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HomeMy WebLinkAboutC-7780-1 - Encroachment Agreement and Landscape Maintenance Agreement EPN N2005-0486 for Irvine Terrace Tract- Batch 5516108 Confirmation O co 1 V RECORDING REQUESTED V AND WHEN RECORDED RETURN RN , TO City Clerk's Office City of Newport Beach P..O. Box 1768 NewportBeach, CA 9265&.8.915 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder jjI[I JI111]JI jj 1 ]1 11 11 45.00 *$ R 0 0 1 1 3 0 4 2 1 8$* 2019000492848 8:53 am 11126119 90 SC5 Al2 A17 10 0.00 0.00 0.00 0.00 27.00 0.00 0.000.000.00 6.00 Space above, this. line.for. Recorder's use only. AMENDMENT NO; ONE TO THE ENT AND LANDSCAPE MAINTENANCE AG THIS AMENDMENT NO.. ONE TO 'THE ENCROACHMENT AND LANDSCAPE: MAINTENANCE .AGREEMENT (`Amendment") is made and entered into this. 1st day of Mardh;20l9; by a.nd between lRVI.NETERRACE.COMMUNIIYASSOC ATION,_ a California honprofit corporation (.' HOAj,formed for the purpose of managing and operating the: Irvine Terrace Community ("Irvine Te[race Tract") in. Newport California; and the CITY OF NEWPORT BEACH,. a California municipal corporation. and charter city, 'organized and existing under and by virtue:of its Charter and.the. Constitution, and the laws of the State of California ("City"). RECITALS WHEREAS;, City and ,HQA previously entered into that certain Encroachment and Landscape Maintenance Agreement (EPN2005>0486), dated December 12, 2005, recorded as lristrument Number 20060.0001.2263 in the Recorder's Office .for the County of'Orange on January 6, 2006. ("Agreement"); WHEREAS, City and HOA desire'to amend the Agreernent'to provide that the City shall install, at.the City's sole cost, and expense, .irrigation ( Irrigation) in the public right -of way located along the. south side of EI Paseo Drive directly south, of the EI :Paseo Drive Median beginning from Bayside: Drive and continuing. south along the south side of Seadrift Drive :until Sabrina Terrace �(".Location"), 'Which shall connect• to: the: water source located in the. EI Paseo Drive. median ;south of Bayside Drive; WHEREAS, :,Cityand H' desire desire; to 'amend the Agreement to. reflect that. the City, -at its sole cost and exPense,.will maintain the Coral Trees within the Location, in addition.to the Coral trees the City maintains. within_ the El Paseo. Drive median, for a total oftwenty-s x-(26) trees.to be maintained b.ythe City; WHEREAS, City and HOA desire to amend the Agreement to reflect that the. HOA shall,, at its: cost and -sole expense, irrigate the Coral trees within the: Location; in addition to the. Coral trees: the H'OA irrigates within the EI Paseo Drive ri edian, for a total'of twenty-six (26) trees to be irrigated by the HOA; Amendment No, One to Encroachment and Landscape Maintenance Agreernent 1 https://gs.secure-recording.com/Batch/Confirmation/5516108 11/26/2019 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk's Office City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Space above this line for Recorder's use only. AMENDMENT NO. ONE TO THE ENCROACHMENT AND LANDSCAPE MAINTENANCE AGREEMENT (EPN2005-0486) THIS AMENDMENT NO. ONE TO THE ENCROACHMENT AND LANDSCAPE MAINTENANCE AGREEMENT ("Amendment") is made and entered into this 1st day of March, 2019, by and between IRVINE TERRACE COMMUNITY ASSOCIATION, a California nonprofit corporation ("HOA"), formed for the purpose of managing and operating the Irvine Terrace Community ("Irvine Terrace Tract") in Newport Beach, California, and the CITY OF NEWPORT BEACH, a California municipal corporation and charter city, organized and existing under and by virtue of its Charter and the Constitution, and the laws of the State of California ("City"). RECITALS WHEREAS, City and HOA previously entered into that certain Encroachment and Landscape Maintenance Agreement (EPN2005-0486), dated December 12, 2005, recorded as Instrument Number 2006000012263 in the Recorder's Office for the County of Orange on January 6, 2006 ("Agreement"); WHEREAS, City and HOA desire to amend the Agreement to provide that the City shall install, at the City's sole cost and expense, irrigation ("Irrigation") in the public right-of- way located along the south side of EI Paseo Drive directly south of the EI