HomeMy WebLinkAboutC-3669(A) - Landscape Maintenance Agreement (Newport Shores) (for West End of Canal Street)•
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RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
City Clerk's Office
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92658-8915
Recorded in Official Records, County of Orange
Tom Daly, Clerk -Recorder
I111011111111111111111111111111110111111111111111!111111111111111NO FEE
2004000290071 12:54pm 04107104
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Space above this line for Recorder's use only.
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EXEMPT RECORDING REQUEST PER
LANDSCAPE MAINTENANCE AGREEMENT GOVERNMENT CODE6103
THIS AGREEMENT is made and entered into this day of // rc /, ,
2004, by and between Newport Shores Community Association, hereinafter "OWNER", and
the City of Newport Beach, California, a municipal corporation organized and existing under
and by virtue of its Charter and the Constitution and the laws of the State of Califomia,
(hereinafter "CITY").
WITNESSETH:
WHEREAS, CITY owns, maintains and administers a certain public right-of-way located
in the City of Newport Beach, County of Orange, State of California, which right-of-way is more
particularly described as the access parcel running from the westerly street end of Canal
Circle to the adjacent canal, and depicted on Exhibit "A" attached hereto and by this reference
incorporated herein (hereinafter "RIGHT -OF WAY"); and
WHEREAS, OWNER owns and maintains portions of that certain real property located
between Canal Street and Canal Circle in the City of Newport Beach, County of Orange, State
of Califomia, which real property forms an island between said roadways, which real property
is more particularly described as Tract No. 4601 as shown on a map recorded in Book 175,
Pages 26 and 27 inclusively of Miscellaneous Maps in the office of the County Recorder of
Orange County, Califomia, and which real property is separated from the aforesaid RIGHT-
OF-WAY only by Canal Circle (hereinafter "ISLAND"): and
WHEREAS, CITY has storm drain facilities located within said RIGHT-OF-WAY; and
WHEREAS, the parties desire to enter into an agreement providing for the creation and
maintenance of certain improvements to the RIGHT-OF-WAY and the ISLAND (hereinafter
"IMPROVEMENTS").
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree
as follows:
1. It is mutually agreed that IMPROVEMENTS shall include landscaping, plants and
vegetation, an irrigation system, a bench, concrete walkways, planters, doggie
bag dispenser and additional hardscape.
2. CITY shall make and pay for all IMPROVEMENTS as shown on the approved
Improvement Plan No. P-5191-5 for the RIGHT-OF-WAY and the ISLAND.
3. Upon completion of all IMPROVEMENTS by CITY and fifteen (15) days notice
from CITY to OWNER of said completion, OWNER shall thereafter maintain the
IMPROVEMENTS to the RIGHT-OF-WAY in accordance with the terms detailed
hereinafter in Paragraph 5 of this Agreement. CITY will further allow OWNER to
take all reasonable measures necessary or convenient in accomplishing the
aforesaid activities. OWNER shall maintain the IMPROVEMENTS to the
ISLAND in any manner it deems fit.
4. OWNER shall pay for the water and electricity to be used on all
IMPROVEMENTS.
5. OWNER and CITY further agree as follows:
(a) OWNER shall maintain the IMPROVEMENTS to the RIGHT-OF-WAY, in
accordance with the general prevailing standard of maintenance in the
surrounding area, and pay all costs and expenses incurred in doing so.
For the plant material specified, OWNER agrees to provide weekly
maintenance, which shall include, as needed, weeding, trimming, litter
pickup, mowing, hardscape cleaning, irrigation maintenance, electrical
maintenance, purchasing and stocking new bags in the doggie dispenser
and pest and rodent control. However, nothing herein shall be construed
to require OWNER to maintain, replace or repair any CITY -owned pipeline
located in or under the RIGHT-OF-WAY.
(b) Should a dangerous or defective condition occur in the IMPROVEMENTS
to the RIGHT-OF-WAY as a result of OWNER'S negligence in performing
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or failing to perform its maintenance duties for said area, then OWNER
understands and agrees that it is legally responsible for such condition,
and further agrees to proceed immediately to correct the condition.
Should a dangerous or defective condition occur in the IMPROVEMENTS
to the RIGHT-OF-WAY as a result of any other reason than OWNER'S
negligence in performing or failing to perform its maintenance duties for
said area, then CITY understands and agrees that it is legally responsible
for such condition, and further agrees to proceed immediately to correct
the condition. OWNER agrees to give CITY immediate notice of any
dangerous or defective condition that it believes the CITY is responsible
for repairing.
(c) With regard to any dangerous or defective condition that might occur in
the IMPROVEMENTS to the RIGHT-OF-WAY solely as a result of
OWNER'S negligence in its maintenance duties for said area, CITY
reserves to itself the right to make such emergency repairs to the
IMPROVEMENTS in the RIGHT-OF-WAY as CITY deems necessary for
the immediate protection of the public health and safety. If CITY provides
OWNER with written notice of the dangerous or defective condition, and a
reasonable period to cure the condition, and OWNER thereafter fails to
make such repairs within the time period specified, then OWNER agrees
to promptly reimburse CITY for the reasonable costs and expenses
incurred by CITY in affecting such emergency repairs.
(d) That should the CITY be required to enter onto. said RIGHT-OF-WAY to
exercise its primary rights associated with said RIGHT-OF-WAY, 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:
(i) CITY shall provide OWNER with reasonable notice of its intention
to accomplish such work, provided that an emergency situation
does not exist; and
(ii) CITY agrees to bear only the cost of any removal and replacement
of the IMPROVEMENTS affected by such work by CITY;
6. In the event either party breaches any material provision of this Agreement, the
other party at its option may, in addition to the other legal remedies available to
it, terminate this Agreement, and, in the event the breaching party is OWNER,
CITY will hire a contractor to maintain the areas and will bill the OWNER for all
reasonable costs. Termination because of breach shall be upon a minimum of
ten (10) days' notice, with the notice specifying the date of termination.
7. OWNER shall defend, indemnify, waive, and hold harmless CITY, its City
Council, boards and commissions, officers and employees from and against any
and all loss, damage, liability, claims, suits, costs and expenses whatsoever,
regardless of the merit or outcome of any such claim or suit arising from or in any
manner connected with the design, construction, maintenance, or continued
existence of the IMPROVEMENTS to the ISLAND, and any such claim or suit
arising from or in any manner connected with OWNER's performance of its
maintenance duties on the RIGHT-OF-WAY or ISLAND.
8. CITY shall defend, indemnify, waive, and hold harmless OWNER from and
against any and all loss, damage, liability, claims, suits, costs and expenses
whatsoever, regardless of the merit or outcome of any such claim or suit arising
from or in any manner connected with the design, construction, or continued
existence of the IMPROVEMENTS to the RIGHT-OF-WAY.
9. OWNER agrees that this Agreement shall remain in full force and effect from
execution thereof; shall run with the land; shall be binding upon the heirs,
successors, and assigns of OWNERS' interest in the land whether fee or
otherwise, and shall be recorded in the Office of the County Recorder of Orange
County, California.
10. CITY agrees that it shall complete like improvements to the similarly situated
access parcel/right-of-way located at the junction of Canal Street and 62nd Street
within two (2) years of the execution of this agreement, which improvements will
be provided for in a separate written agreement which CITY and OWNER will
work diligently to complete with enough time to comply with said time constraint.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first -above written.
APPROVED AS TO FORM:
CITY OF NEWPORT BEACH,
a Municipal corporation
By:0Cfitj By:
City Attar ey
ATTEST:
City Clerk
City Manager
NEWPORT SHORES COMMU ITY
ASSOCIATION:
By:
di`J
Gary M..mith, sident
Authorized Signature
5
STATE OF CALIFORNIA )
) ss:
COUNTY OF NGE )
On
personally appeared
ar
me (or proved to me on the b sis of satisfactory evidence) to be the person(s) whose name(e) is/are
subscribed to the within instrument and acknowledged to me that he/sh&they has executed the same
in his/her/their authorized capacity(i06), and that by his/beritheir signature(oi) 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.
No Public in and for said State
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
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EVA DE LA TORRE
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Noby Pubic - Canaria
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(This area for official notarial seal)
On ti\.. an eA. e3 0 , 200�' , before me, �i s ) A oV
personally appeared t'1 o'srJIN 1(IJ' tt/A-04a '�— t,A.,)"..64., 11 vtpersonally known to
me to be the perso ' whose nam
subscribed to the within instrument and acknowledged to me that he/she
in his/her -uthorized capacit (1 and that by his/he their -ignature s) on the instrument the
person( )r the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in for said State
as executed the same
CATHY FISHER
Commission 91341009
Notary Public_ California
My Comm. Expires Feb21, 2006
(This area for official notarial seal)
F:IUSERSIPBW1Shared\ContractslFY 03-041NPT SHORES STREET ENDS C-36691Landscape Agreement.doc
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EXHIBIT A
/ TRACK 4601
LOT 1
TRACK 772
LOT 12
LOT 11
- RIGHT OF WAY
- ISLAND
CANAL ST.
CITY OF NEWPORT BEACH
PUBLIC WORKS DEPARTMENT
NEWPORT SHORES STREET
END IMPROVEMENTS