HomeMy WebLinkAbout15 - Cooperative Agreements with One Ford Road Community Association and Belcourt Hill Homeowners Association for Maintenance of Median ImprovementsQ �EwPpRT
CITY OF
s NEWPORT BEACH
`q44:09 City Council Staff Report
November 19, 2024
Agenda Item No. 15
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
PREPARED BY: Kevin Pekar, Parks & Trees Superintendent - 949-644-3069,
kpekar@newportbeachca.gov
TITLE: Cooperative Agreements with One Ford Road Community
Association and Belcourt Hill Homeowners Association for
Maintenance of Median Improvements
ABSTRACT:
The City of Newport Beach seeks to elevate the appearance of landscaped medians on
Ford Road between Jamboree Road and Southern Hills Drive, which are currently
maintained by the One Ford Road Community Association and the Belcourt Hill
Homeowners Association. The City initiated discussions with both associations and
negotiated terms to provide on -going maintenance of the center medians in the public
right-of-way in exchange for the associations providing irrigation water at their sole cost.
This agreement will provide community benefits by enhancing the appearance of the
public right-of-way. Staff recommends the City Council approve the agreements between
the City and the associations for the maintenance of median improvements.
RECOMMENDATIONS:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
b) Approve the Cooperative Agreement between the City of Newport Beach and
One Ford Road Community Association for maintenance of median improvements on
Ford Road;
c) Approve the Cooperative Agreement between the City of Newport Beach and Belcourt
Hill Homeowners Association for maintenance of median improvements on
Ford Road; and
d) Authorize the Mayor and City Clerk to execute the agreements.
DISCUSSION:
The City seeks to elevate the appearance of medians on Ford Road between Jamboree
Road and Southern Hills Drive. The One Ford Road Community Association and Belcourt
Hill Homeowners Association currently maintain the center medians on Ford Road under
encroachment agreements that allowed them to install irrigation infrastructure and
landscape improvements.
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Cooperative Agreements with One Ford Road Community Association and
Belcourt Hill Homeowners Association for Maintenance of Median Improvements
November 19, 2024
Page 2
The City currently maintains other public medians in the area and can effectively and
efficiently maintain these highly visible locations. The City initiated discussions with both
associations and negotiated terms to provide median maintenance in exchange for the
associations providing irrigation water at their sole cost.
This agreement will provide community benefits by enhancing the public right-of-way
appearance, as well as removing private HOA contractors within the public street median
areas. Staff recommends the City Council approve the cooperative agreements between
the City and One Ford Road Community Association and the Belcourt Hill Homeowners
Association for maintenance of the median improvements.
FISCAL IMPACT:
The adopted budget includes sufficient funding for this maintenance item. The
maintenance will be expensed to the Parks Contract Services Medians account in the
Public Works Department, 0108031-811018. Estimated total Fiscal Year 2024-25 costs
are $3,522.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Cooperative Agreement with One Ford Road Community Association
Attachment B — Cooperative Agreement with Belcourt Hill Homeowners Association
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ATTACHMENT A
COOPERATIVE AGREEMENT BETWEEN THE
CITY OF NEWPORT BEACH AND
ONE FORD ROAD COMMUNITY ASSOCIATION
FOR THE MAINTENANCE OF MEDIAN IMPROVEMENTS
This Cooperative Agreement ("Agreement") is made and entered into this
19th day of November, 2024, by and between the City of Newport Beach, a California
municipal corporation and charter City ("City"), and the One Ford Road Community
Association, a California nonprofit corporation ("Association"), with the City and
Association individually referred to as "Party" and collectively referred to as "Parties."
RECITALS
WHEREAS, City is a municipal corporation 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 the City;
WHEREAS, the One Ford Road Community Association is an "association"
of homeowners as defined under Civil Code §4080;
WHEREAS, on July 10, 1995, the City Council approved a Development
Agreement between the City and Ford Motor Land Development Corporation, for
the residential development of approximately 98.1 acres, which was recorded in the
Official Records of the County of Orange on September 26, 1995, and amended
July 8, 1996, and recorded May 13, 1997 ("Project");
WHEREAS, the City Council imposed conditions in connection with approval
of the Project ("Conditions"), including, but not limited to, the construction of public
improvements in the form of a median island, landscaping, and irrigation on Ford
Road ("Median Improvements");
WHEREAS, the Conditions required that the work to construct the Median
Improvements be completed under an encroachment permit issued by the City
Public Works Department;
WHEREAS, in April of 1996, Ford Motor Land Development Corporation
transferred its interest in the Property to JM Development Company, who thereafter
changed its name to Pacific Bay Homes, also known as Pacific Bay Properties
("Pacific Bay");
WHEREAS, the City and Pacific Bay entered into that certain Encroachment
Agreement and Declaration of Covenants Between Landowners, dated May 17,
2001, and recorded in the Official Records of the County of Orange on July 3, 2001,
as Document Number 20010443768, a true and correct copy of which is attached
hereto as Exhibit "A" and incorporated herein by this reference ("Encroachment
Agreement");
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WHEREAS, the Encroachment Agreement authorized Pacific Bay to
construct the Median Improvements, and obligated Pacific Bay to maintain the
Median Improvements;
WHEREAS, Pacific Bay executed that certain Declaration of Covenants,
Conditions and Restrictions and Grant of Easement For One Ford Road Community
Association, dated March 20, 1998, and recorded in the Official Records of the
County of Orange on March 26, 1998 ("CC&R's");
WHEREAS, Section 1.26 of the CC&R's define "off -tract maintenance" to
include an agreement with the City for maintenance of a street median, and
additionally, Section 3.4 of the CC&R's state that Pacific Bay may transfer its
maintenance obligations in the off -tract maintenance areas to the Association at any
time;
WHEREAS, Pacific Bay transferred its obligation to maintain the Median
Improvements to the Association, and the Association thereafter maintained the
Median Improvements;
WHEREAS, the Parties now desire that the City maintain the Median
Improvements on behalf of the Association, in exchange for the Association
supplying the City's water requirements to support the Median Improvements.
