HomeMy WebLinkAboutC-9164-1 - Encroachment Agreement EPN N2002-0239 for 221 Driftwood RoadRECORDING REQUESTED 'D
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Public Works Department
City of Newport Beach
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Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in Official Records, County of Orange
Darlene Bloom, Interim Clerk -Recorder
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ENCROACHMENT AGREEMENT
(EPN2002-0239)
THIS AGREEMENT is made and entered into this �(� day of ,
di-61
2002, by and between Carol D. Carty (hereinafter "OWNER"), and the City of Newport Eieach,
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 221 Driftwood Road, Newport Beach, California and legally
described as Lot 44, Tract 1116, as shown on a map recorded in Book 36, Pages 19 and 20
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 Driftwood Road right-
of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 221 Driftwood Road,
Newport Beach, California and legally described as Lot 44, Tract 1116, as shown on a map
recorded in Book 36, Pages 19 and 20 inclusively of Miscellaneous Maps 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 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;
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NOW, THEREFORE, onsideration of the mutual promiE the parties hereto agree
as follows:
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as a
grouted stone concrete driveway, concrete carriage walkway, landscaping (the Lavandula
Stoechas plants shall have a maximum height of 30-inches), and appurtenances in the
Driftwood Road right -of -away 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 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. The Lavandula Stoechas plants shall have a maximum height of 30-inches. The
landscape plan shall be reviewed and approved by the Public Works Department. In addition,
no landscaping shall obstruct view to the adjacent residents. 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.
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c. If City or ier public facilities or improverr. s 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 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.
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7. OWNER shall a )pt the fact that surface drainagE 3ter 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
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 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: L"
City A torney
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By: .
City Manager
OWNER:
By:
�/� ll-2
Carol D. Carty
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STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On % �5 , 2002, beforeme,
personally a gearedC�l�O
personally known to me (or proved to me on the basis of sidtisfactory evidence) to be the
person( whose name( )(p/are subscribed to the within instrument and acknowledged to me
that e sh they has executed the same in hisoe/their authorized capacity(ig-s); and that by
his/6�their signature(s).-on the instrument the person(s) or the entity upon behalf of which the
person act9j, executed the instrument.
WI -SS" my hand and official seal.
SHAUNA LYN OYLER
x Z-/� /; ( "1f--u ��-
Notary Public in and for &
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
Commission # 1331209
z
i Notary Public - California i
z
% Orange County [
My Comm. Expires Dec 5, 2DO6
(This area for official notarial seal)
On VUI N , 2002, beforg me, l p l'll -1 /- uwNl, I tl T64rj rRolj(/
personally app ared (MlAnO JA00d gj jAjjh�& &A- 4pqkjtss ,
personally known to me for proved to me on the basis of satisfactory evidence) to be the
person( whose name s) is� subscribed to the wi hin. instrument and acknowledged to me
that he/se has execut the same in his/her/ heir uthorized capacity e�s)�and that by
his/her/ hei gnatur s on the instrument the persons or the entity upon be'hNf of which the
person acted, executed the instrument.
WITNESS my hand and official seal. LEILANI 1. BROWN
Commission * 1336673
�j`z Notary Public - California z
V(fVj� Z Orange County
My Comm, Expire* Jan 25, 20M
Notary Public in and for said State j "Wo
(This area for official notarial seal)
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