HomeMy WebLinkAboutC-6721(A) - Encroachment Agreement EPN N2008-0191 for 2509 Harbor View DriveN
RECORDING REQUESTED AND
r—
WHEN RECORDED RETURN TO:
Public Works Department
V
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
V/
) V
Recorded in official Records, Orange County
Tom Daly, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(EPN2008-0191)
THIS ENCROACHMENT AGREEMENT supersedes the Encroachment Agreement
executed on March 7, 2008 and recorded on April 18, 2008 as Official Record No.
2008000182235 in the Office of the County Recorder of Orange County, California.
THIS AGREEMENT is made and entered into this 21St day of May, 2008, by and
between Chris J. Kalivas and Pamela A. Kalivas (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 2509 Harbor View Drive, Newport Beach,
California 92625 and legally described as Lot 2 of Tract 3542, as shown on a map recorded in
Book 124, Pages 32 through 33 inclusively of Miscellaneous Maps in the office of the County
Recorder of Orange County, California Assessor Parcel Number 458-673-05.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Harbor View Drive right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot 2
of Tract 3542, as shown on a map recorded in Book 124, Pages 32 through 33 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, California; also
known as 2509 Harbor View Drive, Newport Beach, California 92625; and
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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
WHEREAS, the parties hereto desire to execute an agreement providing for fulfillment
of the conditions required by CITY to permit OWNER to construct 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,
(1) A variable width entry walkway at a maximum of 9 feet wide constructed
of colored concrete bands with flagstone pavers encroaching 2 feet into the
public right-of-way;
(2) A variable width carriage walk, at a maximum of 9 feet wide by 3 -feet, 4
inches deep, constructed of colored concrete bands with flagstone pavers
encroaching up to ten feet into the public right-of-way;
(3) A variable height wall with widths varying from 3 feet to 5 feet in height,
due to the sloping topography nature of the street, constructed CMU blocks
encroaching a maximum of 6 inches in the public right-of-way;
(4) Various private landscaping in the planting area not to exceed 30 inches
in height and various private irrigation improvements encroaching up to 2 feet
into the public right-of-way;
and appurtenances in the Harbor View Drive right-of-way as shown on EXHIBIT
"A" attached hereto and as approved by the Public Works Department. In
addition, if any of the PERMITTED IMPROVEMENTS actually built or installed
during the time of construction vary from the PERMITTED IMPROVEMENTS
approved herein, such variations or changes must be approved in advance 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
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appurtenances incidental thereto, within a portion of RIGHT-OF-WAY, if in
substantial conformance with the 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 -day 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 the
plans and specifications on file in the CITY's Public Works Department,
and as described on Exhibit "A" attached hereto.
b. OWNER shall maintain the PERMITTED IMPROVEMENTS in accordance
with generally 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
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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 in advance of its intention to accomplish
such work, provided that an 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 the 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) day 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
211
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.
8. The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
9. The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by
reason of the authorship of the Agreement or any other rule of construction
which might otherwise apply.
10. This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
11. A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
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12. OWNER shall at OWNER'S own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
13. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
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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:
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Aaron Harp, Asst. City Attorney
ATTEST:
By: �•
LaVonne Harkless, City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By:�4�-
Homer
Bludao6, City Manager
OWNER:
By. L4
Pamela A. Kalivas
,c.
Ch ' J \ Kalivas
f:\users\pbw\shared\encroach\row agreements\2008\n2008-0191-(supercede) 2509 harbor view dr (kalivas).doc
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On &Oc4 Zai 08 before
me, AA Ucce4
Notary
Public,
personally appeared C44,'F 5 T.
WmIlVe-S A. 1L.Q,tiyo4
who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/ re
subscribed to the within instrument and acknowledged to me that hefst /they executed the
same in has�/their authorized capacity(ies), and that by Iffier/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
I/ V � er� (SEAL)
Notary Public in and for said Sta
OPTIONAL INFORMATION
Title or Type of Document: e'P/V 2008 —D(q(
Date of Document:
M. LOCEY
Commission # 1611564
:w Notary Public - California
Orange County
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CITY CLERK'S ACKNOWLEDGEMENT
State of California )
County of Orange )
On June 6 , 2008, before me, LAVONNE M.
HARKLESS, CITY CLERK OF THE CITY OF NEWPORT BEACH, personally
appeared Homer Bludau , who proved to me on the basis of
satisfactory evidence 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.
I certify under penalty of perjury under the laws of the State of California that the
foregoing paragraph is true and correct.
Dated this 6th day of June 2008.
CA
Municipal Corporation Officer
City Manager
SIGNER IS REPRESENTING:
City of Newport Beach
WITNESS my hand and official seal.
�- A41-1�
LAVONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
DESCRIPTION OF ATT
DOCUMENT:
Encroachment Agreement
EPN2008-0191
# of pages 10
Document Date: March 7, 2008
Signer(s) other than named:
Pamela A. and Chris J. Kalivas
Aaron Ha