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
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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
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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)
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