miscellaneous.
(a) Exhibits. All documents referenced as exhibits in this Agreement
are hereby incorporated in this Agreement.
(b) Successors and Assiqns. The terms, covenants, and conditions
contained herein shall apply to and bind the heirs, successors,
executors, and assigns of all the parties hereto.
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(c) Amendment or Modification. This Agreement may not be modified
or amended except by written agreement executed by the parties.
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California and
any action brought relating to this Agreement shall be adjudicated
in a court of competent jurisdiction in the County of Orange.
(e) Severabilitv. The invalidity or unenforceability of any provision of
this Agreement with respect to a particular party or set of
circumstances shall not in any way affect the validity and
enforceability of any other provision hereof or the same provision
when applied to another party or to a different set of circumstances.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
C.
Aaron C. Harp, Asst. City Attorney
for the City of Newport Beach
ATTEST:
LaVonne Harkless
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
omer Bludsh, City Manager
for the City of Newport Beach
NEWPORT SHORES
7[v S IATION:
Robert Paal
President
KSMA.ca; �.." I t--
Barbara Thibault
Secretary
Attachments: Exhibit A — Access Parcel Map
Exhibit B — Grant of Easement
Exhibit C — Maintenance and Indemnification Agreement
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EXHIBIT A 0
m ACCESS PARCEL
- 12:
• Exhibit B
WHEN RECORDED, RETURN TO:
City of Newport Beach
3000 Newport Beach Blvd.
P.O. Box 1768
Newport Beach, California 92658 -8915
Attn: City Clerk
(Free Recording Pursuant to Government Code § 6103)
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
GRANT OF EASEMENT h
Thi Grant of Easement (this "Easement ") is entered into as of the t5;* day of
2006 ( "Effective Date") by and between the Newport Shores Community
Association, a California mutual benefit corporation ( "Grantor "), and the City of Newport
Beach, a municipal corporation ( "Grantee ") with reference to the following facts.
A. Grantor is the fee owner of certain real property located in the City of Newport
Beach, County of Orange, State of California, which property is more particularly described as
Block 22, Tract No. 722 as shown on a map recorded in Book 175, Pages 26 and 27, inclusively
in Miscellaneous Maps in the office of the County Recorder of Orange County, California (the
"Grantor's Property ").
B. Grantor desires to convey to Grantee an easement over that portion of the
Grantor's Property located at the eastern end of Canal Street in the City of Newport Beach,
which property is more particularly described and depicted in Exhibit "A" attached hereto and
incorporated by this reference ( "Easement Area "), subject to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants, benefits,
obligations and agreements set forth herein, the parties agree as follows:
1. Grant of Easement. Grantor grants to Grantee, and Grantee accepts the grant
of, a non - exclusive permanent easement on, over and across the Easement Area for the benefit of
the general public, for the purpose of allowing the general public access for pedestrian, bicycle,
recreational and other public uses and for the construction and installation of sidewalks, benches,
landscape, irrigation, and other appurtenant improvements for use by the general public
(hereinafter collectively referred to as the "Public Access Easement Rights "). Grantor also
grants to Grantee, and Grantee accepts the grant of, a non - exclusive permanent easement on,
over, under and across the Easement Area for storm drain and drainage purposes, including the
right to construct, operate, maintain, reconstruct, repair, improve, enlarge, access and replace a
City storm drain and appurtenances in the Easement Area (hereinafter collectively referred to as
the "Drainage Easement Rights ").
2. Nonexclusive Easement. The Easement is nonexclusive and the Grantor
reserves all rights compatible with and not prejudicial to the Public Access Easement Rights and
Drainage Easement Rights granted herein. The rights reserved are subject to the following
express limitations:
A. No buildings or permanent structures will be permitted within the
Easement Area to prevent the exercise of the Public Access Easement Rights and Drainage
Easement Rights granted herein. In addition, no block wall creating a water barrier across the
Easement Area will be permitted.
