HomeMy WebLinkAboutC-3908(A) - Encroachment Agreement EP98-80 for 3611 Ocean BoulevardRECORDING REQUESTED AND
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 County of Orange, California
Gar L. Granville, Clerk/Recorder
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ENCROACHMENT AGREEMENT
(EP98-80)
THIS AGREEMENT is made and entered into this _ day of
1998, by and between Diane Anderson (hereinafter "OWNER"), and the y 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 3611 Ocean Boulevard, Newport Beach,
California and legally described as lot 14, Tract 1257, (hereinafter ("SUBJECT PROPERTY")
as shown on a map recorded in Book 38, Page 25 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 and .3xisting non-standard improvements (hereinafter "PERMITTED
IMPROVEMENTS") within the 10' sewer easement as shown on Official Record 13022/796
and Ocean Boulevard right-of-way (hereinafter "RIGHT-OF-WAY") serving of lot 14, Tract
1257, as shown on a map recorded in Book 38, Page 25, 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 �uired by CITY to permit OWNER to reconstruct and maintain said
PERMITTED IMPROVLL.MENTS;
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree
as follows:
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1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as a
block wall, landscaping, and appurtenances in the Ocean Boulevard right -of -away and in the
10' sewer easement 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
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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 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 conditior, of this Agreement, the prevailing party shall be entitled to reasonable
attorneys fees and costs incurred,
6. OWNER sh211 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, •:osts 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 "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
"SUBJECT PROPERTY". OWNER shall defend, indemnify, waive, and hold harmless CITY,
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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:
By:
ATTEST:
City Attor y
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
OWNER:
By:
By:..
Diane Anderson
4
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On Joe- 1' , 1998, before me, J t1.11FE( M. 14461fr �c�r � C,66I(-y
personally appeared \IF1tJE �rrJDl;i
wnper-isiaprettylzre(or proved tome on the basis of satisfactoryevidence) to be the
persons whose name(,,g,gto- - subscribed to the within instrument and acknowledged to me
that ,teetti'Z r has executed the same in b4s1J/.thir authorized capacity(ict), and that by
11'tM�ir signature.() on the instrument the person or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
lic in and or iV State
1.
(This area for official notarial seal)
JENNIFER M. KNIGHT
Commission # 1 176904
Notary Public - California
Orange County
My Comm. Expires Mar 20, 2002
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On _
personally app ed ,._ v9-J `: &. -)0— ) ,
persona, known to Inc ( = - -- - • - • - - = - to be the
perso J hose mar is ubscribed to the w in instrument and acknowledged to me
that he/s ;i --� has execute • e same in his/her uthorized capacity and that by
his/hero •natur•n the instrument the perso I•r the entity upon be aif of which the
person acted, execute• the instrument.
WITNESS my hand and official seal.
Notary Public d or said State
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, 1998, before me,
(This area for official notarial seal)
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