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Home My WebLink AboutC-9206-1 - Encroachment Agreement (for 521 Jasmine Avenue)g RECORDING REQUEST, AND ;o WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 Recorded in the C ity of Orange, California Gary L. Granville, Clerk/Recorder $111111111111 jjjj�I I j$ [111111111111111 No Fee 19980758576 11; 04am 11 /09/98 005 23015039 23 28 Al2 6 6.00 15.00 0.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT 11 ,_7� /% Yi 1 Nib AUMLLMLN I is made and entered into this ol- I - - day of t/u-10&(11=, 1998, by and between Thomas L. Smykal (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 521 Jasmine Avenue, Newport Beach, California and legally described as Lot 21, Block 536, Map of Corona Del Mar (hereinafter "SUBJECT PROPERTY"), as shown on a map recorded in Book 3, Pages 41 and 42 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 Third Avenue right-of- way (hereinafter "RIGHT-OF-WAY") serving of Lot 21, Block 536, Map of Corona Del Mar, as shown on a map recorded in Book 3, Pages 41 and 42, 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 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 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 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as a raised grouted brick patio 30-inch high block retaining walk, landscaping, and appurtenances in the Third Avenue 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. If permitted improvements 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, then the 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, excep' 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 2 maintenance, removal, repair, renewal, replacement or enlarger,ent 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 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 PERMIITED 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, unless the breach is cured within such 10 day period, 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 sha' 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 "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 3 "SUBJECT PROPERTY". \-,dVNER 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 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: ATTEST: By: d / � ' "1,-c City Clerk CITY OF NEWPORT BEACH, a Municipal corporation By: Z1111,1,1_�� City Manager OWNER: By: Thoma` . mykal fAgroups\pubworks\encroach\forms\agmt-smyka1CDM8.doc 10/27/98 10 STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE On oe� Pr 7 1 98 before me personally appeared s L�e 2 Ina , personally known to me (or roved to me on the basis of satisfactory evidence) to be the person(s� w ose name tas6Necuted re subscribed to the 'thin instrument and acknowledged to me that lshe/they the same it /her/their authorized capacity(ii and that by s/ er/their signature) on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. WITNE y hand and official seal. Notary Public in and f(5r s d State STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On UC`�'C 0 \� personally appeared known to me for rn whosFtheir (s)) is/Le subscribed to the within he/shhas executed the same in his/her, his/heignatur s) n the instrument the pe person acted, executed the instrument. WITNESS my hand and official seal. Notary Public ' an for said State SHAUNA LYN OYLER Commission # 1164149 Z oMyCornrn, Noyary Public - California Z Orange County Expires Dec 5, 2001 (This area for official notarial seal) r the entity upon �, and that by alf of which the CAI F,Y rISHER Commission # 1174329 Z y Notary Public - Callfomia Z Orange County Ll- �Iw My Comm. 6gxes Feb 21, 2M2 (This area for official notarial seal) kL 5 10%27.98 14:45 FAX 714 57, 185 714 573 8065 F N T MARINERS 002 Tie following SKETCH is furrrlshed for informational purposes only It does NOT constitute a survey of the property in question. t 1 fs _— ZStar� IV i S-f-v c c o I 3 Ca r /'� J- �G. a�� + I ; it -S / V -- SYM60L.S — + Sn—r y Marko, ._ Power Pole J Yemp Power Pole 5J High Voit15)o Tranglor -b- Fire Hydrant J4 SPwpr Manhole/Vault n"- Drain Manhole/water Meter Vault Y/ Edison M3nhole/Vnull 'ricohone Manhole/Vault a= Con Block Wall Cha—link Fence -"-- Wrougril Iron • -�- Wood Fenco MAP ATTACHED YES NO ( ) ✓3 ui Ave 1 t Wa•IKV�&`� INSPECTOR'S CERTIFICATE This is to certify that I having been duly authorized, did make a careful inspection of the herein described premises and of the improvements located thereon and that this inspec- tion report and the above sketch reflects the conditions, improvements, easements, and other matters affecting title apparent on the date of this inspection and that the attached photographs were taken of the herein described property. INSPECTOR DATE