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Home My WebLink AboutC-2734 - Encroachment Agreement (for 1078 Santiago Drive)RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: U City Clerk City of Newport Beach P. O. Box 1768 3300 Newport Boulevard Newport Beach, California 92658-8915 a-r--. 5 C=E=- - _ -lit- i. v3. _ L.a vl C..ra-a-- .-Crk KCc... -_r 7•16 i rT Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT THIS AGREEMENT is made and entered into this ay day of October, 1994, by and between Frederick W. Rohe and Michele F. Rohe, husband and wife as Joint Tenants, hereinafter referred to as "OWNERS", and the City of • Beach, California, a municipal corporation organized and existing und- • = :y vi - .k, of its Charter and the Constitution and the laws of the State of Califo �y ,hereinafter �* referred to as "CITY".& u a o n ; ; nil RECITALS: WHEREAS, "OWNERS" desire to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within a portion of an existing 12-foot Public Utility Easement across Lot 201, Tract 4224 (hereinafter "EASEMENT"), as shown on a map recorded in Book 157, Pages 1 to 14, inclusive of Miscellaneous Maps in the office of the County Recorder of Orange County, California; also known as 1078 Santiago Drive, Newport Beach, California (hereinafter "PROPERTY"), and; WHEREAS, the "PERMITTED IMPROVEMENTS" proposed to be placed on, over, or within the limits of the "EASEMENT" across "PROPERTY", are ordinarily prohibited within the "EASEMENT" areas, without an approved encroachment permit. However, "OWNERS" 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 IMPROVEMENT" with specific conditions, and; WHEREAS, "PERMITTED IMPROVEMENTS" may constitute an abnormal burden upon the City's ability to maintain and operate the "CITY's" utilities within said "EASEMENT". As a result, "CITY" requires "OWNERS" to assume all responsibility for these encroaching, "PERMITTED IMPROVEMENTS" and all encroaching installations, improvements, and landscaping, and; 1 of 4 WHEREAS, the parties hereto desire to enter into an agreement which provides conditions to allow the "OWNER" to install and maintain "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 concrete railing with footing and appurtenances 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 appurtenances incidental thereto, 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 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" and Exhibit "B" attached hereto. b. "OWNER" shall maintain the "PERMITTED IMPROVEMENTS" in accord 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. 2 of 4 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. Should "CITY" be required to enter onto said "EASEMENT" to exercise its primary rights associated with said "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, excavate and/or otherwise damage these encroaching, "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"; (iii) "CITY" agrees to bear only the cost of any removal of the "PERMITTED IMPROVEMENTS" affected by such work; (iv) "OWNER" agrees to pay all costs for renewal or restoration of the "PERMITTED IMPROVEMENTS". 5. "OWNER" shall not be permitted by virtue of this Agreement to install any additional improvements within "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. 3 of 4 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 (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". 8. "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 "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.. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day, month and year first above written. Approved as to Form: RoClauson, Assistant City Attorney Attest: I i Wanda Raggio, City erk 4 of 4 City of Newport Beach, a municipal corporation Clarence Turner, Mayer Michele Rohe Property Owner Michele Rohe, Owner CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of County of ePg*& 6. On DATE personally appeared before me, S9-4txf1-6 t1 , NAME. TITLE OF OFFICER - E.G..'JANE DOE. NOARY PUBLIC' l yrpersonally known to me - OR - OFFICIAL. SEAL FERNAND J. SAUVAGEAU Notary Public - California ORANGE COUNTY My Comm, Exp. June 20, 1995 NAME(S) OF SIGNER(S) 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 uthorized capacity(ies), and that by his/her/their gnature(s) on the instrument the person(s), or the ntity upon behalf of which the person(s) acted, xecuted the instrument. ITNESS my hand and official seal. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Though the data requested here is not required by law, it could prevent fraudulent reattachment of this form. SIGRE OF NOTARY OPTIONAL SECTION — OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though statute does not require the notary to fill in the data below. doing so may prove invaluable to persons relying on the document. ❑ INDIVIDUAL ❑ CORPORATE OFFICER(S) TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE N Gigra 1 C11-16,44 I C) riM a.;P a 11 a EXHIBIT xAo PROPOSED CONCRETE FOOTING AND RAILING ENCROACHING ON EXISTING EASEMENT. (PERMITTED IMPROVEMENTS) LOT 200 POLARIS DRIVE 80.281 %x 12' PUBLIC UTILITY EASEMENT EXISTING 8" SEWER PIPELINE 1078 SANTIAGO DRIVE 80.00' 0 SCALE: 1 "=40'-0" TRACT 4224 LOT 201 LOT 202 SANTIAGO DRIVE 1 1078 SANTIAGO DRIVE NON-STANDARD ENCROACHMENT CFFY OF NEWPORT BEACH EXHIBIT