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HomeMy WebLinkAboutC-9366-1 - Grant Right-of-Entry and Temporary Construction Easement for the Sunset Ridge Park ProjectGRANT OF RIGHT -OF -ENTRY AND TEMPORARY CONSTRUCTION EASEMENT WITH NEWPORT CREST HOMEOWNERS ASSOCIATION FOR THE SUNSET RIDGE PARK PROJECT This Grant of Right of Entry and Temporary Construction Easement ("Agreement") is made this `= tC It day of 4, , 2010 by and between the City of Newport Beach, a California municipal corporation, its officers, employees, agents, invitees, contractors and subcontractors (collectively referred to as "City") and the Newport Crest Homeowners Association, a California non-profit mutual benefit corporation ("NCHA"), for the purposes of construction of the proposed Sunset Ridge Park by City located at 4850 West Coast Highway, Newport Beach, CA 92663 ("SRP Property") and for the right of entry and temporary construction easement in that portion of land adjacent to SRP Property referred to herein as the NCHA Property, as further described herein. RECITALS A. City is a California municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is desirous of securing a right -of -entry to the NCHA Property, for the purpose of constructing boundary improvements joining and matching proposed SRP Property improvements to the existing NCHA Property as further described below in Section 1 ("Project"). C. It is mutually agreed upon by and between the City and NCHA (collectively "Parties") that the City may enter upon, pass and re -pass on, over and along that portion of land referred to as the NCHA Property as defined in Section One (1) and as further shown and/or described on Exhibit "A" attached hereto and incorporated by reference, for the purpose of constructing the boundary improvements related to the City Council Approved concept plan for the SRP ("SRP Project") under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. PROPERTY NCHA Property is defined as approximately that certain portion of land along the NCHA's southerly boundary approximately fifteen (15) feet in width located adjacent to the residential buildings containing condominium units commonly known as 17 thru 31 Ima Loa Court, 6 thru 15 Landfall Court, 9 thru 18 Swift Court, 17 thru 25 Encore Court and 6 thru 14 Tribute Court, Newport Beach, CA 92663, as further described in Exhibit "A" ("NCHA Property"). 1 1 P a g e 2. PROJECT The City shall hire a contractor to construct the SRP improvements as well as some private improvements as shown on Exhibit A. NCHA hereby grants to City the following rights: A. To enter upon, to pass and re -pass over and along the NCHA Property for the purpose of providing access and working area for the improvements as described herein. This Agreement contains a temporary easement only and is not an interest or estate in any property located in Newport Crest, B. To provide improvements to the NCHA Property including grading, placement of compacted fill against existing NCHA retaining wall, modification of existing roof drains and other drains, the replacement landscaping, irrigation, property line curb and security fencing between the buildings along the NCHA Property and other required modifications as necessary to complete the SRP project as further depicted in Exhibit A. The temporary construction fencing shall be a minimum of six feet (6') in height, as measured from ground level, and covered with a new opaque fabric or similar material extending from the base of the fence to the top of the fence in accordance with Newport Beach Municipal Code section 15.60.020 or as approved by the City. Such temporary fence shall be installed, to the extent feasible, in a manner City reasonably requires to protect adjacent properties from construction activities and debris and to safeguard public safety by restricting public access to the construction site and to preserve the esthetics of the neighborhood and minimize construction nuisance by screening the clutter of construction, thereby ensuring the comfort, safety and welfare of the residents of the City (NBMC § 15.60.010). 3. RIGHT OF ENTRY CONDITIONS NCHA hereby grants a temporary right of entry and a temporary construction easement to the NCHA Property with the following conditions: A. City may enter the NCHA Property during normal business hours from 7 a.m. to 6 p.m., Monday through Friday, and 7 a.m. to 5 p.m. on Saturdays for the purpose of constructing the improvements as described herein. The right of entry does not include the right to engage in any material or other equipment storage on NCHA Property, or the right to use the NCHA Property as a staging area or construction area for improvements to be constructed, placed or installed on the SRP Property. No trailers, toilet facilities or other structures shall be stored on NCHA Property, and no NCHA water, electricity or other utilities shall be utilized by the City, its contractors, or its contractor's