HomeMy WebLinkAboutC-6955 - Encroachment Agreement EPN N2006-0525 for 901 Zurich Circlef)
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S RECORDING REQUESTED AND
5 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 Rt;-ords, Orange County
Tom Daly, Clerk -Recorder
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200600081407412:02pm 12/05/06
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2006-0525)
THIS AGREEMENT is made and entered into this day of November, 2006, by
and between Peter and Cynthia Debaun, trustees of the Debaun 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 901 Zurich Circle,
Newport Beach, California 92663 and legally described as Lot 416 and 417 of Tract 907, as
shown on a map recorded in Book 28, Pages 25 through 36 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 Zurich Circle right-of-way (hereinafter
"RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot 416 and 417
of Tract 907, as shown on a map recorded in Book 28, Pages 25 through 36 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, California; also
known as 901 Zurich Circle, Newport Beach, California 92663; 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
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.
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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 20-foot wide driveway constructed of flagstone pavers encroaching into the
existing 4-foot City easement for utility purposes;
(2) A 5-foot wide entry walkway constructed of flagstone pavers encroaching
into the existing 4-foot City easement for utility purposes;
and appurtenances in the Zurich Circle 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
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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
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.
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(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
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.
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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.
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.
APPROV AS TO FORM:
By: e
Aaron Harp, Asst. City ttor ey
ATTEST:
-19
7 '!� V 4A,
By:
LaVonne Harkless, City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
Homer Bludau, ity Manager
OWNER:
: B i6�. ?is- raw'-
Y
Peter Debaun,
Trustee, Debaun Trust
By:
Cynthia Debaun,
Trustee, Debaun Trust
F:\Users\PBW\Shared\ENCROACH\ROW Agreements\2006\N2006-0525-901 Zurich Circle (Debaun).doc
I.
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE )
On AlyV . '( , 200Le, before me, jdzi (. oce-y
personally appeared -CA-Cy- D e, loat m , pe♦--seral+y-hwewR4o---
xp,e-(or proved to me on the basis of satisfactory evidence) to be the personXwhose name(`) is/afe--
subscribed to the within instrument and acknowledged to me that he/oeltaey has executed the same
in his/I ef*er authorized capacity, and that by his/l of/their signature(" on the instrument the
persons or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal. Co M.IOCEY
commbsion #f 1611564
Nokvy KA*c - caiHomia
Orange county
[I& -,My Comm. E906$ Oct 7, 200*
Notary Public in and fors d State
(This area for official notarial seal)
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
On oA1C212 l 200 (�, , before me, yv(
personally appeared C-\/ VV+1 % Gc '4> 6CLLA)A I pamapa y �+n
+rye (or proved to me on the basis of satisfactory evidence) to be the person(k-whose name() is/?'r6
subscribed to the within instrument and acknowledged to me that 066- ey has executed the same
in 0iiVher/th6ir authorized capacity i , and that by der/thelfr'signature(s) on the instrument the
person(�4r the entity upon behalf of which the person acted, executed the instrument.
M. IOCEV
WITNESS my hand and official seal. Commission # 1611564
Notary Pubtic - Caftmio
Is Orange County f
Notary Public in and for said ate
(This area for official notarial seal)
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CITY CLERK'S ACKNOWLEDGMENT
State of California
County of Orange
On November 16 , 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 16th day of November
CAPACITY OF SIGNER
Municipal Corporation Officer
City Manager
SIGNER IS REPRESENTING:
2006.
WITNESS my hand and official seal.
z?2 -
LAVONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
DESCRIPTION OF ATTACHED
DOCUMENT:
Encroachment Aareement
EPN2006-0525
# of Pages 9
City of Newport Beach Document Date: November 16, 2006
Signer(s) other than named:
Peter & Cynthia Debaun
Aaron C. Harp