HomeMy WebLinkAboutC-4109 - Encroachment Agreement and Declaration of Covenants between Landowners (for San Joaquin Hills Road and Marguerite Avenue)PLEASE COMPLETE THIS INFORP`+TION
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ENCROACHMENT AGREEMENT
AND
DECLARATION OF COVENANTS BETWEEN LANDOWNERS
THIS AGREEMENT is made and entered into this j day
f '_ 4,et- , 1993, by and between Harbor View Hills South
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Homeowners Association, Corona del Mar, (hereinafter
"ASSOCIATION"), and the City of Newport Beach, California, 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 "CITY");
W ITNESSET H:
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 as
San Joaquin Hills Road and Marguerite Avenue; and
WHEREAS, certain individually owned lots within the Harbor
View Hills South Development have rear property lines along San
Joaquin Hills Road and Marguerite Avenue in the City of Newport
Beach, County of Orange, State of California, and their real
property is more particularly described as Tract No. 6152 as shown
on a map filed in Book 260, Pages 22 to 27 of Miscellaneous Maps,
Records of Orange County, California and which real property is
contiguous to San Joaquin Hills Road and Marguerite Avenue; and
WHEREAS, The Irvine Company, as a condition for developing
property along San Joaquin Hills Road, has been required by the
County of Orange to construct a noise wall along the San Joaquin
Hill Road boundary of Tract No. 6152; and
WHEREAS, portions of the proposed wall will remove an existing
landscape buffer, and be taller than is required to attenuate the
roadway noise; and
WHEREAS, CITY has reviewed plans for the noise wall and
approved a height variance Modification No. 4084 to allow a wall
higher than six feet to be constructed at the property line subject
to the condition that the sidewalk and landscaping be modified to
allow substantial landscaping to be planted to screen the wall and
create a more aesthetic appearance for users of San Joaquin Hills
Road; and
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WHEREAS, the additional landscaping to be installed adjacent
to the wall is more than would normally be maintained by the "CITY"
and is to be placed to mitigate the affects of a higher wall
adjacent to the public rights -of -way; and
WHEREAS, CITY has conditioned approval of the PERMITTED
IMPROVEMENTS on the agreement that either the applicant Irvine
Company, or ASSOCIATION will maintain all landscaped areas located
between the noise wall and the sidewalk; and
WHEREAS, Article II of ASSOCIATION's Articles of Incorporation
filed January 9, 1967, at paragraph (b) provides that one of the
purposes of ASSOCIATION is to:
'... maintain, operate, and care for such parkways... now
existing or hereafter established or constructed within or
adjacent to said property for the general use and enjoyment of
the owners, lessees and/or occupants of said property which
are not adequately provided by public authority or otherwise;
and
WHEREAS, the Association's By -Laws, at Article V, Section 1
(f) state that the Board of Directors may "levy assessments to
provide for the maintenance, improvements or development of
property owned, controlled or occupied by the Association, or
in performing or causing to be performed any of the purposes
of the Association for the general benefit and welfare of its
members...; and" '
WHEREAS, ASSOCIATION maintains landscaped common areas and
certain areas adjacent to streets in Tract No. 6152 pursuant to
that certain Corporation Grant Deed recorded October 2, 1975, in
the Records of Orange County, California; and
WHEREAS, the parties hereto desire to execute an agreement
providing for the maintenance of PERMITTED IMPROVEMENTS installed
in the public rights -of -way along San Joaquin Hills Road;
NOW, THEREFORE, in consideration of these mutual premises, the
parties hereto agree as follows:
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall
be defined as any landscaped areas and accompanying irrigation
systems within the public street right-of-way and hardscape which
is not constructed of asphalt concrete, and portland cement
concrete with only a "broom" or trowel finish. The PERMITTED
IMPROVEMENTS are those improvements installed by the Irvine Company
under a separate permit issued by CITY and adjacent to the new
noise wall.
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2. CITY will allow ASSOCIATION to reconstruct, install,
maintain, use, operate, repair and replace PERMITTED IMPROVEMENTS
and all facilities and appurtenances necessary and incidental
thereto, over CITY's rights -of -way, 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 shown in Exhibit "A". CITY will
further allow ASSOCIATION to take all reasonable measures necessary
or convenient in accomplishing the aforesaid activities.
3. ASSOCIATION and CITY further agree as follows:
a. ASSOCIATION shall maintain the PERMITTED
IMPROVEMENTS in accordance with general prevailing standards of
maintenance, and pay all costs and expenses incurred in doing so.
Trees shall be kept pruned 8 feet above the sidewalk. Trees and
shrubs shall be kept pruned a minimum of 6 inches outside the
sidewalk area below the 8 foot elevation.
b. If City or other public facilities or improvements
are damaged by the presence of PERMITTED IMPROVEMENTS, ASSOCIATION
shall be responsible for the cost of repairs.
c. That should CITY be required to enter onto said
rights -of -way to exercise its primary rights associated with said
rights -of -way, including but not limited to, the maintenance,
removal, repair, renewal, replacement or enlargement of existing or
future public facilities or improvements, CITY may remove portions
of the PERMITTED IMPROVEMENTS, as required, and in such event:
(i) CITY shall notify ASSOCIATION of its
intention to accomplish such work, if any emergency situation does
not exist.
