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Home My WebLink AboutC-9170-1 - Encroachment Agreement EPN N2001-168 for 521 Jasmine Avenue19b C) 'a! RECORDING REQUESTE� ;AND WHEN RECORDED RETURN TO: 9 Recorded in official Records, E. � E,,, C3UrT�Ey of Orange GN E Gary Granville, clerk -Recorder City Clerk Office it City of Newport Beach Post Office Box 'CT�68 i ' �UG 22 PJ •00 107 23 Al2 00104�?5m 0ti1 3300 Newport Boulevard 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Newport Bea - h �A 659-1768 �1 t f?` 0 THE i:I rY (:LERK �^ ;, «� t�a Space above'this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2001-168) _ THIS AGREEMENT is made and entered into this 7q�\_"_day of Just_ 2001, by and between Brad A. Fisher (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 521 Jasmine Avenue, Newport Beach, California and legally described as Lot 21, Block 536, Map of Corona Del Mar Tract, as shown on a map recorded in Book 3, Pages 41 and 42 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; WITNESSETH: \MHEREAc C-1%A!niEq desires to construct and maintain certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Jasmine Avenue and 3rd Avenue right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 21, Block 536, Map of Corona Del Mar Tract, as shown on a map recorded in Book 3, Pages 41 and 42 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 by CITY to permit OWNER to 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 agreed that PERMITTED IMPROVEMENTS shall be defined as a fence, trellis, decomposed granite patio, raised planters, concrete steps, exposed aggregate colored concrete driveway approach, landscaping, and appurtenances in the Jasmine Avenue and 3rd Avenue right -of -away as shown on EXHIBIT "A" attached hereto and as approved by the City Engineer. In addition, the landscaping shall have a maximum height of 36-inches above the top of curb and the landscaping between the curb face and 5 feet behind the curb face shall be only lawn/ground cover. The proposed PERMITTED IMPROVEMENTS may vary at the time of construction. Hence, any changes must be approved by the City Engineer and shall be 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. 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. 2 d. That shouiu CITY be required to enter onto saiu 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: 0) 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, 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 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". 3 8. OWNER shall accept and waive any and all liab,,ay 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 Cou ncil, 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 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 City Clerk CITY OF NEWPORT BEACH, a Municipal corporation IER: By: �- City ManX6er Bv: _ Brad A. Fisher 11 STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) On 2001, bef re me, 4,crlQ h �� personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(ol whose nameare subscribed tp,4pe within instrument and acknowledged to me that he/they has executed the same in OiYfier/their uthorized capacity 11s), and that b her/their signature�a�on the instrument e personS,a'�or the entity upon behalf of which the person acted, executed the instrument. WITNES,S')ny hancj--�icial seal. 5HAUNA LYN OYLER Commission tt 1164149 z Notary Public in and for said Stat Z -,. Notary Public - California ; Z Orange County My Comm. Expires Dec 5,2001 (This area for official notarial seal) STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On 1 , 2001, before me, C/6-A f-i J n personally appeaiidd 1'N lv . I , . At \,.,,►l am. �-- �—JA U64t"X — - pe onally know o me-(or-proved__to rye-onAhe--basis-ef--satisfactory-evidence) to be the person��uho nam (s)�is/ re ubscribed to the withiR instrument and ack led ed to me that he/sh he as e cute - e same in g �, Y his/herk4(eir uthorized capacit ies , and that by his/her their Ignatur (s) n the instrument the persos) r the entity upon behalf of which the person acted, execute the instrument. WITNESS my hand and official seal. Notary Public in d for said State (This area for official notarial seal) F:\USERS\WP51 \GILBER-RAG\FISHER-EPN2001-168CDM.DOC CATHY FISHER Commission # 1174329 Z z «e; Notary Public Califomio y W Orange County My Comm. Bq*es Feb 21, 2002 5 Ril