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the Parties hereto agree as follows:
1. RECITALS
The Parties acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference into this Agreement.
2. INTENT
This Agreement is intended to permit the City to fulfill the maintenance duties
of the Association under the Encroachment Agreement, The City's maintenance of
the Median Improvements pursuant to this Agreement shall be deemed compliance
by the Association with its maintenance duties under the Encroachment Agreement.
In the event of termination of this Agreement, the Encroachment Agreement shall
control.
3. TERM AND TERMINATION
This Agreement shall continue in full force and effect until terminated. Either
Party may terminate this Agreement with or without cause, at any time, by providing
at least one hundred eighty (180) days written notice to the other Party.
One Ford Road Community Association Page 2
15-4
4. CONSIDERATION
4.1. The Association shall provide all water reasonably necessary to
maintain the Median Improvements, at the Association's sole cost. The Association
shall ensure that adequate water is available to maintain the landscaping within the
Median Improvements. Notwithstanding the preceding, the Association shall not be
responsible for providing water to the extent that this is not reasonably possible due
to circumstances outside the Association's reasonable control, including but not
limited to repair or replacement of the Association's irrigation system or interruptions
in water provided by the local water district. In such cases the Association shall act
in good faith to restore normal water service as soon as reasonably possible.
4.2. The City shall maintain the Median Improvements in accordance with
the terms of this Agreement at its sole cost and expense, except for the cost of water
which shall be borne by the Association.
5. LICENSE
5.1. For the purpose of supporting the maintenance of the landscaping
within the Median Improvements by the City, the Association hereby grants the City
a nonexclusive perpetual license to enter on, over, and under the Association's
property, in the areas depicted on Exhibit B attached hereto and incorporated herein
by this reference ("License Area"), to maintain, repair, and replace the connection to
the Association's irrigation facilities. Additionally, the License granted herein shall
include reasonable access to the meter and controller depicted on Exhibit B for the
purpose of adjusting the watering schedule for the Median Improvements, and for
maintenance, emergencies, testing, and other irrigation work.
5.2. The license granted in this Section is solely for the purpose of allowing
the City access to HOA property in the License Area as needed to support the City's
maintenance of the Median Improvements, and does not create any duty or
responsibility on the part of the City to repair or replace the Associations' irrigation
facilities within the License Area or beyond the License Area. The City's duties to
maintain, repair, and replace irrigation facilities shall be limited to the irrigation
facilities from the north side of Ford Road directly adjacent the Median
Improvements, and continuing south into the area of the Median Improvements.
6. MAINTENANCE
6.1. The City shall be solely responsible for any and all costs and expenses
for the maintenance of the Median Improvements, with the exception of water.
6.2. The City shall have the exclusive right to maintain the Median
Improvements as its sees fit in its sole and absolute discretion, including but not
limited to, the type, quantity, and location of any and all landscaping, the removal or
One Ford Road Community Association Page 3
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installation of any or all landscaping, the schedule, frequently, and manner of
maintenance of landscaping and other Median Improvements, and the design,
redesign, removal, or replacement of any or all Median Improvements.
6.3. All work shall be performed by City or contractors under the City's
supervision. All work shall be performed in a manner commensurate with community
professional standards and with the ordinary degree of skill and care that would be
used by other reasonably competent practitioners of the same discipline under
similar circumstances. All work shall be performed by qualified and experienced
personnel.
6.4. City shall not be responsible for delay, damages, or be in default or
deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the
failure of Association to furnish approvals or easements promptly, or delay or faulty
performance by Association, its contractors, or agents.
7. REPAIR AND REPLACEMENT
The Association shall act in good faith to grant other licenses to the City, as
reasonably necessary, for the repair and replacement of irrigation facilities
supporting the Median Improvements, including but not limited to, the connection to
the Association's irrigation facilities. No costs, expenses, or fees shall be charged by
Association to the City in the preparation, execution, or granting of additional
licenses pursuant to this section. The City shall be solely responsible for recording
fees, if any.
8. INDEMNITY
8.1. Notwithstanding anything herein to the contrary, the City shall
indemnify, defend, and hold harmless the Association, its management agent, and
their respective officers, agents, volunteers, employees, and board members
("Indemnified Parties") from any and all claims arising out of the City and its agents'
negligence or willful misconduct in the performance of this Agreement.
Notwithstanding the foregoing, nothing herein shall be construed to require the City
to indemnify the Indemnified Parties to the extent that any claim arises from the
negligence or willful misconduct of the Indemnified Parties.
8.2. Notwithstanding anything herein to the contrary, the Association shall
indemnify, defend, and hold harmless the City, its elected officials, officers, agents,
volunteers, and employees ("City Indemnified Parties") from any and all claims
arising out of the Association and its agents' negligence or willful misconduct in the
performance of this Agreement. Notwithstanding the foregoing, nothing herein shall
be construed to require the Association to indemnify the City Indemnified Parties to
the extent that any claim arises from the negligence or willful misconduct of the City
Indemnified Parties.
One Ford Road Community Association Page 4
15-6
8.3. The City shall promptly restore Association property to substantially the
same condition as it existed immediately prior to the City commencing any activity or
work, including but not limited to plant material, utility installations, and other
improvements. If Association property is damaged arising out of the City's and its
agents' performance of this Agreement, the City shall promptly repair such damage.