Paseo Drive median beginning from Bayside Drive and continuing south along the south side of Seadrift Drive until Sabrina Terrace ("Location"), which shall connect to the HOA's water source located in the EI Paseo Drive median south of Bayside Drive; WHEREAS, City and HOA desire to amend the Agreement to reflect that the City, at its sole cost and expense, will maintain the Coral Trees within the Location, in addition to the Coral trees the City maintains within the EI Paseo Drive median, for a total of twenty-six (26) trees to be maintained by the City; WHEREAS, City and HOA desire to amend the Agreement to reflect that the HOA shall, at its cost and sole expense, irrigate the Coral trees within the Location, in addition to the Coral trees the HOA irrigates within the EI Paseo Drive median, for a total of twenty-six (26) trees to be irrigated by the HOA; Amendment No. One to Encroachment and Landscape Maintenance Agreement WHEREAS, City and HOA desire to amend the Agreement to reflect that the HOA shall, at its sole expense, maintain the Irrigation installed by the City at the Location; and WHEREAS, City and HOA desire to amend the Agreement to update contact information for notices as set forth in the Agreement. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1. The above Recitals are true and correct and are hereby incorporated by reference into this Amendment. 2. Paragraph E of the Recitals set forth in the Agreement is amended in its entirely and replaced with the following: E. WHEREAS, HOA also desires to take over the maintenance of the following City Property and pre-existing improvements: (1) the landscape median with a monument sign/wall and landscape planters (including irrigation and lighting) at the entrance off East Coast Highway; (2) the landscape planter (including irrigation) along Bonnie Doone and Chubasco Drive between the back of curb and the inside of the perimeter wall, except within the Irvine Terrace Park; (3) the EI Paseo Drive landscape median with a monument sign/wall (including irrigation and lighting) between Malabar Drive/Seadrift Drive and Bayside Drive; (4) a raised and ground level landscape planter/monument located 65 -feet north of Kewamee Drive within the landscape median on Avocado Avenue; and (5) irrigation to be installed by the City in the public right-of-way on the south side of EI Paseo Drive directly south of the EI Paseo Drive median beginning at Bayside Drive and continuing south along the south side of Seadrift Drive until Sabrina Terrace, which shall connect to the HOA's water source located in the EI Paseo Drive median south of Bayside Drive. The improvements described in this Paragraph shall be collectively referred to herein as the "Existing Improvements." The areas the HOA has agreed to maintain are detailed in the maps attached hereto as Exhibit A and incorporated in full by this reference. The landscaping shall be maintained at a maximum height of 24 inches above the top of the curb within the "Limited Use Area" as shown on Exhibit "A." 3. Paragraph F of the Recitals set forth in the Agreement is amended in its entirely and replaced with the following: F. WHEREAS, City has agreed to continue maintaining the following areas in the Irvine Terrace Tract: (1) the perimeter areas surrounding the Irvine Tracts; (2) the landscaping along East Coast Highway between Dolphin Terrace and Zahma Drive outside of the perimeter wall; (3) Irvine Terrace Park; (4) the landscape median along Avocado Avenue between East Coast Highway and Waterfront Drive (except a raised planter/monument with the immediate surrounding portion of ground level planter located 65 -feet north of Kawamee Drive; (5) the landscaping within the public right-of-way along Bayside Drive between Jamboree Road and Begonia Park; (6) the Amendment No. One to Encroachment and Landscape Maintenance Agreement 2 landscaping within the public right-of-way along Jamboree Road between East Coast Highway and Bayside Drive; (7) the trees within the EI Paso Drive landscape median between Malabar Drive and Bayside Drive; and (8) the trees within the in the public right-of-way along the south side of EI Paso Drive directly south of the EI Paseo Drive median beginning at Bayside Drive and continuing south along the south side of Seadrift Drive until Sabrina Terrace. The properties the City has agreed to maintain are depicted on the map attached hereto as Exhibit A. 4. Exhibit A, pages marked 5, 6, 10, and 11 of the Agreement are amended in their entirety and replaced with the pages marked 5, 6, 10, and 11 attached hereto to this Amendment as Exhibit A and incorporated herein by this reference. 