HomeMy WebLinkAboutC-3637 - Encroachment Agreement and declaration of Covenants between Landowners (Non-Standard Street Improvements)RECORDING REQUES7r1 BY AND
WHEN RECORDED RED. 1 TO:
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Recorded in Official Recor
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City Clerk
City of Newport Beach
3300 Newport Boulevard
Newport Beach, California 92663
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Pursuant to Gov't Code No.
6103, the City of Newport
Beach requets free recordation.
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_Dep. City Clerk
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RECORDED IN OFFICIAL RECORDS
OF ORANGE COUNTY, CALIFORNIA
5 Min.
Past
for recorder's use only.
1. P.M. FEB 5 190
LEE A. BRANCH, Co :3:y IltacgraN
ENCROACHMENT AGREEMENT AND DECLARATION OF COVENANTS BETWEEN LANDOWNERS
(NON-STANDARD STREET IMPROVEMENTS)
DECEMBER
THIS AGREEMENT is made and entered into this FOURTH day of
, 1979, by and between the CITY OF NEWPORT BEACH, a municipal
corporation, hereinafter referred to as "CITY" and the LE BIARRITZ RESTAURANT,
INC., a California Corporation, hereinafter referred to as "OWNERS."
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 described in Exhibit "A" hereto and
by this reference incorporated within; and
WHEREAS, OWNERS own that certain real property located at 414 North
Newport Boulevard in. the City of Newport Beach, County of Orange, State of
California,which real property is more particularly described as Lots 25 and
26 of Tract 27 as shown on a map filed in Book 9, page 26 of Miscellaneous
Maps, Records of Orange County, California, and which real property is con-
tiguous to the aforesaid street right-of-way; and
WHEREAS, said street right-of-way also contains public utility
easements; and
WHEREAS, CITY has sewer and storm drain facilities located within
said street right-of-way; and
WHEREAS, CITY desires to condition approval of construction of non
standard street improvements over a portion of said street right-of-way con-
taining said utility facilities; and
WHEREAS, the parties hereto desire to execute an agreement pro-
viding for fulfillment of the conditions required by CITY to permit OWNERS ei,;;>.?Z`D
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to construct said non-standard improvements;
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NOW, THEREFORE, in consideration of their mutual promises, the
parties hereto agree as follows:
1. It is mutually agreed that "non-standard street improvements"
shall be defined as any landscaped areas and street or sidewalk surfacing
within the public street right-of-way which is not constructed of asphaltic
concrete or Portland cement concrete with only a "broom" or trowel finish.
2. CITY will allow OWNERS to construct, reconstruct, install,
maintain, use, operate, repair and replace said non-standard street improvements
and all facilities andappurtenances 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 OWNERS to take all reasonable
measures necessary or convenient in accomplishing the aforesaid activities.
3. OWNERS and CITY further agree as follows:
(a) OWNERS shall construct and install non-standard street
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 cer-
tain rights -of -way described in Exhibit "A" hereto.
(b) OWNERS shall maintain the aforesaid non-standard street
improvements and facilities in accordance with general prevailing standards
of maintenance, and to pay all costs and expenses incurred in doing so.
However, nothing herein shall be construed to require OWNERS to maintain,
replace or repair any CITY -owned pipeline, conduit or cable located in or
under said non-standard street improvements.
Should a dangerous or defective condition of said improvements
occur, OWNERS understand and agree that they are responsible for such condition,
and further agree 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 OWNERS that OWNERS have failed or ceased to maintain the
aforesaid improvements and facilities as required by this paragraph, OWNERS
agree that CITY may, at CITY's option, assume the maintenance thereof and
may bill OWNERS directly for the costs of such maintenance. Owners agree to
pay the amounts set forth in said bills promptly, upon receipt of such billing.
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CITY reserves to itself the right to make such emergency
repairs to the improvements and facilities installed by OWNERS pursuant hereto
as it deems necessary for the immediate protection of the public health and
safety. OWNERS agree to promptly reimburse CITY for the reasonable costs and
expenses incurred by CITY in effecting 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, or storm drain facilities,
the CITY may remove portions of the non-standard street improvements and in
such event:
i) CITY shall notify OWNERS of its intention to accom-
plish such work;
(ii) OWNERS shall be responsible for arranging for any re-
/ newal or restoration of the non-standard street improvements affected by such
work by CITY;
(iii) CITY agrees to bear the portion of the costs of any
such renewal or restoration of the non-standard street improvements not in
excess of the cost which would be incurred for the restoration or renewal of
standard street improvements in the same location;
(iv) OWNERS agree to pay any costs of renewal or restora-
tion of the non-standard street improvements in excess of the costs to be
paid by CITY.
(d) OWNERS agree to indemnify and hold harmless CITY, its
officers, agents and employees from all demands, claims, losses or liability
on account of injury or damage to persons or property suffered or claimed to
be suffered as a result of the construction, use, maintenance or renewal of
the non-standard street improvements.
4. The OWNERS agree that if the CITY should ever need to use the
right-of-way over which the non-standard street improvements are established,
together with the landscaped areas, that the CITY can cause the improvements
to be removed and face no liability to the OWNERS for the loss of use of the
landscaped materials and the non-standard street improvements.
5. 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.
6. 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.
7. The provisions hereto shall be deemed independent and severable,
and the ►nvalidity or partial invalidity or unenforceability of any one pro-
vision► or portion thereof shall not affect the validity or enforceability of
any other provisions hereof.
8. It is mutually agreed that this Agreement shall be binding upon
the heirs, successors and assigns of Owners.
9. Each of the parties hereto specifically consents to the recorda-
tion of this "Encroachment Agreement and Declaration of Covenants Between
Landowners (Non -Standard Street Improvements)," in the office of the County
Recorder of Orange County, California, and the covenants, restrictions and
charges hereunder, and all their benefits and burdens shall run with the land
as contemplated pursuant to Section 1468 of the Civil Code of the State of
California.
EXECUTED this FOURTH day of DECEMBER , 1979.
APPROVED
AS TO
City ttorney
RM:
CITY OF NEWPORT BEACH,
a Municipal Corporation
B
LE BIARRITZ RESTAURANT, INC.,
a California Corporation, Owners
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