If the City fails to repair and restore Association property to the Association's
reasonable satisfaction, the Association shall provide written notice to the City
identifying the damage or conditions that the City has failed to repair or restore. If the
City fails to perform such repair or restoration within thirty (30) days thereafter to the
Association's reasonable satisfaction, the Association may undertake such repair or
restoration on the City's behalf and the City shall promptly reimburse the Association
for its actual costs incurred.
9. INSURANCE
City shall cause to be purchased and maintain in effect insurance or self-
insurance providing coverage against claims which may arise out of or result from
the activities of the City, any contractor or sub -contractor of the City, anyone directly
or indirectly employed by any of them, or anyone for whose acts any of them may
be liable. City shall provide the Association with certificates of all insurance and self-
insurance promptly upon full execution of this Agreement. Each policy shall provide
that it may not be cancelled or reduced in coverage until thirty (30) days after written
notice has been given to the Association. All insurance required herein shall name
the Association and its management agent as additional insureds, shall be primary
and non-contributory as to any or all Association policies of insurance, and shall
contain a waiver of subrogation in favor of the additional insureds. Insurance
coverage shall be in the form of commercial general liability with coverage of at least
one million dollars ($1,000,000) per occurrence with two million dollars ($2,000,000)
aggregate, auto liability of at least one million dollars ($1,000,000) per occurrence,
and worker's compensation insurance in accordance with law.
10. NOTICE
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 in the United States mail, postage prepaid,
first class mail, addressed as hereinafter provided:
To Association:
One Ford Road Community Association
c/o Seabreeze Management Company
Attn: Rick Zarski, General Manager
26840 Aliso Viejo Parkway, Suite 100
Aliso Viejo, CA 92656
One Ford Road Community Association
Page 5
15- 7
To City:
City of Newport Beach
Public Works Department
Parks Superintendent
100 Civic Center Dr.
Newport Beach, CA 92660
11. PARTY REPRESENTATIVES
11.1. Association shall designate a representative who shall be the point of
contact and coordinate with the City regarding this Agreement. ("Association
Representative"). The Association Representative shall be available to City at all
reasonable times during the Agreement term. The Association has designated Rick
Zarski, General Manager, to be the Association Representative. The Association
may designate additional or different persons to serve as the Association
Representative upon written notice to the City.
11.2. This Agreement will be administered by the City's Parks
Superintendent. City's Parks Superintendent or designee shall be the City's point of
contact and shall have the authority to act for City under this Agreement.
12. STANDARD PROVISIONS
12.1. Compliance with all Laws. Each Party 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.
12.2. 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.
12.3. Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the Parties, 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.
12.4. Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and any attachments attached hereto, the
terms of this Agreement shall govern.
One Ford Road Community Association Page 6
15-8
12.5. 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.
12.6. Amendments. This Agreement may be modified or amended only by a
written document executed by both Parties and approved as to form by the City
Attorney.
12.7. 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.
12.8. 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, State of California.
12.9. Equal Opportunity Employment. Association represents that it is an
equal opportunity employer and it shall not discriminate against any subcontractor,
employee or applicant for employment because race, religious creed, color, national
origin, ancestry, physical handicap, medical condition, marital status, sex, sexual
orientation, age or any other impermissible basis under law.
12.10. No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing Party shall not be entitled to attorneys' fees.
12.11. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together
shall constitute one (1) and the same instrument.
12.12. Assignment. Neither Party shall assign its performance of this
Agreement, nor any part thereof, without the prior written consent of the non -
assigning Parties.
12.13. Non -Appropriation. This Agreement is subject to the City's availability
of funds appropriated for this purpose by the City, and nothing herein shall be
construed as obligating the City to expend money or enter into any contract or other
obligation for future payment of money in excess of appropriations authorized by
law.
12.14. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the Parties and their respective heirs, personal
representatives, successors and assigns.
One Ford Road Community Association
Page 7
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12.15. No Third Party Rights. The Parties do intend to create in or grant
remedies to, any third party as a beneficiary of this Agreement, or of any duty,
covenant, obligation or undertaking established herein.
12.16. Cooperation. Each Party agrees to cooperate with the other and, in
that regard, to sign any and all documents which may be reasonably necessary,
helpful, or appropriate to carry out the purposes and intent of this Agreement
including, but not limited to, releases or additional agreements.
[SIGNATURES ON NEXT PAGE]
One Ford Road Community Association Page 8
15-10
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 1 U/ 2 Z&,�
By:f:��S%
ron C. Harp
y Attorney
ATTEST:
Date:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Will O'Neill
Mayor
ASSOCIATION: One Ford Road
Community Association, a California
nonprofit corporation
Date:
By:
Elisabeth C. Schutz
Chief Executive Officer
Date:
By:
Rene Alvarez
Secretary
(END OF SIGNATURES]
Attachments: Exhibit A — Encroachment Agreement
Exhibit B — Depiction of License Area
One Ford Road Community Association Page 9
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
Aaron C. Harp
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
Attachments:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Will O'Neill
Mayor
ASSOCIATION: One Ford Road
Community Association, a California
nonprofit corporation
Date: 5' - 2 /- z
By: /1�
Ross Sarracino
Chief Executive Officer
Date: 6 5 �'J - —%! ��
By: �L i
Richard eRisio
Secretary
[END OF SIGNATURES]
Exhibit A — Encroachment Agreement
Exhibit B — Depiction of License Area
One Ford Road Community Association Page 9
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Exhibit A
ENCROACHMENT AGREEMENT
(See attached)
One Ford Road Community Association
Page A-1
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V
.f-0ECEIVED
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
'01 JUL 16 A 8 :39
City Clerk
City ofNewportBeaph1� L CITYCLER1
3300 Newport Boulev4tt�d..'.;';'
P.O. Box 1768
Newport Beach, CA 92658-8915
Recorded in Official Records, County of Orange
Gary Granville, Clerk -Recorder
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII111111111IIIIINO FEE
20010443768 09:24am 07103101
109 73 Al2 9
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
(Space Above For Recorder's Use)
EXEMPT RECORDING REQUEST PER
GOVERENCROACHMENT AGREEMENT AND DECLARATION OF COVVENA�NTSODE 61
03
BETWEEN LANDOWNERS
(NON-STANDARD STREET MEDIAN IMPROVEMENTS)
THIS AGREEMENT is made and entered into this day of -im,44—, 2001, by
and between PACIFIC BAY PROPERTIES hereinafter referred to as "COMPANY", and 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, hereinafter
referred to as "CITY".
