HomeMy WebLinkAboutC-9043-1 - Encroachment Agreement EPN N98-231 for 325 Old Newport Blvd���(,y�• .�L -. C . CYJY.JU J • 40 11' 1
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RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92059-1768
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R000rded in tn* county of orange, caiifornia
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199 5994 4:15pm U/27/99
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Space above this line for Recorder's use only.
EXEMPT RECORDING REQUEST PER
GOVERNMENT CODE 6103 ENCROACHMENT AGREEMENT_
(EP 98-231)
THIS AGREEMENT is made and entered into this 1301 day of, T4 I
1998, by and between Dennis D'Alessio (hereinafter "OWNER"), and the City of ewport
Beach, California, a municipal corporation organized and existing under and by virtue of its
Charter and the Constltutlon and the laws of the State of California, (hereinafter "CITY"),
"OWNER" Is the owner of property located at 325 Old Newport Boulevard, Newport Beach,
California and legally described as Lot 24, Biock 9, Tract 27 and portion of abandon street
right-of-way (hereinafter "SUBJECT PROPERTY"), as shown on a map recorded in Book 9,
Page 26 incluslvely of Miscellaneous Maps in the office of the County Recorder of Orange
County, California,
WITNESSETH:
WHEREAS, on March 19, 1998, the Planning Commission approved Use Pprmit No,
3622, subject to certain findings and conditions of approval. Condition 2 of Use Permit No.
3622 required that the OWNER provide a minimum of four parking spaces and that such
parking spaces are provided via an Encroachment Permit and accompanying Encroachment
Agreement to construct the four parking spaces on City right-of-way property contiguous to the
subject property.
WHEREAS, OWNER desires to construct and maintain certain non-standard
improvements as hereafter defined in a manner which will comply with Use Permit No, 3622,
(hereinafter "PERMITTED IMPROVEMENTS") within the Old Newport Boulevard right-cf-way
(hereinafter "RIGHT-OF-WAY") serving of Lot 24, Block 9, Tract 27 and a portion of
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abandoned street right-of-way, as shown on a map recorded in Book 9, Page 26, Inclusively of
Miscallaneous Maps in the office of the County Recorder of Orange County, California; and
WHEREAS, said PERMITTED IMPROVEMENTS may interfere in the future with
CITY'S ability to construct, operate, maintain, and replace a municipal parking lot, street,
sidewalk or 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, reconstruct 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
concrete patiq, railing, concrete steps, parking lot improvements with four (4) parking spaces,
landscaping, drainage improvements, and appurtenances in the Old Newport Boulevard
RIGHT -OE -WAY as shown on EXHIBIT "A" attached hereto and as approved by the City
Engineer. Any changes in the number of parking places or location of same shall not be made
without City approval.
2. CITY will permit OWNER to design, construct, reconstruct, install, maintaln, 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 specificatlons on file in the CITY. CITY will further allow OWNER to take ail
reasonable measures necessary or convenient in accomplishing the aforesaid activities,
3. If permitted improvements 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, then the 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:
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a. Sublect to the terms and conditions of this Agreement and Use Permit No.
3622, OWNER may design, construct and install PERMITTED IMPROVEMENTS and
appurtenances incidental thereto, in substantial conformance with plans and specificatlons
therefor on file in the CITY's Public Works Department, and as described on Exhibit "A" hereto
attached,
b. OWNER shall construct and 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 Clty 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, 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
facillties 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
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this Agreement, and, in the event the breaching patty 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, unless the
breach is cured within such 10 day period, with the n tice specifying the date of termination,
In the event of litigation commenced with respect to a,ny term of condition of this Agreement,
the prevailing party shall be entitled to reasonable alto}ineys fees and costs incurred.
6, OWNER shall defend, indemnify, wai�e, and hold harmless CITY, Its City
Council, boards and commissions, officers and empiit
es from and against any and all loss,
damage, liability, claims, suits, costs and expertes whatsoever, including reasonable
attorneys'fees (when outside attorneys are so utilize,regardless of the merit or outcome of
any such claim or suit arising from or in any manner!onnected with the deslgn, construction,
maintenance, or continued existence of the PERM17D IMPROVEMENTS.
7. OWNER shall accept the fact that sAce drainage water may enter onto the
"SUBJECT PROPERTY" from "RIGHT-OF-WAY" loea ed in the City of Newport Beach, County
of Orange, State of California, as depicted on Exhibit'A" attached hereto, whether naturally or
as a result of the development or improvement of the FIGHT-OF,WAY".
8, OWNER shall accept and waive any
°SUBJECT PROPERTY" caused by the flow of f
"SUBJECT PROPERTY', unless City makes Chang
existing flow of drainage water, OWNER shall defe
CITY, its City Council, boards and commissions, offic,
and all loss, damage, liability, claims, suits, cosh
reasonable attorneys' fees (when outside attorneys a
outcome of any such claim or suit arising from o
drainage water except for drainage water damage as
PROPERTY" from the "RIGHT-OF-WAY",
nd all liability for any damages to the
uch surface drainage water onto the
:s to adjacent property and alters the
id, indemnify, waive and hold harmless
ors and employees from and against any
and expenses whatsoever, including
-e so utilized), regardless of the merit or
in any manner connected to surface
specified above, entering the "SUBJECT
8. OWNER agrees that this Agreement hall remain in full force and effept from
execution thereof; shall run with -the land; shall be bin ding 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,
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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,
APPROVE CIO FORM;
p r I
AT
City Clerk
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CITY OF NEWPORT BEACH,
a Municipal corporation
i
�y. ` r
Mayor
OWNS
By:
Dennis D'Alessio
BEN. LUOU d;4(Hf`1 I,v.-u" I .
STATE OF CALIFORNIA )
) ss
COUNTY OF ORANGE )
On - • �' 1998, before me, P
personally appeared Lnn l5 �Y ArE bl l� ,pbrsonally
known to me (or roved to me on the basis of satisfactory evidence) to be the personjs�
ose name( is re subscribed to the within instrument and acknowledg d to me that
he hey has executed the same In Qterltheir authorized capacity(i ), and that by
I er/their signature on the instrument the person or the entity upon behalf of which the
parson acted, executed the instrument.
WITNESS my hand and official seal.
uNDA e, rravNa�
co{iYpieio, r 1Oeg1R2
NotAIY R bVc
Otgngs couniv
Notary Public ffi and for said State amy ConymbOMW J 21,=
(This area for officlal notarial seal)
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STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On 1996, before me, personally
personally appeared '
known to me (or proved to me on the basis pf 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 exec)ed the same in hlser/their n e persons) ortheentity upon b'eha�lf of which the
and that by
his/her/their signature(s) othe instrument ument th
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
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iThi9 area for otticlal notarial seal)