HomeMy WebLinkAboutC-6480 - Encroachment Agreement EPN N2003-257 for 324 Snug Harbor Drivep
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
V
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded it, official Records, County of Orange
lot, Daly, Clerk -Recorder
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2003-0257)
THIS AGREEMENT is made and entered into this 1 day of
2003, by and between Steve and Linda Schwartz, (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 324 Snug Harbor
Drive, Newport Beach, California, 92663 and legally described as lot 123, of Tract 1218, as
shown on a map recorded in Book 37, Pages 47 through 49, 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 Snug Harbor Road right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to lot 123, of Tract 1218, as shown on
a map recorded in Book 37, Pages 47 through 49, inclusively of Miscellaneous Maps in the
office of the County Recorder of Orange County, California; also known as 324 Snug Harbor
Drive, 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
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.
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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
planter wall and pilaster (height not to exceed 20 inches) and walkway with Flag Stone face
and appurtenances in the Snug Harbor Road 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.
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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 of any such claim
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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:
By: e�uc� l
City Attorney
ATTEST:
By
& L��l �) , 1�
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
City yAager
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OWNER: Steve and Linda Schwartz
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STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE )
On���� �� , 2003, before
personally appeared S�e-Ue C&L1 W,
personally known to me (-^r^ii kw ..-en--the- 4s-of—atsfaE-ter-y
e nt-e) to be the person(s) whose name(s) -isfare subscribed to the within instrument and
acknowledged to me that he%he/they has executed the same in his/* r/their authorized
capacity(ies), and that by her/their signature(s) on the instrument the person(s) or the
entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
IMELW1 FETTERS
_ Commission # 1371001 Z
' Notary Public - California y
Los Angeles County
Notary Public in and for said State
(This area for official notarial seal)
STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE )
On M A4 �1 , 2003, before me, wl ! I by%wn1 Y q polo) &
personally appear d f�wtei > circ L��ov>v� A. HA44.65
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
perso (s whose name s) ' /are subscribed to the within instrument and acknowledged to me
bthe�li
that he/she ghehas executed the same in his/her,authorized capacit0(ies,and that by
his/her/ hei signature soon the instrument the perso(s) or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
f:\users\pbw\shared\encroach\row agreements\2003\2003-257 324 Snug Harbor.doc
LEILANI I. BROWN
Commission # 1336673 Z
Z -s Notary Public - California
Orange County
My Ca m. Expires Jan 25, 2006
V'4VM4rM4VMqW" %M1
(This area for official notarial seal)