B. Nothing in this Grant of Easement is intended nor shall anything in this
Grant of Easement be construed to transfer to Grantee or its successors or assigns or to relieve
Grantor or its successors or assigns or predecessors in,title of any responsibility or liability
Grantor or its successors or assigns or predecessors in title now has, has had or comes to have
with respect to human health or the environment, including but not limited to responsibility or
liability relating to hazardous or toxic substances or materials (as such terns as those used in this
sentence are defined by statute, ordinance, case law, governmental regulation or other provision
of the law). Furthermore, Grantee may exercise its right under law to bring action, if necessary,
to recover clean up costs and penalties paid, if any, from Grantor or any others who are
ultimately determined by a court of competent jurisdiction and/or a federal, state or local
regulatory or administrative governmental agency or body having jurisdiction, to have
responsibility for said hazardous or toxic substances or materials upon, within, or under the real
property interests transferred pursuant to this Grant of Easement. Notwithstanding the forgoing,
Grantee shall be and remain liable for any hazardous or toxic substances or materials which
become located, because of Grantee's operations, upon, within, or under the real property
interests transferred pursuant to this Grant of Easement.
3. Commencement of Easement. The Easement rights contained herein shall
commence upon recordation of this Easement in the Official Records of the County of Orange.
4. Taxes. The payment of any real property taxes and assessments relating to fee
ownership of the Easement Area or this Grant of Easement shall be borne by the Grantor.
5. Construction. Maintenance and Repair. Construction, Maintenance and Repair
of the Easement Area and improvements thereon are addressed in a separate written agreement
between the parties.
6. Permitted Use. Grantee shall use or permit the use of the Easement solely for
the purposes stated in Section I hereof.
7. Successors and Assigns. This Agreement, including the Grant of Easement and
all rights and duties of the parties, shall run with the land and inure to the benefit of and be
binding upon the heirs, successors and assigns of the parties hereto.
8. Indemnity -- Grantor. To the fullest extent permitted by law, Grantor, its
successors or assigns, agrees to indemnify, defend with counsel approved in writing by Grantee,
and hold harmless Grantee and its elected and appointed officials, officers, agents and employees
("Indemnified Parties ") from and against any and all claims (including, without limitation,
claims for bodily injury, death or damage to property), demands, obligations, damages, actions,
causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses
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(including, without limitation, attorney's fees, disbursements and court costs) of every kind and
nature whatsoever (individually, a Claim; collectively, "Claims "), which arise from the Grantor,
its members', guests', invitees', agents', employees', contractors' and/or subcontractors' use of
the Easement Area.
Notwithstanding the foregoing, nothing herein shall be construed to require Grantor to
indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful
misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as
authorizing any award of attorney's fees in any action on or to enforce the terms of this Grant of
Easement.
9. Indemnity -- Grantee. To the fullest extent permitted by law, Grantee, its
successors or assigns, agrees to indemnify, defend and hold harmless Grantor from and against
any and all Claims, which arise from the Grantee's, its agents', employees', contractors' or
subcontractors' construction, operation, maintenance and repair of the City's storm drain
facilities, or the construction and installation of public improvements on the Easement Area.
Notwithstanding the foregoing, nothing herein shall be construed to require Grantee to
indemnify the Grantor from any Claim arising from the sole negligence or willful misconduct of
Grantor. Nothing in this indemnity shall be construed as authorizing any award of attorney's
fees in any action on or to enforce the terms of this Grant of Easement.
10. Successors and Assigns. This Agreement, including the grant of Easement and
all rights and duties of the parties, shall run with the land and inure to the benefit of and be
binding upon the heirs, successors and assigns of the parties hereto. The parties hereto shall not
assign, transfer, convey or delegate any of their rights and duties in respect to the Easement
property or under this Agreement, except as part of the assignment, transfer or conveyance of the
property to which the Easement property is appurtenant. Any other attempted assignment of
such Easement property or such rights and duties of the parties, whether voluntary or involuntary
or by operation of law, shall be void and of no effect. Nothing contained in this Agreement does,
or shall be construed to, limit in any way the right and ability of the Grantor to transfer, sell or
encumber Grantor's Property.
11. Miscellaneous Provisions.
(a) There are no representations, warranties or other agreements between the parties
as to the matters described in this Agreement except as expressly stated herein, and this
Agreement fully states the agreement of the parties as to such matters.
(b) No change, amendment, alteration or revision of this Agreement shall be valid
unless in writing and signed by the parties hereto.
