HomeMy WebLinkAboutC-9106-1 - Encroachment Agreement EPN N2001-261 for 501 Marigold AvenueRECORDING REQUEr =D AND
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WHEN RECORDED RE. URN TO:
Public Works Department
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City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
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Recorded in Official Records, County of Orange
Gary Granville, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(EPN2001-261)
HIS AGREEMENT is made and entered into this day
of , 2001, by and between Carolina Cohen (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 Marigold Avenue, Newport Beach,
California and legally described as Lot 1, Block 539, of the Corona del Mar Tract, as shown on
a map recorded in Book 3, Pages 41-42 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 Balboa Blvd. East, right-
of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 501 Marigold Avenue,
Newport Beach, California and legally described as Lot 1, Block 539, of the Corona del Mar
Tract, as shown on a map recorded in Book 3, Page 41-42 inclusively of Miscellaneous Maps
in the office of the County Recorder of Orange County, 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:
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1. It is mutu, agreed that PERMITTED IMPRC MENTS shall be defined as a
flagstone driveway, stacked flagstone steps, slate entry walk, tumbled stone planter wall (14"
high), landscape boulder, landscaping and appurtenances in RIGHT-OF-WAY as shown on
EXHIBIT "A" attached hereto and as approved by the City Engineer. All landscaping within the
ecroachment area is to be maintained to a maximum height of three feet. 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 as 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 shall maintain the PERMITTED IMPROVEMENTS in accordance
with general prevailing standards of maintenance, and pay all costs and expenses incurred in
doing so. In addition, all landscaping in the RIGHT-OF-WAY shall be maintained at a
maximum height of three feet. However, nothing herein shall be construed to require OWNER
to maintain, replace or repair any private -owned or CITY -owned pipeline, conduit or cable
located in or under said PERMITTED IMPROVEMENTS, except as otherwise provided herein.
c. If private -owned, 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 the 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,
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d. That ould the CITY be required to en 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 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.
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IN WITNESS V =REOF, the parties hereto havc aused this Agreement to be
executed on the day and year first -above written.
CITY OF NEWPORT BEACH,
a Municipal corporation
APPROVED AS TO FORM:
By: By: �
City Attorney ty Manager
ATTEST:
u�� 0 I
City Clerk
OWNER:
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tdrolina Cohen
F.
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On C
personally app
known to me (o
whose name(j
b�/she/t�'y has
lya�/her/tfj�fr sign
person acted, e��
WITNESS "a
2001, ¢pfoW me, G 1'Q c9 V �'CU
red ° �L/ Q personall.
r proved to me on the basis of satisfacto vidence) to be the person
is/ate subscribed to the within instrument and acknowledged to me that
executed the same in 1�/her/t, eer authorized capacity(yes), and that by
at,LWOV) on the instrument the person(g) or the entity upon behalf of which the
;uted the instrument.
d and official seal.
ry Public in and for said State
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
PIP VICKI L. RANCK
d COMM. #1242533 1
U OTARYPUBLIC-CALIFORNIA U
ORANGE COUNTY CA
My Comm. Expires Dec. 17, 2003
(This area for official notarial seal)
On hOWST 7i , 2001, before , me, �)A I V
personally appeared JAW� L, bW D"4e LAVN ti& (, --—,personally
known to me r proved to me on the basis of satisfactory evidence) to be the person(s)
whose n m (s) is�subscribed to the within instrument and acknowle d to me that
he/she/ a has executed the same in his/her heir authorized capacityMea)lf
and that by
his/her/ eir ignature�n the instrument the person gor the entity upon of which the
person ac ed, execute the instrument.
WITNESS my hand and official seal.
LJ=ILANI V. INES
Commission # 1170960
No'ary Public CaGfomia
J Orange County
My Comm. Expires Jan 25, 2002
Notary Public in and for said State
(This area for official notarial seal)
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