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Home My WebLink AboutC-9196-3 - Encroachment Agreement EPN N2002-0081 for 3344 Via LidoRECORDING REQUESTED WHEN RECORDED RETURN 1 O: -- Public Works Department City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 Recorded in Official Records, County of Orange Darlene Bloom, Interim Clerk -Recorder 1111111111 1111111 IIIII 1111111111 11111111111111111111 6.00 20020343463 K-00pm 04124102 120 3 Al2 6 0.00 0.00 0.00 0.00 10.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT �qI'> (EPN2002-0081) THIS AGREEMENT is made and entered into this day of , 2002, by and between ETCO Development, Inc. (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 3344 Via Lido, Newport Beach, California and legally described as Parcel No. 2 of Parcel Map No. 2000-114, as shown on a map recorded in Book 317, Pages 14 and 15 per Instrument No. 20000589229 recorded on October 31, 2000 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 the Via Lido right-of-way and a portion of an existing 4-foot public utility easement on Via Lido serving Parcel No. 2 (also known as 3344 Via Lido, Newport Beach, California) hereinafter "EASEMENT", and legally described as Parcel No. 2 of Parcel Map No. 2000-114, as shown on a map recorded in Book 317, Pages 14 and 15 per Instrument No. 20000589229 recorded on October 31, 2000 in the office of the County Recorder of Orange County, California; 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, in consideration of the mutual promises, the parties hereto agree as follows: 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as decorative concrete/paving stones pavement/driveway, landscaping (maximum 24-inches high), 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 it'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. 04, 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 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 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. 9 7. OWNER shall ;pt the fact that surface drainagc ater may enter onto the "SUBJECT PROPERTY" from " EASEMENT " 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 " EASEMENT ". 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 " EASEMENT ". 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 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 NEWPORT BEACH, a Municipal corporation APPROVED AS TO FORM: By: By:/ - . . City Attorney City M ager City Clerk NNER: ETCO Development, Inc. 9 STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On , 2002, before me, ef`PJI'jam. V.i C4 ' r3pD N u , C�, personally appeared A�S1W-n personally known to me ( to be the person(#) whose name(JO is/ape subscribed to the within instrument and acknowledged to me that �"y executed the same in his/he~ authorized capacity(, and that by his/fir signature(p on the instrument the person# or the entity upon behalf of which the persons() acted, executed the instrument. WITNESS my hand and official seal "_ M . lol cwt' Notary Public in and for said State STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On �-,\ c1 2002, before me, 6RENDA M. WICKETT r COMM. # 1329154 Notary Public -California _ Orange County conCommission Expires=' .V R.15, 2005 (This area for official notarial seal) S ,Ojc) personally appeared %jv-,2 �_ . V�D1 v` VY- ouvvL T� persona�l .yy known to me (basistisfactcvry-evidenee-)-to be the perso6 s whose nam (s is are subscribed to the i in instrument and acknowledged to me that hipicted, he executed t e same in his/her heir authorized capacit ie and that by his/herhe sQ on the instrument the perso s or the entity upon behalf of which the person executed the instrument. WITNESS my hand and official seal. Notary Public in d for said State F:\WP51 \GILBERT\AG\ETCOEPN2002-0081 VIALICO.DOC T� CATHY FISHER Commission 1341009 Notary Public - Calftmia z Orange County MY Chi, Expires Feb 21, 2006 (This area for official notarial seal) 5 Gor1CrR.�T� PAN), G sTC) t-l� `7 CA< REMOVE EXIST PARKING METE) EXgI8!T „A