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HomeMy WebLinkAboutC-9054-1 - Encroachment Agreement EPN N99-063 for 828 Via Lido NordRECORDING REQUESTED %ND WHEN RECORDED RETUhiq TO: Public Works Department �— City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768r Recorded in the County of Orange, California Gary L. Granville, Clerk/Recorder IIIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIII IIII 21.00 005 29011096 29 579990173550 12;01pm 03/10/99 Al2 6 6.00 15.00 0.00 0,00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT �fe (EP99-063) '� THIS AGREEMENT is made and entered into this day of evllxma^ 1999, by and between 828 Via Lido Nord Limited Partnership, John McMonigle - President (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 828 Via Lido Nord, Newport Beach, California and legally described as Lot 342, Tract 907 (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 a portion of an existing 4- foot Public Utility Easement (hereinafter "EASEMENT"), serving of Lot 342, Tract 907, as shown on a map recorded in Book 1, Page 88 inclusively of Miscellaneous Maps in the offo;e 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 EASEMENT; 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 IMPRO, EMENTS; OfA, ie 6lv 1 NOW, THEREFORE i consideration of the mutual pron ss, the parties hereto agree as follows: 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as a precast concrete pavers with flagstone driveway and appurtenances in the 4-foot EASEMENT 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 EASEMENT, 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 EASEMENT, 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. 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 EASEMENT to exercise its primary rights associated with said EASEMENT, including but not limited to, the maintenance, 9 removal, repair, renewal, r acement or enlargement of existii 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 EASEMENT 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 "EASEMENT" 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 "EASEMENT". 3 8. OWNER shal ccept and waive any and all lial y 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 "EASEMENT". 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. APPROVED AS TO FORM: By: ity Attorney AT' City Clerk CITY OF NEWPORT BEACH, a Municipal corporation ER: By: 828 Via Lid( John M Nord Limited Partnership Monigle — President N f:\groups\pubworks\encroach\forrr `9_063McMO.doc 2/8/99 STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) O 1999 before me �a-l-L�1ly y/ P/ personally appeared , personally known to me or roved to me on the basis of satisfacto evidence) to be the persoW Wo se name)&are subscribed to the ithin instrument and acknowledged to me that he/they has executed the same iN./her/their authorized capacityos), and that by her/their signature-#) on the instrument the person(§�`or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. HAUNA LYN OYLER Coommission #k 1164149 Z Notary Public in and fors State • ' Notary Public- California ; Orange County My Comm. Expires Dec 5, 2001 (This area for official notarial seal) STATE OF CALIFORNIA ss: COUNTY OF ORANGE ) lei Ion,) U - 1 «6 On rdYNIN 10 1999, before me, personally appeared Ilea) n- �- C". I,>� tv�;��� , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person* whose nameW is/arm subscribed to the within instrument and acknowledged to me that he/s-hefthey has executed the same in his/hefAh& authorized capacity(aes�, and that by his/herAheiF signature(-&) 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. LEILANJ V, fNES C©mmission # 1170960r ZZ Notary Public in and for said State No'ory Puolic- California %w Orange County nay C,ornm. Expires Jan 25, 2002 5