HomeMy WebLinkAboutC-6934 - Encroachment Agreement EPN N2006-0032 for 715 Orchid Avenuer J
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
"rom Daly, Clerk -Recorder
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2006-0032)
THIS AGREEMENT is made and entered into this day of
2006, by and between John W. Elder and Beverly B. Elder trustees of
the Elder Revocable Living Trust, and Patrick T. Quinlan and Darece M. Quinlan trustees of
the Quinlan Living Trust, (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 715 Orchid Ave., Newport Beach, California 92625 and legally
described as Lot 15, Block 741, of the Corona Del Mar Tract as shown on a map recorded in
Book 3, Page 42 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 Orchid Ave. right-of-way (hereinafter
"RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot 15, Block
741, of the Corona Del Mar Tract, as shown on a map recorded in Book 3, Page 42 inclusively
of Miscellaneous Maps in the office of the County Recorder of Orange County, California; also
known as 715 Orchid Ave., 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 a
4.5' X 4.5' slate carriage walk set in concrete in the 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
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,
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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
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,
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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. 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: C.
Aaron Harp, Asst. City Attorney
ATTEST:
rin
By: _42 �,� I I) - 9j&
LaVonne Harkless, City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
Homer BI dau, City Manager
OWNERS: Elder Revocable Living Trust
Z.L - c r
John W. Elder, Trustee
By:
Beve B.Elder, Trustee
Quinlan Living Tr st
By. /(
Patrick T. Quinlan, Trustee
By: K�oj_�_�ry�
Darece M. Quinlan, Trustee
f:\users\pbw\shared\encroach\row agreements\2005\n2005-0491 530 kings rd (luther).doc
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STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE )
On January 24, 2006, before me, M Locey personally appeared John W.
Elder, Beverly B. Elder, Patrick T. Quinlan, Darece M. Quinlan, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the persons
whose names are subscribed to the within instrument and acknowledged to me
that they has executed the same in their authorized capacities, and that by their
signatures on the instrument the persons or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
M. LOCEY
CommMlon # 1611564
Notary Public - ca Mornia
Notary Public in and f ai State orangecounty
01MY Comm. Exphoa Oct 7,
Official Notarial Seal
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CITY CLERK'S ACKNOWLEDGMENT
State of California
County of Orange
On January 25 , 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 25th day of January 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
EPN2006-0004
# of Pages 7
City of Newport Beach Document Date: 01-25-06
Signer(s) other than named:
John W. & Beverly B. Elder; Patrick T.
& Darece M. Quinlan; Aaron C. Harp