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Home My WebLink AboutC-2789 - Encroachment Agreement (for 3366 Via Lido)RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City of Newport Beach P. O. Box 1768 3300 Newport Boulevard # 94a06 3267 15—NO V-1994 O3 11 F.H Recorded in Official Records: of Or County, California Lee A. Branch, COUT1 Recorder Reco deb (� Page 1 of u Fees:♦ 26.00 Tax: $ 0.00 Newport Beach, California 92658-8915 �65 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT THIS AGREEMENT is made and entered into this - day of October, 1994, by and between Olen Management Corporation, a California Corporation, hereinafter referred to as "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 referred to as "CITY". RECITALS: WHEREAS, "OWNER" is the owner of real property known as 3366 Via Lido, Newport Beach, California and legally described as Parcel 2 per map filed in Book 60, Page 43 of Parcel Maps recorded in the office of the County Recorder of Orange County, California, (the "PROPERTY"), and; WHEREAS, "OWNER" desires to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within a portion of an existing Water Easement, (hereinafter "EASEMENT"), across the property, and; WHEREAS, the "PERMITTED IMPROVEMENTS" proposed to be placed on, over, or within the limits of the "EASEMENT" are ordinarily prohibited within public easement areas, without an approved encroachment permit. However, in consideration of "OWNER" assent to the conditions of this "AGREEMENT" shall be allowed by special permission under this "AGREEMENT" and by permit from the City Building Department, Public Works Department and Utilities Department, to construct these proposed "PERMITTED IMPROVEMENTS" with specific conditions, and; 1 of 5 WHEREAS, "PERMITTED IMPROVEMENTS" will constitute a burden upon the "CITY's" ability to maintain and operate the "CITY's" utilities within said "EASEMENT". As a result, "CITY" requires "OWNER" to assume all responsibility for these encroaching, "PERM1 I 1 ED IMPROVEMENTS" and all encroaching installations, improvements, and landscaping, and; WHEREAS, the parties desire to enter into this "AGREEMENT" which provides conditions to allow the "OWNER" to install and maintain "PERMITTED IMPROVEMENTS". NOW THEREFORE, in consideration of the mutual promises, the parties agree as follows: 1. It is mutually agreed that "PERMITTED IMPROVEMENTS" shall be defined as a Trash Enclosure as shown on Exhibit "A" attached hereto. 2. "CITY" will permit "OWNER" to construct, reconstruct, install, maintain, use, operate, repair and replace "PERMITTED IMPROVEMENTS" and incidental appurtenances within a portion of the "EASEMENT', 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 these activities. 3. Rights granted under this "AGREEMENT" may be terminated by "CITY" at any time at "CITY's" sole discretion, by giving 60 days written notice, specifying in the 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 incidental appurtenances in substantial conformance with plans and specifications on file in the City's Public Works Department, and as described on attached Exhibit A. 2 of 5 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 in this "AGREEMENT" shall be construed to require "OWNER" to maintain, replace or repair any "CITY" owned pipeline, conduit or cable located in or under the permitted improvements, unless required by this "AGREEMENT". c. If any public facilities property or improvements are damaged by the installation or presence of "PERMITTED IMPROVEMENTS", "OWNER" shall be responsible for the cost of repairs. d. Should "CITY" be required to enter onto the "EASEMENT" to exercise its primary rights associated with the "EASEMENT" , including but not limited to, the maintenance, removal, repair, renewal, replacement or enlargement of existing or future public facilities or improvements, "CITY" may remove, or excavate as necessary the encroaching, "PERMI"I'l'ED IMPROVEMENTS", as required, and in such event: (i) "CITY" shall notify "OWNER" of its intention to remove the "PERMITTED IMPROVEMENTS" 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; (iv) "CITY" will not be responsible for any damage to the "PERMITTED IMPROVEMENTS" which may result from there removal; (v) "OWNER" agrees to pay all costs for renewal or restoration of the "PERMITTED IMPROVEMENTS". 3 of 5 5. "OWNER" shall not be permitted by virtue of this "AGREEMENT" to install any additional improvements in "CITY" Public Utilities Easement in the future, without first obtaining all the required permits for such work as may be proposed and not without special permission from "CITY", in writing, for any such additional installations or construction, and; 6. In the event either party breaches any material provision of this "AGREEMENT", the other party at its option may, in addition to other legal remedies available to it, terminate this "AGREEMENT", and, in the event the breaching party is "OWNER", "CITY" may enter upon the "EASEMENT" and remove all or part of the improvements installed by "OWNER". Termination because of breach of this "AGREEMENT" shall be based 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 or condition of this "AGREEMENT", the prevailing party shall be entitled to reasonable attorney's fees and costs incurred. 7. "OWNER" shall 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, 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". 8. "OWNER" agrees that this "AGREEMENT" shall remain in full force and effect from execution; shall run with the land; shall be binding upon the heirs, successors and assigns of "OWNER's" interest in the land whether fee or otherwise and shall be recorded in the Office of the County Recorder of Orange County, California. 4 of 5 IN WITNESS WHEREOF, the parties have caused this "AGREEMENT" to be executed on the day, month and year first above written. Approved as to Form: Robin Clauson, Assistant City Attorney Attest: Wanda Raggio, City Clerk City of Newport Beach, a municipal corporation Clarence Tu Mayor Olen Management Corporation a corporation ( A Dale M. Lyon, Senior Vice President 5of5 00 06 Fes: (7.fs) 0 BL 66 1‘. sT 3-OO,OC. Z9H 21r9 avi oov �v,«J,.oa... /M J o 3.00.0C .29 M • 1!J 27. 30'00'w II -1 i t- I 1 1 II I 1 r a>LL� II it 11' 111 11 1 i �1 1'1 1 II aau 1+" 11 I 1,1 1 1, 1 11 1 t, l 1 1 ytl 11 1 111 11 '111 _111 ,i1 yu `, , 4.0 0 0 J .a 1»4 •Uo3 4 Iw.7' z W O Q F : I 9� ." • m = O ao 3 Ia .. V 4 V t V m J O6 i 3 . o. L 1 o m o o QUANTITIES N N O T >- > j V 00 ~ J uu as gm A . SQ .y Z 0 U u 0 0 vie6 r A M E RI ‘kb Iiid"../;16:41-**'11. 1"( STATE OF CALIFORNIA COUNTY OF ORANGE } On 9-14-94 personally appeared , before me, Eileen Miller Dale M. Lyon } }ss. , personally known to me (or 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 the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature ( .K•�+c OFFICIAL t-',•rr 1v SEAL ei.' V.; EILEEN MILLER tPlg!1 OTARY PUBLIC - CALIFORNIA ORANGE COUNTY My Comm. Expires Oct. 28, 1995 (This area for official notarial seal) Title of Document Encroachment Agreement Date of Document 9-14-94 No. of Pages 5 Other signatures not acknowledged 3008 (1 94) (General) First American Title Insurance Company State of California County of Orange On /0 —/ y 9y personally appeared Erpersonally known to me - OR - before 0 2 UTL Comm. #1008878 • ARY PUBLIC CALIFORNIAA ORANGE COUNTY Comm. Expires Nov. 11, 1997 "I me, Irene Butler, Notary Public, 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 the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), orthe entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. CAPACITY CLAIMED BY SIGNER // Other: Individual Corporate Officer Limited Partner General Partner Attorney -in -Fact Trustee(s) Guardian/Conservator , d 1-7711/4 Signer Is Representing: DESCRIPTION OF ATTACHED DOCUMENT f7' 621, Title or T pe of Doc ent Number of Pages Date of Document Other Than Name Above