HomeMy WebLinkAboutC-6306 - Encroachment Agreement EPN N2003-151 for 4607 Gorham DriveRecorded in Official f " :ords, County of orange
Torn Daly, Clerk-Rec er
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ENCROACHMENT AGREEMENT
(EPN2003-0151)
THIS AGREEMENT is made and entered into this day of MO, ,
2003, by and between Matthew K. Osgood and Jerri A. Osgood (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 4607 Gorham Drive,
Newport Beach, California and legally described as Lot 109, Tract 3357, as shown on a map
recorded in Book 107, Pages 1 to 7 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 (hereinafter "PERMITTED IMPROVEMENTS") within the Gorham Drive right-
of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 4607 Gorham Drive,
Newport Beach, California and legally described as Lot 109, Tract 3357, as shown on a map
recorded in Book 107, Pages 1 to 7 inclusively of Miscellaneous Maps in the office of the
County Recorder of Orange County, California;
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 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:
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RECORDING REQUESTS AND
d
WHEN RECORDED RETURN TO:
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Public Works Department
City of Newport Beach
V
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in Official f " :ords, County of orange
Torn Daly, Clerk-Rec er
!N1 l !!I!I
1111111111 1111! 1111111111111111111111111111111 IN !1111116.00
200300062371411:02am 05129103
-14 &6 Al2 6
0 06 0 00 0.00 0.00 10.00 0.00 0.00 0.00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2003-0151)
THIS AGREEMENT is made and entered into this day of MO, ,
2003, by and between Matthew K. Osgood and Jerri A. Osgood (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 4607 Gorham Drive,
Newport Beach, California and legally described as Lot 109, Tract 3357, as shown on a map
recorded in Book 107, Pages 1 to 7 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 (hereinafter "PERMITTED IMPROVEMENTS") within the Gorham Drive right-
of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 4607 Gorham Drive,
Newport Beach, California and legally described as Lot 109, Tract 3357, as shown on a map
recorded in Book 107, Pages 1 to 7 inclusively of Miscellaneous Maps in the office of the
County Recorder of Orange County, California;
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 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:
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1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as a
grouted slate paving stone over 6 -inches thick concrete driveway approach and
appurtenances in the Gorham Drive right -of -away 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 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 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, no landscaping shall obstruct view to the adjacent residents. 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
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maintenance, removal, ret. renewal, replacement or enlarge,. -nt 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, 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 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 "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
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"SUBJECT PROPERTY". NNER shall defend, indemnify, w. ,e, 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 nun 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.
CITY OF NEWPORT BEACH,
a Municipal corporation
APPROVED AS TO FORM:
By:
City Attorney City Manager
V
ATTEST:
OWNER:
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Y•
City Clerk Matthe K. Osgood
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By:
erri A. Osgood
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STATE OF CALIFORNIA
) ss:
COUNTY OF ORANGE
On W , 2003, before me, w 1 V\0� VLA^ C_
personally app red '�'Nqi C)sep rsonally
known to me ( ) to be the person s
whose name.( it/are subscribed to the within instrument and acknowledged to me that
4@4@4e/they has executed the same in 4k*pWtheir authorized capacity.Ugs, and that by
pe
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r signature s on the instrument the persons or the entity upon behalf of which the
;d_ e)(P(-utPd the instrument_
nd and official seal
Notary Publ in and �for said State
4.
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On IV 1//� , 2003,
APRIL MARIE VERA
Commission # 1354972
Z - Notary Public - Calftmis
Orange County
im. Expires May
(This area for official notarial seal)
re me. , 6lan I It t7 IXIV)
II&
personally appeared ``hArM NooA ' l6(V r)c M. flarkjfsS , personally
known to me or Larlesubscribed
d to me on the basis of satisfactory evidence) to be the persoros
whosephe
S is to the within i strument and acknowle d to me that
he/shehas executed the same in his/her the' authorized capacity('es and that by
his/hersignatureVsqDn the Instrument the person s) r the entity upon behalf of which the
person acted, execute the instrument.
WITNESS my hand and official seal. LEIIANI I. BROWN
Commission # 1336673 Z
(� Z -,� Notary Public - Calftmia y
IlR10A Orange County
My Comm. Expires Jan 26, 2006
Notary Public in and for said State
(This area for official notarial seal)
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