HomeMy WebLinkAboutC-9217-1 - Encroachment Agreement EPN EP98-136 for 1569 Miramar DriveRECORDING REQUESTEE ND
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WHEN RECORDED RETURN TO
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Public Works Department
City of Newport Beach
Post Office Box 1768
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3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in the County of Orange, California
Gary L. Granville, Clerk/Recorder
1111111111111111111111 No Fee
Oos 14019327 149980595007 12;11pm 09/04/98
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT P°5te; 4t
(EP98-136) Gt5o�
THIS AGREEMENT is made and entered into this �� day of Li
1998, by and between Phyllis A. Fricker (hereinafter "OWNER"), and the City o 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 1569 Miramar Drive, Newport Beach, California
and legally described as Lot 29, Block I, Tract 518 (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, OWR#,'_R desires to construct and maintain certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Miramar Drive right-of-
way (hereinafter "RIGHT-OF-WAY") serving of Lot 29, Block I, Tract 518, 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, said PERMITTED IMPROVEMENTS may interfere in the future vo..h
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 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:
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1. It is mutually . ,reed that PERMITTED IMPROVE .r_NTS shall be defined as
brick entry landing in the parkway, and appurtenances in the Miramar Drive right -of -away 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 CITY.
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 addition, any new and existing trees, shrubs, and landscaping that are on the
adjacent City property 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 associated with said RIGHT-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:
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(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;
(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 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 result of the development or improvement of the "RIGHI'-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
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
3
attorneys' fees (when outsi(, _ attorneys are so utilized), regardle:_, of the merit or outcome of
any such claim or suit arising from or in any manner connected to surface drainage water
entering the "SUBJECT 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:
dL�_
City Attorney
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
IER:
By�:
,p- City Man ger
J
By.
Phyllis A. Fricker
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STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On &S/ 9 , 17r�lcice"—
before me,8--X?"�—!� �21'
personally appeared I ersonaly
known to me (or proved to r e n the basis of satisfactory evidence) to be the persgp,(�§y
whose name i re subscribed to the within instrument and acknowledged to me that
he / ey has executed the same in hi er heir authorized capacity , s), and that by
hi e heir signatureKon the instrument the person�or the entity upon behalf of which the
person acted, execut d the instrument.
WITNES y hand and official seal._
SHAUNA LYN OYLER
Commission # 1164149
zOMYCOMM
No'ary Public CaliforniaOrange County
otary Public in and fors State .ExpiresDec5,20p1
(This area for official notarial seal)
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On 13 ► g9Ss 1998, before me, �r„�. • ,,A I ,
personally appeared ���� roy\ Z, 1,� c, t.A personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person*-
whose name,''is/.a.re--�ubscribed to the within instrument and acknowledged to me that
,lam/she/tbej has executed the same in /her/ti"r authorized capacity�W, and that by
,WeIher/tj:LeKsignature; <on the instrument the personKor the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
OFFICIAL SEAL
M- VIRGINIA A. VARIN
V.
a NOTARY PUBLIC - CALIFORNIA C
O) ORANGE COUNTY -'
Notary blic in and for said State MycommissionExp. July 20,2001
(This area for official notarial seal)
F:\Groups/Pubworks/Encroach/ROW_agmts/98/98-136 FRIC.doc
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
ss.
County of ®rw/�e,� �
On 419a5l lxr/f/ �before me, L,4r
Date / - ff/ Name and Ti of Officer (e. ne Doe, Nota Public")
personally appeared (� (/UY//'I 2, �7;�'/ClP SS
Na ne(s) of Signer(s)
personally known to me
❑ proved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) is/are
subscribed to the within instrument and
acknowledged to me that he/she/they executed
SHAUNA LYN OYLER the same in his/her/their authorized
` Commission # 1164149
z P$ No-ary Public - California capacity(ies), and that by his/her/their
Orange County signature(s) on the instrument the person(s), or
My Comm. Expires Dec5,2001 the entity upon behalf of which the person(s)
acted, executed the instrument.
WI S my hand and official s
Place Notary Seal Above Sign—aruNI-9kWary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHT THUMBPRINT
OF SIGNER
.p of thum .
01997 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827
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