HomeMy WebLinkAboutC-9103-1 - Encroachment Agreement EPN N2001-0257 for 701 Orchid AvenueRECORDING REQUESTED AND
Sri WHEN RECORDED RETURN TO: Recorded in official Records, county of orange
O Gary Granville, Clerk -Recorder
Public
of Newport Beach
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C City
U Post Office Box 1768 20010636910 02:23pm 09110101
111 73 Al2 6
3300 Newport Boulevard 0.00 0.00 0.00 0.00 10.00 0.00 0.00 0.00
Newport Beach, CA 92659-1768
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2001-0257)
THIS AGREEMENT is made and entered into this kS day of
2001, by and between David M. Kitchen (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 701 Orchid Ave.,
Newport Beach, California 92625 and legally described as Lot 1, Block 741, Corona Del
Q
Mar Tract, as shown on a map recorded in Book 3, Page 42 inclusively of t
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 Orchid Avenue right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 1, Block 741, Corona Del
Mai'- Tract, as shown on a map recorded in Book 3, Page 42 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, California;
also known as 701 Orchid 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
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
1
PERMITTED IMPROVFENTS;
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 27
feet wide drive approach inlaid with red brick pavers and appurtenances in the Orchid Avenue
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 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 other public facilities or improve ants 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 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 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 ut' ed), regardless of the merit or outr ne 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 S TO FORM:
By:
City Attorney
AT
At
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
Ci Manager
OWNER:
David M. Kitchen
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On V&Mf 0 , 2001, before me,
personally appeared
personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(,
w ose name( sure subscribed to the within instrument and acknowledged to me that
&q-)/She/they his executed the same in Chis)her/their authorized capacity(] and that by
9sXher/their signatureon the instrument the person( or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal
- . ( 1)
Notary Public in and for said State
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
LEILANI V. INES
Commission # 1170960 Z
`zgN
Yy No Public Califomia
. ' Orange County
My Ccmm. Expires Jan 25, 2002
(This area for official notarial seal)
On �� ,,,O ' 1� , 2001, before me,O—a�"�1 h �� � N '� ,-.� � �
personally appeared `��� L "���.- �� �a �z. i-+, i'�`�; personally known to
me (lr-p aved-�t-erne-on--the-basis--of-satisfactory evidence) to be the perso (s )whose namq(: ))
i are subscribed to the within instrument and acknowledged to me that he/she they} executed
the same in his/he Gthe"authorized capacit ies and that by his/her/ heir signatur (s on the
instrument the perso 0(sor the entity upon behalf of which the person(Dsacted, executed the
instrument.
ITNESS my hand a d official seal.
Notary Public in for said State
- - IML-M
CATHY FISHER
Commission # 1174329 Z
z -+r Notary Public - California
z orange County
►vly Comm. E)p F'b 21, 2002
(This area for official notarial seal)
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