5. Section 20 of the Agreement is amended in its entirety and. replaced with the following: 20. Notices. 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 fn'the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: City of Newport Beach Public Works Department 100 Civic Center Drive Newport Beach, CA 92658 All notices, demands, requests or approvals from City to Consultant shall be addressed to HOA at: Lisa Silva, CMCA Senior Community Manager First Service Residential 15241 Laguna Canyon Rd. Irvine, CA 92618 6. Except as expressly modified herein, all other provisions, terms, covenants and conditions set forth in Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Amendment No. One to Encroachment and Landscape Maintenance Agreement 3 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: -� • I I. 1 By: fP7'por on C. Harp City Attorney ATTEST:'(,'�e�! 66 Date: By: • Leilani I. Brown City Clerk ATTACHMENTS: Exhibit A CITY OF NEWPORT BEACH, a California municipal corporation Date: By: K. Leung y Manager IRVINE TERRANCE COMMUNITY ASSOCIATION, a California nonprofit corpor n Date: By: Brian Jones Chief Executive Officer Date: By: VA CL END OF SIGNATURES Amendment No. One to Encroachment and Landscape Maintenance Agreement 4 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Q raA4 n,X--- )SS. one,(1,5t 20t before me w ('5�;4 <--C'ec�� Notary Public, pe Ccs pe'r'sonally appeared r ' es who proved to me on the basis of satisfactory evidence to be the person,(a-) whose name.() is/are subscribed to the within instrument and acknowledged to me that he/stere/jbey executed the same in his/>5raMir authorized capacity( e�), and that by his/lir/ eir signaturesSs)-on the instrument the person(s);-or the entity upon behalf of which the perso5() acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. �9 w`�"� TERESA D. LEWIS COMM, # 2257499 to r o NOTARY PUBLIC•CALIFORNIA N COUNTY OF ORANGE .a °ei wx�e MY COMM. EXP. OCT. 3, 2022 Signature (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of Califon is County of r'CC,r4C SS. J On Us 24 20� before m , _ �"�� �� �°-�-WSJ Notary Public, p sonally appeared G va-4 uffe�j proved to me on the basis of satisfactory evidence t be the erson(s) whose name(z) is/are subscribed to the within instrument and acknowledged to me that lics/she/they executed the same in Iris/her/}Kir authorized capacity(ifP3'), and that by hi-97her/thl6ir signatures(s) on the instrument the person>y, or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. �r Signature r lop TERESA D. LEWIS COMM. # 2257499 r� m o NOTARY PUBLIC- CALIFORNIA N \ e COUNTY OF ""I," MY COMM. EXP. OCT. 3, 2022 (seal) Amendment No. One to Encroachment and Landscape Maintenance Agreement 5 EXHIBIT A (see attached) Amendment No. One to Encroachment and Landscape Maintenance Agreement A-1 MATCHLINE SEE SHEETS 7 CITY TO INSTALL IRRIGATION TO CORAL TREES. CITY TO CONTINUE MAINTENANCE OF 26 CORAL TREES. (TOTAL) ASSOCIATION TO PROGRAM CITY INSTALLED IRRIGATION APPROPRIATELY FOR HEALTH OF TREES AND PAY WATER COSTS. T F- O U Dq MALABAR DR �\ MONUMENT \ SIGN/WALL r i 9 J L— SEE D TAI "A" / SHEETN0. RAMONA DR SEE DETAIL "B"� SHEET NO. 10 CITY WILL MAINTAIN TREES IN MEDIAN SHEET 2 x z z O n 0 [07w- z LEGEND MATCHLINE SEE = CITY MAINTAINED LANDSCAPING/PARKWAY = HOA MAINTAINED LANDSCAPING/PARKWAY (CITY WILL MAINTAIN TREES) 0 SCALE SHEET 2 x z z O n V) w w N w w w z J U Q MATCHLINE SEE SHEET 2 NO SCALE MATCHLINE SEE SHEETS 3 CITY TO INSTALL IRRIGATION TO CORAL TREES. CITY TO CONTINUE MAINTENANCE OF 26 CORAL TREES. (TOTAL) ASSOCIATION TO PROGRAM CITY INSTALLED IRRIGATION APPROPRIATELY FOR HEALTH OF TREES AND PAY WATER COSTS. SEE DETAIL "C" SHEET NO. 11 - MONUMENT SIGN/WALL = CITY MAINTAINED LANDSCAPING/PARKWAY = HOA MAINTAINED LANDSCAPING/PARKWAY (CITY WILL MAINTAIN TREES) C \ 0 d Z z AX ooh O r, C� Z O A D \ (n