(ii) ASSOCIATION shall be responsible for
arranging for any renewal or restoration of the PERMITTED
IMPROVEMENTS affected by such work by CITY;
(iii) CITY agrees to bear only the cost of any
removal of the PERMITTED IMPROVEMENTS affected by such work by
CITY;
(iv) ASSOCIATION agrees to pay all costs for
renewal or restoration of the PERMITTED IMPROVEMENTS.
d. That ASSOCIATION shall remedy any defective or
dangerous condition within, upon or adjacent to PERMITTED
IMPROVEMENTS occurring after completion of the PERMITTED
IMPROVEMENTS and arising out of ASSOCIATION's actions or failure to
act in connection with the term
s and provisions of this Agreement.
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4. That in the event the City Council of CITY determines,
after a public hearing held on at least thirty (30) days' prior
written notice to ASSOCIATION, that ASSOCIATION has failed or
ceased to maintain the aforesaid improvements and facilities as
required by this paragraph, ASSOCIATION agrees the CITY may, at
CITY's option, assume the maintenance thereof and may bill
ASSOCIATION directly for the costs of such maintenance.
ASSOCIATION agrees to pay the amount set forth in said bills
promptly, upon receipt of such billing.
5. In the event of litigation commenced with respect to any
term of condition of this Agreement, the prevailing party shall be
entitled to reasonable attorneys fees and costs incurred.
6. ASSOCIATION agrees to bear the cost of providing water
for irrigating the PERMITTED IMPROVEMENTS.
7. ASSOCIATION shall indemnify 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 arising from or in any manner
connected with ASSOCIATION's actions, or failure to act in
connection with the reconstruction, installation, maintenance, use,
operation, repair and replacement of PERMITTED IMPROVEMENTS
according to the terms and provisions of the Agreement.
8. ASSOCIATION represents that execution of this Agreement
has been duly authorized by the Board at a regular meeting an
entered into the minutes of the Association.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the day and year first -above written.
APPROVED „AS -T6r"-F9RM:
By:
City At trney
4
CITY OF NEWPORT BEACH,
a Municipal corporation
ASSOCIATION:
Harbor View Hills South
Homeowners Association
STATE OF CALIFORNIA )ss.
COUNTY .pF ORANGE )
On 72.
df / 9 3 ,_b� fore
personally appeared !'ii you h
personally known to ine (or proved
satisfactory evidence) to be the perso
subscri to the within instrument and
he/she executed the same in
capacit ies�, and that by his/he t1ei
instrum-. the perso s) or the entity upon
perso''s acted, exec ed the instrument.
WITNESS my hand and official sal.
Notary Public in an far said -► ate
basi
is
me tT1
authorized
r_ -s ignature on the
behalf of which the
Shauna Lyn Oyler K
:I Comm. #1002681
- ► In,
NOTARY PUBLIC CALIFORNI
" , ORANGE COUNTY
-oComm. Expires Aug 22. 1997
�F 4
STATE OF CALIFORNIA )ss.
COUNTY'OF ORANGE )
On ., 5 9fore.,, al-U��
pers ally appeared e7/ ///ii7 , i ail 31 L�aiI..�
personally known to ine (or proved t o me on the basis' of
satisfactory evidence) to be the perso s whose nam
subscri) e.d to the within instrument and cknow
he/sh
capacit
instrum
perso�n%%(
is area
me t at
executed the same in .,slh,e their authorized
, and that by his/he/their_—signatureL on the
the perso s) or the entity upon behalf of which the
acted, exec ed the instrument.
WITNESS my hand and official sell.
STATE OF CALIFORNIA )
COUNTY OF ORANGE
ss:
AAA_AAA
Shauna Lyn Oyler
U Comm. #100-2681
NOTARY PUBLIC CALIFORNI `f '
ORANGE COUNTY O
Z Comm. Expu�s Aug. 22. 1997
On _4GLfGf S /8 , 1993, before me, (a. 5• ,BTT/rf/ /.
personally appeared
4./p,I c • GUa-//q c e a/9" ,aberr .oa ftersaA/
satisfactory evidence) to
4/Or' y pa8G-/c_
known to me (or proved to me on the basis
be the person(s) whose name (s i /are
subscribed to the within instrument and acknowledged to me that
la./her/their executed the same in / /their authorized
capacity ies), and that by h /h P/their signaturea) on the instrument
the person(,as) or the entity upon behalf of which the persons(s) acted,
executed the instrument.
WITNESS my h a")i
d and official seal.
Signature
ag\e-sanjoa.enc
5
(This area for official notarial seal)
of