HomeMy WebLinkAboutC-6591 - Encroachment Agreement EPN N2004-142 for 207 Via Jucarc�
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RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
V
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
(EPN2004-0142)
THIS AGREEMENT is made and entered into this ':3:�,.TH day of
2004, by and between Mark T. Zielinski (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 207 Via Jucar, Newport Beach,
California 92663 and legally described as Lot 715 and SWLY '/2 of Lot 716 of Tract 907, as
shown on a map recorded in Book 28, Page 30 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 4 feet wide public utility easement,
as recorded in book 28, page 30 of Miscellaneous Maps in the office of the County Recorder
of Orange County (hereinafter "UTILITIES EASEMENT"), that is located within Lot 715 and
SWLY '/2 Lot of 716 of Tract 907, as shown on a map recorded in Book 28, Page 30 of
Miscellaneous Maps in the office of the County Recorder of Orange County, California; also
known as 207 Via Jucar, Newport Beach, California 92663;
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 said easements; 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 driveway approach of stone veneer and mortar bed over a 6" thick concrete slab and
appurtenances in the "UTILITIES 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 "UTILITIES 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.
2. 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 "UTILITIES EASEMENT"
to exercise its primary rights associated with said "UTILITIES 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
"UTILITIES 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.
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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
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.
CITY OF NEWPORT BEACH,
a Municipal corporation
APPROVED AS TO FORM:
By: exa-6 By:
W-O�Z.
City Atto ey City anager
ATTEST:
By: ��r� )a 1, IVeu&By:
City Clerk
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OWNER: Mark T. Zielinski
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On 2004, before me, l Z . «�
personally appeared T rI i `�� personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person�,a'�
whose nameyoare subscribed to the within instrument and acknowledged to me that
' she/they has executed the same in his er/their authorized capacity, and that by
I her/their signature on the instrument the person�'Y"or the entity upon behalf of which the
person acted, executed the instrument.
WI/ho
S my hand and official seal.
Notary Public in and`for said State
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On
personally appeared
oVICKI L. RANCK
ED
F- COMM. #1458809 n
U NOTARY PUBLIC CALIFORNIA '1
m ORANGECOUNTY O
My Comm. Expires December 26, 2007
, 2004, before me,
(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 instrum rft and acknowledged to me that
he/she/they has executed the same in his/her/their uthorized capacity(ies), and that by
his/her/their signature(s) on the instrument then(s) or the entity upon behalf of which the
7
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said
(This area for official notarial seal)
F:\USERS\PBW\Shared\ENCROACH\ROW Agreements\2004\2004-0142-easmnt- 207 Via Jucar (Zielinski).doc
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CITY CLERK'S ACKNOWLEDGMENT
State of California
County of Orange
On /e -L,/ /t 2004, before me, LAVONNE M. HARKLESS.
CITY CLERK OF HE CITY OF NEWPORT BEACH, personally appeared
;W /YJ �(- L - &/ a c/<r c� , 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 1W day of�c 2004.
CAPACITY OF SIGNER
Municipal Corporation Officer
SIGNER IS REPRESENTING:
City of Newport Beach
WITNESS my hand and official seal.
LAVONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
DESCRIPTION OF ATTACHED
DOCUMENT:
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#,- of Pages
Document Date: Apr. Eo, aDO v
Signer(s) other than named:
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