HomeMy WebLinkAboutC-6454 - Encroachment Agreement EPN N2000-470 for 312 Dahlia PlaceF L_ -CORDING REQUESTED,- .D
Vt'H -N RECORDED RETURN TO:
7" Public Works Department
g City of Newport Beach
Post Office Box 1768
V 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 515
SUS
EPN2000-470
THIS AGREEMENT is made and entered into this da of ,Ab( lnl
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20 , by and between Mike O. Simsek; hereinafter "OWNER", and the City of N port 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 312 Dahlia Place, Newport Beach, California and legally
described as Lot 14, Block 232 of Corona del Mar Tract as shown on a map recorded in Book
3, Pages 41 through 42 inclusively of Miscellaneous Maps in the office of the County
Recorder of Orange County, California;
WITNESSETH: IV�
W'rIEREAS, 0`%V ER desires to construct and maintain certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within Fernleaf Avenue right-of-
way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 312 Dahlia Place, Newport
Beach, California and legally described as Lot 14, Block 232 of Corona del Mar Tract as
shown on a map recorded in Book 3, Pages 41 through 42 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:
1
NOW, THEREFORE, ire consideration of the mutual promised, the parties hereto agree
as follows:
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as five
foot high picket fence, portland concrete cement patio with ribbon brick pavers, landscaping
and appurtenances in Fernleaf 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 on 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 RIGI-tT-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. However, nothing herein shall be construed to require OWNER to maintain, replace
or repair any private -owned or CITY -owned pipeline, conduit or cable located in or under said
PERMITTED IMPROVEMENTS, except as otherwise provided herein.
c. If private -owned, 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 shoula the 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.
5. 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 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.
3
IN WITNESS WHEREvF, the parties hereto have caused this Agreement to be
executed on the day and year first -above written.
APPROVED AS TO FORM:
By: (LItl
City Attorney
ATTEST:
City Clerk
21
CITY OF NEWPORT BEACH,
a Municipal corporation
C6]►ITl01l2i
By: /�'/ , zxa,-
City Ma ger
By: 1
Mike O Simsek
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On i -V -C ( , 2000, before me, C-\�1,� , 00i�
personally appeared(, 3 . S >,V\�\,<- E — , person Ily
known to One (or proved to me on the basis of satisfactory evidence) to be the person(
whose name( -s) is/afe- subscribed to the within instrument and acknowledged to me that
he/shy has executed the same in his/"^r'rcm ieif- authorized capacity(es}, and that by
his/he A+vc* signature(s)-on the instrument the personal or the entity upon behalf of which the
person acted, executed the instrument. _
WITNESS m th. nd and official seal.
C. ENSIGN
Commission # 1129354 Z
z Y Notary Public - California ;
Orange County
My Comm. E PIres Mar 12, 2001
Notary Pub 'c in and for jaid S-Mte-- — i - -- — - -
(This area for official notarial seal)
STATE OF CALIFORNIA
) ss:
COUNTY OF ORANGE )
On 15 N Q. before me, r,,-�_
personally appeared os�,I,--Z. C L. ipersonaley
known to me encu to be the perso sj)
whose nam s� is/Crysubscribed to the within i ttrrument and acknowleded to me that
he/she he he
as executed the same in his/her/ eir authorized capacit s and that by
his/her/, eir iGnatur s n the instrument the persO s) r the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal. 77
C7.7iY i icR
., Commission # ,17 Z
Notary Public - Cc�lifcrnia
Grange Couniy
Notary Public in ark for said State MVComm21,2002
(This area for official notarial seal)
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