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Home My WebLink AboutC-9080-1 - Encroachment Agreement EPN N99-228 for 465 Seaward Roadt RECORDING REQUESTED AND 00 WHEN RECORDED RETURN TO: Cs Public Works Department City of Newport Beach U Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 Recorded in toe County of Orange, California Gary L. Granville, Clerk/Recorder No Fee 19990547509 J ;,Hpm 07/27/99 005 26019754 26 08 012 8 6.00 21.00 0.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT G�sI r ��, (EP 99-228)� THIS AGREEMENT is made and entered into this day of (I 1999, by and between Janine Tarbell (hereinafter "OWNER"), and the City of Newport Beach, California, a municipal ccrporation organized and existing under and by virtue of its Charc-�r and the Constitution and the laws of the State of California, (hereinafter "CITY"). "OWNER" is the owner of property located at 465 Seaward Road, Newport Beach, California 92625 and legally described as Tract 1237, Lot 14 (hereinafter "SUBJECT PROPERTY"), as shown on a map recorded in Book 40, Pages 19 and 20, 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 Seaward Road right- of-way (hereinafter "RIGHT-OF-WAY) serving of Tract 1237, Lot 14, as shown on a map recorded in Book 40, Pages 19 and 20, 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 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 construct, reconstruct and raintain said PERMITTED IMPROVEMENTS; NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as a grouted stone carriage walkway with pilasters, 3' high wooden fence, landscaping, and appurtenances in the Seaward Road and Morning Canyon Road RIGHT-OF-WAY 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, instE�0, maintain, use, operate, repair and replace said PERMITTED IMPROVEMENTS and appui::,-lances incidental thereto, within a portion of RI(U HT -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. 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 RIGHT-OF-WAY, then th 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 wici'. plans and specifications therefor on file in the CIT`. ; 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 -owns;:' pipeline, conduit or cable located in or under said PERMITTED IMPROVEMENTS, except as otherwise provided herein. 2 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 H aHT-OF-WAY to exercise its primary rights associated with said RIGHT-OF-WAY, 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 situatior 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 re; , -)wal 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 FIGHT -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 :-, ;.sonable attorneys' fees (when outside attorneys are so utilized), regardless of the merit or utcome of any such claim or suit arising from or in any manner connected with the design, core struction, maintenance, or continued existence of the PERMITTED IMPROVEMENTS. 3 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 "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 whatso(ver, including reasonable attorneys' fees (when outside attorneys are so utilized), regardless ;)f the merit or outcome of any such claim or suit a.sing 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. CITY OF NEWPORT BEACH, a Municipal co.;noration APPROVED AS TO FORM: By. By City Attorney AT go Vity Clerk f:\groups\pubworks\encroach\ROW—agmts\99\99-228TARB.doc 7/16/99 OWNER: City anager 111 STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On 199.9, before m , Q,t.(�(,c c` er personally peare7a- �e ersonaily known to me (or roved to me on the basis of satisfactory evidence) to be the person who ame is are subscribed to the wit instrument and acknowled acknowledged to me that h hey teas executed the same In g his er heir authorized capacity(i ,and that b his r/ eir signature( on the instrument the erso y p r�) or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. SHAUNA LYN OYLER Commission # 1 164149 z ,Ps Notary Public - California 4otary Public in and sa4Sta Orange County My Comm. Expires Dec 5, 2001 STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On _� personally appear( (This area for official notarial seal) 1999, before me I ✓� "i f,t5 , personally known to me to be the person(s) whose names) +s/are subscribed to the within instrument and acknowledged to me that I4e�/they has executed the same in 4i.s�their authorized capacity(ies), and that by /their signature(s) on the instrument the person(s) or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. LEILANI V. INES Q/►^/� `r Commission # 1170960 Z V ¢.a Notary Puoiic - California D Orange County Notary Public in and for said State my comm. Expires Jan 25,2002 (This area for official notarial seal) 5 1 ny A ,6"XHIB/7r "A` GI C,E coven r ��' 1jUh.e. — ,E:" X 1-71/,8 / T `A''