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HomeMy WebLinkAboutC-9055-1 - Encroachment Agreement EPN N99-012 for 1939 Bayside DriveRECORDING REQUESTF.E qD WHEN RECORDED REI URN TO: LA Public Works Department City of Newport Beach Post Office Box 1768 3300 Newport Boulevard U Newport Beach, CA 92659-1768 Recorded in the County of Orange, California Gary L. Granville, Clerk/Recorder 11111111111111III No Fee 19990185318 1 @ ; 46am 03/15/99 005 29011182 29 57 Al2 7 6.00 18.00 0.00 0.00 0.00 0.00 Space above this line foi ENCROACHMENT AGREEMENT 49 (EP 99-012) P6 L) (' THIS AGREEMENT is made and entered into this'' day of 1999, by and between Jacques S. Yeager (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 1939 Bayside Drive, Newport Beach, California and legally described as I..,-)t 5, Tract 2094 (hereinafter "SUBJECT PROPERTY"), as shown -3n a map recorded in Book 57, Page 50 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 Bayside Drive right-of- way (hereinafter "RIGHT-OF-WAY") serving of Lot 5, Tract 2094, as shown on a map recorded in Book 57, Page 50, 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; NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1 1. It is mutually a_ red that PERMITTED IMPROVEh ITS shall be defined as a grouted used brick driveway approach over 4" concrete, grouted used brick sidewalk, and appurtenances in the Bayside Drive 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 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 Ci 1 Y 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. 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 2 maintenance, removal, repa . ,-enewal, replacement or enlargem, of existing or future public facilities or improvements, CITY may remove portions of the PERMITTED IMPROVEMENTS, as required, and in such ;vent: (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. 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 91 "SUBJECT PROPERTY". O AER shall defend, indemnify, waiv( id 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. APPR71;4 TO FORM: By: City Attorney AT' OR City Clerk CITY OF NEWPORT BEACH, a Municipal corporation By:�i a-:2ee� City ..- OWNER: fAgroups\pubworks\encroach\forms\agmt-yeager&doc 1 /14/99 2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT State of California County of Riverside On January 15, 1999 before me, Patricia Mendoza , Notary Public, personally appeared Jacques S. Yeager , ® personally known to me - OR - ❑ proved to me on the basis of satisfactory evidience to be the persons(s) whose name is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/he44wir authorized capacity(ies), and that by his/her4heir PATRICIA MENDOZA signature(s) on the instrument the person(s), or the I entity upon behalf of which the person(s) acted, :. a Co OM MBLIC # 1091 o98A T executed the instrument. '•, , RIVERSIDE COUNTY � °�• My Comm Expires Mar. 24. 2000 WITNESS my hand and official seal. Signature of Notary Publi OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Encroachment Permit Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Si ner's Name: Jacques S. Yeager Individual ❑ Corporate Officer Title(s): Partner -❑ Limited ❑ General Attorney -in -Fact Trustee Guardian or Conservator Other: Signer is Representing: RIGHT THUMBPRINT OF SIGNER T OP OF THUMB HERE Number of Pages: 4 Signer's Name: ❑ Individual ❑ Corporate Officer Title(s): Partner - ❑ Limited ❑ General Attorney -in -Fact Trustee Guardian or Conservator Other: Signer is Representing: RIGHT THUMBPRINT OF SIGNER TOP OF THUMB HERE CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California �yw /` j ss. County ofyl V ' On 'G before me,)I�<<�I Dale Name and Title of Officer (e.g., "Jane Doe, Notary Public") {�� \ j� personally appeared I` vy1V? I� Name(s) of Signer(s) LEILANI V. INES w Commission # 1170960 No-ary Puolic - California ' Orange County My C-Ynm. Expires Jan 25, 2002 A personally known to me ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they 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(s) acted, executed the instrument. WITNESS my hand an official seal. c+/�cmp Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ElIndividual Top of thumb here ❑ Corporate Officer— Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: © 1997 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Prod, No. 5907 Reorder: Call Toll -Free 1-800-876-6827 Olz1ve- I)LIM&a4oe /D9Lca4 u'Ay / sloe e C -. A- I( N4651'00'W 60.00, EXISTING d,12, c `, WALK s 22 'tave— f /ZP��a_ F S/ EXISTING 6" CURB AND r„ 18' GUTTER c *-BAYSIDE DRIVE EXHIBI i "A"