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Home My WebLink AboutC-1417(A) - Encroachment Agreement EP98-159 for 3401 Finley AvenueRECORDING REQUESTED AND WHEN RECORDED RETURN TO: rx Public Works Department City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 Recorded in the County of Orange, California Gary L. Granville, Clerk/Recorder 111111I I1 01� No Fee 19980478253 1:43pm 07/24/98 005 29006862 29 57 Al2 6 6.00 15.00 0.00 0.00 0.00 0.00 Space above this line fo. _ ENCROACHMENT AGREEMENT pATf 615 fo (EP98-159) THIS AGREEMENT is made and entered into this r%/' day of , 1998, by and between Dorothy J. Ettensperger (hereinafter "OWNER"), 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"), "OWNER" is the owner of property located at 3401 Finley Avenue, Newport Beach, California and legally described as Lot 1, Block 434, Canal Section (hereinafter "SUBJECT PROPERTY"), as shown on a map recorded in Book 1, Page 88 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; WITNESSETH: WHEREAS, OWNER desires to construct and maintain certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the 34th Street right-of- way (hereinafter "RIGHT-OF-WAY") serving of Lot 1, Block 434, Canal Section, as shown on a map recorded in Book 1, Page 88, inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; and WHEREAS, Eaid PERMITTED IMPROVEMENTS may interfere in the future with CITY'S ability to construct, operate, maintain, and replace CITY and other public facilities and improvements withi:1 RIGHT-OF-WAY; and WHEREAS; the parties hereto desire to execute an agreement providing for fulfillment of the conditions required by CITY to permit OWNER to reconstruct and maintain said PERMITTED IMPROVEMENTS; NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1 1. It is mutually agreed that PERMITTED IMPROVE..,ENTS shall be defined as cement with terra-cotta tile and loose rock sidewalk, landscaping, and appurtenances in the 34th Street right-of-way as shown on EXHIBIT "A" attached hereto and as approved by the City Engineer. 2. CITY will permit OWNER to construct, reconstruct, install, maintain, use, operate, repair and replace said PERMITTED IMPROVEMENTS and appurtenances incidental thereto, within a portion of RIGHT-OF-WAY, all in substantial conformance with plans and specifications on file in the CITY. CITY will further allow OWNER to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 3. Rights granted under this Agreement may be terminated by CITY at any time by giving 60 days' notice, specifying in said notice the date of termination. CITY shall incur no liability whatsoever in the event of the termination of this Agreement, or subsequent removal of improvements by cry. 4. OWNER and CITY further agree as follows: a. OWNER 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. OWNER shall maintain the PERMITTED IMPROVEMENTS in accordance with general prevailing standards of maintenance, and pay all costs and expenses incurred in doing so. In add?don, any new and existing trees, shrubs, and landscaping that are on the adjacent City proporty shall be maintained at the roof line of the existing structures at all times. 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 PERMITTED IMPROVEMENTS, except as otherwise provided herein. c. If City or other public facilities or improvements are damaged by the installation or presence of PERMITTED IMPROVEMENTS, OWNER shall be responsible for the cost of repairs. d. That should CITY be required to enter onto said RIGHT-OF-WAY to exercise its primary rights a ,;;ociated with said RIGHT-OF-WAY, including but not limited to, the maintenance, removal, repair, renewal, replacement or enlargement of existing or future 2 public facilities or improvements, CITY may remove po. .ins of the PERMITTED IMPROVEMENTS, as required, and in such event: (i) CITY shall notify OWNER of its intention to accomplish such work, if any emergency situation does not exist. (ii) OWNER shall be responsible for arranging for any renewal or restoration of the PERMITTED IMPROVEMENTS affected by such work by CITY; CO CITY agrees to bear only the cost of any removal of the PERMITTED IMPROVFMENTS affected by such work by CITY; (iv) OWNER agrees to pay all costs for renewal or restoration of the PERMITTED IMPROVEMENTS. 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 OWNER, CITY may enter upon the RIGHT-OF-WAY and remove all or part of the improvements installed by OWNER. 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. OWNER shall defend, indemnify, waive, 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 the design, construction, maintenance, or continued existence of the PERMITTED IMPROVEMENTS. 7. OWNER shall accept the fact that surface drainage water may enter onto the "SUBJECT PROPERTY" from "RIGHT-OF-WAY" located in the City of Newport Beach, County of Orange, State of California, as depicted on Exhibit "A" attached hereto, whether naturally or as a rep gilt of the development or improvement of the "RIGHT-OF-WAY". 8. OWNER shall accept and waive any and all liability for any damages to the "SUBJECT PROPERTY" caused by the flow of such surface drainage water onto the "SUBJECT PROPERTY". OWNER shall defend, indemnify, waive and hold harmless CITY, its 3 City Council, boards and cc„dmissions, officers and employees . Jm and against any and all Toss, 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 to surface drainage water entering the "SUB Jr: CT PROPERTY" from the "RIGHT-OF-WAY". 9. OWNER 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 OWNERS' interest in the land whether fee or otherwise, and shall be recorded in the Office of the County Recorder of Orange County, California. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first -above written. APPROVED AS TO FORM: By: City Attorney CITY OF NEWPORT BEACH, a Municipal corporation ATTEST: OWNER: daddx,„ City Cleric B Bv: 111Wdft /i Dorothy / tensperger 4 STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) / On / p2/ / Y V , 1-998, before me, ,/ 4 144a,,7 glee -- personally a� eared ,'07' o al24 7T /7 5,�x/�' e personal) known to me (or proved to me on"h basis of satisfactory EKiiden6) to be the person(s whose name �s'j are subscribed to the within instrument and acknowledged to me that he/ -hey has executed the same in hi -' Olio eir authorized capacity , and that by his/her/their signatures'on the instrument the person7ror the entity upon -behalf of which the person acted, execvtid the instrument. WITNESS my hard ana official seal. Notary Public in and fo .aid Stat (This area for official notarial seal) STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) On Jf.) 6 i cA , 1998, before me,Qcti` \ C personally appeared '( :,v - C>> `lam_ ��.wc �� L.�� .t 1�cc�r�-1�,1 ) personal y known to me (er- ee-t-he-basi-s of satisfactory evidence) to be the person sj\Nhose nam s) is re ` ubscribed to the within instrument and ack o edged to me that he/she the has executed the same in his/her/ heir authorized capacity es) )and that by his/he their signatur s9on the instrument the perso (s) r the entity upon behalf of which the person ac ed, executed the instrument. WITNESS my hand and official seal. Notary Public d or said State (This area for official notarial seal) F:\G roups/Pubworks/Encroach/ROW_agmts/98/98-159ETTE.doc CATHY FISHER Commission+# 1 174329 z Notary Public - California Orange County Comm. Exrires 21. 2D02 5 ATY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT EXHIBIT `B 1OF2 SKETCH FOR ENCROACHMENT PERMIT NO, EP- - 159 LEGEND; a= i � „� `� %ram wck� TREE / POWER P14 E SEWER CII EANOUT WATER METER BOX 7,sr1x) 11"'-9n 70 Job Address Owner elephone No. 2/7 -`- �Jt_ Existing Curb and Gutter -% Center line of street —� 04. 1cA =-------- F?C1—� Please make a sketch of' the immediate vicinity showing all property lines, dimensions street names, Ocation of trees,._light_standar_.ds,._.fir_e__�_ys� ants,_park1ngj eters or __01� other existing Inproveren�s which might be affected by the proposed encroachments. (SEE REVERSE 1SThr Works shall be done according to City Specifications and Is subject to City Inspection,