subcontractors with respect to any of the work being performed on the NCHA Property or the SRP Property. B. City shall indemnify and defend NCHA and its Officers, Directors and agents against, and hold each of them harmless from any loss of or damage to any property, or for any injury or death of any person whomsoever, proximately caused in whole or in part by negligence of City, or its contractors or its contractors' subcontractors or by any act or omission for which the City, its contractors or its contractors' subcontractors are liable in the exercise of the rights herein granted. C. City represents and warrants that all of the work to be performed under this Agreement shall be performed in a good and workmanlike manner, free from defects in design, material, and workmanship and shall comply will all applicable state, federal and local laws, ordinances, and regulations. No materials related to the work shall be disposed of in NCHA dumpsters, drains, or sewers. D. All work shall be at the sole expense of City and without charge or expense to NCHA or Its members. E. City shall keep the NCHA Property free and clear of any and all liens - related to the construction of the SRP Property , and in the event that any lien related to the construction of the SRP Property is placed on record against the NCHA Property, City shall immediately cause such lien, to be released or to otherwise be bonded against by a reputable bonding company, and the release of any such liens or payments for bonds shall be at City's sole expense and without expense or cost to NCHA or its members. F. City shall provide, at its sole expense and without cost or expense to NCHA or its members, lighted safety barriers, signs and other appropriate warning devices at all areas of the NCHA Property and surrounding areas where the work is being performed during the course of performance of the work contemplated herein as may be necessary to provide for the safety of employees and agents of City, members of NCHA, and any and all other persons, public and private. City shall be responsible to inspect the NCHA Property prior to use and identify and address any potentially inadequacies or dangerous conditions that may be present in relation to the work contemplated to be performed thereon. NCHA makes no representations or warranties regarding the suitability, adequacy, or condition of the NCHA Property in relation to the work City contemplates to perform thereon. 3 1 P a g e G. At the conclusion of each work day, City shall, at its sole expense and without cost or expense to the NCHA or its members clean up and remove any and all debris that may accumulate or be deposited on the NCHA Property so as to maintain .the NCHA Property in a neat, clean, and attractive condition. No debris shall be disposed of in dumpsters or other trash facilities located within the Newport Crest Tract. H. Prior to the commencement of the work, City shall provide NCHA with the names, addresses, and telephone numbers of each contractor or sub- contractor who will be performing work within the NCHA Property. I. City shall advise NCHA of the date and location of commencement of the work not less than 72 hours prior to actual commencement of the work. J. City shall not encroach upon, pass over, improve, interfere with or cause damage to the condominium units of NCHA homeowners without obtaining the prior written consent of the owners of such property interests. With the exception of the improvements to be made on NCHA Property as provided for herein, City shall assume the responsibility of replacing, repairing and returning the NCHA Property back to the condition it was in prior to the construction. Upon completion of the work, City shall repair any and all damage to the NCHA Property and surrounding property of NCHA or its members which in any manner whatsoever resulted from or was related to City (and/or City's, agents, contractors, sub -contractors, and material suppliers) performance of the work and/or ingress and egress over the NCHA Property. Said repairs include but are not limited to (a) filling, compacting and grading any and all affected and/or damaged property; (b) installing, constructing, repairing and/or replacing any damaged irrigation systems and/or drainage systems; (c) installing and/or replacing any damaged trees, plants, bushes, turf, ground cover or other landscaping (collectively "Landscaping") with identical species of Landscaping, in both size and maturity, or, subject to the express written approval of NCHA, comparable species of Landscaping, in both size and maturity; and/or (d) repairing and/or replacing any damaged sidewalks, streets, drives, and/or curbs. K. City and its contractors shall not use the NCHA Property or any other property in Newport Crest in any manner, or conduct any activities thereon, except as expressly authorized in this Agreement. O. Hazardous Materials. City's performance of work shall be subject to the