HomeMy WebLinkAboutC-7774-1 - Encroachment Agreement EPN N2006-0026 for Cameo CommunityRECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659 -1768
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Recorded in Official Records, Orange County
Tom Daly, Clerk- Recorder
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ENCROACHMENT AND LANDSCAPE MAINTENANCE AGREEMENT
(N2006 -0026)
This Encroachment nd Lands pe Maintenance Agreement ( "Agreement ") is
made and entered into this j4day of _, 2006, by and between the CITY OF
NEWPORT BEACH, a Municipal Corporation organized and existing under and by
virtue of its Charter and the Constitution and the laws of the State of California ( "City "),
and the CAMEO COMMUNITY ASSOCIATION, a California nonprofit corporation
("Cameo"), formed for the purpose of managing and operating the communities located
in the Cameo Shores and Cameo Highlands Tracts ( "Cameo Tracts ") in Newport Beach,
California. City and Cameo are collectively referred to herein as "Parties."
RECITALS
A. WHEREAS, City is the owner of certain real property in the City of Newport
Beach, located along East Coast Highway between: (i) Cameo Shores Road and Milford
Drive; and (ii) Cameo Shores Road and Cameo Highlands Drive, both within the Cameo
Tracts (herein referred to as "City Property "). The City Property is being used as a
parkway and is described more particularly in Exhibit A and depicted on the map
attached hereto as Exhibit B.
B. WHEREAS, to enhance the aesthetic appearance of the Cameo Tracts,
Cameo desires to install and maintain entrance signs, landscaping, a screening wall
and other improvements on the City Property.
C. WHEREAS, said improvements may interfere in the future with City's
ability to construct, operate, maintain and replace City and other public facilities and
improvements within City Property.
D. WHEREAS, City is willing to allow Cameo to install and maintain the
improvements subject to the terms and provisions of this Agreement.
NOW, THEREFORE, in consideration of the above recitals and the mutual
promises contained herein, Cameo and City hereby agree as follows:
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AGREEMENT
1. Incorporation of Recitals. The above Recitals are incorporated into this
Agreement in full by this reference.
2. Effective Date. This Agreement shall be deemed effective on the date first
setforth above (the "Effective Date ") and shall continue in effect until terminated as
provided herein.
3. Assignment of Installation Rights and Maintenance Obligations. Subject
to the terms and provisions contained herein, City hereby assigns to Cameo: (a) The
right to install, maintain, repair and replace Improvements (as defined in Section 4
below) and appurtenances incidental thereto, and (b) The obligation to maintain the
Improvements within the City Property.
4. Approved Improvements. It is mutually agreed that the Improvements
shall be defined as: (1) a screening wall, irrigation system, landscaping and lighting on
City Property along Coast Highway (hereinafter the "Coast Highway Improvements');
and (2) landscaping, irrigation systems, lighting and other improvements to be installed
at the entrances of the Cameo Tracts at Cameo Shores Road and Cameo Highlands
Drive (the "Entrance Improvements "). The Coast Highway Improvements and the
Entrance Improvements shall be collectively referred to herein as "Improvements." The
precise improvements to be installed are detailed in the plans and specifications
approved by the City in the following plans: Plan No. R- 5893 -S (Coast Highway &
Hampton Road Retaining Wall & Screen Wall) (5 sheets dated August 29, 2005), and
Plan No. R- 5903 -S (Cameo Shores Road & Cameo Highlands Drive HOA Entries
Improvements) (6 sheets dated August 29, 2005). These plans and specifications shall
be referred to herein as the "Approved Plans." If any of the Improvements actually built
or installed during the time of construction vary from the Approved Plans, such
variations or changes must be approved in advance by the Public Works Department
and shall be shown on the "As Built" Plans.
5. Tree Replacement, There are 41 trees, identified as 13 Coral, 7 Brazilian
Pepper,19 Eucalyptus,1 New Zealand Christmas and 1 Mexican Fan Palm, to be
removed and replaced as part of the Approved Plans. Cameo acknowledges and
agrees that the trees identified to be removed and replaced as part of the Approved
Plans shall not be removed and replaced unless Cameo has first received approval to
remove the trees, in accordance with City Council Policy G -1 (Retention and Removal
of City Trees).
6. Encroachment Permit. Prior to commencement of any work on City
Property, Cameo shall apply for and obtain an Encroachment Permit with the City's
Public Works Department, authorizing it to perform the installation of the Improvements
within the City right -of -way ( "Permit ").
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7. Installation of Improvements. Cameo shall install the Improvements in
substantial conformance with the Approved Plans on file with the City's Public Works
Department.
