HomeMy WebLinkAboutC-9058-1 - Encroachment Agreement EPN N97-362 for 316 Pointsettia Avenuet
REI_ORDING REQUESTED Ai
WHEN RECORDED RETURN TO:
LA Public Works Department
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
v Newport Beach, CA 92659-1768
Space above this
Recorded in the Count' )f Orange, California
Gary L. Granville, clerk/Recorder
1111111111111111111 Jill 21, 00
005 25007187 259980004491 4;04pm 01/05/98
59
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e for Recorder's use only.
ENCROACHMENT AGREEMENT
(EP97-362)
("I
THIS AGREEMENT is made and entered into this Z— day of
, 1997, by and between Steve Kampff 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 316 Pointsettia
Avenue, Newport Beach, California and legally described as Portion of
Lot 18, Block 243, Corona Del Mar Tract; as shown on a map recorded in
Book 1, Pages 88, inclusively of Miscellaneous Maps in the office of
the County Recorder of Orange County, California;
W I T N E S S E T H•
WHEREAS, OWNER desires to construct/maintain certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within the
Pointsettia Avenue. right-of-way (hereinafter "RIGHT-OF-WAY") that is
located adjacent to 316 Pointsettia Avenue, Newport Beach, California;
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 reconstruct and maintain said PERMITTED IMPROVEMENTS;
NOW, THEREFORE, in consideration of the mutual promises, the
parties hereto agree as follows:
1
1. It is mutually agreed that the PERMITTED IMPROVEMENTS shall
maintain the magnolia grandiflora tree in the parkway and other
incidental appurtenances within the pointsettia Avenue right -of -away
as shown on EXHIBIT "A" attached hereto and as approved by the City
Engineer.
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, all in substantial conformance with 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 days' 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
plans and specifications therefor on file in the CITY's Public Works
Department, and as described on Exhibit "A" hereto attached.
b. OWNER shall maintain the PERMITTED IMPROVEMENTS in
accordance with general 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.
2
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 of its intention to
accomplish such work, if any emergency situation does not exist.
(ii) OWNER shall be responsible for arranging for any
renewal 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 renewal 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) days' 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 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.
3
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.
CITY OF NEWPORT BEACH,
a Municipal corporation
APPROVED AS TO FORM:
i
By: By: w"Zz
City Attorney Cit M ger
ATTEST: OWNER:
By:
City Clerk Steve Kampff
4
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE )
On (5 1, e.°. �i , 1997, before me,
personally appeared `p,Q �, �c6ie/ f�a f5
per- uxmzjzjy=kr
(or nrcwd to me on he basis of satisfactory
evidence) to be the person(N whose name(') Q a7re ubscribed to th
within instrument and acknowledged to me tat 1�/e
++rey has executed
the s me in his-/ er/t-heir authorized capacity(�s), and that by
t-
er 4&ir signature(§k) on the instrument the person() or the
entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary P bl' n and for said State
(This area for official notarial seal)
��e�ee�ae-saeoe
MARY E. BUTTS
COMM. #1023968 v
NOTARY PUBLIC --ALIFGRNIA N
ORANGE COUNTY
(ply Camriaion Exp. June 23.1
M#NN�NN1iN�0AA0KM�
STATE OF CALIFORNIA )
) ss:
COUNTY OF NGE )
On / 7%��/' 19971 before me� !.L(,Cya
personally appeared j" 4r Vic. (,
personally known to me ( r roved to me on he basis of satisfactory
evidence) to be the persorCJs whose namecD i ar subscribed to the
within instrument and a nowledged to me that h he ey has executed
the same i s/her e1 authorized capacity ies), and that by
his/her/ signature on the instrument t person s� or the
entity upon behalf of which the person acted, executed the instrument.
WITNES my hand and official seal.
Notary Public in aner for sa& State
(This area for official notarial seal)
SHAUNA LYN OY1.ER
Commission # 1164149
7 ti► Notary Public California ¢
Orange County
Ivry Comm. Expires DEC 5, 2001
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PUB L I C WORKS DEPARTMM
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Hpplicant`s Signature
Date
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