HomeMy WebLinkAboutC-6502 - Encroachment Agreement EPN N2003-410 for 6 Genevef�
RECORDING REQUESTED AND
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WHEN RECORDED RETURN TO:
U
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
11111 I!lil VIII Illil VIII VIII VIII Illil VIII VIII IIID VIII 1111118.00
2003001459723 01:40pm 12108/03
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2003••0410)
THIS AGREEMENT is made and entered into this 610 ("k, day of//',,
2003, by and between David B. and Julie A. Fishman, (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 6 Geneve, Newport Beach, California 92660 and
legally described as Lot 7, Tract 9862, as shown on a map recorded in Book 437, Pages 11
through 12 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 a portion of an existing three-foot public
utility easement on Geneve serving Lot 7, Tract 9862 (also known as 6 Geneve, Newport
Beach, California) hereinafter "EASEMENT", as shown on a map recorded in Book 437,
Pages 11 through 12 inclusively of Miscellaneous Maps in the office of the County Recorder of
Orange County, 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 the Easement; and
WHEREAS; the parties hereto desire to execute an agreement providing for fulfillment
of the conditions required by CITY to permit OWNER to construct, 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 a
concrete driveway, landscaping that will not exceed 36 inches in height, hardscape, and
appurtenances within the three-foot public utility easement 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 the Easement, no trees within the 4' utility easement will be allowed, 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' written notice, with prior City Council approval, 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 as a result of exercising it's
easement rights to maintain, repair, or replace it's sewer line.
4. OWNER and CITY further agree as follows:
a. OWNER may, at owner's cost and expenses, 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. In addition, any new and existing landscaping in the easement shall be maintained
at or below the maximum height of 36 -inches. 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 all repairs.
d. That should CITY be required to enter onto said Easement to exercise its
primary rights associated with said Easement, 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 reasonably 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, restoration, or
replacement of the PERMITTED IMPROVEMENTS.
e. This agreement does not extend the OWNERS' any rights to construct any
additional improvements at a later time.
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
EASEMENT and remove all or part of the improvements installed by OWNER. Either party
that is alleged to have breached any material provision of this agreement shall be given 30
days written notice of the breach and the opportunity to cure with the date of breach and the
date of termination, if cure is not made. 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.
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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
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:
BC;12h
City Atto ey
ATTEST:
CITY OF NEWPORT BEACH,
a Municipal corporation
..� .
City Oanager
OWNER:
/ fl.V
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City Clerk David B. Fishman
By: r
Julie A. Fishman
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STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE )
On f%2y, G13 , 2003, before mo r)x�///)G& - -'/,
personally appeared, -'T)4 -U/1 0 90 IZ--
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person($) whose name(�� is/ re subscribed to the within instrument and acknowledged to me
tha e/ he/they has executed the same i is/ er/their authorized capacity(iesj, and that by
is her/their signatureo 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 and for said State
STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE )
DONNA L. HOKANSON
d COMM. #1347930
U
NOTARY PUBLIC - CALIFORNIA U
Cp ORANGE COUNTY W
My Comm rs Nar.
(This area for official notarial seal)
2003, before me,;DOXJ ,��
personally appeared ,(.I�� 41
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person( whose name( is/ re subscribed to the within instrument and acknowledged to me
that holsh9ftey has executed the same in his/their authorized capacity(i ; and that by
h4 Vrtheir signature() on the instrument the person(p or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.��.
DONNA L. HOKANSON
COMM. #1347930 a
NOTARY PURI IC CALIFOfiNIA
s
„ v Y ORANGE COUNTY
Y-atr' MYCOMM omr ' xplr"A Mhr ?'1,
rdo-taryy Public in and for said State
(This area for official notarial seal)
f:\users\pbw\shared\encroach\row agreements\2003\2003-410 6 geneve - fishman.doc
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CITY CLERK'S ACKNOWLEDGMENT
State of California
County of Orange
On / Joytrn Bev- d0 , 2003, before me, LAVONNE M. HARKLESS,
Cl Y CLERK OF THE CITY OF NEWPORT BEACH, personally appeared
Orn[r L . &IJau , personally known to me to be the
person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity,
and that by his signature on the instrument, the person, or the entity upon
behalf of which the person acted, executed the instrument.
Dated this4g1h day of Aode*% %Pv
CAPACITY OF SIGNER
Municipal Corporation Officer
SIGNER IS REPRESENTING:
City of Newport Beach
2003.
WITNESS my hand and official seal.
LAVONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
DESCRIPTION OF ATTACHED
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# of Pages 7
Document Date: // -a0-0 3
Signer(s) other than named:
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