HomeMy WebLinkAboutC-2250 - Encroachment Agreement and Declaration of Covenants between Landowners (Non-Standard Street Median Improvements)86--0,18; 56
EXEMPT RECORDING REQUEST P.
GOVERNMENT CODE 6103
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO: r
City Clerk AY
CITY OF NEWPORT BEACH
3300 Newport Boulevard
Newport Beach, CA 92663-3884
EXEMPT
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RECORDED IN OFFICIAL RECORDS
OF ORANGE COUNTY CALIFORNIA
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ENCROACHMENT AGREEMENT AND DECLARATION
OF COVENANTS BETWEEN LANDOWNERS
(NON-STANDARD STREET MEDIAN IMPROVEMENTS)
_ a
THIS AGREEMENT is made and entered into this �� L, day
CITY OF
NEWPORT REACT ,
CALIF.
FEB 251986 0-
CITY rtER
, 19, by and between the CITY OF NEWPORT BEACH, a
municipal corporation, hereinafter referred to as "CITY" and BAYVIEW
I, a Joint Venture, hereinafter referred to as "OWNER".
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, OWNER owns a portion of that certain real property
located on the corner of Bristol Street and Jamboree Road in the
City of Newport Beach, County of Orange, State of California, which
real property is more particularly described as Tentative 12212 and
proposed Final Tract 12528 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 contain public utility
easements; and
WHEREAS, CITY has sewer, water, street lights, and storm
drain facilities 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 OWNER to construct said non-standard median improvements;
NOW, THEREFORE, in consideration of the 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 public street right-of-way which is not constructed of
asphalt concrete, portland cement concrete with only a "broom" or
trowel finish or Bomanite.
2. CITY will allow OWNER to construct, reconstruct,
install, maintain, use, operate, repair and replace 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
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 OWNER to
take all reasonable measures necessary or convenient in
accomplishing the aforesaid activities.
3. OWNER and CITY further agree as follows:
(a) OWNER 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 therfor on file in the CITY's Public
Works Department, in, on, and across those certain rights -of -way
described in Exhibit "A" hereto.
(b) OWNERS shall maintain the aforesaid non-standard
street median 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 OWNER to maintain, replace 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, OWNER 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 OWNER, that OWNER has
failed or ceased to maintain the aforesaid improvements and
facilities as required by this paragraph, OWNER agrees that CITY
may, at CITY's option, assume the maintenance thereof and may bill
OWNER directly for the costs of such maintenance. OWNER agrees to
pay the amounts set forth in said bills promptly, upon receipt of
such billing.
CITY resolves to itself the right to make such
emergency repairs to the improvements and facilities installed by
OWNER pursuant 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 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, 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 OWNER of its intention to
accomplish such work;
2) OWNER 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 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) OWNER 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) OWNER agrees to indemnify, hold harmless, and
defend 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 replacement
of the non-standard street median improvements. OWNER 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. OWNER agrees to bear the cost of providing water for
irrigating the median improvements.
5. OWNER agrees 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, CITY can cause the
improvements to be removed and face no liability to OWNER 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
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 provision 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 OWNER and shall be
recorded in the Office of the County Recorder of Orange County,
California; provided, however, that OWNER 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, OWNER shall be
relieved of any obligations to CITY hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the day and year first above written.
CITY OF NEWPORT BEACH,
a _al Corporation
ATTEST:
Mayor
APPROVED AS TO FORM:
City -Attorney
BAYVIEW I, a joint venture
composed of J.M. PETERS COMPANY,
INC., a California corporation,
and DSL SERVICE COMPANY, a
California corporation
By: J.M. PETERS COMPANY, INC.,
a California corporation,
a joint venturer, authorized
agent
BERT C. LIEWER, Vice President
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE
On this / day of , 1985, before me, a Notary
Public, State of California, personally appeared Robert Burnham,
known to me to be the City Attorney of the City of Newport Beach,
the municipal corporation described in and that executed the within
instrument, and also known to me to be the person who executed the
within instrument on behalf of the municipal corporation therein
named, and acknowledged to me that such municipal corporation
executed the same.
cial seal.
C,
OFFICIAL SEAL
CHRISTINA E. LIEBL
NOTARY PUBLIC - CALIFORNIA
PRINCIPAL OFFICE IN
ORANGE COUNTY
M" Commission Exp. Nos. 4, 1988
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE
On this /� day of % , 1985, before me, a Notary
Public in and for said State, personally appeared Robert J. Trapp
and Robert C. Liewer, personally known to me or proved to me on the
basis of satisfactory evidence to be the persons who executed the
within instrument as Vice President and Vice President or on behalf
of J.M. PETERS COMPANY, INC., a corporation, and acknowledged to me
that they subscribed the name of the corporation, said corporation
being one of the joint venturers of BAYVIEW I, the joint venture
therein named.
WITNESS my hand and official seal.
CHRISTINA E. LIEBL
NOTARY PUBLIC • CALIFORNIA
PRINCIPAL OFFICE IN
ORANGE COUNTY
My Commission Exp. Nov. 4, 1988
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE
On this day of , 198., before me, a Notary
Public, State of California, personally appeared Philip R. Maurer,
known to me to be the Mayor of the City of Newport Beach, the
municipal corporation described in and that executed the within
instrument, and also known to me to be ther person who executed the
within instrument on behalf of the municipal corporation therein
named, and acknowledged to me that such municipal corporation
executed the same.
WITNESS my hand and official seal.
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE
On this day of , 198 , before me, a Notary
Public, State of California, personally appeared Wanda Raggio, known
to me to be the City Clerk of the City of Newport Beach, the
municipal corporation described in and that executed the within
instrument, and also known to me to be the person who executed the
within instrument on behalf of the municipal corporation therein
named, and acknowledged to me that such municipal corporation
executed the same.
WITNESS my hand and official seal.
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