WITNESSETH
WHEREAS, CITY administers certain public street rights -of -way located in the City of
Newport Beach, County of Orange, State of California, which rights -of -way are more
particularly depicted on Exhibit "A" hereto and by this reference incorporated herein ("Right -of -
Ways"); and
WHEREAS, COMPANY owns a portion of that certain real property located on the
corner of Ford Road and Jamboree Road in the City of Newport Beach, County of Orange, State
of California, which real property is more particularly described as Tentative Tract No. 15332
with final Tract No's. 15387, 15388, 15389, 15390, 15391 and 15332, as shown on maps filed in
Book 761, pages�35 through 38 of Miscellaneous Maps, filed in Book 774, pages 34 through 39
of Miscellaneous Maps, filed in Book 774, pages 29 through 33 of Miscellaneous Maps, filed in
Book 761, pages 44 through 47 of Miscellaneous Maps, filed in Book 761, pages 39 through 43
of Miscellaneous Maps, filed in Book 772, pages 25 through 28 of Miscellaneous Maps,
respectively, Records of Orange County, California and which real property is contiguous to the
aforesaid Right -of -Ways which also contain public utility easements; and
WHEREAS, said street right-of-way also contains public utility easements; and
WHEREAS, CITY has sewer, water, street lights and storm drain facilities located within
said utility facilities; and
4871015657-0002
163337.04 a04119J01
15-14
WHEREAS, CITY desires to condition approval of construction of non-standard street
median improvements over a portion of the Right -of -Ways containing said utility facilities; and
WHEREAS, the parties hereto desire to execute an agreement providing for fulfillment of
the conditions required by CITY to permit COMPANY to construct said non-standard median
improvements;
NOW, THEREFORE, in consideration of their mutual promises, the parties hereto agree
as follows:
1. It is mutually agreed that "non-standard street median improvements" shall be
defined as any landscaped areas and accompanying irrigation systems and street or median
surfacing within the Right -of -Ways which is not constructed of asphalt concrete; Portland
cement concrete with only a "broom" or trowel finish; or Bomanite and those landscaping
improvements more particularly described on Exhibit "B" attached hereto and incorporated
herein by reference.
2. CITY will allow COMPANY to construct, reconstruct, install, maintain, use,
operate, repair and replace said non-standard 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 therefore on file in the CITY's Public Works
Department of the City of Newport Beach, in, on, and across the Right -of -Ways. 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 non-standard street median
improvements and all facilities and appurtenances necessary and incidental thereto, all in
substantial conformance with plans and specifications therefore on file in the CITY's Public
Works Department, in, on and across those certain Rights -of -Way depicted on Exhibit "A"
attached hereto and incorporated herein by reference.
(b) COMPANY shall maintain the aforesaid non-standard street median
improvements in accordance with general prevailing standards of maintenance in the
surrounding area, and to pay all cost and expenses incurred in doing so. However, nothing
herein shall be construed to require COMPANY to maintain, replace or repair any utilities or
CITY -owned pipeline, conduit or cable located in or under said non-standard street median
improvements.
Should a dangerous or defective condition occur in the non-standard street median
maintenance improvements (excluding the utilities and CITY -owned improvements),
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 written notice to COMPANY, that COMPANY has
failed or ceased to maintain the non-standard street median improvements as required by this
487/0156S7.0002
163837.04 a04/19/01 -2-
15-15
paragraph, provided, however, that COMPANY shall have until the date of the public hearing to
cure any default under this Agreement. In the event that COMPANY does not cure such default
and the CITY determines that the COMPANY is in default under the terms of this paragraph,
COMPANY agrees the 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 in
the non-standard street median improvements as CITY 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 affecting such emergency repairs.
(c) That should CITY be required to enter onto any easement areas in favor of
CITY to exercise its primary rights associated 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 non-standard street median
improvements and in such event:
1. CITY shall notify COMPANY of its intention to accomplish such
work unless an emergency exists.
2. COMPANY shall be responsible for arranging for any renewal or
restoration of the non-standard street median improvements affected by such work by CITY.
3. CITY agrees to bear only the portion of the cost of any such
renewal or restoration of the non-standard street median improvements, which would be incurred
for the restoration or renewal of standard street improvements in the surrounding vicinity.
4. COMPANY agrees to pay any cost of renewal or restoration of the
non-standard street median improvements in excess of the costs to be paid by CITY.
(d) COMPANY agrees to 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, including reasonable
attorneys' fees (when outside attorneys are so utilized), regardless of the merit or outcome of any
such claim or suit that arise from, or are in any way related to, the installation, maintenance,
renewal, restoration or replacement of the non-standard street median improvements.
COMPANY is not obligated hereunder to indemnify CITY or its officers, agents or employees
for injuries, claims, losses or damages that arise out of the sole negligence or willful misconduct
of CITY, its officers or employees.
4. COMPANY agrees to provide and maintain the irrigation system at no cost to the
CITY and bear the cost of providing water for irrigating the non-standard street median
improvements.
