HomeMy WebLinkAboutC-6717(B) - Encroachment Agreement EPN N97-368 for 220 Poppy AvenueRECORDING REQUESTE AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
t
Post Office Box 1768
V
3300 Newport Boulevard
Newport Beach, CA 92659-1768
-'.,Recorded in the County of Orange, California
Gary L. Granville, Clerk/Recorder
1111111111111111111Jill 21.00
19980162509 11:34am 03/23/98
005 22037376 22 19
Al2 6 6.00 15.00 0.00 0.00 0.00 0.00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT Pos'ev
(EP97-368)
THIS AGREEMENT is made and entered into this 1-34 day of
199f, by and between Dan Nienhouse (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 220 Poppy Avenue, Newport Beach, California
and legally described as Lot 27, Block "A", Tract 673, as shown on a map recorded in Book
20, Pages 17 and 18 inclusively of Miscellaneous Maps in the office of the County Recorder of
Orange County, California;
WITNESSETH:
WHEREAS, OWNER desires to construct and maintain certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Hazel Drive right-of-
way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 220 Poppy 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 -greed that PERMITTED IMPROVE. =NTS shall be defined as a
overhanging wooden deck with plexi-glass railing, 6-foot high wooden fence, raised grouted
brick planter, and appurtenances in the Hazel Drive right -of -away as shown on EXHIBIT "A"
attached hereto and as approved by the City Engineer. In addition, the overhanging wooden
deck shall have a 5-foot maximum encroachment in the Hazel Drive right-of-way.
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.
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:
2
(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 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first -above written.
3
CITY OF NEWPORT BEACH,
a Municipal corporation
APPROVED AS TO FORM:
By: ( — By: —
City Attorney
ATTEST:
City Clerk
OWNER. -
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On 1997, before me, 17C�V�
personally appeared C - A/F-yL . rJ 4L41 -s
personally known to me (or 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 has 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 acted, executed the instrument.
WITNESS my hand and official seal.
J- (-'' 2ti
- 1�
Notary P11
lic in and for said State
(This area for official notarial seal)
37PAN DWOt2ET
• COMM. # 103W
Z e -� Notary PubNc — CaHbmta it
ORANGE COUNTY
10i Comm. Prises SEP 26,1996
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On 1997, before me, _
personally appeared
personally known to me (or 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 has 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 acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(This area for official notarial seal)
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RECORDING REQUESTEI. ND
WHEN RECORDED RETURN TO
Public Works Department
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in the Coumy of Orange, California
Gary L. Granville, Clerk/Recorder
21.
19980162510 1 . JUA9P
005 22037376 22 19
Al2 6 6.00 15.00 0.00 0.00 Q 0 0.00
�� APR -6 All :52
Space above this line for Recorder's use only
ENCROACHMENT AGREEMENT
(EP97-368) PD.,
THIS AGREEMENT is made and entered into this /3 day of ,
1999, by and between Dan Nienhouse (hereinafter "OWNER"), and the Cit of New rt
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 220 Poppy Avenue, Newport Beach, California
and legally described as Lot 27, Block "A", Tract 673, as shown on a map recorded in Book
20, Pages 17 and 18 inclusively of Miscellaneous Maps in the office of the County Recorder of
Orange County, California;
WITNESSETH:
WHEREAS, OWNER desires to construct and maintain certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Hazel Drive right-of-
way (hereinafter "RIGHT -OF --WAY") that is located adjacent to 220 Poppy 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 .,reed that PERMITTED IMPROVEI, _NTS shall be defined as a
overhanging wooden deck with plexi-glass railing, 6-foot high wooden fence, raised grouted
brick planter, and appurtenances in the Hazel Drive right -of -away as shown on EXHIBIT "A"
attached hereto and as approved by the City Engineer. In addition, the overhanging wooden
deck shall have a 5-foot maximum encroachment in the Hazel Drive right-of-way.
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. CI-r"Y 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. t;WNER shall r.iaintain the PERMITTEu 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.
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:
E
(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 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first -above written.
11
APPROVED AS TO FORM:
By: !m
City Attorney
ATTEST:
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
OWNER:
f
1
By:
Mayor
4
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On / -.�- /0 1997, before me,7Ev.1%t_'
personally appeared cZ>-Av c- WEE ZE"i/-4) 15
personally known to me (or 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 has 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 acted, executed the instrument.
WITNESS my hand and official seal.
Notar Public in and for said State
(This area for official notarial seal)
STPAN DWOM
COMM. 41a14456
Z m , Notary Public — CoOkW40
ORANGE COUNTY r
Arty C--rnrrt. E.:pireoSEP 25,1998
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On 1997, before me,
personally appeared
personally known to me (or 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 has 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 acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(This area for official notarial seal)
FAUS ERS\WP51 \G ILBERTWG\NEI NCDM7. DOC (EP97-368)
5