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Home My WebLink AboutC-2912(B) - Encroachment Agreement (for 1 Hoag Drive)0 ,? i ; ;' :. v -1 1_ RECORDING REQUESTED AND WHEN RECORDED RETURN TO: City of Newport Beach Post Office Box 1768 Newport Beach, CA 92659-1768 Recorded in Official Records, County of Orange Tom Daly, Clerk -Recorder 11111 ILii1IiIIIII!IIi!iI1II1111II1I!II'IIPIIIIiNO FEE 2003001098609 08:28z mi 09/09/03 213 10-9 Al2 8 0.00 0 00 0.00 0 00 6.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT THIS AGREEMENT is made and entered into this V,2 =�� day of C)"- y , 2003, by and between Hoag Memorial Hospital Presbyterian (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 1 Hoag Drive, Newport Beach, California 92658-6100 and legally described as a portion of Lot 172, Block 1, Irvine Subdivision, as shown on a map recorded in Book 1, Pages 88, of Miscellaneous Maps in the office of the County Recorder of Orange County, California. WITNESSETH: WHEREAS, OWNER desires to construct certain improvements (hereinafter "PERMITTED IMPROVEMENTS") within Superior Avenue right-of- way (hereinafter "right-of-way") that is located within a portion of the Superior Avenue right-of-way, and within the Sunset View City Park (hereinafter "park"), for which dedication by OWNER was accepted by CITY per Document #19970333829 in the office of the County Recorder of Orange County, California on July 15, 1997; and Page 1 WHEREAS, said 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 park; and WHEREAS, the parties hereto desire to execute an agreement providing for fulfillment of the conditions required by CITY to permit OWNER to construct, reconstruct and maintain said PERMITTED IMPROVEMENTS. NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as tie -backs, landscaping and appurtenances in right-of-way and tie- backs under park as shown on EXHIBIT "A", attached hereto and as approved by the Public Works Department. PERMITTED IMPROVEMENTS, as identified in this Agreement, shall not be interpreted in such a manner so as to diminish the rights of CITY and OWNER described in Document #19970333829. In addition, the proposed PERMITTED IMPROVEMENTS may vary at the time of construction. Hence, any changes must be approved by the Public Works Department and shall be shown on the "As Built" plans. 2. CITY will permit OWNER to construct, reconstruct, install, maintain, use, operate, repair and replace said PERMITTED IMPROVEMENTS and appurtenances incidental thereto, within right-of-way and park, all in substantial conformance with plans and specifications on file in the CITY and any modifications that have been approved by the Public Works Department. 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 may construct and install PERMITTED IMPROVEMENTS and appurtenances incidental thereto, in substantial Page 2 conformance with plans and specifications therefore on file in the CITY'S Public Works Department, and as described on Exhibit "A" hereto attached, and including any modifications thereto that have been approved by the Public Works Department. 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. 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. The construction of PERMITTED IMPROVEMENTS shall not preclude CITY from developing the subject right-of-way or park. d. Should owner determine that the underground PERMITTED IMPROVEMENTS need repair, or replacement, and are able to complete repairs without disturbing any surface improvements, OWNER may make such repairs without requiring prior written approval of the Public Works Director. e. If any City or other public facilities or improvements (surface or underground) are damaged, by the installation or presence of PERMITTED IMPROVEMENTS, or are damaged or will be damaged by any necessary repairs or replacement of PERMITTED IMPROVEMENTS, OWNER shall be responsible for cost of repairs and/or replacement of both Permitted Improvements and/or City facilities and improvements. f. That should CITY be required to enter onto said right-of- way to exercise its primary rights associated with said, right-of-way including but not limited to, the maintenance, removal, repair, renewal, replacement or Page 3 enlargement of existing or future public facilities or improvements, and if any tiebacks are to be disturbed or landscape improvements removed, 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, replacement, 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) OWNER agrees to pay all costs for renewal, replacement, or restoration of the PERMITTED IMPROVEMENTS. 4. In the event OWNER breaches any material provision of this Agreement, the CITY may at its option may, in addition to the other legal remedies available to it, repair deficiencies and bill OWNER for repair costs which shall be reimbursed within 30 days. 5. OWNER shall defend, 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), to the extent caused by the design, construction, maintenance, or continued existence of the PERMITTED IMPROVEMENTS. OWNER'S obligation to defend and indemnify CITY under this section shall apply provided CITY promptly notifies OWNER of such indemnifiable claim and allows OWNER to defend with counsel of OWNER'S choosing and provides reasonable assistance in such defense or settlement at the request and expense of OWNER; provided, Page 4 however, OWNER shall not be obligated to defend or indemnify CITY to the extent such damages are the result of the sole or active negligence or willful misconduct of CITY. 6. 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: ATTEST: STATE OF CALIFORNIA ) CITY OF NEWPORT BEACH, a Municipal corporation B City Manage' OWNER: Peter Foulke Page 5 ST4 e- oCeti+ COUNTY OF ORANGE ) On� u /`/ g ) ss: , 2003, before me, kufheai e e rn A.Iohiiy 1'LA_ l i C personally appeared -Pc'_ re✓' --e Li t ke, , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s). whose name() is/are- subscribed to the within instrument and acknowledged to me that he/sfae/tey has executed the same in his/her4their authorized capacity(tes), and that by his/her/their signature($ on the instrument the persorf(s) or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. otary Public in and foKgaiid State STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ) ss: 1 +FFW Commission 0 OP Cargo County ►ityCorrm.spl nfla26►20114 (This area for official notarial seal) On AiAltAk I , 2003, before me, tei a�11 - 130a60, i\i0 av� 2 bl(�i/ y- ) E � &S p rsonally appeared �IMC L � �� l�v tUl �4 V �Y)V�i r�2C �1 , personally known to me ( _evidsnee) to be the person hose nam acknowledged to me that he/she capacityand that by his/her/ has executed the same in his/her, ignatur etery subscribed to the within instrument and authorized n the instrument the perso r the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Z Notary Public in and for said State .a. A A Ak A% LEILANI I. BROWN Commission # 1336673 Notary Public - California Orange County My Comm, Gc)ires Jan 25, 2006 (This area for official notarial seal) F:\USERS\PBW\Shared\ENCROACH\ROW Agreements\2002\Hoag Hospital 2002.doc Page 6 ••••.r.". • • t • 4, ADA.‘3`t? 44-1rOr -rgEt44, • 7 SEXHIBITheetof 2 "A' SECTION • NORTH (PERMANENT) WALL EXHIBIT �� 32' Lut. 17 to 45' SECTION • WEST (PERMANENT) lifre I 1 SEX ! SECTION O WEST (PERMANENT) 17.4 X 1! AA EXHIBIT "A" Sheet 2 OF 2