HomeMy WebLinkAboutC-6529 - Encroachment Agreement EPN N2001-356 for 269 Evening Canyon RoadRecorded in Official Records, County of Orange
Gary Granville, Clerk -Recorder
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ENCROACHMENTAGREEMENT
(EPN2001-0356)
THIS AGREEMENT is made and entered into this day of ,
2001, by and between Joseph B. Genovese (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 269 Evening Canyon Road, Newport Beach,
California and legally described as Lot 137, Tract 1116, as shown on a map recorded in Book
36, Pages 19 and 20 inclusively of Miscellaneous Maps in the office of the County Recorder of
Orange County, California;
WITNESSETH:
WHEREAS, OWNER desires to construct and maintain certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Evening Canyon
Road right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 269 Evening
Canyon Road, Newport Beach, 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;
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree
as follows:
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N
RECORDING REQUESTED .1ND
WHEN RECORDED RETURN TO
Public Works Department
v
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in Official Records, County of Orange
Gary Granville, Clerk -Recorder
111111111111IIIA11111VIIIVIII111!1VIII11111I 71111116.00
20010769819 0930am 10/30/01
112 45 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.
ENCROACHMENTAGREEMENT
(EPN2001-0356)
THIS AGREEMENT is made and entered into this day of ,
2001, by and between Joseph B. Genovese (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 269 Evening Canyon Road, Newport Beach,
California and legally described as Lot 137, Tract 1116, as shown on a map recorded in Book
36, Pages 19 and 20 inclusively of Miscellaneous Maps in the office of the County Recorder of
Orange County, California;
WITNESSETH:
WHEREAS, OWNER desires to construct and maintain certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Evening Canyon
Road right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 269 Evening
Canyon Road, Newport Beach, 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;
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree
as follows:
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I . It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as a
16 -inches high planter wall and appurtenances in the Evening Canyon Road right -of -away 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. Any landscaping that is within the Evening Canyon Road right-of-way shall be low
growing and be maintained at all times to permit a view down to the beach and white water
area where possible. The landscape plan shall be reviewed and approved by the Public
Works Department. In addition, no landscaping shall obstruct view to the adjacent residents.
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 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.
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d. That should CITY be required to enter onto saia 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 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 shall accept the fact that surface drainage water may enter onto the
"SUBJECT PROPERTY" from "RIGHT-OF-WAY" located in the City of Newport Beach, County
of Orange, State of California, as depicted on Exhibit "A" attached hereto, whether naturally or
as a result of the development or improvement of the "RIGHT-OF-WAY".
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8. OWNER shall accept and waive any and all liabioty for any damages to the
"SUBJECT PROPERTY" caused by the flow of such surface drainage water onto the
"SUBJECT PROPERTY". 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 to surface drainage water
entering the "SUBJECT PROPERTY" from the "RIGHT-OF-WAY".
9. 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:
By:
City Attorney
City Clerk
10
IER:
By: 1're'vle
p� City Manager
By:
Jo eph B. Genovese
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On , 2001, before mem eOM /%
personally appeared��eo`i ,e- pe6r�n`ally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
ose ame(?j(qbre subscribed to the within instrument and acknowledged to me that
e r1t he jrh s e/they has executed the same in&ii er/their authorized capacity ie� and that by
(( �lon the instrument the person( or the entity uponehalf of which the
person acted, executed the instrument.
WITNES my hand and official seal.
51HAl;.NA LYN OYLER
Commission # 1164149
=y No'ary Public - California y
Notary Public in a d f said St a Orange County
My Comm. Expires Dec 5, 2001
(This area for official notarial seal)
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On �. r \ -+— 2001, b elore me, Vn W. jk 1 9-;01
personally appeared ��Cv W = C>l,%�� �� \) �, person611
known to me (or—pr-oyed--to- me- on -the -basis of satisfactory evidence) to be the perso whose names) 's are subscribed to the within i trument and acknowled ed to me ta
he/she theme has executed the same in his/her heir authorized capacity(ie�,, and that by
his/her/ iF eir i natur s n the instrument the erson s r the entity upon behalf of which the
�� g P (s Y p
person acted, executed the instrument.
WITNESS my hand and official seal.
CATHY FISHER
J Commission # 1174329
Notary Pu1011C - California
orange County
Notary Public i and for said State MyCorrvn.Egiesreb21,2002
(This area for official notarial seal)
FAUSERSMP51\GILBERT\AG\GENOVESEEPN2001-356CDM.DOC
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