Loading...
HomeMy WebLinkAbout24 - Cameo Community Association Sound Walls & Entry EnhancementsCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 24 January 24, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Fong Tse 949 - 644 -3324 ftse @city.newport- beach.ca.us SUBJECT: CAMEO COMMUNITY ASSOCIATION SOUND WALLS AND ENTRY ENHANCEMENTS ENCROACHMENT AGREEMENT RECOMMENDATION: Approve an Encroachment Agreement with the Cameo Community Association for the construction of sound walls and entry enhancements fronting East Coast Highway and authorize the Mayor and City Clerk to execute the Agreement. DISCUSSION: The existing East Coast Highway (ECH) southerly frontage along the length of the Cameo Shores Tract is not aesthetically pleasing. In addition to the City's soon- to -be- constructed low slough wall and pedestrian sidewalk, the Cameo Community Association (Cameo) desires to further enhance the aesthetic appearance of the Cameo Shores Tract's ECH frontage with new replacement retaining walls, new sound walls, and forty -one (41) replacement trees behind the new City slough wall from approximately Milford Drive to Cameo Shores Road. Cameo also desires to enhance each of the entrances to the Cameo Highlands and Cameo Shores tracts with new entrance signs complete with uplighting, decorative roadway paving, a raised decorative median with a masonry sign wall and plant pots, landscaping, an irrigation system, and accent columns and boulders. Since the improvements desired by Cameo are within the City's public right -of -way, Cameo is requesting the City to approve an Encroachment and Landscape Maintenance Agreement to permit the work. Staff has worked with Cameo on the provisions of the Agreement and recommends its approval. ENVIRONMENTAL REVIEW: The proposed work is Categorically Exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 of the CEQA Implementing Guidelines. This SUBJECT: CAMEO COMMUNITY ASSOCIATION SOUND WALLS AND ENTRY ENHANCEMENTS ENCROACHMENT AGREEMENT JANUARY 24, 2006 Page 2 exemption covers minor alterations of public highways involving negligible or no expansion of use beyond that existed at the time the project was approved by the City Council. F Fong TW, P.E. Devel ment Services Engineer Submitted by: Stepp G. Badum Public Works Director Attachment: Encroachment and Landscape Maintenance Agreement RECORDING REQUESTED AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92659 -1768 Space above this line Reserved for Use by Recorder ENCROACHMENT AND LANDSCAPE MAINTENANCE AGREEMENT (N2006 -0026) This Encroachment and Landscape Maintenance Agreement ( "Agreement ") is made and entered into this _day of 2006, by and between 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 ( "City "), and the CAMEO COMMUNITY ASSOCIATION, a California nonprofit corporation ( "Cameo "), formed for the purpose of managing and operating the communities located in the Cameo Shores and Cameo Highlands Tracts ( "Cameo Tracts ") in Newport Beach, California. City and Cameo are collectively referred to herein as "Parties." RECITALS A. WHEREAS, City is the owner of certain real property in the City of Newport Beach, located along East Coast Highway between: (i) Cameo Shores Road and Milford Drive; and (ii) Cameo Shores Road and Cameo Highlands Drive, both within the Cameo Tracts (herein referred to as "City Property "). The City Property is being used as a parkway and is described more particularly in Exhibit A and depicted on the map attached hereto as Exhibit B. B. WHEREAS, to enhance the aesthetic appearance of the Cameo Tracts, Cameo desires to install and maintain entrance signs, landscaping, a screening wall and other improvements on the City Property. C. WHEREAS, said improvements may interfere in the future with City's ability to construct, operate, maintain and replace City and other public facilities and improvements within City Property. D. WHEREAS, City is willing to allow Cameo to install and maintain the improvements subject to the terms and provisions of this Agreement. NOW, THEREFORE, in consideration of the above recitals and the mutual promises contained herein, Cameo and City hereby agree as follows: AGREEMENT 1. Incorporation of Recitals. The above Recitals are incorporated into this Agreement in full by this reference. 2. Effective Date. This Agreement shall be deemed effective on the date first set forth above (the "Effective Date ") and shall continue in effect until terminated as provided herein. 3. Assignment of Installation Rights and Maintenance Obligations. Subject to the terms and provisions contained herein, City hereby assigns to Cameo: (a) The right to install, maintain, repair and replace Improvements (as defined in Section 4 below) and appurtenances incidental thereto, and (b) The obligation to maintain the Improvements within the City Property. 