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Home My WebLink AboutC-6452 - Encroachment Agreement EPN N2000-504 for 106 Via Lido NordN RECORDING REQUESTS. kND I,f WHEN RECORDED RETURN TO: Public Works Department t City of Newport Beach V Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 Recorded in off- Records, County of Orange Gary Granville, Clerk - 1111111 11111 11111 11111 11111 11111 11111 11111 11111 rd e r 20010036608 0 111111111116, 00 2 120 8 Al2 6 .10pm 01/22/01 0.00 0.00 0.00 0.00 10.00 0.00 0.0o 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2000-504) THIS AGREEMENT is made and entered into this day ofem m , by and between Jim Fondren (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 106 Via Lido Nord, Newport Beach, California and legally described as Lot 872, Tract No. 907, as shown on a map recorded in Book 28, Page 25 through 36 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; WITNESSETH: WHEREAS, OWNER desires to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within a portion of an existing 4 -foot public utility easement on Via Lido Nord serving Lot 872, Tract No. 907 (also known as 106 Via Lido Nord, Newport Beach, California) hereinafter "EASEMENT", as shown on a map recorded in Book 28, Pages 25 through 36 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 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 construct, reconstruct and maintain said PERMITTED IMPROVEMENTS; NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1. It is mutually ..,reed that PERMITTED IMPROVEI,__NTS shall be defined as 2" flagstone over 4" concrete driveway, landscaping, and appurtenances 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 a portion of the Easement, no trees within the 4' utility easement will be allowed, 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' written notice, with prior City Council approval, 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 as a result of exercising it's easement rights to maintain, repair, or replace it's sewer line. 4. OWNER and CITY further agree as follows: a. OWNER may, at owner's cost and expenses, 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 landscaping in the easement shall be maintained at or below the maximum height of 36 -inches. 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 all repairs. d. That 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 2 improvements, CITY may rt-_.iove portions of the PERMITTED IK. ROVEMENTS, as required, and in such event: (i) CITY shall reasonably 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, restoration, or replacement of the PERMITTED IMPROVEMENTS. e. This agreement does not extend the OWNERS' any rights to construct any additional improvements at a later time. 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. Either party that is alleged to have breached any material provision of this agreement shall be given 30 days written notice of the breach and the opportunity to cure with the date of breach and the date of termination, if cure is not made. 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 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. 3 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: By: City Attorney City M pager City Clerk 10 OWNER: By: Jim Fondren STATE OF CALIFORNIA ; ) ss: COUNTY OF ORANGE ) before me, '?" Q L al" personally appeared S , personalli kno to pT (or proved to me on the basis of satisfactory evidence) to be the pers n ) whose name /are subscr d to the within instrument and cknowledged to a that Is er/they execut d the same ier/their authorized capacity(i s), and that by is/ er/the signature(on the instrument the person( or the entity upon behalf of which the persons( acted, executed the instrument. WITNE S my hand and official seal. Notary Public in and or id State STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) authorized capac or the entity upon SHAL'NA LYN OYLER Commission # 1164149 ZNotary Public - California z Orange County OMYCOMm- Expires Dec 5, 2001 (This area for official notarial seal) to be the perso cknowledged to me t �, and that by his/her, If of which the person WITNESS my hand and official seal. Cid otary Publ i ana for said State _ personally appeared ie zam (s Is/ re ubscribed to t e ecute the me in his he th it on the instrument the perso s) executed the instrument. CKH )' Fi�HER rk4Zt,�'Commission#1174329 Z z �i Notary Public - California Orange County QM — My Comm. Expires Feb 21, 2002 (This area for official notarial seal) F:\Users\PBW\S ha red\ENC ROACH\FORM S\ag mt-easement-E P00-504Fond re n -Lido. d oc 5 • t