8. License. The City hereby grants to Cameo a license to construct and
maintain the Improvements upon all of the terms and conditions of the Permit and this
Agreement, which can be revoked in the event City determines that the City Property is
needed for a public purpose.
9. Covenants. Cameo hereby agrees to install, operate, inspect, monitor,
maintain, relocate, and /or remove the Improvements in accordance with this
Agreement, the Public Works Department's Permit requirements, and all applicable
provisions of the City of Newport Beach Municipal Code, as amended from time to time.
10. Standard of Maintenance. Cameo shall, at its sole cost and expense,
maintain the Improvements installed within City Property in good condition and repair
and as required by City. Cameo shall maintain the City Property in accordance with
generally prevailing standards of maintenance, and pay all costs incurred in doing so,
including the cost of water and electricity. In the event that Cameo does not maintain
the Improvements and the City Property as required herein, the City may terminate the
License as more particularly provided in Section 14 herein.
11. Alteration of Improvements. Cameo shall not materially alter the
Improvements from their original condition as installed according to the Approved Plans
without the prior written approval of City. City's approval of the proposed alterations to
the Improvements shall not be unreasonably withheld.
12. Failure to Perform. If Cameo fails to fulfill its maintenance or other
responsibilities under this Agreement, City may provide Cameo written notice of such
failure describing the deficiencies in reasonable detail ( "Deficiency Notice "), provided
that an emergency situation does not exist. If such deficiency is not corrected within ten
(10) business days of Cameo's receipt of 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 Cameo 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 Cameo shall
reimburse City for its costs incurred in curing the deficiency within fifteen (15) days of
Cameo'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.
13. Liens. Cameo shall not suffer or permit to be enforced against City
Property any mechanics, laborers, materialmen, contractors, subcontractors, or any
other liens, claims or demands arising from any maintenance or other work performed
by C ameo w ithin C ity P roperty, b ut C ameo s hall p ay o r c ause to b e paid a II o f said
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liens, claims and demands before any action is brought to enforce the same against
City Property.
14. Term. This Agreement shall remain in effect indefinitely from the Effective
Date, provided that: (a) City may terminate this Agreement for cause upon thirty (30)
calendar days' prior written notice to Cameo in the event that Cameo breaches any term
of this Agreement or fails to perform or cure any failure to perform as provided in
Section 10 above; or (b) City may terminate this Agreement if it determines, in its sole
discretion, that the property is needed for a public purpose upon 120 days prior written
notice from City to Cameo. If this Agreement is terminated, City shall have the right to
remove all or any portion of the Improvements. City shall incur no liability whatsoever in
the event of the termination of this Agreement, or subsequent removal of the
Improvements by City.
15. Right of Removal. Cameo agrees that should City be required to enter
onto City Property to exercise its primary ownership rights, 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:
(a) City shall notify Cameo of its intention to accomplish such work, if an
emergency situation does not exist.
(b) Cameo shall be responsible for arranging for any renewal, replacement, or
restoration of the Improvements affected by such work by City.
(c) City agrees to bear only the cost of any removal of the Improvements
affected by such work by City.
(d) Cameo agrees to pay all costs for renewal, replacement, or restoration of
the Improvements.
16. Damage to City Facilities. If City or other public facilities or improvements
are damaged by the installation or presence of the Improvements, Cameo shall be
responsible for the cost of repairs.
17. insurance. Cameo shall obtain, provide and maintain, at its sole cost and
expense, policies of liability insurance of the type and amounts described below and in
a form satisfactory to City, and shall require in all of its contracts with any contractors
that perform any design, installation, maintenance or other work in connection with City
Property, that such contractors also provide the same insurance coverage as outlined
herein. Certification of all required policies shall be signed by a person authorized by
that insurer to bind coverage on its behalf and shall be filed with City prior to
performance of any work on or within City Property. Except for workers compensation
and any errors and omissions coverage, all insurance policies shall, to the extent
coverage is provided under such policies, add City, its elected officials, officers, agents,
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representatives and employees as additional insureds for all liability arising from such
work related to City Property.