4. Approved Improvements. It is mutually agreed that the Improvements shall be defined as: (1) a screening wall, irrigation system, landscaping and lighting on City Property along Coast Highway (hereinafter the "Coast Highway Improvements "); and (2) landscaping, irrigation systems, lighting and other improvements to be installed at the entrances of the Cameo Tracts at Cameo Shores Road and Cameo Highlands Drive (the "Entrance Improvements "). The Coast Highway Improvements and the Entrance Improvements shall be collectively referred to herein as "Improvements." The precise improvements to be installed are detailed in the plans and specifications approved by the City in the following plans: Plan No. R- 5893 -S (Coast Highway & Hampton Road Retaining Wall & Screen Wall) (5 sheets dated August 29, 2005), and Plan No. R- 5903 -S (Cameo Shores Road & Cameo Highlands Drive HOA Entries Improvements) (6 sheets dated August 29, 2005). These plans and specifications shall be referred to herein as the "Approved Plans." If any of the Improvements actually built or installed during the time of construction vary from the Approved Plans, such variations or changes must be approved in advance by the Public Works Department and shall be shown on the "As Built' Plans. 5. Tree Replacement. There are 41 trees, identified as 13 Coral, 7 Brazilian Pepper,19 Eucalyptus,1 New Zealand Christmas and 1 Mexican Fan Palm, to be removed and replaced as part of the Approved Plans. Cameo acknowledges and agrees that the trees identified to be removed and replaced as part of the Approved Plans shall not be removed and replaced unless Cameo has first received approval to remove the trees, in accordance with City Council Policy G -1 (Retention and Removal of City Trees). 6. Encroachment Permit. Prior to commencement of any work on City Property, Cameo shall apply for and obtain an Encroachment Permit with the City's Public Works Department, authorizing it to perform the installation of the Improvements within the City right -of -way ( "Permit'). 2 7. Installation of Improvements. Cameo shall install the Improvements in substantial conformance with the Approved Plans on file with the City's Public Works Department. 8. License. The City hereby grants to Cameo a license to construct and maintain the Improvements upon all of the terms and conditions of the Permit and this Agreement, which can be revoked in the event City determines that the City Property is needed for a public purpose. 9. Covenants. Cameo hereby agrees to install, operate, inspect, monitor, maintain, relocate, and /or remove the Improvements in accordance with this Agreement, the Public Works Department's Permit requirements, and all applicable provisions of the City of Newport Beach Municipal Code, as amended from time to time. 10. Standard of Maintenance. Cameo shall, at its sole cost and expense, maintain the Improvements installed within City Property in good condition and repair and as required by City. Cameo shall maintain the City Property in accordance with generally prevailing standards of maintenance, and pay all costs incurred in doing so, including the cost of water and electricity. In the event that Cameo does not maintain the Improvements and the City Property as required herein, the City may terminate the License as more particularly provided in Section 14 herein. 11. Alteration of Improvements. Cameo shall not materially alter the Improvements from their original condition as installed according to the Approved Plans without the prior written approval of City. City's approval of the proposed alterations to the Improvements shall not be unreasonably withheld. 12. Failure to Perform. If Cameo fails to fulfill its maintenance or other responsibilities under this Agreement, City may provide Cameo written notice of such failure describing the deficiencies in reasonable detail ( "Deficiency Notice "), provided that an emergency situation does not exist. If such deficiency is not corrected within ten (10) business days of Cameo's receipt of Deficiency Notice, City shall have the right, but not the obligation, to cure the deficiency; provided, however, that if the deficiency is of a type that cannot reasonably be cured within ten (10) business days, it will be deemed cured if Cameo commences to cure the deficiency within such period and proceeds diligently thereafter to complete the cure of such deficiency. If City elects to cure the deficiency, it shall be performed at City's standard rates and prices, and Cameo shall reimburse City for its costs incurred in curing the deficiency within fifteen (15) days of Cameo's receipt of City's invoice for such costs. Such invoice shall be accompanied by copies of receipts evidencing the actual cost of cure incurred by City. 13. Liens. Cameo shall not suffer or permit to be enforced against City Property any mechanics, laborers, materialmen, contractors, subcontractors, or any other liens, claims or demands arising from any maintenance or other work performed by Cameo within City Property, but Cameo shall pay or cause to be paid all of said c liens, claims and demands before any action is brought to enforce the same against City Property. 