(c) In any action or proceeding between the parties to enforce any provision hereof,
the party prevailing shall not be entitled to reasonable attorney's fees in addition to such other
relief.
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(d) Except as otherwise provided herein, all covenants, agreements and
representations will survive the execution of this Agreement and any conveyances, transfers and
deliveries contemplated herein.
(e) This Agreement shall be interpreted, enforced and governed by the laws of the
State of California and any action brought relating to this Agreement shall be adjudicated in a
court of competent jurisdiction in the County of Orange.
(f) Unless otherwise provided in this Grant of Easement, the terms, covenants, and
conditions contained herein shall apply to and bind the heirs, successors, executors,
administrators, and assigns of all the parties hereto, all of whom shall be jointly and severally
liable hereunder.
12. Representations of Grantor. Grantor represents that as of the Effective Date
hereof (a) Grantor is the owner of the Easement Area, (b) Grantor has the authority to enter into
this Easement and (c) this Easement is a valid and binding obligation of the Grantor.
IN WITNESS WHEREOF, Grantor and Grantee have executed this agreement
effective as of the date first above written.
GRANTOR: NEWPORT SHORES
C0 NI�TY kSS CIATION
Or'O iA "
Date Robert Phal
President
3%} -6 D", b.'I (-
Date Barbara Thibault
Secretary
(Notarization of Grantor's signature required)
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GRANTEE: CITY OF NEWPORT BEACH,
a California municipal co oration
DaJ6 Homer Bluda
City manager, City of Newport Beach
APPROVED AS TO FORM:
3(zY f7 �" C W"."
Date Aaron C. Harp
Asst. City Attorney, City of Newport Beach
Attachments
F:( USERS VCA71Shamd\ContractsWasementW ewport Shores Community AssociaHon.doc
State of California }
} ss.
County of Orange }
On this & day of; before me, Notary public, perso ally appearedj�, (or proved to
me on the basis of satisfactory evidence) to be the person whose name tare subscribed to the within
instrument and acknowledged to me tha he she/they executed the same a hi her /their capacity(io, and
that b by ts/ t" er /their signature( on the instrument the person() or the entity upon behalf of which the
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Person( acted, executed the instrument. • 1"0391
bYC - Cdtcmb
WITNESS my hand and official seal #M± 9�Fw21 ,201
(SEAL)
State of California }
} ss.
County of Orange }
11+11 MAtt 94Ub W1 Atui 1. IwA4;4
On this they day ofd before me, Notary public, personally appeared , (or proved to
A vemr M -Vki1Q U f fi
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 lte/she/dwy executed the same in his/her /their capacity(ies), and
that by h"er/th& signature(&) on the instrument the person(*or the entity upon behalf of which the
person(a) acted, executed the instrument.
WIME�SS�my "hand and official seal.
(SEAL)
Notary's Signature
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CANAL
EXHIBIT A •
EASEMENT AREA
492 62ND STREET
Q
N.T.S.
• Exhibit C •
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.
MAINTENANCE AND INDEMNIFICATION AGREEMENT
BETWEEN THE NEWPORT SHORES COMMUNITY ASSOCIATION
AND THE CITY OF NEWPORT BEACH
THIS MAINTENANCE AND INDEMNIFICATION AGREEMENT is made and entered
into this off`{ day of 446 Jk , 2006, by and between the Newport Shores Community
Association, a California mutual benefit corporation, (hereinafter the "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 the "City").
WITNESSETH:
WHEREAS, Association owns and maintains certain real property located at the eastern end of
Canal Street, between Canal Street and the adjoining canal in the City of Newport Beach, County of
Orange, State of California, which property is more particularly described as Block 22, Tract No. 722 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, as described and depicted on Exhibit "A" attached
hereto and by this reference incorporated herein (hereinafter "Association Property").
WHEREAS, City maintains a certain public right -of -way running from the easterly street end of
Canal Street to the adjacent canal, which is described and depicted on Exhibit "B" attached hereto and
incorporated by this reference (hereinafter "City's Right -of- Way "). City's Right -of -Way is currently
unimproved property.
WHEREAS, City maintains storm drain facilities located within said the City's Right -of -Way.
