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HomeMy WebLinkAboutC-2250 - Encroachment Agreement and Declaration of Covenants between Landowners (Non-Standard Street Median Improvements)86--0,18; 56 EXEMPT RECORDING REQUEST P. GOVERNMENT CODE 6103 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: r City Clerk AY CITY OF NEWPORT BEACH 3300 Newport Boulevard Newport Beach, CA 92663-3884 EXEMPT C11 SC9t Plkid RECORDED IN OFFICIAL RECORDS OF ORANGE COUNTY CALIFORNIA -2 30 PM FEB 4'86 v 4 c_ couNTY RFCURDER of ENCROACHMENT AGREEMENT AND DECLARATION OF COVENANTS BETWEEN LANDOWNERS (NON-STANDARD STREET MEDIAN IMPROVEMENTS) _ a THIS AGREEMENT is made and entered into this �� L, day CITY OF NEWPORT REACT , CALIF. FEB 251986 0- CITY rtER , 19, by and between the CITY OF NEWPORT BEACH, a municipal corporation, hereinafter referred to as "CITY" and BAYVIEW I, a Joint Venture, hereinafter referred to as "OWNER". 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, OWNER owns a portion of that certain real property located on the corner of Bristol Street and Jamboree Road in the City of Newport Beach, County of Orange, State of California, which real property is more particularly described as Tentative 12212 and proposed Final Tract 12528 and which real property is contiguous to the aforesaid street right-of-way as shown on Exhibit "A"; and WHEREAS, said street right-of-way also contain public utility easements; and WHEREAS, CITY has sewer, water, street lights, and storm drain facilities 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 OWNER to construct said non-standard median improvements; 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 OWNER to construct, reconstruct, install, maintain, use, operate, repair and replace non-standard street median improvements and all facilities and appurtenances 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 OWNER to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 3. OWNER and CITY further agree as follows: (a) OWNER 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 therfor on file in the CITY's Public Works Department, in, on, and across those certain rights -of -way described in Exhibit "A" hereto. (b) OWNERS 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 OWNER 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, OWNER 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 written notice to OWNER, that OWNER has failed or ceased to maintain the aforesaid improvements and facilities as required by this paragraph, OWNER agrees that CITY may, at CITY's option, assume the maintenance thereof and may bill OWNER directly for the costs of such maintenance. OWNER agrees to pay the amounts set forth in said bills promptly, upon receipt of such billing. CITY resolves to itself the right to make such emergency repairs to the improvements and facilities installed by OWNER 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 OWNER of its intention to accomplish such work; 2) OWNER 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) OWNER 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) OWNER 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 improvements. OWNER 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. 4. OWNER agrees to bear the cost of providing water for irrigating the median improvements. 5. OWNER 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 OWNER 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 provision 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 OWNER and shall be recorded in the Office of the County Recorder of Orange County, California; provided, however, that OWNER 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, OWNER 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. CITY OF NEWPORT BEACH, a _al Corporation ATTEST: Mayor APPROVED AS TO FORM: City -Attorney BAYVIEW I, a joint venture composed of J.M. PETERS COMPANY, INC., a California corporation, and DSL SERVICE COMPANY, a California corporation By: J.M. PETERS COMPANY, INC., a California corporation, a joint venturer, authorized agent BERT C. LIEWER, Vice President STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE On this / day of , 1985, before me, a Notary Public, State of California, personally appeared Robert Burnham, known to me to be the City Attorney of the City of Newport Beach, the municipal corporation described in and that executed the within instrument, and also known to me to be the person who executed the within instrument on behalf of the municipal corporation therein named, and acknowledged to me that such municipal corporation executed the same. cial seal. C, OFFICIAL SEAL CHRISTINA E. LIEBL NOTARY PUBLIC - CALIFORNIA PRINCIPAL OFFICE IN ORANGE COUNTY M" Commission Exp. Nos. 4, 1988 STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE On this /� day of % , 1985, before me, a Notary Public in and for said 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 J.M. PETERS COMPANY, INC., a corporation, and acknowledged to me that they subscribed the name of the corporation, said corporation being one of the joint venturers of BAYVIEW I, the joint venture therein named. WITNESS my hand and official seal. CHRISTINA E. LIEBL NOTARY PUBLIC • CALIFORNIA PRINCIPAL OFFICE IN ORANGE COUNTY My Commission Exp. Nov. 4, 1988 STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE On this day of , 198., before me, a Notary Public, State of California, personally appeared Philip R. Maurer, known to me to be the Mayor of the City of Newport Beach, the municipal corporation described in and that executed the within instrument, and also known to me to be ther person who executed the within instrument on behalf of the municipal corporation therein named, and acknowledged to me that such municipal corporation executed the same. WITNESS my hand and official seal. STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE On this day of , 198 , before me, a Notary Public, State of California, personally appeared Wanda Raggio, known to me to be the City Clerk of the City of Newport Beach, the municipal corporation described in and that executed the within instrument, and also known to me to be the person who executed the within instrument on behalf of the municipal corporation therein named, and acknowledged to me that such municipal corporation executed the same. WITNESS my hand and official seal. 5 • 01 ro A 0 IMO MS. EXHIBIT A F---1 I - F-1 1-"°----11 i - i ----• 1 t 1 I I L _J 1 < A 4. a r-- - ' {-----i ..." ,.42._. _ ______, r -----1 I I __J FAQ 34.1111 J 1 1/2 I I I 1 .0"