14. Term. This Agreement shall remain in effect indefinitely from the Effective Date, provided that: (a) City may terminate this Agreement for cause upon thirty (30) calendar days' prior written notice to Cameo in the event that Cameo breaches any term of this Agreement or fails to perform or cure any failure to perform as provided in Section 10 above; or (b) City may terminate this Agreement if it determines, in its sole discretion, that the property is needed for a public purpose upon 120 days prior written notice from City to Cameo. If this Agreement is terminated, City shall have the right to remove all or any portion of the Improvements. City shall incur no liability whatsoever in the event of the termination of this Agreement, or subsequent removal of the Improvements by City. 15. Right of Removal. Cameo agrees that should City be required to enter onto City Property to exercise its primary ownership rights, including, but not limited to, the maintenance, removal, repair, renewal, replacement or enlargement of existing or future public facilities or improvements, City may remove portions of the Improvements, as required, and in such event: (a) City shall notify Cameo of its intention to accomplish such work, if an emergency situation does not exist. (b) Cameo shall be responsible for arranging for any renewal, replacement, or restoration of the Improvements affected by such work by City. (c) City agrees to bear only the cost of any removal of the Improvements affected by such work by City. (d) Cameo agrees to pay all costs for renewal, replacement, or restoration of the Improvements. 16. Damage to City Facilities. If City or other public facilities or improvements are damaged by the installation or presence of the Improvements, Cameo shall be responsible for the cost of repairs. 17. Insurance. Cameo shall obtain, provide and maintain, at its sole cost and expense, policies of liability insurance of the type and amounts described below and in a form satisfactory to City, and shall require in all of its contracts with any contractors that perform any design, installation, maintenance or other work in connection with City Property, that such contractors also provide the same insurance coverage as outlined herein. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and shall be filed with City prior to performance of any work on or within City Property. Except for workers compensation and any errors and omissions coverage, all insurance policies shall, to the extent coverage is provided under such policies, add City, its elected officials, officers, agents, 4 representatives and employees as additional insureds for all liability arising from such work related to City Property. Insurance policies for the following coverages, with original endorsements related to the Improvements, shall be issued by companies approved or licensed to do business in California and assigned Best's A -VII or other rating acceptable to City: A. Coverage Requirements Workers' Compensation Coverage. Cameo shall require each contractor or subcontractor that performs work pursuant to this Agreement to maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the contractor's and subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Cameo or its subcontractors for City. ii. General Liability Coverage. Cameo and any of its contractors or subcontractors that perform work pursuant to this Agreement shall maintain for the duration of this License, a general liability insurance policy in the amount of not less than One Million Dollars ($1,000,000) per occurrence for injuries to persons or damages to property, that may arise from or in connection with the work to be performed under this Agreement by Cameo, its agents, representatives, employees, contractors or subcontractors, or which may arise from or in connection with the design, construction, operation, maintenance or continued existence of the Improvements. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Cameo shall require that all of its contractors and subcontractors that perform work under this Agreement maintain for the duration of this License, automobile insurance covering bodily injury and property damage for all activities of Cameo, its agents, representatives, employees, or subcontractors that may arise from or in connection with the work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than One Million Dollars ($1,000,000) combined single limit for each occurrence. 5 B. Professional Errors and Omissions Insurance. For any contractors providing design services, professional errors and omissions insurance shall be required, which covers the services to be performed in connection with the Approved Plans or landscaping to be installed on or within City Property, in the minimum amount of One Million Dollars ($1,000,000). C. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of Cameo. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from Cameo's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by any party except after thirty (30) calendar days written notice has been delivered to the City (10 calendar days written notice of non - payment of premium). D. Timely Notice of Claims. Cameo shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Cameo's performance under this Agreement. !: E. Additional Insurance. Cameo shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 18. Indemnification by Cameo. Cameo shall defend, indemnify, and hold harmless City, its City Council, boards and commissions, elected and appointed officers, agents and employees (collectively, the "Indemnified Parties') from and against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees when outside attorneys are used (collectively, "Claims ") arising from or related to (a) the design, construction, installation, maintenance or continued existence of the Improvements, (b) the acts of Cameo, its employees (if any), contractors or subcontractors within the City Property, and (c) Cameo's performance of its obligations hereunder; provided, however, that Cameo's indemnity obligations shall not apply to the extent that any Claim is caused by the negligence or willful misconduct of the Indemnified Parties. 19. Indemnification by City. City shall indemnify, defend and hold Cameo harmless from and against any Claims arising from or related to City's performance of its obligations hereunder; provided, however, that City's indemnity obligations shall not apply to the extent that any Claim is caused by the negligence or willful misconduct of Cameo. 20. Notices. Notices required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given if personally delivered or sent by prepaid first class mail, addressed as follows: City of Newport Beach Public Works Department 3300 Newport Boulevard (P.O. Box 1768) Newport Beach, California 92658 -8915 Attention: City Engineer Cameo Community Association c/o Villageway Property Management 2 Venture Irvine, CA 92618 21. Incorporation of Exhibits. Exhibit A and Exhibit B are attached hereto and are hereby incorporated herein by this reference. 22. Corporate Authority. The persons executing this Agreement on behalf of each Party warrant that he/she is duly authorized to execute and deliver this Agreement on behalf of the respective Party for whom they sign, and that by so executing this Agreement, the Parties are bound by the provisions of this Agreement. 7 23. Entire Agreement. This Agreement and the exhibits attached hereto constitute the entire Agreement between the Parties pertaining to the subject matter hereof, and all prior and contemporaneous agreements, representations, negotiations and understandings of the Parties, whether oral or written, are hereby superseded and merged herein. 24. Controlling Law and Venue. The laws of the State of California shall govern this Agreement and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 25. Compliance with Laws. Cameo 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. 26. 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. 27. Amendments. This Agreement may be modified or amended only by a written document executed by both Cameo and City and approved as to form by the City Attorney. 28. 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. 29. Successors and Assigns. Cameo agrees that this Agreement shall remain in full force and effect from execution thereof and shall be binding upon the heirs, successors, and assigns of Cameos' interest in the land, whether fee or otherwise. 30. Recordation. This Agreement shall be recorded in the Office of the County Recorder, County of Orange, California, and it shall serve as notice to all parties succeeding to the interest of Owners or the City that their use of the Cameo Property and the City Property shall be benefited and /or restricted in the manner herein described. M IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: LM Aaron C. Harp Assistant City Attorney for the City of Newport Beach ATTEST: LaVonne Harkless, City Clerk Attachments: Exhibit A Exhibit B f:\Users\pbw\shared\oouncil\fy05-06\01-24\Gameo hoa ea.doc 01 CITY OF NEWPORT BEACH: by: Don Webb Mayor for the City of Newport Beach CAMEO COMMUNITY ASSOCIATION: M (Corporate Officer) Title: Print Name: By: (Financial Officer) Title: Print Name: EXHIBIT -A That portion of Block 95, Irvine's Subdivision, in the City of Newport Beach, County of Orange, State of California, as per map filed in Book 1, Page 88, Miscellaneous Record Maps, in the office of the County Recorder of said County, described as follows: Beginning at the most Westerly corner of Lot 27, Tract No. 3357, as per map filed in Book 107, Pages 1 through 7, Miscellaneous Maps in the office of said County Recorder, thence South 58 degrees 38' 00" East 91.39 feet along the southwesterly line of said lot and the Southeasterly prolongation of said line to the Southeasterly line of said Block 95; thence South 39 degrees 3600 "West 573.03 feet along said southeasterly line to a point of cusp with a tangent curve in the boundary of said Tract No. 3357 concave Westerly having a radius of 430.00 feet, a radial to said point bears South 50 degrees 25' 00" East; thence along the boundary of said tract, the following courses and distances: Northerly 315.39 feet along said curve through an angle of 42 degrees 01'30 "; North 2 degrees 26'30" West 86.00 feet to a point of cusp with a tangent curve concave Northeasterly having a radius of 15.00 feet; Southeasterly 23.56 feet along said curve through an angle of 90 degrees 00'00 "; North 87 degrees 33'30" East 105.00 feet; North 2 degrees 26'30" West 86.21 feet; North 65 degrees 22'00" East 82.27 feet to the point of beginning. EXHIBIT "B" N.T.S .r