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HomeMy WebLinkAboutC-4105 - Encroachment Agreement and Declaration of Covenants between LandownersRECORDING REQUESTED AND WHEN RECORDED RETURN TO: City Clerk City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 IDOL # 93-O8 1579 13—DEC-1993 02:09 PM Recorded in Official Records UI Ofrige LUwRy, b 1.L IunI1. Lee A. Fr=n_h, C_:mty Recorder Face 1 of 7 Fees: $ 23.00 Tait: $ 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT AND DECLARATION OF COVENANTS BETWEEN LANDOWNERS THIS AGREEMENT is made and entered into this a` , 1993, by and between Harbor Day Sc (hereinafter "SCHOOL"), and the City of Newport Beach 'oR 2 1993 Cm, C py. r� o^T \ xEw, hool, , 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, SCHOOL owns that certain real property on the northerly side of San Joaquin Hills Road between Marguerite Avenue and Spyglass Hill Road, more particularly described as Parcel 2 of Resubdivision No. 287 as shown on a map recorded in Book 35, Page 2 of Parcel Maps in the office of the County Recorder of Orange County, California; also known as 3443 Pacific View Drive, Corona del Mar, California; and WHEREAS, SCHOOL desires to install a flashing beacon and sign to advise motorists westbound on San Joaquin Hills Road of the presence of the school loading zone (hereinafter "PERMITTED IMPROVEMENTS"); and 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 between Marguerite Avenue and Spyglass Hill Road (hereinafter "RIGHT-OF-WAY"); and WHEREAS, City has water, sewer, street lighting and storm drain facilities located within RIGHT-OF-WAY; and WHEREAS, SCHOOL utilizes a gate opening onto San Joaquin Hills Road for access to school grounds both before and after classes; and WHEREAS, SCHOOL strictly supervises the loading and unloading of 1 students to and from vehicles parked along the northerly curb of San Joaquin Hills Road in the area of the gate; and WHEREAS, CITY during the approval of Use Permit 1546 in 1990 acknowledged and authorized the presence and use of the gate and indicated that it could remain so long as it did not create a problem for traffic on San Joaquin Hills Road; and WHEREAS, PERMITTED IMPROVEMENTS may interfere in the future with CITY's ability to construct, operate, maintain, and replace CITY and other public facilities and improvements within RIGHT-OF-WAY; and WHEREAS, the parties hereto desire to execute an agreement providing for the installation and maintenance of PERMITTED IMPROVEMENTS within RIGHT-OF-WAY; NOW, THEREFORE, in consideration of these mutual promises, the parties hereto agree as follows: 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as the flashing beacon, sign, striping, pole, foundation and electrical conduit including wiring within RIGHT-OF-WAY as shown on EXHIBIT "A". 2. CITY will allow SCHOOL to construct, reconstruct, install, maintain, use, operate, repair and replace PERMITTED IMPROVEMENTS and appurtenances necessary and incidental thereto, over RIGHT-OF-WAY, all in substantial conformance with plans and specifications and Encroachment Permit on file in the CITY's Public Works Department, in, on, and across those certain rights -of -way shown in Exhibit "A". CITY will further allow SCHOOL to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 3. SCHOOL and CITY further agree as follows: a. SCHOOL may construct and install PERMITTED IMPROVEMENTS and appurtenances incidental thereto, in substantial conformance with plans and specifications therefor on file in the CITY's Public Works Department, and as described on Exhibit "A" hereto attached. b. SCHOOL shall maintain PERMITTED IMPROVEMENTS in accordance with general prevailing standards of maintenance, with the 2 exception of roadway striping, and shall pay all costs and expenses doing so. However, nothing herein shall be construed to require SCHOOL to maintain, replace or repair any CITY -owned pipelines, conduit or cable located in or under said PERMITTED IMPROVEMENTS, except as otherwise provided herein. c. CITY shall maintain the roadway striping installed as part of the PERMITTED IMPROVEMENTS in accordance with general prevailing standards of maintenance and shall pay all costs and expense in doing so. d. If City or other public facilities or improvements are damaged by the installation or presence of PERMITTED IMPROVEMENTS, SCHOOL shall be responsible for the cost of repairs. e. That should CITY be required to enter onto RIGHT-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 SCHOOL of its intention to accomplish such work, if any emergency situation does not exist. (ii) SCHOOL 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) SCHOOL agrees to pay all costs for renewal or restoration of the PERMITTED IMPROVEMENTS. f. That SCHOOL 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 SCHOOL's actions or failure to and provisions of this agreement. 