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Home My WebLink AboutC-8810-1 - Encroachment Agreement EPN N98-283 for 4707 Seashore DriveRECORDING REQUEST, AND Recorded in the County of orange, California WHEN RECORDED RETURN TO: Gary L. Granville, clerk/Recorder Q Public Works Department 1111� 111111111/ 21. 0 0 City of Newport Beach 19980642194 10; 37am 09/24/98 00 00 005 26016491 26 59 Post Office Box 1768 Al2 6 6.00 15.00 0.00 0.00 1 0.00 0.00 3300 Newport Boulevard V Newport Beach, CA 92659-1768 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT% (EP 98-283) F THIS AGREEMENT is made and entered into this day of 1998, by and between Jan -Erik Palm (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 4707 Seashore Drive, Newport Beach, California and legally described as Lot 4, Block 47, Tract Third Addition to Newport Beach (hereinafter "SUBJECT PROPERTY"), as shown on a map recorded in Book 3, Page 31 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; W ITNESSETH: WHEREAS, OWNER desires to construct and maintain certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Seashore Drive right- of-way (hereinafter "RIGHT-OF-WAY") serving of Lot 4, Block 47, Tract Third Addition to Newport Beach, as shown on a map recorded in Book 3, Page 31, 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 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 agreed that PERMITTED IMPRO� _MENTS shall be defined as grouted 12-inch square slate tile over concrete driveway approach/walkway and appurtenances in the Seashore Drive 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 OWNER 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. In addition, any new and existing trees, shrubs, and landscaping that are on the adjacent City property shall be maintained at the roof line of the existing structures at all times. 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. oil d. That sho,_..d CITY be required to enter onto sa 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, 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". 3 8. OWNER sha,. accept and waive any and all lia—ity 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: i City Attorney AT L City Clerk CITY OF NEWPORT BEACH, a Municipal corporation By: City Manager OWNER: By: �,J, / Jan -Erik Palm fAg rou ps\pu bwo rks\encroach\f orm s\ag mt- E P98-283 PALM- B P. doc 8/28/98 IN STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) On 31s 14 w,�,f 1998, �efore personally appeared ?8�, ✓- k 9'4.-- per onally 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 he/she/they has 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 person acted, executed the instrument. WITNESS my hand and official seal. Notary Public n and for said Stat STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On TINA SCHMaz COLAA. * IM62M z Z x Wory Public — Califomia ORANGE COUNTY My Comm. Expires APR 17.1999 (This area for official notarial seal) re me,M w6A N�> \4\-?-C t, ,)� `t c-- personally appeared I -- -. ��, e�t A- LAW, +�'c _l�-�1 , . �-r� �air�ersdna�l known to me d to be the perso25;' whose (s is/ re ubscribed to the within 'instrument and acknowled ed to me he/she th has executed the same in his/he rtthe&iiauthorized capacityies) and that by his/her eir ignatur (s) n the instrument the peor the entity upon be alf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public ' nd for said State rA.Z ,,w..... 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