5. COMPANY agrees that if the CITY should ever need to use the right-of-way over
which the non-standard street median improvements are established, together with the
497/015657.0002
163837.04 a05n9/01
-3-
15-16
landscaped areas, CITY can cause the improvements to be removed and face no liability to
COMPANY for the loss of use of the landscaped materials and the non-standard street median
improvements.
6. 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 provisions 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 the heirs,
successors and assigns of COMPANY and shall be recorded in the Office of the County
Recorder of Orange County, California. COMPANY may at any time, without CITY's consent,
assign its rights and obligations under this Agreement to a community association or
homeowners' association who shall be responsible for maintenance of the non-standard street
median improvements. Upon such assignment, COMPANY shall be relieved of any obligations
to CITY hereunder.
487/015657-0002
163837.04 a04/19/01
-4-
15-17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the day and year first above written.
ATTEST:
City Clerk
14
S
S; :
44
Crty Attorney
4871015657.0002
163837.04 a04119101
—J-
CITY OF NEWPORT BEACH,
a Municipal Corporation
By: �..■.r ` rl
Mayor
PACIFIC BAY PROPERTIES,
a California corporation
By:
UA-
1ts:-d5eA10[L V
15-18
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
} ss.
County of � J
On before me,L"G
Nam and Tige o Officer (a.gj6Jane Doe, Nola Pu Eke
personally appeared 611,
Name(s) or Slgner(s) '
personally known to me
�roic}errce--
LINDAMARTINSON to be the person* whose name( is/a*
Commission # 121692D subscribed to the within instrument and
NotaryPubrtc- Corfomia acknowledged to me that he/sWtVy executed
Orange County the same in his/ /t it authorized
WCanrn x5 1MMQy21,a17C3 (� acit ica K p y(' ), and that by his/*04ir
signature* on the instrument the person^ or
the entity upon behalf of which the person(,
acted, executed the instrument.
WITNESS y hand and official seal.-e
L4W ��,,j�
Place Notary Seal Above Signalure o N I I
ry 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: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(les) Claimed by Signer
Signer's Name:
❑ Individual "thumb
❑ Corporate Officer —Title{s):
❑ Partner — ❑ Limited ❑ General
❑ Attomey in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
VIM NaHO" Notary Asxadatlon - 9350 De Soto Ave, P.O. Box 2402 • Chety ofm, CA 91313.2402 - ww fw3onalrwtary.arg Prod. No 5907 Reorder. Cal TofFFraa 1-BOe-B764M
15-19
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
9
State of California
�"� County of l ss.
On (D " I L " before me, O��,J. C
Date Name an Title of Officer (e.g., 'J a Doe. Notary ic' 1 f
personally appearedU1�
personally known to me
❑ proved to me on the basis of satisfactory
evidence
CATHY FISHER to be the perso (s whose nam (s) is are
CommTsslon # 1174329
Notary Public - Cclifomla subscribed to the within inst ent and
Orange County acknowledged to me that he/s he xecuted
@MyComm.bq*esFeb21,2M=M the sam in his/her/ ei authon
capacity i s and that y his/her their
signatur s) on the instrument the perso (s
the entity upon behalf of which the perso (s
acted, executed the instrument.
ESS my hand and official .
Place Notary Seal Above Si natu)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-Rocument
Title or Type of Document: -AA
Document Date: 1 1 p Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name: : • -
❑ Individual
❑ Corporate Officer — Title(s): Top of thumb here
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
O 1997 Natlwal Notary Assoclatlon • 9350 Do Soto Ave.. P.O. Box 2402 • Chatsworth, CA 913132402 Prod. No. 5907 Reorder. Cell Tap -Free 1400-876-8827
15-20
EXHIBIT
TURNBE
DRIVE
FORD ROAD
®NON-STANDARD
STREET MEDIAN IMPROVEMENTS
EXHIBIT "A'
TO ENCROACHMENT AGREEMENT ADD DECLARATION OF COVENANTS
BETWEEN LANDOWNERS
15-21
EXHIBIT `B"
DESCRIPTION OF NON-STANDARD MEDIAN MAINTENANCE IMPROVEMENTS
1. Turf areas to be Double Dwarf Tall Fescue such as Medallion III
2. Tree planting includes twelve (12) Cupaniopsis anacardioides (Carrotwood) and seven (7)
Pinus canarienses (Canary Island Pine)
3. No shrub planting in median
4. Accompanying irrigation system
Note: Colored stamped concrete (Bomanite)—a standard street median improvement —is
installed on the outer perimeter of median.
497/015657-0002
163837.04 a04/19/01 EXHIBIT «B„
15-22
Median Locations
One Ford Roadr
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Medians to be Maintained by the
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'NHGS
One Ford Road HOA
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One Ford Road Community Association Page B-2
15-24
ATTACHMENT B
COOPERATIVE AGREEMENT BETWEEN THE
CITY OF NEWPORT BEACH AND
BELCOURT HILL HOMEOWNERS ASSOCIATION
FOR THE MAINTENANCE OF MEDIAN IMPROVEMENTS
This Cooperative Agreement ("Agreement") is m a d e a n d entered into this
19th day of November, 2024, by and between the City of Newport Beach, a California
municipal corporation and charter City ("City"), and the Belcourt Hill Homeowners
Association, a California nonprofit corporation ("Association"), with the City and
Association individually referred to as "Party" and collectively referred to as "Parties."
