HomeMy WebLinkAboutC-3340(A) - Encroachment Agreement and Declaration of Covenants between Landowners (Non-Standard Street Median Improvements)r-<ECEiVED
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
'01 JUL 16 A 8 :39
City Clerk
City ofNewport$ea.ehbF THE CITY CLERK
3300 Newport Boul,erO _>>n j,R; 3EACH
P.O. Box 1768
Newport Beach, CA 92658-8915
Recorded in Official Records, County of Orange
Gary Granville, Clerk -Recorder
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(Space Above For Recorder's Use)
EXEMPT RECORDING REQUEST PER
GOVERCODE
ENCROACHMENT AGREEMENT AND DECLARATION OF COVENANTS�T6103
BETWEEN LANDOWNERS
(NON-STANDARD STREET MEDIAN IMPROVEMENTS)
THIS AGREEMENT is made and entered into this 1 1)i4`- day of QT, 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
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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
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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
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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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the day and year first above written.
ATTEST:
City Clerk
TTEST:
City Attorney
CITY OF NEWPORT BEACH,
a Municipal Corporation
By: anCe... k►
Mayor
COMPANY
PACIFIC BAY PROPERTIES,
a California corporation
By:
Its: %to. V pGSL
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
On
personally appeared
, befoat-R,re me, I t ���
Na
Pill ck
Name(s) of Signer(s)
personally known to me
LI prove
U
UNDA MARTINSON
Commission # 1216920
Notary Public - California i
Orange County g'
MyCamm" May21,2:03 t
Place Notary Seal Above
SS.
m and Title o fficer (e.g.J ane Doe, Nota Pu lic")
to be the person(,, whose name(b(j is/a*
subscribed to the within instrument and
acknowledged to me that he/4/t4(y executed
the same in his/fikt Air authorized
capacity(iK), and that by his/t /thiiir
signature(%) on the instrument the person(i % or
the entity upon behalf of which the person(,
acted, executed the instrument.
WITNESS ;y hand and official sea1.4"
OPTIONAL
Signature o N.t ry Public
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(ies) Claimed by Signer
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHT THUI
OF SIG
PRINT
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01999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313.2402 • www.nationalnotary.org
Prod. No. 5907 Reorder. Call Toll -Free I.800-876.6827
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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State of California
County of
On I LI " 0 ) , before me, 013...4k• � �`�� U/o1, C
Date Name an Title of Officer (e.g., "Jame Doe, Notary P lic"
personally appeared VOJ(UW\
Name(s) of Signer(s)
personally known to me
CATHY FISHER
Commission # 1174329
Notary Public - California
Orange County
My Comm. Eli es Feb 21, 2002
Place Notary Seal Above
❑ proved to me on the basis of satisfactory
evidence
to be the perso (s whose nam
subscribed to the within instr . ent and
acknowledged to me that he/s - xecuted
the sam- in his/her/ author'
capacity, and that •y his/her
signatur:Oon the instrument the perso
the entity upon behalf of which the perso
acted, executed the instrument.
ESS my hand and official seal.
OPTIONAL
Si
otary Public
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 Attache -Document
Title or Type of Document: v \..ors-exJV
Document Date: - 0 1 Number of Pages: 5
Signer(s) Other Than Named Above:
0},\('
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
O Partner — ❑ Limited ❑ General
O Attorney in Fact
❑ Trustee
0 Guardian or Conservator
O Other:
Signer Is Representing:
RIGHT THUMBPRINT
OF SIGNER
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01997 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Prod. No. 5907 Reorder: Call Toll -Free 1.800-876.8827
NON-STANDARD
STREET MEDIAN IMPROVEMENTS
EXHIBIT "A"
TO ENCROACHMENT AGREEMENT ADD DECLARATION OF COVENANTS
BETWEEN LANDOWNERS
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.
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EXHIBIT `B"