HomeMy WebLinkAboutC-9031-1 - Encroachment Agreement EPN N98-429 for 2800 Newport BlvdRFCORDING REQUESTF_C, AND
WHEN RECORDED RETURN TO:
/J Recorded in vie t.oianty of orange, cal ifornia
T Gary L. Grar1v.1 lRecgR er' ,,
1 Public Works Department III II I I I 1111 II III 111111111�11111
Citil NOee`
v Post Office of Box ort Beach
005 17,0173156 1 19990793953
g s 99 IV 422 ; 02p�mQ11Q�16/99
3300 Newport Boulevard 1:112 6 6.00 15 00 0.00 0.00 0.00 0.00
Newport Beach, CA 92659-1768
Space above this line for Recorder's use only. (�
ENCROACHMENT AGREEMENT
(EP 98-429) I')
THIS AGREEMENT is made and entered into this {�� _ day of.
1999, by and between Sergio Avila (hereinafter "OWNER"), and the City of Newport Beach,
California, a municipal corporation organized and existing under .i d by virtue of its Charter
and the Constitution and ire laws of the State of California, (hereinafter "CITY"). "OWNER' is
2800 v�v�TBc.�v.
the owner of property located at _Nt., Newport Beach, California 92663 and legally
described as Newport Beach Section "A", Block 225, Lot 1 (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 the 28`h Street right-of-
way (hereinafter "RIGHT-OF-WAY") serving of Newport Beach Section "A", Block 225, Lot 1
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-, and
WHEREAS, said PERMITTED IMPROVEMENTS may ii,.:;rfere in the future with
CITY'S ability to construcil. operate, maintain, and replace CITY art(` other public facilities a! --id
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;
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NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree
as follows:
1. It is mutually agreed that PERMITTED IMPROVEME.P.ITS shall be defined as
grouted colored pavers over concrete entry/walk and appurtenanc( in the 281h Street RIGHT-
OF-WAY 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 PFRMITTED 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 dat:`s :)f termination. CITY shall
incur no liability whatsoever in the event of the termination of this agreement, or subsequent
removal of improvements by CITY.
+. 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. 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 L nder said PERMITTED
IMPROVEMENTS, excepi as otherwise provided herein.
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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 shculd CITY be required to enter onto said RIGHT-OF-WAY to exerci; e
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 (11)) days' notice, unless the
breach is cured within such 10 day period, with the notice specifyi;ig 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 clairn
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 shall accept the fact that surface drainage ,pater 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
"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 "RIGHT-OF-WAY".
9. OWNER agrees that this Agreement shall remain in ull force and effect from
execution thereof; shall rL!n 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:
City Attorney
AT'
By
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
!amity anager
OWNER:
City Clerk
f:\groups\pubworks\encroach\ROW agmts\98\98-429AVILA.doc
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STATE OF CALIFORNIA )
COUNTY OF ORANGE )
On (\,�C3t) , --I 1999, before me,0a &_A 1 ��Q-� I"� 1 ��✓�
personally appeared L`� (� �j \ �, _ J perset -
t4raswfl-t> or�ire
oved to me n the basis of satisfactory evidence) to be the personm
ose name) subscribed to the —within instrument and acknowledged to me that
eiher/their
he/they has executed the same in hi/her/their authorized capacity(i�, and that by
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. _ _
YCATHY FISHER
Commission # 1174329 Z
Notary Public - Calltomla y
Z Orange County
Notary Public i a d for said State MyComm. Expires Fb21,2002
(This area for official notarial seal)
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On �AMKX- a) 1999, before me, LE��1 � , lfj6z
-
personally appeared "ytA L, 0>,VDA_A AT10 �A_�_M06 Vk, pVVwLA05 personall
known to me ) to be the person,
whose nam is ar subscribed to the within instrument and acknowledged to me that
he/she/6-a- has executed the same in his/herffijib authorized capacityQ& and that by
his/her/ ' 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.
Notary Public in and for said State
LEILANl V. INES
Commission # 1170960
Z ;Pm No7ary Public - California
Orange County
My Ccrmm. Expires Jan 25, M
(This area for official notarial seal)
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