HomeMy WebLinkAboutC-9037-1 - Encroachment Agreement EPN N99-459 for 539 Via Lido SoudRECORDING REQUESTED /
r
WHEN RECORDED RETURN TO:
CIO
Public Works Department
City of Newport Beach
U
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in tli,a i)01A7ty of Orange, California
Crary L. C.r,ii ,J l l Clerk/Recorder
No Fee
19990847223 2:28pm 12/13/99
H8 17a17385 17 73
i=112 ; 6.00 1E, 00 0.00 0.00 0.00 0.00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT �65ti�
(EP99-459)
THIS AGREEMENT is made and entered into this Gay
of , 1999, by and between David Close, WMC Development (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 539 Via Lido
Soud, Newport Beach, California and legally described as Lot 439, Tract No. 907, as shown
on a map recorded in Boc;;k 28, Pages 25 to 36 inclusively of Miscellaneous Maps in the off:,-:e
of the County Recorder of Orange County, California;
W I T N ESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within a portion of an existing 4-foot public
utility easement on Via Lido Soud serving Lot 439, Tract No 907. (;also known as 539 Via Lido
Soud, Newport Beach, California) hereinafter "EASEMENT", as sf.:)wn on a map recorded in
Book 28, Pages 25 to �6 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 the 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 IMPROVEMENTS;
1
NOW, THEREFORE, it, consideration of the mutual promise. , the parties hereto agree
as follows.-
1 . It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as a
slate veneer on 3.5" concrete subbase driveway approach/walk and oppurtenances as shown
on EXHIBIT "A" attached hereto and as approved by the City .ngineer. 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 the Ea.ement, 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' written notice, with prior City Council approval, 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 a a result of exercising it's
easement rights to maintain, repair, or replace it's sewer line.
4. OWNER and CI 1'Y further agree as follows:
a. OWNER may, at owner's cost and expenses, 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 improveml,;: its are damaged by the
installation or presence of PERMITTED IMPROVEMENTS, OWNER shall be responsible for
the cost of all repairs.
2
d. That shoula ,ITY be required to enter onto sai(- easement to exercise its
primary rights associated with said Easement, 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 reasonably 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) ('ITY agrees to bear only the cost of any r(-:moval of the PERMITTED
IMPROVEMENTS affected by such work by CITY;
(iv) OWNER agrees to pay all costs for renewal, restoration, or
replacement of the PERMITTED IMPROVEMENTS,
e. This agr:.-ement does not extend the OWNERS' any rights to construct any
additional improvements at a later time.
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. Either party
that is alleged to have breached any material provision of this apt cement shall be given 30
days written notice of the breach and the opportunity to cure with f:-je date of breach and the
date of termination, if cure is not made. In the event of litigation cummenced 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 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 agrees ti...c this Agreement shall remain in .ill 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 otherwisF: 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:
City Attorney
ATTEST:
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
City Ma,,Kager
OWNER: WMC Development
By: -- \ - --
David Close
4
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE )
On 1 , 1999, before me, CpC�1Pt-f) �X0AC)P±personally appeared
, personally known to me (or 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 his/her/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 persons(s) acted, executed the instrument.
WITNESSmv hAnd and/offiaial seal.
for said State
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
BRIAN FOXCROFT
NOTARY PUBLIC • CALIFORNIA
• COMMISSION N 1132349 c
ORANGE COUNTY
My Comm. Exp. March 31, 2001
(This area for official notarial seal)
On SWMU 200, J,899, before me, LQ/At4t V , I i4VS personally appeared
N40ftV--. L. 15 bp)p A JO►JNi� N1.
� � I�{r'��� ,personally known to me ( n
to be the person0whose name4Vis/subscribed to the
within instrument and acknowledged to me that his/her executed the same in his/her/ eir
authorized capacity Ies nd that by his/her/t6:6:ibsignaturEos on the instrument the personc_SD
or the entity upon behalf of which the person , acted, executed the instrument.
WITNESS my hand and official seal
Notary Public in and for said State
FAWP51 \GI LBE RT\AG\C LOSEEP99-459LI. DOC
LEiLANI V. INES
Ccrnm'ssion = 1170960
`z `-� No -cry PiOliC - Cal'fornia i Z 4 Z
O.rcr.ge CoLnty
My C m,m. ExUires Jon 25, 2002
(This area for official notarial seal)
Q
w
u
z
`
O
UIn
M
1'V
I
O
I—
w ?
O
�x
N�~Q
�V
O
m
H a O
O. i,
J i U
w
F.
r0 �J
JO
Q/.. C
w
U F"
a �
m
a
N
7
O ac
ULU
LU
Z�jp
O r
J¢Or!
Um
Vna. -, w