HomeMy WebLinkAboutC-6327 - Encroachment Agreement EPN N2003-164 for 2400 Via MarinaRecorded in Official Records, County of Orange
Tom Daly, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(EPN2003-0164)
THIS AGREEMENT is made and entered into this day of
2003, by and between Don C. and Patricia K. Barton (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 2400 Via Marina,
Newport Beach, California, 92660 and legally described as lot 8, Tract 1864 as shown on a
map recorded in Book 57, page 21, inclusively of Miscellaneous Maps in the office of the
County Recorder of Orange County, California.
WITNESETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Via Marina right-of-way (hereinafter
"RIGHT-OF-WAY") that is located adjacent to lot 8, Tract 1864 as shown on a map recorded in
Book 57, page 21, inclusively of Miscellaneous Maps in the office of the County Recorder of
Orange County, California; also known as 2400 Via Marina, Newport Beach, California, 92660
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
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RECORDING REQUESTED AND
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WHEN RECORDED RETURN TO:
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Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in Official Records, County of Orange
Tom Daly, Clerk -Recorder
11111111111111111111111111111111 I I 1111111111111111111111111111111118.0 0
2003000638118 09.10am 06102103
213 96 Al2 7
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2003-0164)
THIS AGREEMENT is made and entered into this day of
2003, by and between Don C. and Patricia K. Barton (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 2400 Via Marina,
Newport Beach, California, 92660 and legally described as lot 8, Tract 1864 as shown on a
map recorded in Book 57, page 21, inclusively of Miscellaneous Maps in the office of the
County Recorder of Orange County, California.
WITNESETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Via Marina right-of-way (hereinafter
"RIGHT-OF-WAY") that is located adjacent to lot 8, Tract 1864 as shown on a map recorded in
Book 57, page 21, inclusively of Miscellaneous Maps in the office of the County Recorder of
Orange County, California; also known as 2400 Via Marina, Newport Beach, California, 92660
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 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. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as
drive approach and adjacent 4 feet side walk overlaid with Flag Stone masonry and
appurtenances in the Via Marina right-of-way as shown on EXHIBIT "A" attached hereto and
as approved by the Public Works Department. In addition, the proposed PERMITTED
IMPROVEMENTS may vary at the time of construction. Hence, any changes must be
approved by the Public Works Department 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
therefore 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.
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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 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,
replacement, 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, replacement, 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
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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 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:
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City Attorn
ATTEST:
B
y:
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
City Manager
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on C. Barton
OWNER:
By: VAL,,
Patricia K. Barton
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
Ora q0 ss.
On / �'Ut J before me, I QVII ,pj���� V r (�� 1( 0
Date her
Wood 4i N_ame nd Title of Offi�err� e.g., " ne Doe, N tary Public")
personally appeared f [ �{�l i�1 , M
Name(s) of Signer(s)
LEILANI I. BROWN
ommission # 1336673 Z
jQWC
Natsry public - CaliforniaOranpa County CcM M FVIrft Jan 25, 2(lQ6
personally known to me
❑ proved to me on the basis of satisfactory
evidence
to be the personalhose nameois/ r�e
subscribed to the within instLument aKd
acknowledged to me that he�yy
ho
executed
the sa in his/her/ir authori
pd
capacity( and that his/her/ eir
signatur s) on the instrument the perso 0
the entity upon behalf of which the persono
acted, executed the instrument.
WITNE S my hand and official seal.
Place Notary Seal Above Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual
Top of thumb here
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
0 1999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatswonh, CA 91313-2402 • www.nationalnotary.org Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On NW,4 t 0 , 200 before me,
—ice A
personally appeared 1 0) V 1 `'I f i/LW 0,16 1 ( ARV I V , personally
known to ,m��e (or proved to me on the basis of satisfactory evidence) to be the perso (s) whose
name(s) i� ar subscribed to the within instrument and acknowledged to me that he/she a has
executed the same in his/her/their authorized capacit es , and that by his/her/ ie signatur s) In the
instrument the persor sr the entity upon behalf of which the person acted, executed the instrument.
LAURIE
WITNESS my han official seal. 9 No i
Notary Public i d for said State
STATE OF CALIFORNIA
ss:
COUNTY OF ORANGE
M,
(This area for official notarial seal)
personally appeared ' L )(N` ® F'jV`('Vl C/I G(,_ -j> &c --u T/l personally
known to me (or proved to me on the basis of satisfactory evidence) to be the pers (s hose
name(&is/6 subscribed to the within instrument and acknowledged to me that he/she/oQhas
executed the same in his/her/ el uthorized capacity and and that by his/her/t it ignature9n the
instrument the person (Or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary PubliG'1p and for said State
LAURIEREGAN
1331��
Commission # 1331229 [[
Notary Public - California
Orange County
My Comm EPres Nov Zf), 2005
(This area for official notarial seal)
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