City desires to realign its storm drain through a portion of Association Property, and Association has
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agreed to allow City to do so. The Association Property and the City's Right -of -Way shall hereinafter be
referred to collectively as the "Access Parcel."
WHEREAS, Association has asked City to install landscaping improvements on the Access
Parcel to beautify the neighborhood and allow greater access to the adjoining canal.
WHEREAS, City has agreed to install the requested improvements, including, but not limited to,
an irrigation system, landscaping, a concrete walkway and other improvements to the adjoining canal
(hereinafter collectively referred to as the "Improvements "), provided that the Association agrees to
maintain the Improvements.
WHEREAS, Association has granted City a non - exclusive, permanent easement on, over, across
and under the Association Property to allow construction of the Improvements and the proposed
realignment of the City's storm drain facilities.
WHEREAS, the Parties desire to enter into an agreement providing for the maintenance of the
Improvements by the Association and an indemnification agreement related to this obligation.
NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows:
Incorporation of Recitals. The above recitals are incorporated into this Agreement by
this reference.
2. Effective Date. This Agreement shall be deemed effective on the date first set forth above
(the "Effective Date ") and shall continue in effect until terminated as provided herein.
3. Description of Improvements. The Improvements shall include landscaping, plants and
vegetation, a bench, a walkway, an irrigation and surface drainage system, and any other
improvements that the Parties hereinafter mutually agree to in writing.
4. Installation of Improvements. City shall install the Improvements at its sole cost and
expense.
5. Association to Assume Maintenance Obligation. Upon completion of all Improvements
by City and after fifteen (15) calendar days notice from City to Association of such
completion, Association shall thereafter, at its sole cost and expense, maintain the
Improvements and the Access Parcel in good condition and repair, and in accordance with
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the terms detailed hereinafter. City will further allow Association to take all reasonable
measures necessary or convenient in accomplishing the aforesaid activities.
6. Alteration of Landscape Improvements. Association shall not materially alter the
Improvements from their original condition as installed without the prior written approval
of City. City's approval of the proposed alterations to the Improvements shall not be
unreasonably withheld or delayed.
7. Failure to Perform. If Association fails to fulfill its maintenance or other responsibilities
under this Agreement, City may provide Association written notice of such failure
describing the deficiencies in reasonable detail ( "Deficiency Notice "). If such deficiency
is not corrected within ten (10) business days of Association's receipt of a Deficiency
Notice, City shall have the right, but not the obligation, to cure the deficiency; provided,
however, that if the deficiency is of a type that cannot reasonably be cured within ten (10)
business days, it will be deemed cured if Association commences to cure the deficiency
within such period and proceeds diligently thereafter to complete the cure of such
deficiency. If City elects to cure the deficiency, it shall be performed at City's standard
rates and prices, and Association shall reimburse City for its costs incurred in curing the
deficiency within fifteen (15) business days of Association's receipt of City's invoice for
such costs. Such invoice shall be accompanied by copies of receipts evidencing the
actual cost of cure incurred by City.
8. Utilities. Association shall pay for all utilities to maintain the Improvements, including
water and electricity.
9. Association and City further agree as follows:
(a) Association shall maintain the Improvements to the Access Parcel in accordance
with the generally prevailing standard of maintenance in the surrounding area.
Association agrees to provide weekly maintenance, which shall include, as
needed, weeding, trimming, litter pickup, mowing, hardscape cleaning, irrigation
maintenance, electrical maintenance, purchasing and pest and rodent control.
However, nothing herein shall be construed to require Association to maintain,
replace or repair any City-owned pipeline located in or under the Access Parcel.
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(b) Should the City be required to enter onto said Access Parcel to exercise its
primary rights associated with the City's Right -of -Way, including but not limited
to, the maintenance, removal, repair, renewal, replacement or enlargement of
existing or future public facilities or improvements, including the City's storm
drain facilities, City may remove portions of the Improvements, as required, and
in such event:
(i) City shall provide Association 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;
10. Termination. 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 will
hire a contractor to maintain the areas and will bill the Association for all reasonable
costs. Ternrination because of breach shall be upon a minimum of ten (10) days' notice,
with the notice specifying the date of termination.
