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HomeMy WebLinkAboutC-6539 - Encroachment Agreement EPN N2001-077 for 145 Via Undinea— RECORDING REQUESTEC 4D C4-� WHEN RECORDED RETURN TO: Lp Public Works Department I City of Newport Beach U Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 Recorded in Official Records, County of Orange Gary Granville, Clerk -Recorder 111111111111ON1111111111111111111111111$1111111IN 16.00 20010169494 09:06am 03/23/01 los 73 Al2 6 0.00 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 59 (EPN2001-077) THIS AGREEMENT is made and entered into this /z, l% day of 29N', by and between Joyce Ursino (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 145 Via Undine, Newport Beach, California and legally described as Lot 238, and portions of Lots 237 and 239, 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 `Jia Undine serving Lot 238 and portions of Lots 237 and 239, Tract No. 907 (also known as 145 Via Undine, 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 41 4 1. It is mutually ay,eed that PERMITTED IMPROVEN—NTS shall be defined as a brick -walk and driveway approach in a herringbone pattern with header border 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, 2 removal, repair, renewal, rep„acement or enlargement of existin6 ur future public facilities or improvements, CITY may remove portions of the PERMITTED IMPROVEMENTS, 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 3 assigns of OWNERS' intere— in the land whether fee or otherw,_ :, 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: (�6j, _1� City Attorney ATTEST: CITY OF NEWPORT BEACH, a Municipal corporation OWNER: l /, Wiz. By: City Clerk 4 By: %44-1Z City Ma , ager STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) OrKal�k 13 2001 before me5 ,<,� /�' � /% personally appeared Gcic� �rsi`i , persona I l4nown to me (or proved to me on the basis cf satisfactory evidence) to be the person(6whose nameXC*i/are subscribed to the within instrument and knowledged to me that hi her'they executed the same in hi ;/ heir authorized capacity 'ds), and that by hie6Ptheir signature) on the instrument the persoP�K or the entity upon behalf of which the persons(s) acted, executed the instrument. WITN S my nd official seal. SHAUNA LYfV oYLER Commission # 1164149 Z . `,r Notary Public - California z Orange County My Comm. Expires Dec 5, 2.001 Notary Public in an fo said Sta/'/ -11 wwolwv - (This area for official notarial seal) STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On d \ , 2001, before me, .0��' F !v personally appeared V�l ers Wally known to me t to be the person s}tthe e nam�is/ re ubscribed to e within instrument an acknowledged to me th hisexecuted the same in his/her hei authorized capacit ies and that by his/her ire ignatur (s) on the instrument the perso s or the entity upon be alf of which the person (s cted, executed the instrument. WITNESS my hand and official seal. Notary Public in an44o) said State CATHY FISHER Commission # 1174329 i Notary Public - California Orange County My Comm. Expires Feb 21,2M2 (This area for official notarial seal) \\MIS_1 \SYS\Users\PBW\PArciniega\EP's\EP-2001 \agmt-easement-EP01-077Avitia-Lido.doc C v/Lg D/&q n. ^-� W APP ro -kc/% T�p�Iu > 1� a1v male C,> i / b N200�- 077