HomeMy WebLinkAboutC-6527 - Encroachment Agreement EPN N2001-368 for 1131 Dolphin TerranceN RECORDING REQUESTED AND
WHEN RECORDED RETURN TO: Recorded in Official Records, County of Orange
Gary Granville clerk Recorder
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10129101
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Newport Beach, CA 92659-1768
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
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(EPN2001-0368)
THIS AGREEMENT is made and entered into this day of
2001, by and between Michael H. Gray (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 1131 Dolphin Terrace, Newport Beach,
California 92625 and legally described as Lot 3, Tract 1700, as shown on a map recorded in
Book 52, Page 8 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 Dolphin Terrace right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 3, Tract 1700, as shown on a
map recorded in Book 52, Page 8 inclusively of Miscellaneous Maps in the office of the County
Recorder of Orange County, California; also known as 1131 Dolphin Terrace, 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.
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NOW, THEREFORE, ,,i consideration of the mutual proms -ds, the parties hereto agree
as follows:
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as,
concrete drive and approach, sidewalk and carriage walk overlaid with sand stone pavers and
appurtenances in the Dolphin Terrace 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.
051
C. If City other public facilities or improve „ents 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 defend, indemnify and hold harmless CITY, its City Council, boards
and commissions, officers and employees from and against any and all loss, damage, liability,
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claims, suits, costs and e., anses whatsoever, including reas..able 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 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 WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first -above written.
APPROVED AS TO FORM:
By: 1�!Ik A
City Attorney
ATTEST:
By: C�19 ��n'r� l )- y a&
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By: 1�'Ok
ity Manager
OWNER:
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STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On QC-jtbrr 1n , 2001, before me, 144mr^ M .7-0CkEr
personally appeared M I o—In pe 1 1� _ r.0A,LI
personally known to me ( UTTIMr)-to be the
person($) whose name(,e') is/4pt subscribed to the within instrument and acknowledged to me
that he/ -%4@ hey -his executed the same in his/4e4l4eir authorized capacity(ige), and that by
his/heM-he+r signature;a�on the instrument the persono�'br the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal
Notary blic in and for sai State
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On O&TWIL 15 ,
personally appe
personal known to me
person s) hoe name s) ' /
that he she hey exec ted t�
TMWY M. TUCKER
16Commbdon # IM"OF
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MYOMM DONSlsp I LM4
(This area for official notarial seal)
ubscribed to the
ame in his/her/1
his/her the' signatur s n the instrument the
persons s) acted, executed the instrument.
WITNESS my hand and official seal
Notary Public in and for said State
instrument and a
uthorized capacit
for the entity upon
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