HomeMy WebLinkAboutC-6749 - Encroachment Agreement EPN N2006-0239 for 206 Morning Canyon RoadV
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RECORDING REQUESTED AND
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WHEN RECORDED RETURN TO:
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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
(EPN2006-0239)
THIS AGREEMENT is made and entered into this / 6 day of
2006, by and between John C. Manly (hereinafter "OWNER"), and the
City of N port 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 206 Morning Canyon Road, Newport
Beach, California 92625 and legally described as Lot 95 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 the parcel legally described as Lot
95, 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 206 Morning Canyon Road, 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 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 driveway approach with a 20-foot approach bottom and a 26-foot curb opening constructed
with a combination of red brick pavers and standard colored concrete; (2) a carriage walk, 4
feet in width and 10 feet in length constructed with red brick pavers; (3) seven 2-foot square
brick pads at existing grade level located behind back of existing curb; (4) brick edging at
existing grade level across the front of the sod area; (5) two 2-foot diameter movable pots
planted with Meyer lemon trees; (6) various landscaping; 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, 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 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
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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 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
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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 reasonable attorneys' fees
(when outside attorneys are so utilized), regardless of the rnerit 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: 4 r^^(-- ff
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Aaron Harp, Asst. City Attorney 40
ATTEST:
LaVonne Harkless, City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
I 04LZ.
Homer Bluefau, City Manager
F:\Users\PBW\Shared\ENCROACH\ROW Agreements\2006\N2006-0239-206 Morning Canyon Road (Manly).doc
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STATE OF CALIFORNIA
ss:
COUNTY OF ORANGE )
On 200 b , before me,
personally appeare oh�� C • personally known to
me 4 to be the person(t whose name(.&) is/are
subscribed to the within instrument and acknowledged to me that he/she/they has executed the same
in his/herAhen authorized capacityoesj; and that by his/herftt ignature(s) on the instrument the
person) or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal. # 1627650
NOWY ht*c - CaW011 o
omnVe county
MV Comm. = orc 6,
Notary Public in and for said State
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE )
On
, 200_, before me,
(This area for official notarial seal)
personally appeared , 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)
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CITY CLERK'S ACKNOWLEDGMENT
State of California
County of Orange
On May 19 , 2006, 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 person acted, executed the instrument.
Dated this 19th day of May 2006.
CAPACITY OF SIGNER
Municipal Corporation Officer
City Manager
SIGNER IS REPRESENTING:
WITNESS my hand and official seal.
LA ONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
DESCRIPTION OF ATTACHED
DOCUMENT:
Encroachment Aareement
EPN2006-0239
# of Pages 7
City of Newport Beach Document Date: 05-19-2006
Signer(s) other than named:
John C. Manly
Aaron C. Harp