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HomeMy WebLinkAboutC-9209-1 - Encroachment Agreement EPN EP98-413 for 1937 Port Provence PlaceRECORDING REQUESTED JD WHEN RECORDED RETURN TO: Q 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 111111111111111111 No Fee 19980901277 09 ; 24am 12/30/98 005 29010410 29 57 Al2 7 6.00 18.00 0.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACI-1M'E-'�T AG= EE- E-rTT rPVJ � - (EP 98-413) THIS AGREEMENT is made and entered into this day of , 1998, by and between John DeLotell and Robin DeLotell (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 1937 Port Provence Place Newport Beach, California and legally described as Lot 59, Tract 6624 (hereinafter "SUBJECT PROPERTY"), as shown on a map recorded in Book 254, Pages 28 to 32 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 Port Provence Place righi-of-way (hereinafter "niGHT-OF-WAY") serving of Lot 59, Tract 6624, as shown on a map recorded in Book 254, Pages 28 to 32, 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 RIGHT-OF-WAY; and WHEREAS; the parties hereto desire to execute an agreement providing for fulfillment of the conditions required oy 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: 1 1. It is mutually Qy,eed that PERMITTED IMPROVEN..=NTS shall be defined as integral colored concrete driveway, integral colored concrete walkway, and appurtenances in the Port Provence Place RIGHT-OF-WAY as shown on EXHIBIT "A" attached hereto and as approved by the City Engineer. 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 OWN,,---,'--,, 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 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. 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. 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 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 2 facilities or improvements, Ci . > may remove portions of the PERs-,;ITTED IMPROVEMENT'S, 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 (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. 7. OWNER shall accept the fact that surface drainage water 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 3 City Council, boards and coi,..iiissions, officers and employees ft�,,n 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 the heirs, successors, and assigns of OWNERS' interest in the land whether fee or othenv✓ise., 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. V.,_C� City Attorney ATTEST: i By: City Clerk CITY OF NEWPORT BEACH, a Municipal corporation By: City Manager OWNERS: By: �Z Joh eLotell r��By: 12e_LZ�_ Robin DeLotell f:\groups\pubworks\encroach\forms\agmt-EP98-413DeLotell-CDM8.doc 11 /5/98 11 al,� II I rla III I �1,E�- f�4'u I;x�� �a= ig;�;�� �I I�; i �' � I�� i � �F' I I 4 611, ;d, !11 ,aa� 0 i i I 900—Z6 Nr 8OUSPISOU 1/910700 GLU o If CQJ) I Ila 13 STATE OF CALIFORNIA ) LOS ANGELES) SS: COUNTY OF ORAMG9 ) On November 19 1998, before me, Linda L. Muldoon, Notary Public personally appeared John DeLotell , personally known to me (cam-Preyed-4e-tie-erg-tfte-basis-orf-safisfaetoi'y-evidenee) to be the person(s) whose name(s� is/vm subscribed to the within instrument and acknowledged to me that he/tiT@Ah x has executed the same in his/ft:rA u* authorized capacity 66), and that by his/MMM& signature(g) on the instrument the person(g) or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. 40t Public in and for id S ate LINDA L MULDOON Commisslon # 1093635 Notary Public — Californla Los Angeles County My Comm. Explres May 7, 2000 (This area for official notarial seal) STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On,�oP / 1998, before m `QjiUrt�,r�l.� r�0, �i1J �0Ti I ILL personally appeared 4DRL0 7�s� �� ersonally known to me (or roved tom e basis of satisfactory evidence) to be the person( whose name i are subscribed to the within instrument and acknowledged to me that hgheir hey has executed the same in hi er heir authorized capacity{, and that by hi 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. Cotary Public in and for said State _ �_ w- �. w w �1..� ��r• DONNA i MANSON WPM f Wit% E'.a,rrza t lit ra rsh1v .?. 2t1rYl i (This area for official notarial seal) IN CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California I'1raV1 County of ss. �l On before before me, Date (` ` Name and Title of Officer (e.g., "J ne Doe, Notary ublic'") personally appeared D�v1r1��' v- 1������ L ILANI V. INES Commission # 1170960 z No-ary Public - California Z t`� Orange County Expires Jan 25, 2002 >Lpersonally known to me ❑ proved to me on the basis of satisfactory evidence to be the persory(.8'f whose named Ware - subscribed to the within instrument and acknowledged to me that he/pep executed the same in his/4@rfthi r authorized capacity(4esJ, and that by hiss~ signature( on the instrument the person(, or the entity upon behalf of which the persons} acted, executed the instrument. WITNESS my hand and official seal. ocio-� �, Sua,� Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual ❑ Corporate Officer— Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: RIGHT THUMBPRINT OF SIGNER © 1997 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827