4. That in the event the City Council or CITY determines, after a public hearing held on at least thirty (30) days' prior written notice to SCHOOL, that SCHOOL has failed or ceased to maintain the 3 aforesaid improvements and facilities as required by this paragraph, SCHOOL agrees the CITY may, at CITY'S option, assume the maintenance thereof and may bill SCHOOL directly for the costs of such maintenance. SCHOOL agrees to pay the amount set forth in said bills promptly, upon receipt of such billing. 5. In the event either party breaches any material provision of this Agreement, the other party at its option may, in addition to the other legal remedies available to it, terminate this Agreement, and, in the event the breaching party is SCHOOL, CITY may enter upon RIGHT- OF-WAY and remove all or part of PERMITTED IMPROVEMENTS installed by SCHOOL. Termination because of breach shall be upon a minimum of ten (10) days' notice, with the notice specifying the date of termination. 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. SCHOOL agrees to bear the cost of providing electricity for operating the PERMITTED IMPROVEMENTS. 7. SCHOOL 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 SCHOOL'S actions, or failure to act in connection with the onstruction, reconstruction, installation, maintenance, use, operation, repair and replacement of PERMITTED IMPROVEMENTS according to the terms and provisions of the Agreement, except to extent caused by the active negligence of City, its officers and employees. 8. SCHOOL represents that its Executive Committee is duly authorized by its Board to execute this type of agreement on its behalf. 9. SCHOOL agrees that this Agreement shall remain in full force and effect from execution thereof, shall run with the land; shall be binding upon the heirs, successors, and assigns of SCHOOL's interest in the land whether fee or otherwise, and shall be recorded in the Office of the County Recorder of Orange County, California. 10. When notice is to be given pursuant to this Agreement, it shall be as follows: CITY OWNER City of Newport Beach Harbor Day School Office of the City Attorney 3443 Pacific View Drive 3300 Newport Boulevard Corona del Mar, CA 92625 Newport Beach, CA 92659-1768 Attention: Headmaster 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 icipal corporation SCHOOL: Harbor Day school ) STATE OF CALIFORNIA )ss. COUNTY OF ORANGE ) On 4`} . a 9 /993 0 pefore me, /Qx--(/7ez-, ZG/i% � / r � personally appeared Clare/"ICe-/�lt1l,/P/"' 44 d0 ZU4'1ioda- r- K2a1 personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is clip subscribe • to the within instrument and acknowl-••-• to me that he/she �sii7! executed the same in h ' s /h =' / th - it " . uthor i z ed capacity ies), and that by his/he e) si• ure(s) on the instrument the person(s) or the enti p6n behalf of which the person(s) acted, executed the instrument. WITNES& my hand and officiy seal. Notary Public i 1d for sd State Shauna Lyn Oyler r V�R Comm #1002681 V it k 1 NOTARY PUBLIC CALIEORNI�' t��+ ORANCSE COUNTY e � Cemtfl. Expro Aug. 22'1997 A. l/LA(JL"(.'V /'.l , 1,,,, ucivic MG, /)VII=/l.'/} I�r ,xocu = u_ /VCJLC(1)/ 6()c , personally appeared �-6111 5 (� , 5 t4g Ff�P f 6- ,personally known to me (ex- �nn * a haci c of anti fartn7: .i..dP.n,ce-} to be the person (-s-) whose name(-s4 is/awe subscribed to the within instrument and acknowledged to me that hekohc/they executed the same in his/hcr/thoir authorized capacity(ies), and that by his/herfttrei7 signature (-s- on the instrument the person W or the entity upon behalf of which the person( acted, executed the instrument. WITNESS my hand and official seal Signature AG\Harbor-D (This area for official notarial seal) 5 J r, RONNA L OOMN A% ORANGE couNiyy My comet. expires OCT 28.1994 as 111H NIdOa1S M3N w1038 -o .0C .0 SAN JOAOUIN HILLS I (1H0I?J MO138 33S) .,v,. 3N1lH3iTiFi U. N N 0 N � 0 UU 3 SSYl0Ad8 — U O 0 0 0 OW O 0 0 < N 0 j5 W$ Nieltl 1S 1,13N CN3 ti SAN JOAOUIN HILLS RD (1HoIb' M0138 33SX „8„ 3NI1HO.LVYV SCHOOL FLASHER PLAN (Y J J c» au) cc Q J J0.. J a 10 2 I- W 0> Qa O W -, �w Q� N CC i 0 cc (1331 3n08e 33S „8., 3NI1H01dw SAN JOAOUIN HILLS RD