HomeMy WebLinkAboutC-9219-1 - Encroachment Agreement EPN EP98-332 for 350 Buena Vista Blvd.RECORDING REQUESTS AND
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WHEN RECORDED RETURN TO
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Public Works Department
City of Newport Beach
Post Office Box 1768
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3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in the County of Orange, California
Gary L. Granville, Clerk/Recorder
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19980642195 10; 37am 09/24/98
005 26016491 26 59
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Space above this line for Recorder's use only.
OCT 21990
ENCROACHMENT AGREEMENT i
(EP 98-332) r r F'uWi�c
THIS AGREEMENT is made and entered into this 14th day of September, 1998, by and
between Denise Frink (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 350 Buena Vista Boulevard, Newport Beach, California and
legally described as Lot 146, Block "A", East Newport Subdivision (hereinafter "SUBJECT
PROPERTY"), as shown on a map recorded in Book 4, Page 51 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 Buena Vista
Boulevard right-of-way (hereinafter "RIGHT-OF-WAY") serving of Lot 146, Block "A", East
Newport Subdivision, as shown on a map recorded -in Book 4, Page 51, 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:
f)
4)
1. It is mutually agreed that PERMITTED IMPRO'v—MENTS shall be defined as
grouted "Bouquet Canyon" stone raised patio (24" high), wall with columns (3-feet high),
planters, steps, landscaping, and appurtenances in the Buena Vista RIGHT-OF-WAY as
shown on EXHIBIT "A" attached hereto and as approved by the Public Works Director. In
addition, all PERMITTED IMPROVEMENTS (including landscaping) shall not exceed the 3-
foot height limit above the existing concrete sidewalk.
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.
2
d. That shou.J 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 BeacA,
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 shu_ accept and waive any and all liu_,iity 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:
am
ATTEST:
Ir AV
By:
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By: C i
City Manager
OWNERS:
fAg roups\pu bworks\encroach\f orms\ag mt-E P98-332FR INK-BP.doc
9/11 /98
IN
STATE OF CALIFORNIA
) ss:
COUNTY OF ORANGE )
On eOW &- 1998, before me,
personally appeared �.SG- Lr a p rsonally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(<
whose nameX6i /are subscribed to the withlig instrument and acknowledged to me that
he s they has executed the same in hie their authorized capacity), and that by
his eir signature's) on the instrument the person(s'f or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
-, - _ - - - /11Z -1-441 'C :—z/," -�a-/ - -,
Notary Public in and for Ad State
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On C� -\`U :� C�
SHAUNA LYN OYLER
Commission # 1164149
z' �s No-,ary Puolic - COI fornla i
Orange County —
MY COmm. Expires Dec 5, 2001
(This area for official notarial seal)
me.
personally appeared N 1A�2�-) L,, \J � 11�* L-6n 0\�-m \L,l er onrgll
known to me ) to be the persor
whose nam s; i7are subscribed to the within trument and acknowledged to me that
he/she has exe uted the same in his/he hg authorized capacit ies , and that by
his/her/ heir ignatur (s n the instrument the perso (s) or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public ' d for said State
CATHY FISHER
. aCommission # 1174329 Z
Notary Public - California
Orange County
Comm. Spires r�b 21, 2002
(This area for official notarial seal)
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k@SVWlVf:iGN APPLICATIoet NO..JLjjy
DATE_
L nrd. No. 650 - Sectten p152.))
City of Newport Reach
TIL1Nt: L88 - W
pl„e cost of rscordiag
ItiorpuotingF: (Abed cotafkally) WZ6 AIEPIWIA of isle lets ce raeantatiia ��l�e
rpubh�ht at all mestlnLo, TL1 out this epplLearlon ea.p eta y n gwdtvp[Ieattr
and submit to the Planning lropowtwent, City 11all, together vlth six (65 copies
of s purveyor's plot pi-P. ttte plot plan wet ebov all 9RteLi.i` and proposed
lot ataaeaions, .treat, sltayr sassieat lvcstione ood sAL#9tn# 1r.pi6v4ee1kta,
ApplL,otioa go not VALID eottl raeordod_
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As recorded In ROOK _ R �MOiW o_a Rseoeda of the Ceuncy of Orange.
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4. ThLa r.._ proparty As loc&tad to a nLeerles, sold all .vouhdivided late
ragv9sted herein will be Is aeoerd w t SV lelptoe f)rd. MO, aa4 aor •n4 all
aMeadwentt ,bervtp• The appltosmt 40.1966 a rase%4Lv1pLotg of t Wo pr po+ty a.,
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On two IB foot Lets. t ther than a 19 4&A• 7y
TLOWQ are 6 ehe•ra attached be eed wade a part Of this appllsattoe. 1
bersay Cerflly gbAL quo toregoing etateraeatt, maps, dratrlA$0. pleve, and apsc-
iltc•tloma attscbed .«•rats are true end correct. t tuteher conseat to Ray
raaaMlvla►ve ysrmLtasd Le rallapce thereon b&ioS aalt aced void 1p the avaat
they are not true se%a ao rest,
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