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Home My WebLink AboutC-9033-1 - Encroachment Agreement EPN N99-433 for 449 Isabella TerraceRECORDING REQUESTEC ND WHEN RECORDED RETURN TO: d' Public Works Department City of Newport Beach V Fost Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 ro Recorded in the County of Orange, California Gary L. Granville, Clerk/Recorder �111111IIIIIIg111111111111I111IIIIIIIIIII1III111111111111 No Fee 19990812269 08:52am 11/24/99 005 19012959 19 61 Al2 7 6,00 18.00 0.00 0.00 0,00 0.00 Space above this line for Recorder's use only. ENCROACHMENTAGREEMENT �040 (EP99-433) THIS AGREEMENT is made and entered irt^ this / �'� % day of 1999, by and between Barbara Wertin (hereinaft. "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 449 Isabella Terrace, Newport Beach, California and legally described as Lot 163, Tract 1237, as recorded in Book 40, Pages 19 and 20 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; WITNESSETH: WHEREAS, OWNER desires to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within a portion of an existing 6-foot public utility easement serving Lot 163, Tract 1237 (also known as 449 Isabella Terrace, Newport Beach, California) hereinafter "EASEMENT", as legally described in Official Record No. 12277/1327 (Book 12277, Page 1327) in the office of the County Re -corder 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, consideration of the mutual prom,-,.;:,, 'he parties hereto agree as follows: 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as a 3-foot high retain wall with 6-foot high wooden fence, 6" diameter drain, and appurtenances as shown on EXHIBIT "A" attached hereto and as approved by the City Engineer. 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 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 ac i,vities. 3. Rights granted under this Agreement may be terminate: by CITY at any time oy 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 as a result of exercising it's easement rigints to maintain, repair, or replace it's sewer line. 4. OWNER and CITY 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 IMPRU_.MENTS in accordance with general prevailing standards of maintenance, and pay all cos and expenses incurred in doing so. However, nothing herein shall be construed to require O1AINER 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 all repairs. 2 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, 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) 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, restoration, or replacement of the PERMITTED IMPROVEMENTS. e. This agreement 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 remedi,,.:; available to it, terminate this Agreement, and, in t1he event the breaching party is OWNER. 3ITY 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 agreement shall be given 30 days written notice of the breach and the opportunity to cure with the date of breach and the date of termination, if cure is not made. 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 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 gnat this Agreement shall remain u, gull force and effect from execution thereof; shall ru i with the land, shall be binding upor: tie 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: City Attorney ATTEST: By: 4,97t u - v, I. ��lCtl, City Clerk CITY OF NEWPORT BEACH, a Municipal corporation OWNER: By: z , City Manager By Barbara 4 STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE On — -1Z. before me p Y pp erson�ll eared - �-- i er ally known ,o me o on be the perso s) se nam (s is/ re ubscribed to within instrument and acknowledged to me th is/her they xecuted the same in his/her/ heir authorized capacity les , and that by his/her/1 on the instrument the person s or the entity upon behalf of which the person (s cted, executed the instrument. WITNESS my hand and official seal. C��'A '-'� Notary Public in a f r said State STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) :e CATHY FISHFR Commission # 1174329 Z z Notary f ubliC - California z Orange County My Comm. b plres Feb 21, =2 (This area for official notarial seal) O199 , before me,e�if�,i�i 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. WITNESS my hand and official seal. n � Notary Public in fl for said State CHRISTINE JAMESON N Comm. N 1189752 NOTARY 1UIlIC • CAIIFIRNIA Orange County ` MY Comm. Expires Aug, 7, 2002 (This area for official nota;-iA seal) R e�5i000kr\rO_ —W,4� h�Wpole'f GP�I� i� Z U /- Z