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HomeMy WebLinkAboutC-9075-1 - Encroachment Agreement EPN N99-049 for 328 Poppy AvenueRECORDING REQUESTEC `VD f WHEN RECORDED RETURj j TO: Recorded in tlic' (;ounty of orange, california ,ary L. Grar-wllla, clerk/Recorder U- Public Works Department II��I�III�III�II�IIIII�I�III��III I'I��II�IIII�I�I�IIII11111Jill1111 24. @@ � City of Newport Beach Post Office Box 1768 19990480513 @9; 22am 06/29/99 005 17015376 17 77 3300 Newport Boulevard 1-'112 7 6.00 1f: 010 0.00 0.00 0.00 0.00 Newport Beach, CA 92659-1768 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT Po6,�ti Oft (EP99-049) &i5 0 THIS AGREEMENT is made and entered into this day of c r 1999, by and between Gail Ueberroth (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 328 Poppy Avenue, Newport Beach, California and legally described as Lot 10, Block "A", Tract 673, as shown on a map recorded in Book 20, Pages 17 and 18 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 Hazel Drive right-of- way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 328 Poppy Avenue, Newport Beach, California and legally described as Lot 10, Block "A", Tract 673, as shown on a map recorded in Book 20, Pages 17 and 18 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: 1 1. It is mutually z :ed that PERMITTED IMPROVED JTS shall be defined as a- foot high and variable concrete retaining walls with railing and appurtenances in the Hazel 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 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 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. 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 maintenance, removal, repair, renewal, replacement or enlargement of existing or future public 2 facilities or improvements, C Y may remove portions of the PE; ITTED IMPROVEMENTS, as required, and in such e,/ent: (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 "SUBJECT PROPERTY". OWNER shall defend, indemnify, waive, and hold harmless CITY, 3 its City Council, boards anc; ,mmissions, officers and employe, 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 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 corporation APPROVED AS TO FORM: By: V ) By: �. City Attorney City Ma ager City Clerk JER: By: Gail Ueberroth 10 STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On GLt? ei a� 1999, before me,& al.wa-1 �'I personally appeared _ ai defier,-o7G� persona ly known to me (or proved to me on the basis of satisfactory evidence) to be the person(' who nam%tRi /are subscribed to the within instrument and acknowledged to me that h /they mas executed the same in his&their authorized capacity.Ks), and that by his er/their signature) on the instrument the person(s) or the entity upon behalf of which the per n acted, executed the instrument. WITNESS y hand and official seal. c T nia Orange co: Notary Public in and for said tate > MycoMm.ExpiresDec 5,2001 (This area for official notarial seal) STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On 1999, before 1-1 , i\J- ki'�' personally appeared ,rvNILC t,- • \ v\-1t1-), personalI known to me ma -ice ©f--sattisfia ry-evidence)-�to be the perso (s� whose n m (s is re subscribed to the within inst ument and acknow4bealf to me that he/she he has execu ed the same In hls/her/ hel ' authorized capacit and that by his/her/t eir;ignatur (s) n the instrument the perso s)�or the entity upon of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public In Andfor said State CATHY FISHER Corrmission # 1 174329 Z Notary PunkCalifornia Z OrangeC.:nc,-,y any! Cmm,FrX 2(X.'2 (This area for official notarial seal) F:\USERS\WP51\GILBERT\AG\UEBERROTHEP99-49CDM.DOC (EP99-049) 5 j POPPY DRIVE T.C. 103.9 T.C. 104.7 (E) Eucalyptus Line of Floors Below 100 _ z N_ I 98 I I 97__i Open Mtl. Gourdrail —� on Sloped Conc. go — Retaining Wall i 96_ Sewer Cleanout 94 Water Meter � Area of Addition Notatb North HAZEL DRIVE Site Plan Lane of Curb/Gutter ��-104 1 1 1 1 I �100 1 Gutters of Eaves, Typ. ,I --go � f Hatched Area ( Denotes Addition Spiral Stair 97 — Open Mtl. Gourdroil on Sloped Conc. Retaining Wall Concrete Driveway 94 Retaining Wall w/Open eyy yz 92 Roil Abv. —00 T.C. 89.0 8' Curb/Gutter Gas Meter Water Meter Fire Hydrant w/ existing retaining wall Ueberroth Residence - 328 Poppy, Corona Del Mar Laidlaw Schultz Architects, 410 W. Coast Hwy., Suite P, Newport Beach, CA 949.e45.9982 EXHIBIT "A" Q POPPY DRIVE T.C. 103.9 T.C. 104.7 (E) Eucalyptus Line of Floors Below 11 100 —a z Open MO. Courdroil on Sloped Conc. Retaining Wall Sewer Cleonout Water Meter Area of Addition t a@ Notated North rC HAZEL DRIVE Site Plan Line of Curb/Cutter i ' � ,too Cutters at Eaves, Typ. 1 Hatched Area 1 Denotes Addition 98 Spiral Stair 97 Open Mtl. Courdroil on Sloped Conc. 26 Retaining Wall Concrete Driveway 94 Retaining Wall w/Open Rail Abv. 92 91 —90 T.C. 89.0 8" Curb/Cutter Cos Meter Water Meter Fire Hydrant w/ existing retaining wall Ueberroth Residence - 328 Poppy, Corona Del Mar Laidlaw Schultz Architects, 410 W. Coast Hwy., Suite P, Newport Beach, CA 949.848.9982 EXH/8/7-"1 It