HomeMy WebLinkAboutC-6517 - Encroachment Agreement EPN N2004-424 for 2011 Miramar DriveT--
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RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
U
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in Official Rec s, Orange County
Torn Daly, Clerk -Recorder
1111All IIIA 1111111124.00
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2004-0424)
/ THIS AGREEMENT is made and entered into this --?f� day of
2004, by and between David R. McEwen and Sylvia A. McEwen
Trustees of the McEwen Family Trust, (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 2011 Miramar Drive, Newport Beach, California, 92661 and
legally described as Lot 30, Block G of Tract 518, as shown on a map recorded in Book 17,
Pages 33 through 36, 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 Miramar Drive right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 30, Block G of Tract 518, as
shown on a map recorded in Book 17, Pages 33 through 36, inclusively, of Miscellaneous
Maps in the office of the County Recorder of Orange County, California; also known as 2011
Miramar Drive, Newport Beach, California, 92661 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
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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 34
inch high wood picket fence with 5 brick columns 13" long by 8.5" wide and appurtenances in
the Miramar Drive right-of-way as shown on EXHIBIT "A" attached hereto and as approved by
the Public Works Department. In addition, if any of the PERMITTED IMPROVEMENTS
actually built or installed during the time of construction vary from the PERMITTED
IMPROVEMENTS approved herein, such variations or changes must be approved in advance
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
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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.
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,
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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:
By: C.
City Attorney
ATTEST:
By:
City Clerk
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CITY OF NEWPORT BEACH,
a Municipal corporation
B:
Y
City Wfanager
OWNER:
By:
David R. McEwen, Trustee
By:ZAI�,�a. -McS-4A&,�
Sylvia A. McEwen, Trustee
STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE
V4[��j/On %geA► e,/ 2004, before me, (% • Cif(avk � f�1
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personally appeared ly� U � . Mc tiwe o CA"3 S\,i 1 v; U Pk Mc C wty)
personally known to me (er Proved to to be the
person(s) whose name(s) ' ar ubscribed to the within instrument and acknowledged to me
that Nefs-I the has executed the same in Wtheir uthorized capacity(ies), and that by
bff hei signatures) 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.
Notary Pu is in and for said State
STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE )
On
personally appeared
2004, before me
7��E.CURRA�N�
CommissonZ
Notary Public - California
zorange County
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personally known to me (or proved to me on the basis of satisfactory evi_defl-c-e) to be the
person(s) whose name(s) is/are subscribed to the within instrument a acknowledged to me
that he/she/they has executed the same in his/her/their authoriz capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s) or
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
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entity upon behalf of which the
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CITY CLERK'S ACKNOWLEDGMENT
State of California
County of Orange
On November 22 , 2004, before me, LAVONNE M. HARKLESS,
CITY CLERK OF THE CITY OF NEWPORT BEACH, personally appeared
Homer L. Bludau , 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 this 22nd day of November
CAPACITY OF SIGNER
Municipal Corporation Officer
City Manager
SIGNER IS REPRESENTING:
2004.
WITNESS my hand and official seal.
LA ONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
DESCRIPTION OF ATTACHED
DOCUMENT:
Encroachment Aqreement
EPN2004-0424
# of Pages 7
City of Newport Beach Document Date: 11/03/2004
Signer(s) other than named.-
David
amed:
David R. and Sylvia A. McEwen
Robin Clauson