HomeMy WebLinkAboutC-2152(A) - Encroachment Agreement and Declaration of Covenants between Landowners (Non-Standard Street Median Improvements) (for Tract No. 11604 Bison Avenue/Jamboree Road)OorcKnnent Code 61C3
85-- 057908
RECORDED REQUESTED BY AND
WHEN RECORDED RETURN,TO:
City Clerk-1--;:'7):771%` l'''
City of Newport Beach
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92663-3884
Copy to:
J.M. Peters Company, Inc.
1601 Dove Street, Suite 190
Newport Beach, CA 92660
EXEMPT
C1 1
RECORDED IN OFFICIAL RECORDS
OF ORANGE COUNTY CALIFORNIA
-4 oo PRE FEB 19'85
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ENCROACHMENT AGREEMENT AND DECLARATION OF COVENANTS BETWEEN LANDOWNERS
(NON-STANDARD STREET MEDIAN IMPROVEMENTS)
THIS AGREEMENT is made and entered into this //
day of
F.c/�. , 1985, by and between the CITY OF NEWPORT BEACH, a municipal
corporation, hereinafter referred to as "CITY" and BAYRIDGE, a joint venture,
hereinafter referred to as "COMPANY".
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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, COMPANY owns a portion of that certain real property located
on the corner of Bison Avenue and Jamboree Road in the City of Newport Beach,
County of Orange, State of California, which real property is more particularly
described as Tract No. 11604 as shown on a map filed in Book 529, pages 25 to
28 inclusive, of Miscellaneous Maps, Records of Orange County, California and
which real property is contiguous to the aforesaid street right-of-way also
contains public utility easements; and
WHEREAS, CITY has sewer, water, street lights, and storm drain facili-
ties 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 COMPANY to construct
said non-standard median improvements;
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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 COMPANY to construct, reconstruct, install,
maintain, use, operate repair and replace said non-standard street median
improvements and all facilities and appurtances 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 those certain rights -of -way described
in Exhibit "A" hereto. 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 described in Exhibit "A" hereto.
(b) COMPANY 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 COMPANY 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, 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 to
written notice to COMPANY, that COMPANY has failed or ceased to maintain the
aforesaid improvements and facilities as required by this paragraph, COMPANY
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agrees that 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 and facilities installed by COMPANY 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 COMPANY of its intention to accomplish
such work;
(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 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) COMPANY 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) COMPANY 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 improve-
ments. COMPANY 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.
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4. COMPANY agrees to bear the cost of providing water for irrigating
the median improvements.
5. COMPANY 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 COMPANY 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 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; provided, however, that COMPANY
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, COMPANY 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.
ATTEST:
APPROVED AS TO FORM,:
Ci y`Attorney
CITY OF NEWPORT BEACH,
a Mu rj eip 1 Corporation
Mayor
BAYRIDGE, a joint venture
By: J.M. PETERS COMPANY, INC.
By
By
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R
'BERT J. T'
Vice Presid
ROBERT C. LIEWER, Vice President
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On , 1985, before me, the undersigned, a
Notary Public in and for the State, personally appeared
known to me to be the Mayor, and , known to me to
be the City Clerk of the Municipal Corporation that executed the within Instrument,
known to me to be the persons who executed the within Instrument on behalf of the
Municipal Corporation therein named, and acknowledged to me that such Municipal
Corporation executed the within Instrument pursuant to a resolution of its
City Council.
WITNESS my hand and official seal.
STATE OF CALIFORNIA )
ss
COUNTY OF ORANGE
Notary Public in and for said State
On January 29th , 1985, before me, the undersigned, a
Notary Public in and for the 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 the J.M. PETERS COMPANY,
INC., a California corporation, and acknowledged to me that they subscribed the
name of the corporation, said corporation being one of the joint venturers of
BAYRIDGE, the joint venture therein named.
WITNESS my hand and official seal.
OFFICIAL SEAT.
CHRISTINA E. UEBL
NOTARY PUBLIC CALIFORNIA
PRINCIPAL CENCI WI
ORANGE COWRY
My COmMISSion Exp. Nov. 4.1s8
Notalic in and for said State
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EXHIBIT A
Area to be maintained
by Homeowners Association