HomeMy WebLinkAboutC-9056-1 - Encroachment Agreement EPN N97-401 for 248 Driftwood Road1
RECORDING REQUESTED A.
'^ WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
1 Post Office Box 1768
V 3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in the Coui of Orange, California
Gary L. Granville, Clerk/Recorder
III IIIIIII I II II II II IIII II II 39.00
19980004494 4:04pm 01/05/98
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT �Sy
(EP97-401)�l
THIS AGREEMENT is made and entered into this 3,4/ day of
1997, by and between George Fischer (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 248
Driftwood Rd., Newport Beach, California and legally described as Lot
24, Tract 1116; as shown on a map recorded in Book 1, Pages 88,
inclusively of Miscellaneous Maps in the office of the County Recorder
of Orange County, California;
W I T N E S S E T H•
WHEREAS, OWNER desires to construct/maintain certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within the
Driftwood Rd. right-of-way (hereinafter "RIGHT-OF-WAY") that is
located adjacent to 248 Driftwood Rd., Newport Beach, 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:
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1. It is mutually agreed that the PERMITTED IMPROVEMENTS shall
be defined as "Sombero Buff" colored concrete driveway approach,
Mortared Kasmere slate stone entrance walkway with 2'-6" wide
sidewalk, and other incidental appurtenances within the Driftwood Rd.
right -of -away 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 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.
E
d. That sh,ald CITY be required to en�.�r 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, 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 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.
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7. 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: _Z1 By:
City Attorney
ATTEST:
3 J
A�^
• M A
i'
0,7 e
City Clerk
OWNER:
'tity i' .�. -
By:
Georgel Xisher
4
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE )
On I �fi�,r 30,, 1997 b fore me,�
personally appeared �'
personally known to me ors pv_e.d___to_me - on the basis of satisfactory
Zvideiic) to be the person(s) whose name(s) is/are subscribed to the
ith- n instrument and acknowledged to me that he/she/they has executed
the same in his/her/their authorized capacity(ies), and that by
his/her/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. .. Monica S. Kutz ;
V Comm #1013489 0 • NOTARY PUBLIC CALIFORNIAO
CommANGE E Expires COUNT
3y1998
Notar Public in and f aid State
r (This area for official notarial seal)
STATE OF CALIFORNIA
ss:
COUNTY OF ORANGE
On ��P%%%��� �,73 �/, 1997 before
personally appeared 7V (),-,q cam. 111w-
personally known to me (or'proved to me oh t4fe
evidence) to be the persor3V whose name s) is
within instrument anSaKn
wledged to me at
the same i his/h uthorized capacity(
his/her/ eir ignaton the instrument t
entity u ehalf othe person acted,
WITNESS,.3Fqy hand and official seal.
o£ary Public in arfd $br said(/State
ell
basis of satisfactory
are subscribed to the
he she/ has executed
es at by
he person or the
executed t e instrument.
(This area for official notarial seal)
51-IAUNA LYN OYLER
Commission # 1164149
Notary Public - California
Orange County
90MYComm. Expires Dec 5, 2001
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