HomeMy WebLinkAboutC-9094-1 - Encroachment Agreement EPN N2000-350 for 1956 Port Cardiff PlaceRECORDING REQUESTEF ND
WHEN RECORDED RETUI TO:
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Public Works Department
City of Newport Beach
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Post Office Box 1768
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3300 Newport Boulevard
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Newport Beach, CA 92659-1768
Recorded in Official Reco ds, Co�r,,,y of Qranya
Gary Granville, Clerk -Rec rder
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2000-350)
THIS AGREEMENT is made and entered into this %C%f/1 day of
2000, by and between Cari Zyistra; 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 1956 Port Cardiff Place, Newport Beach, California and
legally described as Lot 10, Tract 6623 as shown on a map recorded in Book 247, Pages 16
through 20 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 Port Cardiff Place right-of-
way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 1956 Port Cardiff Place,
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:
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1. It is mutually reed that PERMITTED IMPROV[ =NTS shall be defined as
concrete driveway approach with stone border and appurtenances in Port Cardiff Place right -
of -away 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 on 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 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,
the maintenance, removal, repair, renewal, replacement or enlargement of existing or future
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public facilities or imprc nents, CITY may remove pc ns 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, waive, 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.
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APPROVED AS TO FORM:
By:
City Attorney
ATTEST:
0\4.
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
OWNER:
By: Y/�/- zl��
City Ma ger
By:
Cari ZY-twra
m
STATE OF CALIFORNIA
) ss:
COUNTY O
On
personally appea
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r
2000, b
ry
known to me (or proved to me on the basis of s tisfacto
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 Band and official seal.
S1 AUNA LYN OYLER
` Commission # 1164749
No-ary Public - California
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Orange County
Notary Public in and f r said S to My Comm. Expires Dec 5,2001
(This area for official notarial seal)
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
m %LGt 16-; t- �i"
per onally
evidence) to be the person(s)
On —I I�� � Iq , �000, before me, 116 ��vil V , I VIOS
personally appeared I�Dry�' L _ gm" '0' L;I vov, �1 Pi M. Y{� �s personally
known to me to be the persor s�
whose name(Q is re subscribed to the within instrument and acknowledged to me that
he/sheted the same in his/her/ eir uthorized capacity 'es , and that by
his/her el ignatur on the instrument the person(!9yr the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
LEILANI V. INES
Commission # 1170960 Z
No ary Public California >
Orange County
Notary Public in and for said State
mvCzrr,m.Expires Jon25,2002
(This area for
official notarial seal)
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