11. Liens. Association shall not suffer or permit to be enforced against the City's Right -of-
Way any mechanics, laborers, materialmen, contractors, subcontractors, or any other
liens, claims or demands arising from any maintenance or other work performed by
Association within the Access Parcel, but Association shall pay or cause to be paid all of
said liens, claims and demands before any action is brought to enforce the same against
the City's Right -of -Way.
12. Liens. City shall not suffer or permit to be enforced against the Association Property any
mechanics, laborers, materialmen, contractors, subcontractors, or any other liens, claims
or demands arising from any construction, maintenance or other work performed by City
within the Access Parcel, but City shall pay or cause to be paid all of said liens, claims
and demands before any action is brought to enforce the same against the Association
Property.
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13. Indemnification by Association. Association shall indemnify, defend and hold harmless
City, its City Council, boards and commissions, officers, employees, agents and
volunteers, from and against any and all claims (including, without limitation, claims for
bodily injury, death or damage to property), demands, obligations, damages, actions,
causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses
(including, without limitation, attorney's fees, disbursements and court costs) of every
kind and nature whatsoever (individually, a "Claim'; collectively, "Claims ") arising from
or related to: (a) the acts of Association, its contractors, subcontractors, employees, or
agents within the Access Parcel; and/or (b) Association's performance of its obligations
hereunder; provided, however, that Association's indemnity obligations hereunder shall
not apply to the extent that any Claim is caused by the sole negligence or willful
misconduct of City. Nothing in this indemnity provision shall be construed as
authorizing any award of attorney's fees in any action on or to enforce the terms of this
Agreement. This indemnity shall apply to all claims and liability regardless of whether
any insurance policies are applicable. The policy limits of such insurance do not act as a
limitation upon the amount of indemnification to be provided by Association.
14. Indemnification by City. City shall indemnify, defend, waive and hold harmless
Association, its council, boards and commissions, directors, officers, employees, agents
and volunteers, from and against any and all Claims arising from or related to: (a) the acts
of City, its contractors, subcontractors, employees, or agents within the Access Parcel;
and/or (b) City's performance of its obligations hereunder; provided, however, that City's
indemnity obligations hereunder shall not apply to the extent that any Claim is caused by
the sole negligence or willful misconduct of Association. Nothing in this indemnity
provision shall be construed as authorizing any award of attorney's fees in any action on
or to enforce the terms of this Agreement. This indemnity shall apply to all claims and
liability regardless of whether any insurance policies are applicable. The policy limits of
such insurance do not act as a limitation upon the amount of indemnification to be
provided by City.
15. Assi ng ment. Association may assign its rights and obligations under this Agreement to a
commercial company responsible for maintenance of common areas within the
Association Tracts. Any such assignment shall be in writing, it shall contain the
assignee's agreement to be fully bound by the terms and provisions of this Agreement,
and a copy of such assignment shall be delivered to City.
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16. Insurance. Without limiting Association's indemnification of City, Association agrees
that:
(a) Workers' Compensation Insurance: During the term of this Agreement,
Association shall obtain and maintain, at no cost or expense to City, for its
employees, if any, that perform any design, installation, maintenance or other
work in connection with the Improvements or the Access Parcel, Workers'
Compensation Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California. Association shall require in its contracts with
any person, contractor or subcontractor (hereinafter collectively referred to as
"Contractors ") that perform any design, installation, maintenance or other work in
connection with the Improvements or the Access Parcel, that the Contractors
obtain and maintain at all times during the performance of any such work, at no
cost or expense to City, Workers' Compensation Insurance and Employer's
Liability Insurance in accordance with the laws of the State of California.
(b) Commercial General Liability Insurance: During the term of this Agreement,
Association shall obtain and maintain, at no cost or expense to City, commercial
general liability insurance at levels that are consistent with industry standards for
the Association Property and operations of the Association. Association shall
require in its contracts with any Contractors that perform any design, installation,
maintenance or other work in connection with the Improvements or the Access
Parcel, that the Contractors obtain and maintain at all times during the
performance of any such work, at no cost or expense to City, commercial general
liability insurance at levels that are consistent with industry standards.
(c) Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact business
of insurance in the State of California, with an assigned policyholders' Rating of
A- (or higher) and Financial Size Category Class VII (or larger) in accordance
with the latest edition of Best's Key Rating Guide, unless otherwise approved by
the City's Risk Manager.
