HomeMy WebLinkAboutC-6514 - Encroachment Agreement EPN N2004-302 for 20 Cherry Hills LaneWW
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
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U Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2004-0302)
THIS AGREEMENT is made and entered into this day of
O, 2004, by and between Brian R. Burke, Trustee of the Brian R. Burke
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 20 Cherry Hills Lane, Newport Beach, California, 92660 and legally described as
Lot 20, Tract 7638, as shown on a map recorded in Book 306, Pages 1 through 9, 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 12 foot Sewer and Storm Drain
Easement (hereinafter "Easement") that is located adjacent to Lot 20, Tract 7638, as shown
on a map recorded in Book 306, Pages 1 through 9, inclusively, of Miscellaneous Maps in the
office of the County Recorder of Orange County, California; also known as 20 Cherry Hills
Lane, 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 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 a 6
foot high wall constructed of concrete cinder blocks with 3 foot wide and 18 inches deep
concrete footings and appurtenances in the 12 foot Sewer and Storm Drain 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
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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 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,
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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:
City Attorney
ATTEST:
City Clerk
In
CITY OF NEWPORT BEACH,
a Municipal corporation
By: �-✓
Cit Manager
OWNER:
By: • �.
rian R. Burke, Trustee
STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE )
On ' 0 , 004, befor e `
personally appeared r
personally known to me ( f -s factofy-eviienee) to be the
person�Wwhose name are subscribed to the within instrument and acknowledged to me
that, /she/they has executed the same in ii /her/their authorized capacity,(iesj, and that by
s)/heerr/their signature�on the instrument the person�*or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hando ial. MOMCAVOCKMMMMon sa
Nofmy h6k
• - Cavft"W
r /1 c' eK cou
ntV
MV Comm. Eq*M Feb 10, 2000
(This area for official notarial seal)
Notary Public-Vn and for said State
STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE )
On
personally appeared
, 2004, before me,
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they has executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) 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 Public in and for said State
(This area for official notarial seal)
F:\USERS\PBW\Shared\ENCROACH\ROW Agreements\2004\2004-0302 20 Cherry Hills (Burke).doc
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ADDRESS
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DESCRIPTION OF WORK
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CITY CLERK'S ACKNOWLEDGMENT
State of California
County of Orange
On December 2 , 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 2nd day of December
CAPACITY OF SIGNER
Municipal Corporation Officer
City Manager
SIGNER IS REPRESENTING:
City of Newport Beach
2004.
WITNESS my hand and official seal.
LAVONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
DESCRIPTION OF ATTACHED
DOCUMENT:
Encroachment Agreement
EPN2004-0302
# of Pages 7
Document Date: 12/02/2004
Signer(s) other than named:
Brian R. Burke
Robin Clauson