HomeMy WebLinkAboutC-5403 - Encroachment Agreement EPN N2000-383 for 701 Iris AvenueRECORDING REQUES 3 AND
WHEN RECORDED RETURN TO:
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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
Gary Granville, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(EPN2000-383)
-� �1 THIS AGREEMENT is made and entered into this
I �1 �obel' , 2000, by and between Mike Kaser (President) on behalf of CDM
Partners, 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 701 Iris Avenue, Newport Beach, California 92625 and
legally described as Lot 1, Block 735, Corona Del Mar Tract, as shown on a map
recorded in Book 3, Page 42 inclusively of Miscellaneous Maps in the office of the
County Recorder of Orange County, California; and
WITNESSETH:
�-f day of
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Fourth Avenue right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 1, Block 735, Corona Del
Mar Tract, as shown on a map recorded in Book 3, Page 42 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, California;
also known as 701 Iris Avenue, Newport Beach, 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
1
WHEREAS; the part' hereto desire to execute an agre ant 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. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as
colored stamped concrete driveway/approach, colored stamped concrete carriage walkway,
landscaping (24-inches maximum height), and appurtenances in the Fourth Avenue right-of-
way 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 all maintain the PERMITTED IMP 1VEMENTS 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.
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 all or 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 br shall be upon a minimum of ti !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 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 agree 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:
B
ATTEST:
Byr
ity Attorney
W., tit, /rJ /
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By: 24411/,
City Man(ger
OWNER: CDM Partners, Inc.
Bv:
er, President
STATE OF CALIFORNIA
ss.
COUNTY OF ORANGE )
On /6 ,v , 2000, before me, 'a & /N...// 4/(/' personally appeared
ik� s personally known
q �r p y to me (or ov'ed to me on the basis of
satisfactory evidence) to be the person : hose name /are subscribed to the within
instrument and acknowledged to me th.the/they hi executed the same i is er/their
authorized capacity .6s), and that b er/their signatureon the instrument the person
or the entity upon ehalf of which the person acted, executed the instrument.
WITNE `, my hand and official seal.
Not.ry Public in an• •r 'aid Stat
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE )
p•
eHR•.B...,-.:.a.art:Lot,,:“n::w.00.:vs...u_.«.5,...tot,..,,.a.n..,,.,<n..i+owkft+
(This area for official notarial seal)
z to
SHAUNA LYN OYLER
Commission # 1164149
No'ary Public - California
Orange County
My Comm. Expires Dec 3, 2031
On , 2000, before me, personally appeared
, personally 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 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 persons(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(This area for official notarial seal)
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