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HomeMy WebLinkAboutC-9081-1 - Encroachment Agreement EPN N99-137 for 430 Catalina DriveRECORDING REQUESTEC ND _.. WHEN RECORDED RETURN TO: Recorded in the county of orange, California Gary L. Granville, Clerk/Recorder Public Works Department III II I I I I I III I II II11111111111111111111111 No Fee O City of Newport Beach 19990563703 3 ; 41 pm 08/02/99 6-- Post Office Box 1768 005 20021816 20 18 3300 Newport Boulevard Al2 7 6.00 18.00 0.00 0.00 0.00 0.00 V Newport Beach, CA 92659-1768 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EP99-137) THIS AGREEMENT is made and entered into this day aM of (4- a c_,% , 1999, by and between Michael T. Nash (hereinafter "OWNER"), and the City of Newport Beach, Calif-cmia, 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 430 Catalina Drive, Newport Beach, California and legally described as Lot 5, Block 12, Tract No. 27, as shown on a map recorded in Book 9, Page 26 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 5-foot public utility easement (tor sewer purposes) serving lot 5, Tract 27 (also known as 430 Catalina Drive, Newport Beach, California) hereinafter "EASEMENT", recorded on November 27, 1953 as legally described in Official Record No. 2622/452 (Book 2622, Page 452) 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 agreem,-+1t providing for fulfillment of the conditions required by CITY to permit OWNER to construe-'; reconstruct and maintain said PERMITTED IMPROVEMENTS; 1 NOW, THEREFORE, ,i i consideration of the mutual promises, the parties hereto agree as follows: 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as a 6-foot high masonry block: 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, 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 ii'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 `he 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 all repairs. 0 d. That show._. CITY be required to enter onto saiu 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 IMPF OVEMENTS, 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' ,.ny 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 par`.y 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 reason, >le 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 agrees .,iat this Agreement shall remain ii . 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 S TO FORM: i By: I City Attorney ATTEST: By: M III& City Clerk CITY OF NEWPORI BEACH, a Municipal corporation OWNER: By -%ice, ine:�' City Manager' Bye�� Michael T. Nash N 50' m _ 7- 27' -------------- E S N W CATALINA DRIVE MIKE & MARY NASH 430 CATALINA DRIVE 714-540-6060 EXT 129 SCALE: 1" = 10' 11 Z7X N/B1 T 'A CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of orzk4 ss. On Ap* �Z , Ill 19 , before me, V6 *6 V, I u/S , Date / Name and Title of Officer (e.g., "Jane Doe, Notary Public") personally appeared �t � �� N aq+ , Name(s) of Signer(s) + I-ANf LEIIANI Y. INES Commission # 1170960 No'ary Puolic - California J Orange County 1 My C3rnm, moires Jan 25, 2002 ❑ personally known to me X proved to me on the basis of satisfactory evidence to be the person(&} whose name(( is/are subscribed to the within instrument and acknowledged to me that he4he/t44®y executed the same in his/#emir authorized capacity(+c*, and that by hiskherfteir signature(&) on the instrument the person(}, or the entity upon behalf of which the person(-&) acted, executed the instrument. WITNESS my hand and official seal. U 9,t�a/14,v V , Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: © 1997 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 - Chatsworth, CA 91313-2402 Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of f)rmqc1 On +'4q0 , before me, �el ►� V' �{/)C.� Date Name and Title of Officer (e.g., "Jane Doe, Notary Public") personally appeared btG► nIs C. L)aoncr- Name(s) of Signer(s) LEIUWI V. I Commission # 117 117t)960 Notary Public - California Orange County My Ccxnm. Expir;ws Jon 2S, 2Cn2 Place Notary Seal Above impersonally known to me ❑ proved to me on the basis of satisfactory evidence to be the person(* whose names} is/aft subscribed to the within instrument and acknowledged to me that he/may executed the same in hisAr-;,z„e;T authorized capacity(4es —, and that by hisklre� signature(*on the instrument the person(*, or the entity upon behalf of which the person( acted, executed the instrument. WITNESS my hand and official seal. GP� OV. C� Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: _ Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual Top of thumb here ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: © 1997 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 - Chatsworth, CA 91313-2402 Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827