HomeMy WebLinkAboutC-6466 - Encroachment Agreement EPN N2003-041 for 321 Aliso AvenueRecorded in Official Records, County of Orange
Tom Daly, clerk -Recorder
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ENCROACHMENT ,GRE EM`N T
(EPN2003-0041)
THIS AGREEMENT is made and entered into this 7 day of
2003, by and between Marcus avis and Wendy H. Davis (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 321 Aliso
Avenue, Newport Beach, California 92663 and legally described as Lot 15, Block 17, First
Addition to Newport Heights, as shown on a map recorded in Book 4, Page 94 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, California; and
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Aliso Avenue right-of-way (hereinafter
"RIGH T-OF4VAY") that is located adjacent to Lot 15, Block 17, First Addition to Newport
Heights, as shown on a map recorded in Book 4, Page 94, inclusively of Miscellaneous Maps in
the office of the County Recorder of Orange County, California; also known as 321 Aliso
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
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
RECORDING REQUESTED AND
�QQ
WHEN RECORDED RETURN TO
Public Works Department
City of Newport Beach
t
Post Office Box 1768
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3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in Official Records, County of Orange
Tom Daly, clerk -Recorder
III'!! 1111111111111111111111111 I l i 1111111111111111111111111111116.00
2003000291308 03:32pm 03118103
i10 92 Al2 6
0.00 0.00 0.00 0.00 10.00 0.00 0.00 0.00
Space above this line for Recorder's use only.
ENCROACHMENT ,GRE EM`N T
(EPN2003-0041)
THIS AGREEMENT is made and entered into this 7 day of
2003, by and between Marcus avis and Wendy H. Davis (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 321 Aliso
Avenue, Newport Beach, California 92663 and legally described as Lot 15, Block 17, First
Addition to Newport Heights, as shown on a map recorded in Book 4, Page 94 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, California; and
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Aliso Avenue right-of-way (hereinafter
"RIGH T-OF4VAY") that is located adjacent to Lot 15, Block 17, First Addition to Newport
Heights, as shown on a map recorded in Book 4, Page 94, inclusively of Miscellaneous Maps in
the office of the County Recorder of Orange County, California; also known as 321 Aliso
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
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, consideration of the mutual promi: the parties hereto agree
as follows:
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as a 36 -
inch high wooden fence, concrete carriage walkway with brick ribbons, and appurtenances in
the Aliso 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 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.
c. If City of Aher public facilities or improven. .its 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 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.
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 mai. -,r connected with the design, cc. Aruction, 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 WHIEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first -above written.
APPROVED AS TO FORM:
By:
City Attorney
ATTEST:
By: O %7). �,L &,
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
OWNER:
By: vwl�z_ X
City Ma 71er
By:
Marcus ¢ Davis
i�
qy�-' I - /,j lf� '
Wendy, . Davis
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On , iq , 2003, befo a me, LellaVll oy-vp �4rdqlq)i()personally
appeared.-i-1'DYy r L. i�)v1��C�u1 qV� LApy►1'O M. jjlArWiP-�spersonal)
known to me or proved to me on the basis of satisfactory evidence) to be the perso s)
whose nam (s is/ r�e subscribed to the within i strument and acknowled ed to me that
he/she/ he his eA uted the same In his/he he' authorized capacity('es and that by
his/her signature s) n the instrument the perso (s or the entity upon be alf of which the
person acted, execute the instrument.
WITNESS my hand and official seal
Notary Public in and for said State
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
LEILANI I. BROWN
Commission # 1336673 Z
Z
Notary Public - California
Z Orange County
My Cam, Expires San 25, 2006
(This area for official notarial seal)
On , 2003, 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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