RECITALS
WHEREAS, City is a municipal corporation 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 the City;
WHEREAS, the Association is an "association" of homeowners as defined
under Civil Code §4080;
WHEREAS, the City and J.M. Peters Co., Inc. ("J.M. Peters") entered into
that certain "Encroachment Agreement and Declaration of Covenants Between
Landowners (Non -Standard Street Median Improvements)," dated April 14, 1982,
which was recorded in the Official Records of the County of Orange on May 20,
1982, a true and correct copy of which is attached hereto as Exhibit A and
incorporated herein by this reference ("Encroachment Agreement");
WHEREAS, the Encroachment Agreement permitted J.M. Peters to construct
and maintain certain street median improvements on Ford Rd., as depicted on
Exhibit A ("Median Improvements");
WHEREAS, J.M. Peters assigned its duties under the Encroachment
Agreement to the Association via that certain "Assignment of Agreement For Non -
Standard Street Improvements Tract No. 10987," dated December 1, 1982, which
was recorded in the Official Records of the County of Orange on December 7, 1982;
and
WHEREAS, the Parties now desire that the City maintain the Median
Improvements in exchange for the Association supplying the City's water
requirements to support maintenance of the Median Improvements.
15-25
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the Parties hereto agree as follows:
1. RECITALS
The Parties acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference into this Agreement.
2. INTENT
This Agreement is intended to permit the City to fulfill the maintenance duties
of the Association under the Encroachment Agreement. The City's maintenance of
the Median Improvements pursuant to this Agreement shall be deemed compliance
by the Association with its maintenance duties under the Encroachment Agreement.
In the event of termination of this Agreement, the Encroachment Agreement shall
control.
3. TERM AND TERMINATION
This Agreement shall continue in full force and effect until terminated. Either
Party may terminate this Agreement with or without cause, at any time, by providing
at least one hundred eighty (180) days prior written notice to the other Party.
4. CONSIDERATION
4.1. The Association shall provide all water reasonably necessary to
maintain the Median Improvements, at the Association's sole cost. The Association
shall ensure that adequate water is available to maintain the landscaping within the
Median Improvements. Notwithstanding the preceding, the Association shall not be
responsible for providing water to the extent that this is not reasonably possible due
to circumstances outside the Association's reasonable control, including but not
limited to repair or replacement of the Association's irrigation system or interruptions
in water provided by the local water district. In such cases the Association shall act
in good faith to restore normal water service as soon as reasonably possible.
4.2. The City shall maintain the Median Improvements in accordance with
the terms of this Agreement at its sole cost and expense, except for the cost of water
which shall be borne by the Association.
5. LICENSE
5.1. For the purpose of supporting the maintenance of the landscaping
within the Median Improvements by the City, the Association hereby grants the City
a nonexclusive perpetual license to enter on, over, and under the Association's
property, in the areas depicted on Exhibit B attached hereto and incorporated herein
Belcourt Hill Homeowners Association Page 2
15-26
by this reference ("License Area"), to maintain, repair, and replace the connection to
the Association's irrigation facilities. Additionally, the License granted herein shall
include reasonable access to the meter and controller depicted on Exhibit B for the
purpose of adjusting the watering schedule for the Median Improvements, and for
maintenance, emergencies, testing, and other irrigation work.
5.2. The license granted in this Section is solely for the purpose of allowing
the City access to HOA property in the License Area as needed to support; the City's
maintenance of the Median Improvements, and does not create any duty or
responsibility on the part of the City to repair or replace the Associations' irrigation
facilities within the License Area or beyond the License Area. The City's duties to
maintain, repair, and replace irrigation facilities shall be limited to the irrigation
facilities within the Median Improvements depicted on Exhibit B, and includes the
irrigation facilities running from Association property under the public street to the
Median Improvements.
6. MAINTENANCE
6.1. The City shall be solely responsible for any and all costs and expenses
for the maintenance of the Median Improvements, with the exception of water.
6.2. The City shall have the exclusive right to maintain the Median
Improvements as its sees fit in its sole and absolute discretion, including but not
limited to, the type, quantity, and location of any and all landscaping, the removal or
installation of any or all landscaping, the schedule, frequently, and manner of
maintenance of landscaping and other Median Improvements, and the design,
redesign, removal, or replacement of any or all Median Improvements.
6.3. All work shall be performed by City or contractors under the City's
supervision. All work shall be performed in a manner commensurate with community
professional standards and with the ordinary degree of skill and care that would be
used by other reasonably competent practitioners of the same discipline under
similar circumstances. All work shall be performed by qualified and experienced
personnel.
6.4. City shall not be responsible for delay, damages, or be in default or
deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the
failure of Association to furnish approvals or easements promptly, or delay or faulty
performance by Association, its contractors, or agents.
7. REPAIR AND REPLACEMENT RIGHTS
The Association shall act in good faith to grant other licenses to the City, as
reasonably necessary, for the repair and replacement of irrigation facilities
supporting the Median Improvements, including but not limited to, the connection to
Belcourt Hill Homeowners Association Page 3
15-27
the Association's irrigation facilities. No costs, expenses, or fees shall be charged by
Association to the City in the preparation, execution, or granting of additional
licenses pursuant to this section. The City shall be solely responsible for recording
fees, if any.
8. INDEMNITY
8.1. Notwithstanding anything herein to the contrary, the City shall
indemnify, defend, and hold harmless the Association, its management agent, and
their respective officers, agents, volunteers, employees, and board members
("Indemnified Parties") from any and all claims arising out of the City and its agents'
negligence or willful misconduct in the performance of this Agreement.
Notwithstanding the foregoing, nothing herein shall be construed to require the City
to indemnify the Indemnified Parties to the extent that any claim arises from the
negligence or willful misconduct of the Indemnified Parties.
8.2. Notwithstanding anything herein to the contrary, the Association shall
indemnify, defend, and hold harmless the City, its elected officials, officers, agents,
volunteers, and employees ("City Indemnified Parties") from any and all claims
arising out of the Association and its agents' negligence or willful misconduct in the
performance of this Agreement. Notwithstanding the foregoing, nothing herein shall
be construed to require the Association to indemnify the City Indemnified Parties to
the extent that any claim arises from the negligence or willful misconduct of the City
Indemnified Parties.