(d) Timely Notice of Claims. Association shall ensure that City receives prompt and
timely notice of claim made or suit instituted arising out of or resulting from work
performed under this Agreement.
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(e) Additional Insurance. Association shall also procure and ma;tain, at its own cost
and expense, any additional kinds of insurance, which in its QWn judgment may be
necessary for its proper protection and prosecution of the work.
17. Notices. Notices required or permitted under this Agreement shall be in writing and shall
be deemed to have been duly given if personally delivered or sent by prepaid first class
mail, addressed as follows:
City of Newport Beach
Public Works Department
3300 Newport Boulevard (P.O. Box 1768)
Newport Beach, California 92658 -8915
Attention: City Engineer
Newport Shores Community Association
511 Canal Street
Newport Beach, California 92633
18. Covenants Running with the Land. The covenants and restrictions by Association set
forth in this Agreement: (a) are made for the direct benefit of the Association Property;
(b) will constitute covenants running with the land and equitable servitudes; (c) will bind
Association and every person having any fee, leasehold or other interest in any portion of
the Association Property at any time or from time to time; and (d) will insure to the
benefit of the City and every person having any fee, leasehold or other interest in the City
Right -of -Way at any time or from time to time.
19. Successors and Assigns. 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 Association's interest in the land whether fee or otherwise, and
shall be recorded in the Office of the County Recorder of Orange County, California.
20. Amendments. This Agreement may be modified or amended only by a written document
executed by both Association and the City and approved as to form by the City Attorney's
Office.
21. 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 other term, covenant or condition contained herein, whether of the same or a different
character.
7
9 0
22. Compliance with All Laws. Association shall at its own cost and expense comply with all
statues, ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
23. 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.
24. Entire Agreement. This Agreement and the exhibits attached hereto constitute the entire
Agreement between the Parties pertaining to the subject matter hereof, and all prior and
contemporaneous agreements, representations, negotiations and understandings of the
Parties, whether oral or written, are hereby superseded and merged herein.
25. Corporate Authority. The persons executing this Agreement on behalf of each Party
warrant that he /she is duly authorized to execute and deliver this Agreement on behalf of
the respective Party for whom they sign, and that by so executing this Agreement, the
Parties are bound by the provisions of this Agreement.
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. C4---� C. �_
Aaron C. Harp
Assistant City Attorney
City of Newport Beach
c��
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
Homer Btddau
City Manager
City of Newport Beach
NEWPORT SHORES COMMUNITY
ASS ON
: J�r
By.
Robert Paul, President
Attachments:
Exhibit A — Association Property
Exhibit B — City Right -of -Way
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By: a J�A %-J rj &M tj
Barbara Thibault, Secretary
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STATE OF CALIFORNIA )
ss:
COUNTY `OF�ORANGE )
On` 10-AJ+' a-"-i
personally appeared
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before me,Q9 �
petaeMHy-6WWH- to
i"e (or proved to me on the basis of satisfactory evidence) to be the person(4 whose name(�Gare subscribed to
the within instrument and acknowledged to me thatQhe /they has executed the same in i�her /their authorized
capacity(ipg), and that by lis er /their signatureW on the instrument the person(p) or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public Wadd for said State
STATE OF CALIFORNIA
COUNTY OF ORANGE
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ss:
Way �u
personally appeared
200 t before me,
., I,
(This area for official notarial seal)
Lei leol 1. A'lvb��n
ewe (or proved to me on the basis of satisfactory evidence) to be the person(o} whose name(* is/afo - subscribed to
the within instrument and acknowledged to me that he/she /they has executed the same in4WIter /them authorized
capacity(aesr and that byJi.Wher /iIieir signature(g) on the instrument the person(4 or the entity upon behalf of
which the person acted, executed the instrument. IULAM t. BROWN
Convrb an M 1439177
Notary Public • CaMOMIa
OK"W Counter
WITNESS my hand and official seal. w
Notary Public in and for said tate
(This area for official notarial seal)
M1
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0 EXHIBIT A •
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N.T.S.
ASSOCIATION PROPERTY
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0 EXHIBIT B 0
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N.T.S.
//, CITYS RIGHT -OF -WAY