HomeMy WebLinkAboutC-8984-1 - Encroachment Agreement EPN N2007-0507 for 247 Morning Canyon RoadT
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
Tom Daly, Clerk -Recorder
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2007-0507)
THIS AGREEMENT is made and entered into this 14th day of December, 2007, by and between
James R. Barks (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 247
Morning Canyon Road, Newport Beach, California 92625 and legally described as Lot 7 of Tract 1116
in the City of Newport Beach, County of Orange, State of California 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 7 of Tract 1116 in the City of
Newport Beach, County of Orange, State of California 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 247 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
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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follows:
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as,
(1) a variable width carriage walk with widths varying from 5 to 9 feet constructed with
beige colored slate stones encroaching 10 feet into the public right-of-way, (2) a 20-foot
wide and a 10-foot deep driveway approach constructed with beige colored slate
stones encroaching 10 feet into the public right-of-way, (3) two free standing clay pots
with plants not to exceed 3-feet in height and private irrigation improvements
encroaching 10 feet into the public right-of-way and appurtenances in the Morning
Canyon 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.
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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
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.
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
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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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on
the day and year first above written.
APPRD AS TO FORM:
OV
By: rit-- C, o�---�
ar n Harp, Asst. City Attorney
ATE
A
LaVonne Harkless, City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
Homer Blu u, City Manager
f:\users\pbw\shared\encroach\row agreements\2007\n2007-0507-247 morning canyon road (barks).doc
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CALIFORNIA• ACKNOWLEDGMENT
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State of California
County of
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personally
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before me, tQ Vk/ I
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_ Commisslon 1633477
•: Notary Public - CoNfornia
Orange County
AM Comm• ExPkW Jan 25, 201
Place Notary Seal Above
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who proved to me on the basis of satisfactory evidence to
be the person(} whose name(G) is/are subscribed to the
within instrument and acknowledged to me that
he/94ofthey executed the same in his/ho4l;@ir authorized
capacity(•ieesj- and that by his/hentheir signature(e) 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.
WITNESS my han nd official e I.
Signature S��
Signature of Notary lic
OPTIONAL P
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document �P,� I ��
Title or Type of Document: 1 I I ' V ✓�j",
Document Date:
Signer(s) Other Than Namdd Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing
Number of Pages:
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
171 Partner — ❑ Limited ❑ General
❑ Attorney in Fact -
❑ Trustee Top of thumb here
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
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On L -2 7 Zooi before me,7✓� 1r�% Notary Public,
personally appeared --J 111"fs KkS who
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 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(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.
OPTIONAL INFORMATION
Title or Type of Document:
Date of Document:
(SEAL)
`PAWL SHIRLEY II' 7
y Notary Publlc•Cautotnle COW 014"371 y
f3 WERSIDE COUNTY .a
My Comm. Exp. June 18, 2COB
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