C) co m Z.o -i' Z \ --iM m mrnn N O N y � N W m z m y O m r L N O O r � AfAl-A o \ c \AR DR l WXcn � I o0 oo-ooz i > -zirZa mo°0 xD2 oo b 0 z o C'r o r x� o;/ v, o u t� M O C to a Z > 7o CU A> / 4M > / O > W FAUSERSU'DW\Shared\CADD\Public Works\EXIi1DITS\SOCII\lmincTcr(EI Paseo2).dwS Date. 3.8.2019 II � O_ 1 1 r 11 t 1 m G') Z N O 1 O C zm s�^ 7,0m m m? 00 x A O m X q zm TCZ+ m rn x m o — — — N v N q g N rn m z m y Q m r _ � v m m m -� EL PASEO DR 1 _ , r_ — �� C I n � m I z a I I m �aaC)nn �go(w-0-3-� SI(IP C) WOnor =oo tea >,Omz� r mzi"-)a O r"��zr I I kILI Opmr C) 0or�� a -id j r: 3 2 p �z o� no w m I z m 0 C) r. m v, O to z > r ,a I I m rn D r ; as x y n =3 ie m W F:\USERS\PBW\Shared\CADD\Publie Works\EXIIIBITSISOCII\IrvmeTer (EI Paseol ).dwg Dale 3.8-2019 V RECORDING REQUESTED AND WHEN RECORDED RETURN TO: V Recorded in Official Re ds, Orange County `rani Daly, Clerk-Recora,-r illlilllillilllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll NO FEE 200600001226311:02am 01/06/06 212 143 Al2 25 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92659-1768 Exempt From Filing Fees Per Government Code 6013 Space above this line Reserved for Use by Recorder ENCROACHMENT AND LANDSCAPE MAINTENANCE AGREEMENT (EPN2005-0486) This Encroachment and Landscape Maintenance Agreement ("Agreement") is made and entered into this 12th day of December, 2005, 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 IRVINE TERRACE COMMUNITY ASSOCIATION, a California nonprofit corporation ("HOA"), formed for the purpose of managing and operating the Irvine Terrace Community ("Irvine Terrace Tract") in Newport Beach, California. City and HOA 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 in the Irvine Terrace Tract. The City Property is located as follows: (1) The parkway along East Coast Highway between Dolphin Terrace and Zahma Drive; (2) The landscape median on El Paseo Drive between Bayside Drive and Malabar Drive/Seadrift Drive; (3) The public right-of-way on Bayside Drive between Jamboree Road and Begonia Park; (4) The public right-of-way on Jamboree Road between East Coast Highway and Bayside Drive; and (5) The landscape median on Avocado Avenue between East Coast Highway and Waterfront Drive, all of which is within the Irvine Terrace Tract. The above - referenced property is described more particularly in Exhibit "A" attached hereto and shall be known herein as the "City Property." B. WHEREAS, to enhance the aesthetic appearance of the Irvine Terrace Community, HOA desires to install and maintain certain improvements on City Property, including monument signs, landscape planters, irrigation and other improvements. 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 HOA to install and maintain the 1provements subject to the terms and provisions of this Agreement. E. WHEREAS, HOA also desires to take over the maintenance of the following City Property and pre-existing improvements: (1) the landscape median with a monument sign/wall and landscape planters (including irrigation and lighting) at the entrance off East Coast Highway; (2) the landscape planter (including irrigation) along Bonnie Doone and Chubasco Drive between the back of curb and the inside of the perimeter wall, except within the Irvine Terrace Park; (3) the El Paseo Drive landscape median with a monument sign/wall (including irrigation and lighting) between Malabar Drive/Seadrift Drive and Bayside Drive; and (4) A raised and ground level landscape planter/monument located 65-feet north of Kewamee Drive within the landscape median on Avocado Avenue. The improvements described in this Paragraph shall be collectively referred to herein as the "Existing Improvements." The areas the HOA has agreed to maintain is detailed in the maps attached hereto as Exhibit A and incorporated in full by this reference. The landscaping shall be maintained at a maximum height of 24 inches above the top of the curb within the "Limited Use Area" as shown on Exhibit "A." F. WHEREAS, City has agreed to continue maintaining the following areas in the Irvine Terrace Tract: (1) The perimeter areas surrounding the Irvine Tracts; (2) The landscaping along East Coast Highway between Dolphin Terrace and Zahma Drive outside of the perimeter wall; (3) Irvine