HomeMy WebLinkAboutC-9197-1 - Encroachment Agreement EPN N2001-0287 for 214 Poppy Avenuer
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RFCORDING REQUESTED ND
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WHEN RECORDED RETURN TO:
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Public Works Department
City of Newport Beach
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Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in Official Records, County of Orange
Darlene Bloom, Interim Clerk -Recorder
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ENCROACHMENT AGR!:-EMENT
(EPN2001-0287) 1/
THIS AGREEMENT is made and entered into this %(� (,�, day of ,
2002, by and between John Milazzo (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 214 Poppy Avenue, Newport Beach, California and legally
described as Lot 29, Block "A", Tract 673, as shown on a map recorded in Book 20, Pages 17
and 18 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 IMPROVEMENT'S") within the Hazel Drive right-of-
way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 214 Poppy Avenue, Newport
Beach, California and legally described as Lot 29, Block "A", Tract 673, as shown on a map
recorded in Book 20, Pages 17 and 18 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 m;:iintain 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 agreed that PERMITTED IMPROVEMENTS shall be defined as a
concrete stairway with railing, decorative columns at the entrance, 30-inches high and variable
raised planter, tree, landscaping (shrubs to be 30-inches maximum height), and
appurtenances in the Hazel Drive 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. In addition, the owner shall maintain the non-standard improvements, tree, and
shrub to 30-inches maximum height, and landscaping. 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.
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d. That shoulu CITY be required to enter onto said NIGHT -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 shall accept the fact that surface drainage water may enter onto the
"SUBJECT PROPERTY" from "RIGHT-OF-WAY" located in the City of Newport Beach, County
of Orange, State of California, as depicted on Exhibit "A" attached hereto, whether naturally or
as a result of the development or improvement of the "RIGHT-OF-WAY".
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8. OWNER shall accept and waive any and all liability for any damages to the
"SUBJECT PROPERTY" caused by the flow of such surface drainage water onto the
"SUBJECT PROPERTY". 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 to surface drainage water
entering the "SUBJECT PROPERTY" from the "RIGHT-OF-WAY".
9. 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.
CITY OF NEWPORT BEACH,
a Municipal corporation
APPROVED AS TO FORM:
By: By:
City Attorney CitFMa/rr6ger
ATTEST:
ar1� )-�). w _
City Clerk
OWNER:
By:
John Mi azz
51
STATE OF CALIFORNIA )
) ss:
COUNTY OFF ORANGE )
On QEl 3 , 2001, before me,
personally app ed i Z,2ZZ D ,
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
persooV) whose name(s�IsAre subscribed to the within instrument and acknowledged to me
that he/they has executed the same i�ii'her/their authorized capacity), and that by
( er/their signature(, on the instrument the person-) or the entity upon behalf of which the
person acted, executed the instrument.
S whand and
Notary Public in and for said S
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE 1
I seal.._
SHAUNA LYN OYLE12
Commission # 1164149
Z ie
Notary Public - Cafiforrlta
Orange County
to My Comm. Expires Dec5, M01
(This area for official notarial seal)
On h1) 16 , 2001, before me, 1616101 1. bV VVV), R4b)i G,
personally a0peared HOM-a, I -. 4AV A610 Aria LAVOnr1c, IV tWy-l'es 5 ,
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
personwhose name&Pis subscribed to the within instrument and acknowledged to me
that he/she/has executed the same in his/her/ eir uthorized capacity( and that by
his/her eir ignature(0s)Dn the instrument the person((r the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
LEILANI I. BROWN
Commission # 1336673
Notary Public - Califomia Z
Orange county
Notary Public in and for said State my COMM. E)Ores Jan 25,2006
(This area for official notarial seal)
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