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Home My WebLink AboutC-9028-1 - Encroachment Agreement EPN N99-393 for 932 Via Lido Nord03 RECORDING REQUESTED AND rJ WHEN RECORDED RETURN TO: 40 Public Works Department 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 11111 II II 111111111111111111111 No Fee 19990746757 12:57pm 10/25/99 008 21019655 21 23 Al2 7 6.00 18.00 0.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EP99-393) THIS AGREEMENT is made and entered into this day of 1999, by and between Dan Donahue (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 932 Via Lido Nord, Newport Beach, California and legally described as Lot 327, Tract No. 907, as shown on a reap recorded in Book 28, Pages 25 to 36 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 4-foot public utility easement on Via Lido Nord serving Lot 327, Tract No. 907 (also known as 932 Via Lido Nord, Newport Beach, C,,ylifornia) hereinafter "EASEMENT", as shown on a map recorded in Book 28, Pages 25 to 36 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 amli Lather 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; j�965�69 11 NOW, THEREFORE, in consideration of the mutual prom, s, the parties hereto agree as follows.- 1 . It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as decorative colored concrete driveway approach 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 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 as a result of exercising i�('s easement rights 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 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 all repairs. 1a d. That should CITY be required to enter onto s_ J 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 �r 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 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 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 arnj 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 that this Agreement shall remain full force and effect from execution thereof; shall r;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. CITY OF NEWPOR1 BEACH, a Municipal corporation APPROVED AS TO FORM: By: By. 94�.z City Attclvhey City MaMager ATTEST: City Clerk OWNER: By:4'. 4) Dan Donahue 0 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No. 5907 State of California County of Orange On Oar • 1q, h4'C79 before me, Patricia L. Wasmund, Notary Public, DATE NAME, TITLE OF OFFICER - E.G.. 'JANE DOE, NOTARY PUBLIC" personally appeared Daniel W. Donahue NAME(S) OF SIGNER(S) ❑k personally known to me - to be the person¢s�whose names} is/ma-r-e— subscribed to the within instrument and ac- knowledged to me that hefsheftey executed the same in his/ ef44e4r authorized PAMCIA L WAWUND capacity(-+-_s , and that by his'"�T, &- cornmt bOe C106675 4*W s i nature person*, NOtAyPubAC—CdforrYa g (S}-on the instrument the erson , M,oa„n,,. ,MW or the entity upon behalf of which the person( --acted, executed the instrument. WITNESS my hand and official seal. SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSONS) OR ENTIT!(IES) DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE 71993 NATIONAL NOTAP`=.2SCCIATION - 8236 Remmet Ave., P.O. Box 7184 - Canoga Park, CA 913G9-7t .c STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On 04*X- tit , i 999, before me, L�l�WIy , ENO personally appeared A W4t�t 5 , personally known to me (or proved te-ffte-� to be the person&whose name(Csyisk®r �subscribed to the within instrument and acknowledged to me that his/herexecuted the same in his/her elr authorized capacit e and that by his/her/4hejbsignature&on the instrument the person or the entity upon behalf of which the persons s�cted, executed the instrument. WITNESS my hand and official seal Notary Public in and for said State STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On LEILANI V. INES Commission # 1170960 z No ary Public - Califomta y Z %MY Orange County C:;yim. Expires Jan 25, 2002 (This area for official notarial seal) 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. 1999, before me, WITNESS my hand and official seal. Notary Public in and for said State F:\WP51\GILBERT\AGDONAHUEEP99-39K1 DOC (This area for official notarial seal) 5 . A-7 D fL let [� Cr., ROLLO (`N f%JgA q t a.-i ii LEGE : ( ): EMONG EM. 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