HomeMy WebLinkAboutC-6475 - Encroachment Agreement EPN N2003-256 for 526 Catalina Avenuei
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Recorde,; hi official Records, COUnty of orange
RECORDING REQUESTED AND rom c'al'✓, clerk -Recorder
WHEN RECORDED RETURN TO:
Public Works Department119 2 10
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Post Office Box 1768 08000964917 02.33pm 08/111/03
City of Newport Beach '119 0 oc; o.00 o.00 1z.on, o.00 o.00 u_oo
Newport Beach, CA 92659-1768
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2003-0256)
1
THIS AGREEMENT is made and entered into this day of
�3a� , 2003, by and between Dennis and Bonnie Simon, Trustees of the Simon
Trust u/a/d, dated January 9, 2001 (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 526 Catalina Avenue, Newport Beach, California, 92663 and
legally described as lot 7, Block 31 of First addition to Newport Heights Tract as shown on a
map recorded in Book 4, Pages 94, inclusively of Miscellaneous Maps in the office of the
County Recorder of Orange County, California.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Catalina Avenue right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to lot 7, Block 31 of First addition to
Newport Heights Tract as shown on a map recorded in Book 4, Pages 94, inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, California; also
known as 526 Catalina Avenue, Newport Beach, California, 92663 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
brick walkway and 2 feet wide landing and appurtenances in the Catalina Avenue right-of-
ways 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.
K
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 of any such claim
3
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.
CITY OF NEWPORT BEACH,
a Municipal corporation
APPROVED AS TO FORM:
B rrn„ r By:
04�/,
City Attorne Cit anager
ATTEST: OWNER: Simon Trust u/a/d, dated January 9, 2001
City Clerk
on, i rustee
By: cP �—
onnie Simon, Trustee
4
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE )
On
personally a
2003, before me,
%n
personally
known to me ( e asis o sa Is ac ory evl ence to be the person(s) whose
named is/are subscribed to the within instrument and acknowledged to me that hefs0heltYi'ey has
executed the same in hisHierfthiMr authorized capacity(4&) and that by his' �gnature(s) on the
instrument the person*&) -or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in bnd for said Sta
STATE OF CALIFORNIA
ss:
COUNTY OF ORANGE
On
personally
t�A M1DMNGHKQ$
CoM"** n # 1413570
Notary Pubic - CaWomla
Garp. County
MNTYCOMM. Apr 28, 2007 WOW
(This area for official notarial seal)
4(
personally
known to me (o -W asis o sa Is ac ory to be the persor> s} whose
nametsfis/.tee-subscribed to the within instrument and acknowledged to me that lore/she/they-has
executed the same in l ►er/tlaei authorized capacityoes-}, and that by #rs/her/thei-r-signature(-s�n the
instrument the person¢s}or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal. 1L4
AMNEDMNGNAUS
mmUNon# 1413b70
Notary Pubic - Q tomta
Garp. COU*
NWIMV Cwnrn. 000 Apr 2b, 2007
Notary Public in -and for said State
(This area for official notarial seal)
f:\users\pbw\shared\encroach\row agreements\2003\2003-214 201 morning canyonl.doc
9
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
Ar�U► ss.
On 1��;(J , before me,
Date �M
personally appeared
LF_ILANI I. E3ROVYN
Commission 1336673 Z
zNotary Public - California i
j rqrqr.��y
Orange
t;�7rttm, 1ir€a� �!S!'f <5, 2006
X, personally known to me
❑ proved to me on the
evidence
)1G
basis of satisfactory
to be the person whose name(D is/(0
subscribed to the within inst ent and
acknowledged to me that he/sheexecuted
the same in his/her hei author' d
capacity ies , and that y his/her he'
signature on the instrument the perso s ,
the entity upon behalf of which the perso (s
acted, executed the instrument.
WITNESS 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:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Number of Pages:
RIGHT THUMBPRINT
OF SIGNER
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