HomeMy WebLinkAboutC-6638(A) - Encroachment Agreement EPN N2005-245 for Intersections of Eastbluff Drive/Alba Street, Eastbluff Drive/Bixia Street, Eastbluff Drive/Cacao StreetN
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Recorded in Official Recoras, Orange County
Tom Daly, Clerk -Recorder
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Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768 EXEMPT
FROM FILING FEES PER GOVERNMENT CODE 27383
Space above this line Reserved for Use by Recorder
ENCROACHMENT AND LANDSCAPE MAINTENANCE AGREEMENT
(N2006-0344)
This Encroachment a d Lands pe Maintenance Agreement ("Agreement") is
made and entered into this_ day of 2007, by and between the CITY OF
NEWPORT BEACH, a Municipal C poration ganized and existing under and by
virtue of its Charter and the Constitution and the laws of the State of California ("City"),
and the EASTBLUFF HOMEOWNERS COMMUNITY ASSOCIATION, a California
nonprofit corporation ("Eastbluff"), formed for the purpose of managing and operating
the communities located in Tracts 4705, 4893, 4892, and 5018 ("Eastbluff Tracts") in
Newport Beach, California. City and Eastbluff are collectively referred to herein as
"Parties."
RECITALS
A. WHEREAS, City is the owner of certain real property in the City of Newport
Beach at (i) Alba Street between Eastbluff Drive and Aralia Street; (ii) Bixia Street
between Eastbluff Drive and Bamboo Street; and (iii) Cacao Street between Eastbluff
Drive and Catalpa Street within the Eastbluff Tracts (herein referred to as "City
Property"). The City Property is being used as a landscaped entry median and parkway
at each location and is depicted in Exhibit A.
B. WHEREAS, to enhance the aesthetic appearance of the Eastbluff Tracts,
Eastbluff desires to install and maintain community entrance signs, landscaping,
irrigation 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 Eastbluff 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, Eastbluff 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 f orth 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 Eastbluff: (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 three entry monument signs, irrigation system and landscaping
installed on City property at the entrances of the Eastbluff Tracts along Alba Street,
Bixia Street and Catalpa Street (hereinafter the "Eastbluff Improvements"). The precise
improvements to be installed are detailed in the plans and specifications approved by
the City in the following plans: Plan No. M-5379-S (Eastbluff Homeowners Community
Association Entry Renovation) (2 sheets dated August 2006). These plans and
specifications shall be referred to herein as the "Approved Plans." If any of the
Improvements a ctually b uilt o n nstalled d uring t he t ime of construction vary f rom t he
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. Encroachment Permit. Prior to commencement of any work on City
Property, Eastbluff 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").
6. Installation of Improvements. Eastbluff shall install the Improvements in
substantial conformance with the Approved Plans on file with the City's Public Works
Department.
7. License. The City hereby grants to Eastbluff 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.
8. Covenants. Eastbluff hereby agrees to install, operate, inspect, monitor,
maintain, relocate, and/or remove the Improvements in accordance with this
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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. Standard of Maintenance. Eastbluff shall, at its sole cost and expense,
maintain the Improvements installed within City Property in good condition and repair
and as required by City. With the exception of the existing City trees, Eastbluff shall
maintain the City Property in accordance with generally prevailing standards of
maintenance, a nd p ay a II costs i ncurred i n doing so, i ncluding t he cost of water a nd
electricity. In the event that Eastbluff 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.
10. Alteration of Improvements. Eastbluff 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.
11. Failure to Perform. If Eastbluff fails to fulfill its maintenance or other
responsibilities under this Agreement, City may provide Eastbluff 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 Eastbluffs 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 Eastbluff 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
Eastbluff shall reimburse City for its costs incurred in curing the deficiency within fifteen
(15) days of Eastbluffs 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.
12. Liens. Eastbluff 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 Eastbluff within City Property, but Eastbluff 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.
13. 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 Eastbluff in the event that Eastbluff breaches any
term of this Agreement or fails to perform or cure any failure to perform as provided in
Section 9 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 Eastbluff. 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
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the event of the termination of this Agreement, or subsequent removal of the
Improvements by City.
14. Right of Removal. Eastbluff 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 Eastbluff of its intention to accomplish such work, if an
emergency situation does not exist.
(b) Eastbluff 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) Eastbluff agrees to pay all costs for renewal, replacement, or restoration of
the Improvements.
