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HEREAS, the .arties hereto desire to execute .1 agreement providing
for fulfillment of the conditions required by CITY to permit COMPANY to
construct said median improvements;
NOW, THEREFORE, in consideration of their mutual promises, the parties
hereto agree as follows:
1. It is mutually agreed that "street median improvements" shall be
defined as any landscaped areas and accompanying irrigation systems and street
or median surfacing within the public street right-of-way which is not
constructed of asphalt concrete, portland cement concrete with only a "broom" or
trowel finish or Bomanite.
2. CITY will allow COMPANY to construct, reconstruct, install,
maintain, use, operate, repair and replace said street median improvements and
all facilities and appurtenances necessary and incidental thereto, over CITY's
utility facilities, all in substantial conformance with plans and specifications
therefor on file in the CITY's Public Works Department of the City of Newport
Beach, in, on, and across those certain rights -of -way described in Exhibit "A"
hereto. CITY will further allow COMPANY to take all reasonable measures
necessary or convenient in accomplishing the aforesaid activities.
3. COMPANY and CITY further agree as follows:
(a) COMPANY shall construct and install street median improvements
and all facilities and appurtenances necessary and incidental thereto, all in
substantial conformance with plans and specifications therefor on file in the
CITY's Public Works Department, in, on, and across those certain rights -of -way
described in Exhibit "A" hereto.
(b) COMPANY shall maintain the aforesaid street median improvements
and facilities in accordance with general prevailing standards of maintenance,
and to pay all costs and expenses incurred in doing so. However, nothing herein
shall be construed to require COMPANY to maintain, replace or repair any
CITY -owned pipeline, conduit or cable located in or under said street median
improvements.
Should a dangerous or defective condition of said improvements
occur, COMPANY understands and agrees that they are responsible for such
condition, and further agrees to proceed immediately to correct the condition.
In the event the City Council of the City of Newport Beach
determines, after a public hearing held on at least thirty (30) days' prior
2 of 5
88-609145
written notice to COMPANY, that COMPANY has failed or ceased to maintain the
aforesaid improvements and facilities as required by this paragraph, COMPANY
agrees that CITY may, at CITY's option, assume the maintenance thereof and may
bill COMPANY directly for the costs of such maintenance. COMPANY agrees to pay
the amounts set forth in said bills promptly, upon receipt of such billing.
CITY reserves to itself the right to make such emergency repairs to the
improvements and facilities installed by COMPANY pursuant hereto as it deems
necessary for the immediate protection of the public health and safety. COMPANY
agrees to promptly reimburse CITY for the reasonable costs and expenses incurred
by CITY in effecting such emergency repairs.
(c) That should CITY be required to enter onto any easements owned
by CITY to exercise its primary rights associates with said easements, including
but not limited to, the maintenance, removal, repair, renewal, replacement or
enlargement of the water, sewer, street light, or storm drain facilities, the
CITY may remove portions of the street median improvements and in such event:
1) CITY shall notify COMPANY of its intention to accomplish
such work; if an emergency situation does not exist.
2) COMPANY shall be responsible for arranging for any renewal
or restoration of the street median improvements affected by such work by CITY;
3) CITY agrees to bear the portion of the costs of any such
renewal or restoration of the street median improvements not in excess of the
cost which would be incurred for the restoration or renewal of standard street
improvements in the same location;
4) COMPANY agrees to pay any costs for renewal or restoration
of the street improvements in excess of the costs to be paid by CITY.
(d) COMPANY shall indemnify and hold harmless CITY, its City
Council, boards and commissions,'officers and employees from and against any and
all loss, damages, liability, claims, suits, costs and expenses whatsoever,
including reasonable attorneys' fees, regardless of the merit or outcome of any
such claim or suit arising from or in any manner connected to the construction,
use, maintenance or renewal of the street median improvements.
4. COMPANY agrees to bear the cost of providing water for irrigating
the median improvements.
5. COMPANY agrees that if the CITY should ever need to use the
right-of-way on which the street median improvements are established, together
with the landscaped areas, CITY can cause the improvements to be removed and
3 of 5
d(J7OLJyi4�
face no liability to .,jMPANY for the loss of use of th„ landscaped materials and
the street median improvements.
No breach of the covenants, conditions or restrictions herein
contained shall defeat or render invalid the lien of any deed of trust, lease or
lawful encumbrance made in good faith and for value, but all of said covenants,
conditions and restrictions shall be binding upon and effective against any
owner whose title is derived through foreclosure or trustee's sale or otherwise.
7. These restrictions, covenants and agreements may be modified,
amended, or terminated jointly by the parties hereto, or their heirs, assigns or
successors, expressed in writing and recorded in the Office of the County
Recorder of Orange County, California.
8. The provision hereto shall be deemed independent and severable, and
the invalidity or partial invalidity or unenforceability of any one provision or
portion thereof shall not affect the validity or enforceability of any other
provisions hereof.
9. It is mutually agreed that this Agreement shall be binding upon
heirs, successors and assigns of COMPANY and shall be recorded in the Office of
the County Recorder of Orange County, California; provided, however, that
COMPANY may, without CITY's consent, assign its right and obligations under this
assignment to a community association responsible for the maintenance of the
adjacent private streets and upon such assignment, COMPANY shall be relieved of
any obligations to CITY hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
ATTEST:
City Clerk
APPROVED AS TO FORM:
.4 \ ,
y Attorney
CITY ► E 'O' BEA
a Murpor
DONALD . BREN COMPANY
a California Corporation
By )Vatic at49-1
4 of 4
88-609145
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On /'4.0-Z }., 4.t /0, 1988, before me, t undersigned, a Notary Public in
and for the State, personally appeared /,,,,.. C 6,
known to me to be t e Mayor of the City of New ort Beach an
//' known to me to be the City Clerk of the
City of Newport Beach,, own to me to be the persons whose names are subscribed
to the within instrument, and acknowledged to me that they executed the same.
WITNESS my hand and official seal.
OFFICIAL SEAL
DOROTHY L. PALEN
NOTARY PUBLIC • CALIFORNIA
PRINCIPAL OFFICE IN
ORANGE COUNTY
My Commission Exp. Apr. 5, 1989
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
c;(.")(;--/)
Notary Public iand for said State
On September 19, 1988, before me, the undersigned a Notary Public in
and for the State, personally appeared Michael L. Toohey & Dale Meredith
known to me (or proved to me on the basis of satisfactory evidence) to be the
00MX President and (aQ&XXXX&3k%Va.VPCX 10tX 4?CXX Vice President of Donald
L. Bren Company , the Corporation that executed the within instrument
and known to me (or proved to me on the basis of satisfactory evidence) to be
the persons who executed the within instrument on behalf of said Corporation and
acknowledged to me that such Corporation executed the same.
My commission expires 10"4., /5
OFFICIAL SEAL
PATRICIA G. THOMPSON
Notary Public-Califomia
ORANGE COUNTY
My Comm. Exp. Apr. 15, 1992
Witness my hand and official seal:
Notary Public in and for said State
*******************************************************************************
5 of 5
titi-"blJy ! 4�
SCALE:/ ''= 2OO
"EXHIBIT A"
MEDIAN MAINTENANCE AGREEMENT
FOR LA VIDA
SEPTEMBER. 1988
NOTE :
/NOICATES AREA CONTIGUOUS
TO TR.NO. /227/