8.3. The City shall promptly restore Association property to substantially
the same condition as it existed immediately prior to the City commencing any
activity or work, including but not limited to plant material, utility installations, and
other improvements. If Association property is damaged arising out of the City's and
its agents' performance of this Agreement, the City shall promptly repair such
damage. If the City fails to repair and restore Association property to the
Association's reasonable satisfaction, the Association shall provide written notice to
the City identifying the damage or conditions that the City has failed to repair or
restore. If the City fails to perform such repair or restoration within thirty (30) days
thereafter to the Association's reasonable satisfaction, the Association may
undertake such repair or restoration on the City's behalf and the City shall promptly
reimburse the Association for its actual costs incurred.
9. INSURANCE
City shall cause to be purchased and maintain in effect insurance or self-
insurance providing coverage against claims which may arise out of or result from
the activities of the City, any contractor or sub -contractor of the City, anyone directly
or indirectly employed by any of them, or anyone for whose acts any of them may
be liable. City shall provide the Association with certificates of all insurance and self-
Belcourt Hill Homeowners Association Page 4
15-28
insurance promptly upon full execution of this Agreement. Each policy shall provide
that it may not be cancelled or reduced in coverage until thirty (30) days after written
notice has been given to the Association. All insurance required herein shall name
the Association and its management agent as additional insureds, shall be primary
and non-contributory as to any or all Association policies of insurance, and shall
contain a waiver of subrogation in favor of the additional insureds. Insurance
coverage shall be in the form of commercial general liability with coverage of at least
one million dollars ($1,000,000) per occurrence with two million dollars ($2,000,000)
aggregate, auto liability of at least one million dollars ($1,000,000) per occurrence,
and worker's compensation insurance in accordance with law.
10. NOTICE
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 in the United States mail, postage prepaid,
first class mail, addressed as hereinafter provided:
To Association:
Belcourt Hill Homeowners Association
25422 Trabuco Rd., #105-537
Lake Forest, CA 92630
To City:
City of Newport Beach
Public Works Department
Parks Superintendent
100 Civic Center Dr.
Newport Beach, CA 92660
11. PARTY REPRESENTATIVES
11.1. Association shall designate a representative who shall be the point of
contact and coordinate with the City regarding this Agreement. ("Association
Representative"). The Association Representative shall be available to City at all
reasonable times during the Agreement term. The Association has designated
Debbie Boyd of Boyd Management, to be the Association Representative. The
Association may designate additional or different persons to serve as the
Association Representative upon written notice to the City.
Belcourt Hill Homeowners Association Page 5
15-29
11.2. This Agreement will be administered by the City's Parks
Superintendent. City's Parks Superintendent or designee shall be the City's point of
contact and shall have the authority to act for City under this Agreement.
12. STANDARD PROVISIONS
12.1. Compliance with all Laws. Each Party 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.
12.2. 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.
12.3. Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the Parties, 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.
12.4. Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and any attachments attached hereto, the
terms of this Agreement shall govern.
12.5. 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.
12.6. Amendments. This Agreement may be modified or amended only by a
written document executed by both Parties and approved as to form by the City
Attorney.
12.7. 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.
12.8. 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, State of California.
Belcourt Hill Homeowners Association Page 6
15-30
12.9. Equal Opportunity Employment. Association represents that it is an
equal opportunity employer and it shall not discriminate against any subcontractor,
employee or applicant for employment because race, religious creed, color, national
origin, ancestry, physical handicap, medical condition, marital status, sex, sexual
orientation, age or any other impermissible basis under law.
12.10. No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing Party shall not be entitled to attorneys' fees.
12.11. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together
shall constitute one (1) and the same instrument.
12.12. Assignment. Neither Party shall assign its performance of this
Agreement, nor any part thereof, without the prior written consent of the non -
assigning Parties.
12.13. Non -Appropriation. This Agreement is subject to the City's availability
of funds appropriated for this purpose by the City, and nothing herein shall be
construed as obligating the City to expend money or enter into any contract or other
obligation for future payment of money in excess of appropriations authorized by
law.
12.14. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the Parties and their respective heirs, personal
representatives, successors and assigns.
12.15. No Third Party Rights. The Parties do intend to create in or grant
remedies to, any third party as a beneficiary of this Agreement, or of any duty,
covenant, obligation or undertaking established herein.
12.16. Cooperation. Each Party agrees to cooperate with the other and, in
that regard, to sign any and all documents which may be reasonably necessary,
helpful, or appropriate to carry out the purposes and intent of this Agreement
including, but not limited to, releases or additional agreements.
(SIGNATURES ON NEXT PAGE]
Belcourt Hill Homeowners Association Page 7
15-31
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: iZ4
By: �)" t A, 4
Ab�on C. Harp �ola�laM�-
} Attorney
ATTEST:
Date:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
go
Will O'Neill
Mayor
ASSOCIATION: Belcourt Hill
Homeowners Association, a California
nonprofit corporation
Date:
By: By:
Leilani I. Brown Pete Compton
City Clerk Chief Executive Officer
Date-
By -
Michael Bloch
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A - Encroachment Agreement
Exhibit B -- License Area
Belcourt Hill Homeowners Association Page 8
15-32
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
Aaron C. Harp
City Attorney
ATTEST:
Date:
Bv:
Leilani I. Brown
City Clerk
Attachments:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
IN
Will O'Neill
Mayor
ASSOCIATION: Belcourt Hill
Homeowners Association, a California
nonprofit corporation
Date: "2. v 5 — 2
By: 4 cam'
Pete Compton
11VG VIIIGGI
Date:
By:
Michael Bloch
Secretary
[END OF SIGNATURES]
Exhibit A — Encroachment Agreement
Exhibit B — License Area
Belcourt Hill Homeowners Association Page 8
qi�
15-33
Exhibit A
ENCROACHMENT AGREEMENT
(See attached)
Belcourt Hill Homeowners Association
Page A-1
15-34
I _"CORL=D RET�R't 70: QECoRDEO o�r,r,�
r. I ' City Clerk
_n City of Newport Beach
3300 Newport Boulevard
M P. 0. Sox 1768 a g ez-1746.