15. Damage to City Facilities. If City or other public facilities or improvements
are d amaged b y t he i nstallation o r p resence o f t he I mprovements, E astbluff s hall b e
responsible for the cost of repairs.
16. Insurance. E astbluff shall o btain, p rovide a nd m aintain, a t i is s ole c ost
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
Workers' Compensation Coverage. Eastbluff 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 Eastbluff or its subcontractors for City.
ii. General Liability Coverage. Eastbluff 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 Eastbluff, 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. Eastbluff 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 Eastbluff, 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 Eastbluff.
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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 E astbluff's o perations o r s ervices p rovided to C ity. A ny i nsurance
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.
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, o r reduced in coverage o r i n I imits, b y a ny p arty e xcept a fter
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 o f Claims. E astbluff s hall g ive C ity p rompt and t imely n otice of
claim made or suit instituted arising out of or resulting from Eastbluff's
performance under this Agreement.
E. Additional Insurance. Eastbluff 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.
17. Indemnification by Eastbluff. Eastbluff 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 Eastbluff, its
employees (if any), contractors or subcontractors within the City Property, and (c)
Eastbluffs performance of its obligations hereunder; provided, however, that Eastbluffs
indemnity obligations shall not apply to the extent that any Claim is caused by the sole
negligence or willful misconduct of the Indemnified Parties.
18. Indemnification by City. C ity s hall i ndemnify, d efend a nd hold Eastbluff
I
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
Eastbluff.
19. 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
Eastbluff Homeowners Community Association
c/o The Emmons Company
17300 Redhill Avenue, Suite 210
Irvine, CA 92614
20. Incorporation of Exhibits. Exhibit A is attached hereto and is hereby
incorporated herein by this reference.
21. 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.
22. Entire Agreement. This Agreement and the exhibit 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.
23. 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.
24. Compliance with Laws. Eastbluff 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.
25. 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
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of the same or a different character.
26. Amendments. This Agreement may be modified or amended only by a
written document executed by both Eastbluff and City and approved as to form by the
City Attorney.
27. 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.
28. Successors and Assigns. Eastbluff 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 Eastbluffs' interest in the land, whether fee or
otherwise.
29. 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 Eastbluff Property
and the City Property shall be benefited and/or restricted in the manner herein
described.
30. Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on
the day and year first written above.
APPROV D AS TO FORM:
By: ,,-�-
Aard'h C. Harp
Assistant City Attorney
ATTEST:
: BY
LaVonne Harkless,
City Clerk
''CI FORS
Attachments: Exhibit A
CITY OF NEWPORT BEACH:
by:
Homer Bludau
City Manager
EASTBLUFF HOMEOWNERS
COMMUNITY ASSOCIATION:
Title: Board President
Print Name: Michael R. Collins
Title: Board Secretary
Print Name: Jock Marlo
f:\users\pbw\shared\encroach\row agreements\2006\n2006-0344 eastbluff hoa landscaping.doc
STATE OF CALIFORNIA )
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COUNTY OF ORANGE )
On u''1 . `) 200-7, before me, IAA_ _ �Q� S %�dT r Y��(t
personally appeared M C F-Q ei �Q - personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s I�s are
subscribed to the within instrument and acknowledged to me thaVf /she/they has executed the same
in&her/their authorized capacity(ies), and that b hips/her/their signature(s) on the instrument the
person(s) or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and Tor said State
STATE OF CALIFORNIA )
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COUNTY OF ORANGE )
LISA M. EVANS
COMM. #1854585 rn
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in his/*Jjoir authorized capacity(ies), and that by his/hktKeir signature(s) on the instrument the
person(s) or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
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CITY CLERK'S ACKNOWLEDGMENT
State of California
County of Orange
On January 29 , 2007, before me, LAVONNE M. HARKLESS,
CITY CLERK OF THE CITY OF NEWPORT BEACH, personally appeared
Homer L. Bludau , personally known to me to be the
person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity,
and that by his signature on the instrument, the person, or the entity upon
behalf of which person acted, executed the instrument.
Dated this 29th day of January 2007.
CAPACITY OF SIGNER
Municipal Corporation Officer
City Manager
SIGNER IS REPRESENTING:
City of Newport Beach
WITNESS my hand and official seal.
LAVONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
DESCRIPTION OF ATTACHED
DOCUMENT:
Encroach. & Landscape Maint. Agree.
EPN2006-0344
# of Pages 14
Document Date: January 23, 2007
Signer(s) other than named:
Michael R. Collins, Jock Marlo,
Aaron Harp