HomeMy WebLinkAboutC-6572 - Encroachment Agreement EPN N2004-004 for 406 DahliaCJ
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
✓sCann-eei
Recorded in Official Records, COLInty of Orange
Tom Daly, Clerk -Recorder t�
FEE
200400020055312:19pm 03/11104
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2004-0004)
THIS AGREEMENT is made and entered into this 6�9 W day of
4arC 6 , 2004, by and between Donald R. and Janice G. Boals Trust and David
G. Dickson, (hereinafter "OWNERS"), 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"). OWNERS are the owners of property
located at 406 Dahlia Avenue, Newport Beach, California, 92625 and legally described as Lot
8, Block 332 of the Corona Del Mar Tract, as shown on a map recorded in Book 3, Page 42 of
Miscellaneous Maps in the office of the County Recorder of Orange County, California.
WITNESSETH:
WHEREAS, OWNERS desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Dahlia Avenue right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 8, Block 332 of the Corona Del
Mar Tract, as shown on a map recorded in Book 3, Page 42 of Miscellaneous Maps in the
office of the County Recorder of Orange County, California; also known as 406 Dahlia
Avenue, Newport Beach, California, 92625 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 OWNERS 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
three brick strips in the parkway, and appurtenances in the Dahlia Avenue right-of-way 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 OWNERS 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 OWNERS 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. OWNERS and CITY further agree as follows:
a. OWNERS 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. OWNERS 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 OWNERS to
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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, OWNERS 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 OWNERS of its intention to accomplish such
work, if any emergency situation does not exist.
(ii) OWNERS 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) OWNERS 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 OWNERS, CITY may enter upon the
RIGHT-OF-WAY and remove all or part of the improvements installed by OWNERS.
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. OWNERS 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. OWNERS 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:
ATTEST:
..
City Clerk
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CITY OF NEWPORT BEACH,
a Municipal corporation
By: < , Z -: 3 ��
City Atto/hey
Cit anager
OWNERS:
Janice G. Boals
By: Sn: -er--4
D7-a
R. Boats
l
David G. Dickson
STATE OF CALIFORNIA)
) ss:
COUNTY OF i
O n4',
personally app
persona known to me (or proved to me on the basis of satisfactory evidence) to be the
perso s) hose nam6S)i a ubscribed to the within instrument and acknowledged to me
that he/sh '%they has executed the same in his/her/their authorized capaci y(i -s) and that by
his/her th, it ignatur 6) on the instrument the perso(s) or the entity upon behalf of which the
person acted, execute the instrument.
WITNES my hand and official seal.
4LJ
Notary Public in and for -said tate
STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE )
On
personally appeared
, 2004, before me
SHAUNA LYN OYLER
Commission # 1331209
z Notary Public - California
Owngs County
My Comm. Expines r)er -Si, M05
(This area for official notarial seal)
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
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(This area for official notarial seal)
CITY OF NEWPORT BEACH 1 DF
PUBLIC WORKS DEPARTMENT
SKETCH FOR ENCROACHMENT PERM1T NO, Eg- f A4
} TREE Job Adclress
= POWER PULE Owner at
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SEWER ' CLEANOUT Telephone Na (9.4 t �-
= WATER METER BOX
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Exlsting Curb and Gutter
Center tine of street ,.-�,Jahr( A _ atga "—
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an igno urs e Ze
Please hake a sketch of the Immediate vicinity showing all property lines, dimensions
street names, tocation of trees, light standards, Fire hydrants, parking meters or
other existing Improvements which night be affected by' the proposed encroachments,
(SEE REVERSE SUE)
Yorks shall be, done according to City Specie (cations and, Is subject. to City inspec 4lan.
CITY CLERK'S ACKNOWLEDGMENT
State of California
County of Orange
On marcb '--� . 2004_ hefnrP mP_ I AVnNNF M HARKI F.R4
CITY CLERK OFF THE -/ CITY OF NEWPORT BEACH, personally appeared
r— L , 9�gA6-t , 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 thisdvl day of qrc- 2004.
CAPACITY OF SIGNER
Municipal Corporation Officer
SIGNER IS REPRESENTING:
City of Newport Beach
WITNESS my hand and official seal.
(;44" M, Al"'�
LAVONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
DESCRIPTION OF ATTACHED
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# of Pages
Document Date: . ?—') _0
Signer(s) other than named:
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