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Home My WebLink AboutC-9074-1 - Encroachment Agreement EPN N98-423 for 212 Evening Canyon Road1 PF-:CORDING REQUESTED AND WHEN RECORDED RETURN TO: Public Works Department U City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 Recorded in Vie County of Orange, California Gary L. Grai:iv.i.11 a, Clerk/Recorder III $111111 I 11 I''Jill I J 11111 I 11111111 jjj21.00 19990480572 09 ; 22am 06/29/99 005 17315,326 17 77 1'02 0 6.00 15 00 0.00 0.00 0.00 0.00 Space above this line for Recorder's use only. r� y,Vl Pis' G' ENCROACHMENT AGREEMENT��0�/-(/,' (EP 98-423) (� THIS AGREEMENT is made and entered into this : �'J day of `,_k_/ 1999, by and between R. Van Ness Holland, Jr. and Helen Holland (hereinafte "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 212 Evening Canyon Rd., Newport Beach, California 92625 and legally described as Tract 1116, Lot 50 (hereinafter "SUBJECT PROPERTY"), as shown on a map recorded in Book 1 Page 88 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 Evening Canyon right- of-way (hereinafter "RIGHT-OF-WAY") serving of Tract 1116, Lot 50 as shown on a map recorded in Book 1, Page 88, 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 maintain said PERMITTED IMPROVEMENTS; 1 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 grouted brick driveway/sidewalk, portion of a block wall and appurtenances in the Evening Canyon Rd. 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, 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. 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 the 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. In addition, any new and existing trees, shrubs, and landscaping that are on the adjacent City property shall be maintained at the roof line of the existing structures at all times. 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. 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 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 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 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, 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 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. 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 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 executed on the day and year first -above written. APPROVED AS TO FORM: By: City Attorney AT NM City Clerk hereto have caused this Agreement to be CITY OF NEWPORT BEACH, a Municipal corporation By: City anager OWNER: By: %l va',"4t4l 4�yl R. Van Ness Holla d Jr. By: LIL.-M - Helen Holland 11 STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On (t i1 e- G�11 1999, be o me'\,J>PaUga- L ,0V Vwlei' personally appeared e� /� �=,� lea i eras 4 r , personally known to me (or proved to me on the basis of satisfactoryevidence) to be the persoq whose namEo i22cuted subscribed to the within instrument and acknowledged to me that he/she/the bias the same in his/her// eir authorized capacit' ies , and that by his/he el ignaturgn the instrument the pers"o&Dr the entity upon behalf of which the person acted, executed the instrument. WiTNESS my hand and official seal. SHAUNA LYN OYLI:R Commission # 1 IWO z QC0mm.ExpkaDeC3,2M1 Notary public - CaRtw im Orange County o ary Public in and for id Stat W (This area for official notarial seal) STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On fo `� �" ` i 1 1999, before me,(EE!0:�� - 1,J 3 � :..y personally appeared Pr-zs L • �j\v- - T�,�y�: personal) known to me e .- +" " is.-of-_-sat+sfaGtery-� dene-eyto be the perso (s) whose nam (s)'t is re subscribed to the within st ument and acknowle ed to me th he/she"te-'has exe trued the same in his/her/(heir` authorized capacity 'es), and that by his/heignaturZs�on the instrument the perso sor the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. CATHY FISHER Commission # 1 174329 z Notary Puolic - Colifmia Orange County Notary Public in for said State ,w„a NAY co"Im.F}�,j-rKc.;-r' 2CJC2 (This area for official notarial seal) f:\groups\pubworks\encroach\ROW—agmts\98\98-423HOLL.doc 6/10/99 161 W q,b z� (GI9 `I) 100'10. � 97.60 SSA Le CT) Q �, �� 6 G so•I• r/.' � 9 t9q 32� wM fs / 0. Z fi Us e R :o$r D GM 0 13 m H 0 10►a� i fG f 0EMP T� /0 i--- g3) ` SO (qqq o )I&y �O��OM` q q a o a pF / t F� � y D 10,3� CCNc w N i loop ,A i �(�f• 0 r 'TOP ' z SRO ' C9 op.00 4�-;-- .- - CI C99.�o) a\ LT 33�44 W �" — - 0 WM CIS �---