Insurance policies for the following coverages, with original endorsements related to the
Improvements, shall be issued by companies approved or licensed to do business in
California and assigned Best's A -VII or other rating acceptable to City:
A. Coverage Requirements
Workers' Compensation Coverage. Cameo shall require each contractor
or subcontractor that performs work pursuant to this Agreement to
maintain Workers' Compensation Insurance and Employer's Liability
Insurance in accordance with the laws of the State of California for all of
the contractor's and subcontractor's employees. Any notice of
cancellation or non - renewal of all Workers' Compensation policies must
be received by City at least thirty (30) calendar days (10 calendar days
written notice of non- payment of premium) prior to such change. The
insurer shall agree to waive all rights of subrogation against City, its
officers, agents, employees and volunteers for losses arising from work
performed by Cameo or its subcontractors for City.
ii. General Liability Coverage. Cameo and any of its contractors or
subcontractors that perform work pursuant to this Agreement shall
maintain for the duration of this License, a general liability insurance policy
in the amount of not less than One Million Dollars ($1,000,000) per
occurrence for injuries to persons or damages to property, that may arise
from or in connection with the work to be performed under this Agreement
by Cameo, its agents, representatives, employees, contractors or
subcontractors, or which may arise from or in connection with the design,
construction, operation, maintenance or continued existence of the
Improvements. If commercial general liability insurance or other form with
a general aggregate limit is used, either the general aggregate limit shall
apply separately to the work to be performed under this Agreement, or the
general aggregate limit shall be at least twice the required occurrence
limit.
iii. Automobile Liability Coverage, Cameo shall require that all of its
contractors and subcontractors that perform work under this Agreement
maintain for t he duration of t his L icense, a utomobile i nsurance covering
bodily injury and property damage for all activities of Cameo, its agents,
representatives, employees, or subcontractors that may a rise from or in
connection with the work to be performed under this Agreement, including
coverage for any owned, hired, non -owned or rented vehicles, in an
amount not less than One Million Dollars ($1,000,000) combined single
limit for each occurrence.
B. Professional Errors and Omissions insurance. For any contractors providing
design services, professional errors and omissions insurance shall be required,
which covers the services to be performed in connection with the Approved Plans
or landscaping to be installed on or within City Property, in the minimum amount
of One Million Dollars ($1,000,000).
C. Endorsements. Each general liability and automobile liability insurance policy
shall be endorsed with the following specific language:
The City, its elected or appointed officers, officials, employees, agents and
volunteers are to be covered as additional insureds with respect to liability
arising out of work performed by or on behalf of Cameo.
ii. This policy shall be considered primary insurance as respects to City, its
elected or appointed officers, officials, employees, agents and volunteers
as respects to all claims, losses, or liability arising directly or indirectly
from Cameo's operations or services provided to City. Any insurance
maintained by City, including any self- insured retention City may have,
shall be considered excess insurance only and not contributory with the
insurance provided hereunder.
This insurance shall act for each insured and additional insured as though
a s eparate p olicy h ad been w ritten for a ach, a xcept w ith respect to t he
limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected or
appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall not
affect coverage provided to City, its elected or appointed officers, officials,
employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended, voided,
canceled, o r reduced in coverage o r i n I imits, b y a ny p arty a xcept after
thirty (30) calendar days written notice has been delivered to the City (10
calendar days written notice of non - payment of premium).
D. Timely Notice of Claims. Cameo shall give City prompt and timely notice of claim
made or suit instituted arising out of or resulting from Cameo's performance
under this Agreement.
E. Additional Insurance. Cameo shall also procure and maintain, at its own cost
and expense, any additional kinds of insurance, which in its own judgment may
be necessary for its proper protection and prosecution of the work.
18. Indemnification by Cameo. Cameo shall defend, indemnify, and hold
harmless City, its City Council, boards and commissions, elected and appointed
officers, agents and employees (collectively, the "Indemnified Parties') from and against
any and all loss, damage, liability, claims, suits, costs and expenses whatsoever,
including reasonable attorneys' fees when outside attorneys are used (collectively,
"Claims ") arising from or related to (a) the design, construction, installation,
maintenance or continued existence of the Improvements, (b) the acts of Cameo, its
employees (if any), contractors or subcontractors within the City Property, and (c)
Cameo's performance of its obligations hereunder; provided, however, that Cameo's
indemnity obligations shall not apply to the extent that any Claim is caused by the
negligence or willful misconduct of the Indemnified Parties.
19. Indemnification by City. City shall indemnify, defend and hold Cameo
harmless from and against any Claims arising from or related to City's performance of
its obligations hereunder; provided, however, that City's indemnity obligations shall not
apply to the extent that any Claim is caused by the negligence or willful misconduct of
Cameo.
20. 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
Cameo Community Association
c/o Villageway Property Management
2 Venture
Irvine, CA 92618
21. Incorporation of Exhibits. Exhibit A and Exhibit B are attached hereto and
are hereby incorporated herein by this reference.
22. 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.
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23. 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.
24. Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
25. Compliance with Laws. Cameo 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.
26. 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.
27. Amendments. This Agreement may be modified or amended only by a
written document executed by both Cameo and City and approved as to form by the
City Attorney.
28. 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.
29. Successors and Assigns. Cameo agrees that this Agreement shall remain
in full force and effect from execution thereof and shall be binding upon the heirs,
successors, and assigns of Cameos' interest in the land, whether fee or otherwise.
