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Home My WebLink AboutC-4903 - Encroachment Agreement (for 321 Kings Road)RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City of Newport Beach P. O. Box 1768 3300 Newport Boulevard Newport Beach, California 92658-8915 Recorded in the County of Orange, California Gary L. Granville, Clerk/Recorder 25 , 00 19970335576 1:51pm 07/16/97 005 28002581 28 24 Al2 7 7.00 18.00 0.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT THIS AGREEMENT is made and entered into this day of May, 1995, by and between Paul Schwartz and Robin Schwartz, husband and wife, hereinafter referred to as "OWNERS", and the City of Newport Beach, California, a municipal corporation organized and existing under andby virtue of its Charter and the Constitution and the laws of the State of California, hereinafter referred to as "CITY". RECITALS WHEREAS, "OWNERS" are the owners of real property known as 321 Kings Road legally described as Lot 9, Block E, Tract No. 1219, Newport Beach, California, and (hereinafter referred to as "PROPERTY"), and; WHEREAS, "OWNERS" desire to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within a portion of public right-of-way in the sewer easement across "PROPERTY", and; WHEREAS, the "PERMITTED IMPROVEMENTS" proposed to be placed on, over, or within the limits of the public right-of-way are ordinarily prohibited without an approved encroachment permit and an encroachment agreement. However, in consideration of "OWNERS"' assent to the conditions of this Agreement shall by special permission under thi3 Agreetnent and by permit from the City's Building, Public Works and Utilities Departments, be allowed to construct these proposed "PERMITTED IMPROVEMENTS" with specific conditions, and; WHEREAS, "PERMITTED IMPROVEMENTS" will constitute a burden upon the "CITY's" ability to maintain and operate the public sewer within the public right-of- way. As a result, and as a condition of this Agreement, "CITY" requires "OWNERS" to assume all responsibility for the, "PERMITTED IMPROVEMENTS" and all encroaching installations, private improvements, and landscaping, and; 1 of 5 WHEREAS, the parties desire to enter into this Agreement which sets conditions to allow the "OWNERS" to install and maintain "PERMITTED IMPROVEMENTS", and; NOW THEREFORE, in consideration of the mutual promises, the parties mutually agree as follows: 1. It is mutually agreed that "PERMITTED IMPROVEMENTS" shall be defined as: a. Concrete flat work and stairway. b. Terraced masonry block planter walls, 3 feet or less in height. c. Landscape groundcover. 2. "CITY" will permit "OWNERS" to construct, reconstruct, install, maintain, use, operate, repair and replace "PERMITTED IMPROVEMENTS" and incidental appurtenances within a portion of the easement right-of-way, all in substantial conformance with plans and specifications on file in the "CITY". "CITY" will further allow "OWNERS" 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. "OWNERS" and "CITY" further agree as follows: a. "OWNERS" 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 shown and described on attached Exhibit "A". b. "OWNERS" 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 in this Agreement shall be construed to require "OWNERS" 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", "OWNERS" shall be responsible for the cost of repairs. d. Should "CITY" be required to enter onto the easement right-of-way to exercise its primary rights associated with the right-of-way, including but not limited to, maintenance, removal, repair, renewal, replacement or enlargement of existing or future public facilities or improvements, "CITY" may remove, or excavate as necessary the encroaching, "PERMITTED IMPROVEMENTS", as required, and in such event: 2 of 5 (i) "CITY" shall notify "OWNERS" of its intention to remove the "PERMITTED IMPROVEMENTS" if any emergency situation does not exist; (ii) "OWNERS" 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 their removal; (v) "OWNERS" agree to pay all costs for renewal or restoration of the "PERMITTED IMPROVEMENTS". 5. "OWNERS" shall not be permitted by virtue of this Agreement to install any additional improvements in "CITY" right-of-way 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 "OWNERS", "CITY" may enter upon the right-of-way and remove all or part of the improvements installed by "OWNERS". a. 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. b. 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. "OWNERS" 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. "OWNERS" agree 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 "OWNERS"' interest in the land, whether fee or otherwise, and shall be recorded in the Office of the County Recorder of Orange County, California. 345 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of County of C)no..YLce59- On \S9 / 5 ATE before me E. TITLE TL .. OFFICER- E.G.'J^ANEIDOE. NOTARY PULIC' personally appeared ❑ personally known to me - OR - OFFICIAL SEAL VIRG INIA A. VARIN 0 NOTARY PUBLIC - CALIFORNIA COMMISSION • 9880007 C ORANGE COUNTY �yfl" My Commission Exp. July 20, 1997 NAME(S) OF SIGN €t (S) ['proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/ Ike subscribed to the within instrument and acknowledged to me that he/she/,i-xecuted the same in his/her/I le authorized capacity, and that by his/her d1 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. 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. SIGNATURE 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 Cm en ssv..c L- NUMBER OF PAGES 5 DATE OF DOCUMENT rn SIGNER(S) OTHER THAN NAMED ABOVE r iget. 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: %)/Pix/zi- Wanda Raggio City Clerk City of Newport Beach, a municipal corporation John Hedges, Mayor „CITY„ Paul & Robin Schwartz Husband and Wife Robin Schwartz Owner 4 of 5 STATE OF CALIFORNIA COUN Y- OF ORANGE )ss. On 1995 , before me, Shauna Lyn Oyler pers/dn,. 1Iy / ppeared John Hedges and Wanda Raggio 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/hcr/their authorized capacity(ies), and that by his/hcr/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITN gS my hand and officia seal. Notary Public in an for sa;/. State Shauna Lyn Oyler Comm Mioo eei NOTARY PU®LIC CAI.IMdfNl ORANGE COUNTY OMRI, Oxpaes An 22, 1007 0 m to n O O v M 0 ✓ f O2 . ?eg .. - : 1e w10E; 5erieg.:C-P+SgM' . S 88.29"I4'W" 6d al• page 5 of 5 0 0 • N V N 0 N • K O City of Newport Beach Lot 9, Block E, Tract No. 1219 Non -Standard Encroachment 321 Kings Road • J