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HomeMy WebLinkAboutC-3637 - Encroachment Agreement and declaration of Covenants between Landowners (Non-Standard Street Improvements)RECORDING REQUES7r1 BY AND WHEN RECORDED RED. 1 TO: 6 D �� o 2 Recorded in Official Recor of 0'` ge County polled / City Clerk City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92663 C3 Pursuant to Gov't Code No. 6103, the City of Newport Beach requets free recordation. mil/ _Dep. City Clerk Space a eve this line 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 r to construct said non-standard improvements; 1 4r 2 fir?-, r 0,: 0 '� 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. -2- 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 4