30. Recordation. This Agreement shall be recorded in the Office of the
County Recorder, County of Orange, California, and it shall serve as notice to all parties
succeeding to the interest of Owners or the City that their use of the Cameo Property
and the City Property shall be benefited and/or restricted in the manner herein
described.
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CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
Yap ss.
Coun�ty�o/fj�J'�/j ������
On I WM lNl before me,ice` I"`
mre I Afn t_1_
personally appeared
Impersonally known to me
❑ proved to me on the
evidence
)iL
basis of satisfactory
to be the person(s�—whose name(s,)_ is/are
subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in hisihankheir authorized
capacity(ieer and that by his/herkheo
signature* on the instrument the personisy;nt
the entity upon behalf of which the person(•s)-
acted, executed the instrument.
WITNESSA hand a ffici IS 1
Synavre M No hlic
OPTIONAL
Though the information below is not required by law, It may prove valuable .. to persons relying on the document and could prevent
fraudulent removal and reattachment of this loan to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(les) Claimed by Signer
Signer's Name: Iffilmm
❑ Individual Top of thumb het
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney -in -Fad
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing
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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: CITY OF NEWPORT BEAC
Aaron C. Harp Don Webb
Assistant City Attorney Mayor
for the City of Newport Beach for the City of Newport Beach
ATTEST:
By M. 14n
LaVonne Harkless,
City Clerk
Attachments: Exhibit A
Exhibit B
CAMEO COMMUNITY ASSOCIATION:
By:
rat Officer)
Title:
Print Name:
,�-
�,
Title: —TFZ�f
Print Name:
f: \users\pbw\shared\encroach \row agreemedts\2006\n2006 -0026 cameo assoclatlon.doc
STATE OF CALIFORNIA
SS:
COUNTY OF ORANGE
A
200 , before me, K • Ck t C-0 G4 jr A-1
personally appeared PC 4J+ "-012 personally known to
me ) to be the persorys*whose name(-isl**
subscribed to the within instrument and acknowledged to me that heskelthey has executed the same
in histhetfioir authorized capacit^s), and that by histheRtheir signature�4 on the instrument the
personT*.Qr the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal. I<. cHE COCHRAN
/� Commission # 1 my
(// Notary Public - Callfornla_
8 Orange County
My Comm. E MsSep 12, 2006
Notary Public in and for said State
(This area for official notarial seal)
STATE OF CALIFORNIA )
) SS:
COUNTY OF ORANGE )
On arC k ;� , 200 , before me, l.h 2 Gc A i a•1
personally appeared PL. oaf 2 D%t 1 h * , 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.
K CHE COCHRAN
WITNESS my hand and official seal. Commission # 1374402
60. Notary Public California
Orange County
C_ f W Comm. E)Vres Sep 122006
NN tary Public in and for said State
(This area for official notarial seal)
F: \USERS \PBW1SharedlENCROACH \ROW Agreements \1 - MASTER EA -USE ME.doc
EXHIBIT -A
That portion of Block 95, Irvine's Subdivision, in the City of Newport Beach,
County of Orange, State of California, as per map filed in Book 1, Page 88,
Miscellaneous Record Maps, in the office of the County Recorder of said County,
described as follows:
Beginning at the most Westerly corner of Lot 27, Tract No. 3357, as per map filed
in Book 107, Pages 1 through 7, Miscellaneous Maps in the office of said County
Recorder, thence South 58 degrees 38' 00" East,91.39 feet along the
southwesterly line of said lot and the Southeasterly prolongation of said line to
the Southeasterly line of said Block 95; thence South 39 degrees 3600 "West
573.03 feet along said southeasterly line to a point of cusp with a tangent curve
in the boundary of said Tract No. 3357 concave Westerly having a radius of
430.00 feet, a radial to said point bears South 50 degrees 25' 00" East; thence
along the boundary of said tract, the following courses and distances: Northerly
315.39 feet along said curve through an angle of 42 degrees 01'30 "; North 2
degrees 26'30" West 86.00 feet to a point of cusp with a tangent curve concave
Northeasterly having a radius of 15.00 feet; Southeasterly 23.56 feet along said
curve through an angle of 90 degrees 00'00'; North 87 degrees 33'30" East
105.00 feet; North 2 degrees 26'30 West 86.21 feet; North 65 degrees 22'00"
East 82.27 feet to the point of beginning.
PORTIONS OF PUBLIC RIGHT -OF -WAY WHERE
CAMEO IMPROVEMENTS ARE PROPOSED TO
BE CONSTRUCTED.
EXHIBIT "B"
N.T.S