' Newport Beach, CA 92663-3884
V
Space above this line For recorder's use only.
ENCROACHMENT AGREEMENT AND DECLARATION OF COVENANTS BETWEEN LANDOWNERS
(NON-STANDARD STREET MEDIAN IMPROVEMENTS)
THIS AGREEMENT is made and entered into this _!r} day of
4—Aa- 1> , 1982, by and between the CITY OF NEWPORT BEACH, a municipal
corporation, hereinafter referred to as "CITY" and the J. M. PETERS CO., INC.,
a California Corporation, hereinafter referred to as "COMPANY."
W I T N E S S E T H
WHEREAS, CITY administers certain public street rights -or' -way located
in the City of Newport Beach, County of Orange, State of California, which
rights -of -way are more particularly described in Exhibit "A" hereto and by this
reference incorporated within; and
WHEREAS, COMPANY owns a portion of that certain real property located
on the corner of Ford Road and Jamboree Road in the City of Newport Beach, County
of Orange, State of California, which real property is more particularly described
as Tract No. 10987 as shown on a map filed in Book 477, pages 31 through 36 of
Miscellaneous Maps, Records of Orange County, California and which real property
is contiguous to the aforesaid street right-of-way as shown on Exhibit "A"; and
WHEREAS, said street right-of-way also contains public utility ease -
meats; and
WHEREAS, CITY has sewer, water, street lights, and storm drain facili-
ties located within said street right-of-way; and
WHEREAS, CITY desires to condition approval of construction of non-
standard street median improvements over a portion of said street right-of-way
containing said utility facilities; and
WHEREAS, the parties hereto desire to execute an agreement providing
for fulfillment of the conditions required by CITY to permit CC+4PANY to con-
struct said non-standard median improvements;
1 of 4
city of Newport Beach
15-35
NOW, THE .ORE, in consideration of their itual promises, the parties
hereto agree as follows:
1. It is mutually agreed that "non-standard 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 con-
structed of asphalt concrete, Portland cement concrete with only a "broom" or
trowel finish or Bomanite.
2. CITY will allow COMPANY to construct, reconstruct, install, main
tain, use, operate, repair and replace said non-standard street median improve-
ments 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 non-standard 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 non-standard street -
median improvements and facilities in accordance with general prevailing stan-
dards of maintenance, and to pay all costs and expenses incurred in doing so.
However, nothing herein shall -be construed to require COMPANY to maintain, re-
place or repair any CITY -owned pipeline, conduit or cable located in or under
said non-standard street median improvements.
Should a dangerous or defective condition of said improvements
occur, COMPANY understands and agrees that they are responsible for such con-
dition, 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
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.
2of4
City of Newport Beach
15-36
CITY ref ies to itself the right to makE ich emergency
repairs to the improvements and facilities installed by COMPANY pur-
suant hereto as it deems necessary for the immediate protection of
the public health and safety. OWNER agrees to promptly reimburse
CITY for the reasonable costs and expenses incurred by CITY in ef-
fecting such emergency repairs.
(c) That should CITY be required to enter onto any
easements owned by CITY to exercise its primary rights associated
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 re-
move portions of the non-standard street median improvements and
in such event:
1) CITY shall notify COMPANY of its intention to ac-
complish such work;
2) COMPANY shall be responsible for arranging for
any renewal or restoration of the non-standard street median im-
provements affected by such work by CITY:
3) CITY agrees to bear the portion of the costs of
any such renewal or restoration of the non-standard 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 of renewal or
restoration of the non-standard street improvements in excess of
the costs to be paid by CITY.
(d) COMPANY agrees to indemnify, hold harmless, and de-
fend CITY, its officers, agents and employees, from any and all
demands, claims, losses or liability that arise from, or are in
any way related to, the maintenance, renewal, restoration or re-
placement of the non-standard street median improvements. COMPANY
is not obligated hereunder to indemnify, hold harmless or defend
CITY or its officers, agents or employees for injuries, claims,
losses or damages that arise out of the existence of the street
median or non-standard street median improvements.
4. COMPANY agrees to bear the cost of providing water for ir-
rigating the median improvements.
5. COMPANY agrees that if the CITY should ever need to use
the right-of-way over which the non-standard street improvements
City ®f Newport reach
15-37
are established, together with the landscaped areas, CITY can cause
the improvements to be removed and face no liability to COMPANY for
the loss of use of the landscaped materials and the non-standard
street improvements.
6. 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 modi-
fied, 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 provisions hereto shall be deemed independent and
severable, and the invalidity or partial invalidity or unenforce-
ability 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 bind-
ing upon the 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 Agree-
ment to be executed on the day and year first above written.
ATTE 7c
City Clerk
APP��.EDAFORM:
City Attorney
City of N ewoo4rt
CITY OF NEWPORT BEACH,
a Municipal Corporation
By — , I/,- eA��
"Mayor P o Tem
J.M. P ERS CO_, INC.,
a Ca if rnia Corporat on
By
Ja M. Paters a dent
By
es B. Pioig, acre
each
15-38
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1
1
1
1
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IVMA,KM PLAN
15-39
Median Locations
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N—.b., 21, 2022
Belcourt Hill Homeowners Association Page B-2
15-41