HomeMy WebLinkAboutC-9116-1 - Encroachment Agreement EPN N2002-0089 for 501 San Bernardino AvenueRECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
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Public Works Department
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City of Newport Beach
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Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
.50 A'✓
Recorded in official Records, County of orange
Darlene Bloom, Interim Clerk-Recorder
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2002-0089)
THIS AGREEMENT is made and entered into this C tk day of
, 2002, by and between Ray Rutter (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 501 San Bernardino
Avenue, Newport Beach, California 92663 and legally described as Lot 24, Block 32,
First Addition to Newport Heights Tract, as shown on a map recorded in Book 4, Page
94 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange
County, California; and
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the San Bernardino Avenue and
Clay Street right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot
24, Block 32, First Addition to Newport Heights Tract, as shown on a map recorded in
Book 4, Page 94 inclusively of Miscellaneous Maps in the office of the County Recorder
of Orange County, California; also known as 501 San Bernardino Avenue, Newport
Beach, California; 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 partit., hereto desire to 9xecute an agree..c)nt 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
approximately 3-foot to 6-foot high stone veneer pilasters, concrete steps, 18-inch square
stepping stones, concrete carriage walkway, landscaping, and appurtenances in the San
Bernardino Avenue and Clay Street right-of-way as shown on EXHIBIT "A" attached hereto
and as approved by the City Engineer. In addition, the proposed PERMITTED
IMPROVEMENTS may vary at the time of construction. Hence, any changes must be
approved by the City Engineer 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
therefor on file in the CITY's Public Works Department, and as described on Exhibit "A" hereto
attached.
b. OWNER b..all maintain the PERMITTED IMPi .. jVEMENTS in accordance
with general prevailing standards of maintenance, and pay all costs and expenses incurred in
doing so. In addition, all landscaping in public right-of-way shall be maintained at a maximum
height of 3-feet from the top of curb. 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 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 agrf:es 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 remc.. J all or part of the improveme, _ , 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.
7. OWNER agree 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: &.'�
City Attorney
ATTEST:
CITY OF NEWPORT BEACH,
a Municipal corporation
OWNER:
City Clerk U
•
By:
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City Mana r
By
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On d,,Z , 2002, befor e, 7Q
personally appeared
personally known to me (or proved t me on the basis of satisfactory evidence) to be the
person. whose name( re subscribed the within instrument and acknov, ledged to me
t r/ she/they his executed the same in,"is er/their authorized capacity(, and that by
(60her/their signatureKon the instrument a person or the entity upon behalf of which the
person acted, executed the instrument.
—",TITNESS my hand and official
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
SHAUNA LYN OYI.ER
Commission # 1331209
i wi Notary Public - California y
z Orange County
My Comm. Expires Dec 5, 2005
f.
(This area for official notarial seal)
On N ►G�rG� 12� , 2002, before me, Wavi*, I. rvyown
personally appeared RDAtf_ �. MAMIA Avd iA ov►n K �64[661
personally known to me (e"r-ove-i-to--me--on-the-basis-sf-satisfac-tAar-y-evidence) to be the
person(s) whose name(s) Ware subscribed to the within instrument and acknowledged to me
that hetshm/they executed the same in his-/I-rer/their authorized capacity(ies), and that by
4W4iff/their signature(s) on the instrument the person(s) or the entity upon behalf of which the
persons(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
71-7 NI 1. BROWN
ommission*i336873
Z ..� Notary Public - Califomia
Orange County
My Comm. Expires Jan 25, 2006
(This area for official notarial seal)
F:\Users\PBW\Shared\ENCROACH\ROW_agmts\N2002-501 San Bernardino Avenue.doc