Terrace Park; (4) The landscape median along Avocado Avenue between East Coast Highway and Waterfront Drive (except a raised planter/monument with the immediate surrounding portion of ground level planter located 65-feet north of Kawamee Drive; (5) The landscaping within the public right-of- way along Bayside Drive between Jamboree Road and Begonia Park; (6) The landscaping within the public right-of-way along Jamboree Road between East Coast Highway and Bayside Drive; and (7) the trees within the El Paseo Drive landscape median between Malabar Drive and Bayside Drive. The properties the City has agreed to maintain are depicted on the map attached hereto as Exhibit A. NOW, THEREFORE, in consideration of the above recitals and the mutual promises contained herein, HOA and City hereby agree as follows: 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 set forth above (the "Effective Date") and shall continue in effect until terminated as provided herein. ra 3. Assignment of Installation Rights and Maintenance Obligations. Subject to the terms and provisions contained herein, City hereby assigns to HOA (a) the right to install the New Improvements (as defined in Section 4 below) and appurtenances incidental thereto, and (b) the obligation to maintain, repair and replace the New Improvements and Existing Improvements located on or within the City Property. 4. New Improvements. Prior to the installation of any new improvements, the HOA shall obtain the City's approval. If plans and specifications are required, as determined by the City in its sole discretion, the HOA shall obtain the City's approval of the HOA's plans and specifications prior to installing improvements on or within the City Property. The improvements referenced in this Paragraph shall be hereinafter referred to as the "New Improvements." Any approved plans and specifications shall be referred to herein as the "Approved Plans." If any of the New 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. Installation of Improvements. HOA may install the New Improvements on City Property, provided HOA obtains approval from the City, as set forth in section 4, and that any New Improvements that require Approved Plans substantially comply with the Approved Plans on file with the City's Public Works Department. 6. Encroachment Permit. Prior to commencement of any work on City Property, HOA shall apply for and obtain an Encroachment Permit with the City's Public Works Department, authorizing it to perform the installation of the New Improvements within the City right-of-way ("Permit"). 7. License. The City hereby grants to HOA a license revocable with or without cause at any time by the City to construct and maintain the New Improvements and the Existing Improvements upon all of the terms and conditions of the Permit and this Agreement. 8. Covenants. HOA hereby agrees to install, operate, inspect, monitor, maintain, relocate, and/or remove the New Improvements and Existing 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. 9. Tree Replacement. All trees identified to be removed and replaced as part of the Approved Plans, or otherwise, shall not be removed and replaced except in accordance with City Council Policy G-1 (Retention and Removal of City Trees). 10. Standard of Maintenance. HOA shall maintain the New and Existing Improvements in good condition and repair and as required by City. HOA shall maintain the City Property in accordance with generally prevailing standards of maintenance, and 9 pay all costs incurred in doing so, including the cost of water and electricity. In the event that HOA does not maintain the New and Existing Improvements and the City Property as required herein, the City may terminate the License as more particularly provided in Section 12 herein. 11. Alteration of Improvements. HOA shall not materially alter the New Improvements from their original condition as installed according to the Approved Plans, nor shall it materially alter the Existing Improvements from their original condition, without the prior written approval of City. City's approval of the proposed alterations to the New or Existing Improvements shall not be unreasonably withheld. 