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Home My WebLink AboutC-9073-1 - Encroachment Agreement EPN N99-139 for 401 Santa Ana Avenuedi RECORDING REQUESTEL ,1ND WHEN RECORDED RETURN TO: Recorded in tii , county of orange, California Gary L. Grariv.i.11a, Clerk/Recorder Public Works Department III II I I III Ill it 11 I IIII I I II II rFee City of Newport Beach 1999048n54 08 ,14am 06/29/99 U Post Office Box 1768 005 17015322 17 77 3300 Newport Boulevard i�112 6 E;.00 1E, 00 0.00 0.00 0.00 0.00 Newport Beach, CA 92659-1768 Space above this line for Recorder's use only. l5 ENCROACHMENT AGREEMENT (EP 99-139) THIS AGREEMENT is made and entered into this day of"/ 1999, by and between David Price (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, (hereintir;±er "CITY"). "OWNER" is the owner of property located at 401 Santa Ana Avenue, Newpci Beach, California 92663 I and legally described as Lot 12, Block 12, Tract 27 (hereinafter "S',BJECT PROPERTY"), as b shown on a map recorded in Book 1 Page 88, inclusively of Miscellaneous Maps in the office a 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 Santa Ana Avenue and Beacon Street right-of-way (hereinafter "RIGHT-OF-WAY") serving of lot 12, Block 12, Tract 27, 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 anc ether 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 �;hall be defined as 3' high wood picket fence and 8' high arbor located 8' back from face of curb on Santa Ana Avenue, 3' high wood picket fence located 5' back from face of curb and 6' high wood picket fence located 9' back from face of curb on Beacon Street, and appurtenances in the Santa Ana Avenue and Beacon Street RIGHT-OF-WAY as shown on EXHIBIT "A" attached hereto and as approved by the City Engineer. 2. CITY will permit OWNER to construct, reconstruct, install, maintain, use, operate, repair and replace said PERMITTED IMPROVEMENTS and appurtenances incidental thereto, within a poi Lion 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 C: T Y's ability to construct, operate, maintain, and replace CITY and other public facilities ind 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 cost!. ;end expenses incurred in doing so. In addition, any new and existing trees, shrubs, and 13 idscaping that are on the adjacent City property shail 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. E c. If City -,r 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: 0) 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 k.lork 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 hereto have caused this Agreement to be executed on the day and year first -above written. CITY OF NE:'VPORT BEACH, a Municipal corporation APPROVED AS TO FORM: By: By: City Attorney Pri City Clerk OWNER: f:\groups\pubworks\encroach\ROWagmts\99\99-139PRICE.doc 6/8/99 City Manager By: _-die4 David Price 0 STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On 0, 999 -2 , b or e, personally appeared c pe ovally known to me (or roved to me on the basis of satisfactory evidence) to be the person(s) whose name are subscribed to the within instrument and acknowledged to me that he/they has executed the same iK /her/their authorized capacity�s), and that by i er/their signature on the instrumen the erso __//s or the entit u orf behalf of which the ,�'�`� p y�l) Y p person acted, executed the instrument. WITNESS my hand and official seal. SrA-NA: YN OYLER �f Camrnissi' m 1164149 Z -K. No-ary Public - Cal'fornia �z Orange County Notary Public in and fo Said Stde'— MyC') i-. Expires Dec 5, 2001 (This area for official notarial seal) STATE OF CALIFORNIA ) ) ss.. COUNTY OF ORANGE ) On l YlU U 1� 1999, before me, Ino personally appeared -!hfflrX �- 610 U , personally known to me evi to be the persons} whose namef) is/are subscribed to the within instrument and acknowledged to me that he4bQA4@.y- has executed the same in hisA4ed+ authorized t. apacity(4e&} and that by his' signature(-s�on the instrument the person( or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. _ _ _ _ _ LEILANI_VINES (1 � I/ate Vim( V ,76 C�� Commission # 11709b(?��; No-ary Puelic - California Orange County Zjo Notary Public in and for said State MyCornm.Expires Jon 25,2002 (This area for official notarial seal) 5 k � N 3 z +