following: (1) Definition of Hazardous Materials. For purposes of this Agreement, the term "Hazardous Material' includes (i) any matter or substance defined as a "hazardous material," "hazardous waste," "hazardous substance," "toxic waste," "toxic material' or "toxic substance" in Section 25501 (o) of California Health and Safety Code, the Occupational Safety and Health Act (OSHA) or any other applicable federal, state or local statute, regulation, rule or ordinance or by the Environmental Protection Agency (EPA) or any other applicable federal, state or local governmental agency; (ii) any substance or matter which results in liability to any person or entity from exposure to such substance or matter under any statutory or common law theory; and (iii) any substance or matter which is in excess of relevant and appropriate levels set forth in any applicable federal, state or local law or regulation pertaining to any hazardous or toxic substance, material or waste, or for which any applicable federal, state or local agency orders or otherwise requires removal, treatment or remediation. (2) Use of Hazardous Materials. City shall not cause or permit any Hazardous Materials to be brought upon, stored, used, generated, released into the environment or disposed of on, under, from or about any property within Newport Crest (which shall include, but is not limited to, subsurface soil and ground water), without the prior written consent of NCHA. If City or any other person or entity retained or hired by City in connection with the work, brings, stores, uses, generates, releases, or disposes any Hazardous Material in Newport Crest, City shall ensure compliance with all applicable laws and ordinances regulating such Hazardous Material and with good business practice with respect to any such Hazardous Material brought upon, stored, used, generated, released, or disposed of. 4. TERM AND TERMINATION It is understood that the period of use of such right of entry and temporary construction easement shall exist for a period of no more than twenty four (24) months from the award of the Public Works construction contract by the City Council. This easement shall become null and void and shall terminate upon completion of such construction and in any event shall cease and terminate not later than June 30, 2015. 5. NOTICES All notices, demands, requests or approvals 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 in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. To City: Michael J. Sinacori, Assistant City Engineer Public Works Department City of Newport Beach 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA 92658-8915 Ph: (949) 644-3342 To Owner: Newport Crest Homeowners Association Attn: Kris Madison 201 Intrepid Ct. Newport Beach, CA 92663 Ph: (949) 631-0925 6. INTEGRATED CONTRACT AND CONTRACT MODIFICATIONS This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. This Agreement may not be amended or modified except by written amendment signed by both of the parties hereto. 7. SEVERABILITY AND INTERPRETATION 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. In the event of any ambiguity in this Agreement, the interpretation of this Agreement shall not be resolved by any rule of interpretation providing for interpretation against the drafter of this Agreement. 8. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. In the event any dispute arises under this Agreement, the prevailing party shall be entitled to recover attorney's fees and court costs. 9. EXECUTION The parties have executed this Agreement in Newport Beach, California, as of the date stated first above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY yne eauol rrrr}} Assistant City Vrney ATTEST: By: (� Lei City CITY OF NEWPORT BEACH, A California Municipal Corpor tion David Webb, Deputy Public Works Director/City Engineer NCHA: NEWPORT CREST HOMEOWNERS ASSOCIATION, a California non-profit public benefit corporation By: MC4j j Z44M Mark Gonzalez, Presid nt BY: OILMI 11 r ; , Corporate Secretary Attachment: Exhibit A — NSCA Property and Proposed Improvements 7 1 P a g e Ima Loa Court Landfall Court 1—Swift Court -I c >AOFlC COe,SihllGllyygY S�pUENU[ EPTDESIGN Site Plan -Exhibit A I i 0 EPTDESIGN ru w � 6-6" High CMU Block Pilaster -Shall Match Existing L - to b.