12. Failure to Perform. If HOA fails to fulfill its maintenance or other responsibilities under this Agreement, City may provide HOA 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 HOA 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 HOA 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 HOA shall reimburse City for its costs incurred in curing the deficiency within fifteen (15) days of HOA'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. HOA 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 HOA within City Property, but HOA shall pay or cause to be paid all of said 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 HOA in the event that HOA breaches any term of this Agreement or fails to perform or cure any failure to perform as provided in Section 10 above; and (b) either City or HOA may terminate this Agreement without cause upon 120 days prior written notice to the other party. If this Agreement is terminated, City shall have the right to remove all or any portion of the New or Existing Improvements. City shall incur no liability whatsoever in the event of the termination of this Agreement, or subsequent removal of the New or Existing Improvements by City. 15. Right of Removal. HOA 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 New or Existing Improvements, as required, and in such event: F (a) City shall notify HOA of its intention to accomplish such work, provided that an emergency situation does not exist. (b) HOA 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 the cost of any removal of the Improvements affected by such work by City, and the cost of restoring any landscaping or irrigation system affected by such work. (d) HOA agrees to pay all costs for renewal, replacement, or restoration of all other Improvements, except the landscaping or irrigation. 16. Damage to City Facilities. If City or other public facilities or improvements are damaged by the installation or presence of the New or Existing Improvements, HOA shall be responsible for the cost of repairs. 17. Insurance. HOA 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, 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 i. Workers' Compensation Coverage. HOA shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for its employees in accordance with the laws of the State of California. In addition, HOA shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the 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 HOA or its subcontractors for City. ii. General Liability Coverage. HOA 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 HOA, its agents, representatives, employees or subcontractors, or which may arise from or in connection with the design, construction, operation, maintenance or continued existence of the New or Existing 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. HOA shall maintain for the duration of this License, automobile insurance covering bodily injury and property damage for all activities of HOA, its agents, representatives, employees, or subcontractors that may arise 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. 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 the HOA. 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 HOA'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. G iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the 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, or reduced in coverage or in limits, by any party except 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. HOA shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from HOA's performance under this Agreement. E. Additional Insurance. HOA 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 HOA. HOA 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 New Improvements, (b) the maintenance of the New or Existing Improvements, (c) the acts of HOA, its employees (if any), contractors or subcontractors on or within the City Property, and (d) HOA's performance of its obligations hereunder; provided, however, that HOA's indemnity obligations hereunder shall not apply to the extent that any Claim is caused by the sole negligence or willful misconduct of the Indemnified Parties. 