HomeMy WebLinkAboutC-6516 - Encroachment Agreement EPN N2004-198 for 2053 Port Provence Place�-� RECORDJNG 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 RecVrds, Orange County
Toni Daly, Clerk -Recorder
III!!i !!II! III!! 11111 Jill! III!i IIII! IIII IIIII Illli IIII IIII IIII 1111111124.00
2004001074229 04:01 pm 12102104
213 110 Al2 7
0.00 0.00 0.00 0.00 18.00 0.00 0.00 0.00
Space above this line for Recorder's use only.
r'
ENCROACHMENT AGREEMENT ')
(EPN2004-0198)
THIS AGREEMENT is made and entered into this o73r0 day of
, 2004, by and between Donald Kral and Marlene S. Kral, Trustees of the
Kral 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 2053 Port Provence Place, Newport Beach, California, 92660 and
legally described as Lot 44 of Tract 6624, as shown on a map recorded in Book 254, Pages 28
through 32, 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 10' Utility Easement (hereinafter
"Easement") that is located adjacent to Lot 44 of Tract 6624, as shown on a map recorded in
Book 254, Pages 28 through 32, inclusively, of Miscellaneous Maps in the office of the County
Recorder of Orange County, California; also known as 2053 Port Provence Place, Newport
Beach, California, 92660 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 Easement; and
1
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
a wooden slat fence, 6' high with 4" by 4" center posts every 8' on centers mounted in footings
24" by 24" and 18" deep and appurtenances in the EASEMENT 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 EASEMENT, 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.
E
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 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 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
EASEMENT 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
3
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:
City Attorney
ATTEST:
By&��M - 4441�
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By: �Z4��,
City Ma ager
•T
L .% �..
Donald Kral, Trustee
OF NE4g,
71
Y
°RNIA Marlene S. Kral, Trustee
4
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE ) S�v�
On 1//, S� G 2004, before me, P�� G+�,` l' ��! W� P �� % cam;,/,
C
personally appeared Ck/ Jp Ly
kAewa—t e__(ac proved to me on the basis of satisfactory evidence) to be the person(&-} whose
name(s)&name(s4&f,e subscribed to the within instrument and acknowledged to me thathe/ ftey has
executed the same in 'er fir authorized capacity Ines), and that by h' her heir signature( -s-) on the
instrument the person(stor the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal
Notary Public in nd for said State
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE )
STEPHANIE J. WIEST
d COMM. #1301206 It
�j NOTARY PUBLIC • CALIFORNIA U
M ORANGE COUNTY CA
My Comm. Expires Apr. 17, 2005
(This area for official notarial seal)
On ��. t �x Lt S1 f 3 2004, before me,AG Ile- E"Sm;m d /c
personally appeared o0a/G 1,�rA f personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(-,) whose
name(&) is/a•:e subscribed to the within instrument and acknowledged to me that he/64e4 ey has
executed the same in his/he4Wr authorized capacity(i&s , and that by his/weir signature(t) 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
5
.s
Commission # 1426712
Omy
Notary Public - California
Orange County
i POWOM -
Comm. Expires Jul 22, 2007
(This area for official notarial seal)
J21
CITY CLERK'S ACKNOWLEDGMENT
State of California
County of Orange
On November 23 , 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 23rd day of November
2004.
WITNESS my hand and official seal.
t� -A � r/ /. S/�/ -
LAVONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
CAPACITY OF SIGNER DESCRIPTION OF ATTACHED
DOCUMENT:
Municipal Corporation Officer Encroachment Agreement
City Manager EPN2004-0198
SIGNER IS REPRESENTING: # of Pages 7
City of Newport Beach Document Date: 11/23/2004
Signer(s) other than named:
Donald and Marlene S. Kral
Robin Clauson