HomeMy WebLinkAboutC-6594 - Encroachment Agreement EPN N2004-104 for 302 Morning Canyon RoadT
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RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
QJ
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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ENCROACHMENT AGREEMENT
(EPN2004-0104)
THIS AGREEMENT is made and entered into this day of
2004, by Harold J. Wright, (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 302 Morning Canyon Road, Newport Beach,
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California, 92625 and legally described as Lot 81 of Tract 1116, as shown on a map recorded -
in Book 36, Pages 19 through 20, 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 Morning Canyon Road right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 81 of Tract 1116, as shown on a
map recorded in Book 36, Pages 19 through 20, inclusively, of Miscellaneous Maps in the
office of the County Recorder of Orange County, California; also known as 302 Morning
Canyon Road, Newport Beach, California, 92625 and
WHEREAS, said PERMITTED IMPROVEMENTS may interfere in the future with
,-�TY'G -dul
"-:f y 4o construct, operate, maintain, and replace CITY and other public, facilities and
improvements within RIGHT-OF-WAY; 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
driveway made of flagstone set in concrete and grouted boarding cobblestone, a walkway
made of flagstone set in concrete, a 36 -inch high decorative iron fence, one Olea Europea
(Olive) tree, and appurtenances in the Morning Canyon Road 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 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.
V,
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.
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
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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
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: �/i�o-x•�cc��%i.
X. -
City Attorney
AT
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
City anager
City Clerk Harold J. Wright
4
STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE )
On /Y /c12004, before me,
personally appeared (d
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personally known to me (or proved to me on the basis of satisfactory evidence) to be the
perseehe/they
ose name Is/ re subscribed to the within instrument and acknowledged to me
that has executed the same i is her/their authorized capacityosr,and that by
&her/their signatures n the instrument the person or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
otary Public in and f s id State
STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE )
On
personally appeared
2004, before me
St,p,uMFa!`,, C3 'LEtZ
�y Ccrnmission # 1331209 z
Notary Public - California �
Qz Orange County
A �3 mR_r k a c5,2005
(This area for official notarial seal)
personally known to me (or proved tbl"me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribeto the within instrument and acknowledged to me
that he/she/they has executed the same in hi er/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
5'b,Q(s) or the entity upon behalf of which the
(This area for official notarial seal)
f:\users\pbw\shared\encroach\row agreements\2004\2004-0104 302 morning canyon (wright).doc
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CITY CLERK'S ACKNOWLEDGMENT
State of California
County of Orange
On d'c I a(0 , 2004, before me, LAVONNE M. HARKLESS,
CIT,Iy C ERKOF THE CITY OF NEWPORT BEACH, personally appeared
O/Yl P r' � - Q "K , 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 this4Lf day of foo-(, % 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
D CUMENT:
# of Pages
Document Date:
Signer(s) other than named: