HomeMy WebLinkAboutC-1951 - Encroachment Agreement (for 128 Via Undine)RECORDING REQUESTED ND
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
Gary L. Granville, Clerk/Recorder
11111101110111110111111101# No Fee
19970064372 12:13pm 02/11/97
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
THIS AGREEMENT is made
and entered into this 47-L1) day of
1997, by and between Steven D.
Meltzner (hereinafter "OWNER"), and the City
California,
a municipal corporation
by virtue of its Charter and the
State of California, (hereinafter
Meltzner and Julie
of Newport Beach, 4
organized and existing under and \ (2,
Constitution and the laws of thed-A,).
"CITY"), "OWNER" is the owner of V
property located at 128 Via Undine, Newport Beach, California and
legally described as Lot 260, Tract No. 907, as shown on a map
recorded in Book 28, Page 27 inclusively of Miscellaneous Maps in the
office of the County Recorder of Orange County, California;
W ITNESSET H:
WHEREAS, OWNER desires to construct certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within a portion
of an existing 4-foot public utility easement serving lot 260, Tract
907 (hereinafter "EASEMENT"), as shown on a map recorded in Book 28,
Page 27 inclusively of Miscellaneous Maps in the office of the County
Recorder of Orange County, California; also known as 128 Via Undine,
Newport Beach, 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 the Easement; and
WHEREAS; the parties hereto desire to execute an agreement
providing for fulfillment of the conditions required by CITY to permit
OWNER to reconstruct and maintain said 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 stucco wall with wooden door, architectural columns (one on
each side of the garage), and appurtenances 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 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" 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. 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.
2
d. Tha„ 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 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
EASEMENT 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
condition of this Agreement, the prevailing party shall be entitled to
reasonable attorneys fees and costs incurred.
6. 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.
3
7. OWNER agree 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 or, the day and year first -above written.
APPROVED AS TO FORM:
By:
City Attorney
ATTEST:
(9Igen,,,,,, 7y) N4,i4Q,n
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
OWNER:
By:
Steven D. Melt -crier
Julie Melt C er
4
STATE OF CALIFORNIA
ss:
COUNTY OF ORANGE aOn `j,�, i 3 0 , 1997, before me,wv 1_ %U
personall appear dv> 96. � , personally
known to me (or proved to me on the •iIsis of satisfactory evidence) to
be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that his/her/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 persons(s) acted, executed the instrument.
WITNESS my hand and official seal.
aquitill-MAWAJ — "
Notary Public in and for said State
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE
(This area for official notarial seal)
On ZV 30 , 1997, before me,
personall appear, � L , personally
known to me (or proved toon the bass of satisfactory evidence) to
be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that his/her/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 persons(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
F:\WP51\GILBERT\AG\MELTZN96.DOC
(This area for official notarial seal)
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State of California
County of Orange
personally appeared
before me, Irene Butler. Notary Public,
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NOTARY PUBLIC CALIFORNII
Comm. #1008878
ORANGE COUNTY ((((((�JJiJJ
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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
Individual
Corporate Officer
Limited Partner
General Partner
Attorney -in -Fact
Trustee(s)
Guardian Conservator
X Other: �'�/l/% ,4 C
Sign -is-Representing:
�t�v��s=rYr
DESCRIPTION OF ATTACHED DOCUMENT
Number of Pages
Date of Document
CT
Signer(s) Other Than Named Above