19. Indemnification by City. City shall indemnify, defend and hold HOA 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 hereunder shall not apply to the extent that any Claim is caused by the negligence or willful misconduct of HOA. 7 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 Merit Property Management, Inc. 1 Polaris Way 100 Aliso Viejo, CA 92656 Attention: Kevin Pennington or Lisa Bravo (949) 448-6103 Irvine Terrace Community Association 2021 Tahuna Terrace Corona del Mar, California 92656 Attention: Raymond Kennedy, President 21. Incorporation of Exhibits. Exhibit A is attached hereto and is 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. 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. HOA 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 as the same relate to the subject matter of this Agreement. 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 HOA 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. HOA 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 HOA's 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 HOA Property and the City Property shall be benefited and/or restricted in the manner herein described. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. [SIGNATURES ON FOLLOWING PAGE] 0 APPROVED AS TO FORM: /- r Y A ron C. Harp Assistant City Attorney for the City of Newport Beach ATTEST: By. &!jl ,&Z" LaVonne Harkless, City Clerk ��RWIA Attachment: Exhibit A CITY OF NEWPORT BEACH: cvZ By. x , Homer Bludau City Manager for the City of Newport Beach IRVINE TERRACE COMMUNITY ASSOCIATION: By: --�Cjz 442e Val Skoro President F: users/cat/shared/Donna Bigi/Irvine Terrace Landscape Maintenance & Encroachment Agreement11-16-05.doc 10 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of Div C, On ! p1- �-- �� before me, 4= f`-�%�/J�/C Date Name and Title or Officer (e.g., "Jane Doe, Nolary Public") personally appeared �� r Y 6. C) Fle�-4:A/ Name(s) of Signer(s) KERR'Y E. FEW*LL rA-Z Cornmbsion #r 1599086 Notary Public - California ora w County j0,MVCormn.Eq*wS9p1,2 roved to me on the basis of satisfactory evIdence to be the person/ whose name(p<is/at9 subscribed to the within instrument and acknowledged to me that he/s4o4oy executed the same in his/Ieir authorized capacity(ie.wr and that by his/hef4he4- signatureceon the instrument the person(, or the entity upon behalf of which the personk< acted, executed the instrument. WIT ESS d and official seal. Signature of Notary Public 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 form to another document. Description of Attached Document Title or Type of Document: e--AjCtze>Acj4-wI� Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name ❑ um Individual Top of thb here ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney -in -Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: © 1999 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 - Chatsworth, CA 91313-2402 - www.nationalnotary.org Prod. No. 5907 Reorder: Call Toll -Free 1.800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of On tK+� f� , (J "-3 before me, Date Name and - de f Officer (e.g., "Jane Doe, Notary Public") personally appeared 1_`C Name(s) of Signer(s) CATH Y FISHER Commission* 1341009 Z Notary Public - Califomia � Orange County 06M. _ - - - - i My Comm. Expires Feb 21, 2W6 ❑ personally known to me proved to me on the basis of satisfactory evidence to be the personN whose name( is are subscribed to the w) iq instrument and acknowledged to me thdt executed the same in hi's% er/their authorized capacity*), and that by �is her/their signature') on the instrument the person(o, or the entity upon behalf of which the person(X acted, executed the instrument. I SS my hand and,4bfficial seal. Si atu of Notary Public 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 form to another document. Description of Attached Document Title or Type of Document:' Document Date:, umber of Pages: Signer(s) Other Than Named Above:-3 Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual Top of thumb here ❑ Corporate Officer - Title(s): ❑ Partner - ❑ Limited ❑ General ❑ Attorney -in -Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: © 1999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.nationalnotary.org Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827 V--c 11/09/2005 WED 14:04 FAX --- SHARI 0001/013 u tr1 _7 coo N Ld 0 1ti 9 A _ B 7 w w 0 w z J 8N cQ l u L1 3 v, i yJV mN Y{A� Fi Y 3 cq LEGEND a w ® w CITY MAINTAINED LANDSCAPING/PARKWAY EXHIBTf A CONCEPTUAL: IRVINE TER LANDSCAPE MAINTENANCE RESPONSIBILITIES k0A MAINTAINED LANDSCAPING/PARKWAY CITY OF NEWPORT BEACH 'tj 4 os NO SCALE (CITY WILL MAINTAIN TREES) PUBLIC WOWDEPARTMBNT mr 1 0'13 11/09/2005 WED 14:04 FAX SHARI 0002/013 GODS g Lo oo� $o w .o = `Y LLJ V) w �' S w v, w .y 2-1 E TER c�i w N 7 d� o N LL.J _ Z DOLPHYN TER a 3 0 � m .D F .5 BAYgYDE DR �a 3 a S s m LEGEND w ® = CITY MAINTAINED LANDSCAPING/PARKWAY EXHIBIT A CONCEPTUAL: IRVINE TER LANDSCAPE HOA MAINTAINED LANDSCAPING/PARKWAY MAINTENANCE RESPONSIBU2= (CITY WILL MAINTAIN TREES) CTfY OF NEWPORT BEACH °A Si . NO SCALE PUBLIC WORKS DEPARTMENT sr 2 OF1 11/09/2005 WED 14:05 FAX --- SHARI 2003/013 MATCHLINE SEE SHEET 7 TAHUNA TER w w cO SABRINA TER w V) w ui V z a J w GALATEA TER z z V) w z J 2 U BAYADERE TER "8 4 c BAYSIDE DR a G z U O h a A g LEGEND K ® = CITY MAINTAINED LANDSCAPING/PARKWAY E K IIBIT A CONCEMAL: IRVINE TER LANDSCAPE = HOA MAINTAINED LANDSCAPING/PARKWAY MAINMANCERESPONSIBUXIIES (CITY WILL MAINTAIN TREES) CITY OF NEWORT BEACH 0A1E, NO SCALE PUBLICWORBSDEPARTMMT IsH&T 3 °F 13 11/09/2005 WED 14:05 FAX SHARI 2004/013 W fW r7 W Z ;W �= QEn m w V) W Z Fla r NO SCALE MATCHLINE SEE SHEET 8 SECOND AVE Q 0 80�� �R FIRST AVE LEGENQ CITY MAINTAINED LANDSCAPING/PARKWAY HOA MAINTAINED LANDSCAPING/PARKWAY (CITY WILL MAINTAIN TREES) 11/09/2005 WED 14: 06 FAX - SHARI 0005/013 MATCHLINE SEE SHEETS 7 � d d 0 — \ MALABAR DR PA - MONUMENT \ SIGN/WALL SEED TAI "A" / SHEET NO.9 RAMONA DR �2 w w NMI SEE DETAIL 'B" SHEET NO. 10 CITY WILL MAINTAIN TREES IN MEDIAN W W c4 w w z 0 'COO w 0 LEGEND MATCHLINE SEE SHEET 2 ® CITY MAINTAINED LANDSCAPING/PARKWAY a i Al 0 0 EXMIT A 0 SCALE = HOA MAINTAINED LAN NG/PARKWAY TREES) (CITY WILL MAINTAIN TREES) CONCEPTUAL: IRVINS TER LANDSCAPE MAINMANCE RESPONSIBIIITIES CIT'Y'OFNEWPORTBEACH PUBUC WORKS DEPARTMENT fu os 19w 5 01 11/09/2005 WED 14:06 FAX --- SHARI 2006/013 MATCHLINE SEE SHEETS 3 5� w� Ln w� 4,P w s V) w w U) CITY WILL MAINTAIN w TREES IN MEDIAN z D� \ SEE DETAIL "C" SHEET NO. 11 0 c MONUMENT SIGNIWALL i F 94 A A Q LEGEND a ® = CITY MAINTAINED LANDSCAPING/PARKWAY A HOA MAINTAINED LANDSCAPING/PARKWAY y� 3� (CITY WILL MAINTAIN TREES) MATCHLINE SEE SHEET 2 w EXHIBIT A CONCEPTUAL: IRVM TER LANDSCAPE MADMANCE RESPONSIBIL IAS CITY OF NEWPORT BEACH DA% NO SCALE PUBLICWORKS DEPARTMENT %w 6 of 13 11/09/2005 WED 14:06 FAX --a- SHARI 2007/013 A W z w c� x 0 00 w z COAST HWY w W w CHUBASCO DR Q A w z U n H 5 � w w SEADRIFT DR w U' R 5Q 4 w cn � w z_ FV- � KEWAMEE DR tom," A � H y ALTURA DR v x m LEGEND MATCHLINE SEE SHEET 3 w {4 _ CITY MAINTAINED LANDSCAPING/PARKWAY EXHIBITA CONCEPTUAL:IRVM TER LANDSCAPE MAD TENANCE RESPONSIBILITIES = HOA MAINTAINED LANDSCAPING/PARKWAY CITY OF NEWPORT BEACH °��i1 os NO SCALE (CITY WILL MAINTAIN TREES) PmLICW'ORMDEPARTMENT Imm 7 0113 11/09/2005 WED 14:07 PAX ---• SHARI 2008/013 RAISED LANDSCAPE PLANTER/ MONUMENT SEE DETAIL "E" SHEET NO. 13 w w V) w z = KEWAMEE DR a NO SCALE 1 1 1 1 i COAST HWY FOURTH AVE d U U � d THIRD AVE MATCHLINE SEE SHEET 4 = CITY MAINTAINED LANDSCAPING/PARKWAY HOA MAINTAINED LANDSCAPING/PARKWAY (CITY WILL MAINTAIN TREES) s 0 A 11/09/2005 WED 14:07 FAX --- SHARI 20 09/013 :Olga f � max Z � O W=C ? U' doe L13 n u oLJ o 11/09/2005 WED 14:08 FAX --- SHARI U010/013 SOOZtI I a�eQ . �np• Zoased � rayau�.u1�EIJOS�S.1.[EIHX3�SWoM �!I9�d\dQV�W�451M8d1SU'�Sfi�d M O H o 40 i _ 1 � W � - W Q0US 5 _w� r i z ir W m 2 T K V] yj 0 NZ 0 \ \ Ao�,s n u 11/09/2005 WED 14:O8 FAX --+- SHARI 2011/013 SOOZ-�Il :oleo MP'�l�d l�+a.L�>�'l\H�OSIS.I.IBIFIX��A6 �99�d�QQtl�\P�9SIM8d�S119Sf1\�3 M r-t ��j7 .ter i` CCCa k'^ C1 o ^7 N A � U Q � U11J I I Fez W ` .{ � 0 � ` d I � w i t xa oasva la 1 0 � O 8 N t f5b cj x8 p^ a � � loz, 1 1 C? x 11/09/2005 WED 14: 08 FAX --- SHARI 2012/013 I I I I AMA KEWAMEE DR ja.LQuvjNiaOS1S.L19IFIXMM o![9nd\QavDVP'n4S%MHd1SS2SnV.j I I 11/09/2005 WED 14:09 FAX --- SHARI 2013/013 IN M�'l7tP+� oN. r�.vC1GACo /1C�.t����� 411-4` � Q To'? v► SW �. 0 A ;. 17 7 l t$" NtGti-li .. 1. P�r�o PAtrMs'io. se . . iro Apo °3 'P �. i►i N'� Ei � O V. P. V 'ls? W tail- 2.s.._ .+?T.bc P4P��~t �t�k .wr iQ 8 ... . NO SCALE