HomeMy WebLinkAboutC-9121-1 - Encroachment Agreement EPN N2002-207 for 111 Via OrvietoRECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in Officia dcords, Orange County
Tony Daly, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(PM 2002-207)
1A
THIS ` AGREEMENT is made and entered into this 18 day of
2005, by and between David J. Sheffner and Nancy L. Sheffner, trustees
of the David J. and Nancy L. Sheffner Living 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 111 Via Orvieto, Newport Beach, California,
92663 and legally described as Parcel 1 of Parcel Map 2002-207 as shown on a map
recorded in Book 344, Pages 33 through 35, 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 Via Orvieto right-of-way (hereinafter
"RIGHT-OF-WAY") that is located adjacent to Parcel 1 of Parcel Map 2002-207, as shown on
a map recorded in Book 344, Pages 33 through 35, inclusively, of Miscellaneous Maps in the
office of the County Recorder of Orange County, California; also known as 111 Via Orvieto,
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
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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. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as
planter walls and steps, and appurtenances in the Via Orvieto 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, 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
therefore 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
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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 of its intention to accomplish such work,
if any 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 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) 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,
3
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.
APPROVED AS TO FORM:
By:
/ — C.
5S;S4o, ,fi City Attorney
ATTEST:
By
City Cle'rk
CITY OF NEWPORT BEACH,
A Municipal corporation
By: �.
Ci Manager
B""
Davi S
By:
N c She4
4
STATE OF CALIFORNIA)
) ss:
COUNTY r'r—' ^" A "'^r
107,
personally
personally
person(s) whose name(s) i ar subscribed to the within instrument and acknowledged to me
that he/sfignature(s)
has executed the same in his/he /the' authorized capacity(ies), and that by
his/he /thon the instrument the person(s) or the entity upon behalf of which the
person acted, executed the instrument.
WITNE S my hand and off' ial seal.
s
Notary Pu in ancT for said State
STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE )
On
personally appeared
2005, before me
L. RANCK
COMM. #1458809V@VICKI
NOTARY PUBLIC CALIFORNIA
coORANGE
COUNTY
O
y Comm. Expires December 26, 2007
(This area for official notarial seal)
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)
FAUSERSTSMShared\ENCROACH\ROW Agreements\2005\PM 2002-207 111 Via Orvieto (Sheffner).doc
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Property Line
111 Via Orvieto
Parcel 1 of
PM 2004-207
Steps, 2-8" risers
54'
Planter waR
12'
I
EXHIBIT A
CITY CLERK'S ACKNOWLEDGMENT
State of California
County of Orange
On November 7 , 2005, 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 the person acted, executed the instrument.
Dated this 7th day of November
CAPACITY OF SIGNER
Municipal Corporation Officer
City Manager
SIGNER IS REPRESENTING:
2005.
WITNESS my hand and official seal.
LAVONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
DESCRIPTION OF ATTACHED
DOCUMENT. -
Encroachment Aqreement
PM2002-207
# of Pages _7
City of Newport Beach Document Date: 03/18/2005
Signer(s) other than named:
David & Nancy Sheffner
Aaron C. Harp