HomeMy WebLinkAboutC-9029-1 - Encroachment Agreement EPN N99-299 for 3049 East Coast HighwayI
Cr RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
V City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in the County of Orange, California
Gary L. Granville, Clerk/Recorder
III111111111III1111 No Fee
1 B90772773 1: 94pm 11 /04/99
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EP 99-299)
THIS AGREEMENT is made and entered into this day of
1999, by and between E. Morris Smith, Jr. (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 3049 . 'Coast Highway, Newport Beach,
California 92625 and legally described as Lots 4 & 5, Block H of Tract 323, and Lots 1 & 3,
Flock 436 of Corona Del Mar Tract (hereinafter "SUBJECT PROPERTY"), as shown on a map
recorded in Book 3 Pager 40 & 41 and Book 14 Pages 40 & 41, respectively, 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 "PERMITTLD IMPROVEMENTS") within the Jasmine Avenue and
First Avenue right-of-way (hereinafter "RIGHT-OF-WAY") serving : f Lots 4 & 5, Block H of
Tract 323, and Lots 1 & 3, Block 436 of Corona Del Mar Tract of t liscellaneous 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:
Ae9
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1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as, six (6)
31" x 7 %" pilaster, four (4) trees, landscaping, irrigation, and appi.rrtenances in the Jasmine
Avenue RIGHT-OF-WAY. and 8" thick block wall and appurten.) ices in the First Avenue
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 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 dat(: :)f termination. CITY shall
incur no liability whatsoever in the event of the termination of this P.greement, 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. 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 tc Maintain, replace or repair
any CITY -owned pipelire, conduit or cable located in or 1,nder said PERMITTFD
IMPROVEMENTS, except as otherwise provided herein.
2
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
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 improvement-3 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.
3
7. OWNER shall accept the fact that surface drainage oater may enter onto the
"SUBJECT PROPERTY" tr..)m "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 full force and effect from
execution thereof; shall run with the land; shall be binding upon t•le heirs, successors, and
assigns of OWNERS' interast in the land whether fee or otherwi,,.v, 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'
is
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By: — 4
zgi�e��
-
City Aanager
ER:
f:\groups\pubworks\encroach\ROW_agmts\98\98-519SMITH.doc
10/4/99
E. Morris Smith, Jr.
F
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On /to, H, / Y�?9 1999, before me, �4- 1f ✓1�i�/S�V 02
personally appeared PDw,0 ib NO KRIS S I_/ V 71 ------
_
kaewn-to-r-ne (or proved to me on the basis of satisfactory evidence) to be the person'
whose name,(sg) is/are subscribed to the within instrument and ; ,cknowledged to me that
he/sh'e^/th4 has executed the same in his/ %thy authorized c.apacityoes), and that by
his/for/t}r6ir signature(s�on the instrument the personjM or the entity upon behalf of which Vie
person acted, executed the instrument.
WITNESS nd offi 'al seal.
�- FARID K. MANSOUR
CD
m COMM. #1117081
U
NOTARY PUBLIC-CALIFORNIA -�
QI ORANGE COUNTY W
UUaMyComm, Explres 18 2000Notary Public in and for said State
` My Comm. Explres Nov.Nov.18 2000
(This area for official notarial seal)
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On OGuup_ 2q� 1999, before me, V� IU�� v, IviCS
personally appeared koVYlOy 6lv�alolv� � ��nUovlpersonal
known to me for proved to me on the basis of satisfactory evidence) to be the perso r(s
whose nam (s) is jjP subscribed to the within instrument and acknowledged to me that
he/she/ e has executed the same in his/her/t e' 'es authorized capacity , and that by
his/her/ � signaturets_j)on the instrument the person66r the entity upon on behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
- �ja";' �' -��
Notary Public in and for said State
_-
L.EILANI V. iNES
Commission # 1170960 9
r i-c*
Nn*ary Public - Califomia
Orange County
My Comm. Expires Jan 2.5, 2002
(This area for official notarial seal)
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