-High CMU Block /all �\ �D :'-Shall Match xisting M Landscape and Irrigation CO Restoration Area cvr,�,S b'Tube eel 1,4 1�M Vi en e eDeck Dc � Deck Deck Line Ima Loa Court -Enlargement -Exhibit A 12 �.i — I — — _ O------------ Ima Loa Court Landfall Court --------------------- i \_ Tube steel view fencing shall run flush under bottom portion of deck \ Deck L?i Tube steel view i! fencing shall run flush CM/1 • under bottom portion Paving of deck Deck R C3� Landscape and Irrigation Restoration Area l S [Aoj4d� -- 6'Tube Steel View Fence -Property Line 6'Tu6e Steel View Fence EPTDESiGN Ima Loa & Landfall Court -Enlargement -Exhibit A 13 3 W fD ro M a c� cD (Aandfall Cou n 1 I I I Tube steel view fencing shall run flush under bottom portion of deck EPTDESIGN J I Tube steel view fencing shall run flush under bottom portion of deck Paving View Fence W ® Landscape and I Restoration -Area S 5vj -c ----------------�__ Landfall & Swift Court -Enlargement -Exhibit A 14 J LCh I Swift CourtCourt Q: n L-- Tube steel view Landsca a and Irrigation fencing shall run flush p g under bottom portion Restoration Area of deck w Paving rj Deck — cJ 7 L) cJ 7 Deck — 'bL v e V eww Fence —ice ---Property-Line - - EPTC E S I G N Swift & Encore Court -Enlargement -Exhibit A 15 0XW' ort 'St HOMEOWNERS ASSOCIATION Mike Sinacoire City of Newport Beach Jan. 13, 2009 The Board of Directors of Newport Crest Homeowners Association requests that the City of Newport Beach consider the following when planning, designing and implementing a park at Sunset Ridge: 1. Locate the parking lot as far away from Newport Crest property as possible. 2. Gate and ock the entrance to the parking lot. Qe, 3. Do not light the parking lot. `(�S 4. Locate the restrooms as far away from Newport Crest property as possible. `la5 5. Lock the restrooms when the park is closed. - Qiiti , Ne 6. Do not light the restrooms. 0L- 7. Locate the tot lot as far away from Newport Crest as possible. 8. Build a security fence between the perimeter of the park and Newport Crest property. `16,5 9. Eliminate the upper pedestrian entrance from Superior Ave. to the park. 10. Explore in more detail (with representatives from Newport Crest) the berm and grading concepts. 11. If the existing sound barrier wall along the top Superior Ave. is replaced by something else, have the height the same as the existing wall. 12. Extensive planting of height appropriate plants along the perimeter of the park and Newport Crest. 13. Limited hours of active use of the park. >14. Eliminate any barbeques in the design. 1/91>1 At this time, Newport Crest Board of Directors doeF not myq:nt Pimess between Newport Crest property and Sunset Ridge Park. The Board of Directors would consider gated and locked pedestrian access at the end of Ticonderoga, through Banning Ranch to Sunset Ridge Park. The proximity of the walkway around Newport Crest property would be a major consideration in approving the walkway design. Thank you, Newport Crest Homeowners Asso9iat'on Board of Directors: Mark Gonzalez, President Sharon Boles, Vice President Ginny Lombardi, Secretary - Mike Rosenthal, Treasurer Steve Porter, Member at Large 201 Intrepid Street • Newport Beach, California 92663 9 Tel: 949-631-0925 9 Fax 949- 631- 5433 NEWPORFV9CR' ES T NEWPORT BEACH May 6, 2014 City of Newport Beach Mr. Andy Tran, P.E. Senior Civil Engineer 100 Civic Center Drive Newport Beach, CA 92660 RE: NEWPORT CREST HOMEOWNERS ASSOCIATION Sunset Ridge Park Dear Mr. Tran, The Newport Crest Homeowners Association Board of Directors requests and agrees to the following conditions regarding Sunset Ridge Park: 1. The restrooms in Sunset Ridge Park will be locked at night. 2. Two of the dirt mounds on the berm at the far west end will be lowered by 3'. 3. One dirt mound on the far east end will be lowered by 1'. 4. The City of Newport Beach to pay Newport Crest HOA $6,000 in exchange for manufacturing and installation of rod iron fencing and gates between buildings. Newport Crest Homeowners Association and the City of Newport Beach will continue the agreement that the City will provide landscaping, drainage and irrigation on Newport Crest property. The Newport Crest Board of Directors appreciates working with the City of Newport Beach during this process. Sincerely, At the Kris cc: Board TH ASSOCIATION / lz�- ison, CCAM Community Association Manager HOMEOWNERS ASSOCIATION 201 Intrepid StreetNewport Beach, CA 92663' 949.631.0925' Fax 949.631.5433 www.NewportCrest.org Environmental Construction, Inc. TITLE: HOA Fence PROJECT: SAC Spreading Grounds TO: Andy Tran, P.E. Senior Civil Engineer City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Phone: 949-644-3315 RE: TO: DESCRIPTION OF PROPOSAL Proposed Change Order NO. 009 DATE: 4/25/2014 JOB: 262 FROM: NUMBER: ECI is submitting a deductive change order to omit install HOA fence from ECI contract on the reference project as per the City project manager request for the agreed amount. Item Description Quantity Units Unit Price Tax Rate Tax Amount 00001 Install HOA Fence 1 LS-$6,000.00 ($6,000.00) BY: Ram Mohseni BY: UNIT COST: UNIT TAX: UNIT TOTAL ram Mohseni Andy Tran DATE: 04-25-2014 Date: ($6,000.00) 0 ($6,000.00) Ram Mohseni From: Tran, Andy <ATran@newportbeachca.gov> Sent: Monday, April 21, 2014 4:20 PM To: Mike Sabzerou (msabzerou@yahoo.com) Cc: Ram Mohseni (rambod.eci@gmail.com); Miguel Macias (miguelmacias33@msn.com); Puglisi, Marcus; Jennifer Bushong; Richard Vanderwood (randerwood@eptdesign.com) Subject: HOA Fence Mike, Newport Crest accepted the $6,000 credit in lieu of the fence. Thanks for working with them on this. Andy