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Home My WebLink AboutC-5205 - Encroachment Agreement EPN N2000-370 for 311 Kings RoadRECORDING REQUESTEr 'ND WHEN RECORDED RETU, ,, J TO: Public Works Department City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 Recorded in Official Records, County of orange Gary Granville, Clerk -Recorder 111111"IIIII' III'I': illl'I!I! III !l' Pvo' FEF 20000571719 01:11 pm 10124100 109 11 Al2 7 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (N2000-370) 61 061 THIS AGREEMENT is made and entered into this !i--k day of 2000, by and between David Close, WMC Development (hereinafter "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 "CITY"), "OWNER" is the owner of property located at 311 Kings Road Newport Beach, California and legally described as Lot 8, Block "E", Tract 1219 (hereinafter "SUBJECT PROPERTY"), as shown on a map recorded in Book 38, Pages 26 and 27 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; WITNESSETH: WHEREAS, OWNER desires to construct and maintain sewer main (hereinafter "PERMITTED IMPROVEMENTS") within a portion of an existing 10-foot easement, for sewer purposes (hereinafter "EASEMENT"). Property located at 311 Kings Road Newport Beach, California and legally described as Lot 8, Block "E", Tract 1219 as shown on a map recorded in Book 38, Pages 26 and 27 inclusively of Miscellaneous Maps and Easement serving of Lot 8, Block "E", Tract 1219, legally described in Official Record No. 3237/480 (Book 3237, Page 480) and in Official Record No. 3429/307 (Book 3429, Page 307) in the office of the County Recorder of Orange County, California, respectively; and WHEREAS; the parties hereto desire to execute an agreement providing for fulfillment of the conditions required by CITY to permit OWNER to construct, reconstruct and maintain said PERMITTED IMPROVEMENTS; NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1 1. It is mutually -eed that PERMITTED IMPROVE .NTS shall be defined as a wooden trellis, concrete patio, colored concrete mow strip, "Flagstones", landscaping, and appurtenances in as shown on EXHIBIT "A" attached hereto and as approved by the City Engineer. In addition, the proposed PERMITTED IMPROVEMENTS may vary at the time of construction. Hence, any changes must be approved by the City Engineer and shall be on shown on the "As Built" plans. 2. CITY will permit OWNER to construct, reconstruct, install, maintain, use, operate, repair and replace said PERMITTED IMPROVEMENTS and appurtenances incidental thereto, within 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. If permitted improvements interfere in the future with CITY's ability to construct, operate, maintain, and replace CITY and other public facilities and improvements within EASEMENT, then the 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 or less 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. 2 d. That shoe CITY be required to enter onto sz 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 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, unless the breach is cured within such 10 day period, 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 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, 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. 7. OWNER shall accept the fact that surface drainage water may enter onto the SUBJECT PROPERTY from Kings Road 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. 3 8. OWNER shal' ;cept and waive any and all Hat_ j 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, 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: City Attorney ATTEST: CITY OF NEWPORT BEACH, a Municipal corporation Bv: Cityllanager OWNER: WMC Development By: fC n %, r4eeBy: City Clerk David Close 4 STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) On 2000 before me, , personally appeared 0V t d, �i0 , personally known to me (or proved to me on the basis of satisf ory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they has executed the same in his/her/their authorized capacity(ies), and that by his/her/their sig .ture(s) on person act e - uted th WIT ► h. and N•t:ry 'ub1 t or said State instrument the person(s) or the entity upon behalf of which the trument. al seal. STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) On 0 , `° 2000, before me, personally appeared ‘,\.�6 ( �� $' y Ily known to me whose he/she + he h his/he person ac < BRIAN FOXCROFT s�i�Rs NOTARY PUBLIC - CALIFORNIA rn COMMISSION # 1132349 ORANGE COUNTY My Comm. Exp. March 31, 2001 (This area for official notarial seal) ()' is/ re 'subscribed to the within instrument and acknowle• : ed to me that as executed the same in his/he their authorized capacit , and that by signatures on the instrument the perso (s)�or the entity upon behalf of which the ed, executed the instrument. ed�, to mA nn +hc has-is—e si-atfs-faGtoty WITNESS my hand and official seal. Notary Public\irl. nd for said State f rsona evidence) to be the perso Ate,, CATHY P1SHER Commission # 1174,329 Notary Puolic - California Orange County My Comm. Exoi-es Feb 21, 2002 (This area for official notarial seal) f:\groups\pubworks\encroach\forms\agmt-easement-EPN2000-370WMC-CH.doc CONSTRUCTION CALLOUTS FOR 10' SEWER EASEMENT 1. CONTRACTOR TO FABRICATE WALL. SEE CIVIL ENGINEERS PLANS FOR HEIGHTS AND DETAILS. 3. CONTRACTOR TO PLACE GLASS SAFTEY PANELS. TO BE MINIMUM 36" IN HEIGHT. ADD WOOD (TYP) HAND RAIL. PAINT TO MATCH. 4. CONTRACTOR TO POUR IN PLACE 6" X 6" COLORED CONTRECTE MOW STRIP. SEE LANDSCAPE ARCITECT PLANS FOR DETAILS. 8. OVERHEAD TRELLIS. SEE ACRITECTS DRAWINGS FOR DETAILS. 9. CONTRACTOR TO FABRICATE 36" X 36" SQUARE, 44" HIGH STONE PILASTER. SEE LANDSCAPE ARCHITECTS DRAWINGS FOR DETAILS. 11. FLAGSTONE, 3.5" X 3.5". SEE LANDSCAPE ARCHITECTS DRAWINGS FOR DETAILS. 13. CONTRACTOR TO PLACE RANDOM SLATE. SEE LANDSCAPE ARCHITECTS DRAWINGS. 18. EXISTING PROPERTY LINE WALL. SEE CIVIL ENGINEERS DRAWINGS. 2 OF 2 EXH/B/T "A"