HomeMy WebLinkAboutC-9183-1 - Encroachment Agreement EPN N2002-0336 for 703 Marigold Avenue�i
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RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
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Recorded °n oft°eta l order
Darlene Bloom C►er IIIIIIIIIIIIIIIIIIII�IIIIIIIIIIIIU o�
Public Works Department Illllllllllillllllllllllllllllllll 29969 04..6Opm 11I15►
City of Newport Beach ®�2001�J
Post Office Box 1768 48 5 U QU p 00 0.00 0.00 p.00 0.0o 0.00
Newport Beach, CA 926591I-1768 0.00
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2002-0336)
THIS AGREEMENT is made and entered into this day of
0C 'V)OdY'__ , 2002, by and between Douglas R. and Patricia B. MacKinnon, husband
and wife as community property (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 703 Marigold Avenue, Newport Beach, California 92625 and
legally described as Lot 3, Block 739, Corona del Mar, as shown on a map recorded in Book
3, Pages 41, inclusively of Miscellaneous Maps in the office of the County Recorder of Orange
County, California.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Iris Avenue right-of-way (hereinafter
"RIGHT-OF-WAY") that is located adjacent to, Lot 3, block 739 of Corona del Mar, as shown
on a map recorded in Book 3, Pages 41, inclusively of Miscellaneous Maps in the office of the
County Recorder of Orange County, California; also known as 308 Iris 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 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:
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined
as, picket fence along the entire frontage ( fence shall have maximum height of 39.25') and
appurtenances in the Iris Avenue right-of-way as shown on EXHIBIT "A" attached hereto and
as approved by the Public Works Department. In addition, the proposed PERMITTED
IMPROVEMENTS may vary at the time of construction. Hence, any changes must be
approved by the Public Works Department 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.
2. 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
therefore 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
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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,
replacement, 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, replacement, 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.
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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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
APPROVE AS TO FORM:
By: By:
Citv Attornev
AT -
City Clerk
XATTEST:
By.
City Cie
CITY OF NEWPORT BEACH,
a Municipal corporation
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City anager
OWNER:
By:
Douglas R. MacK' non
OWNER:
y y
Patricia B. MacKinnon
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STATE OF 0*1=4 ii n )
aJ°,,,t,y ) ss:
COUNTY OF )
On
personally
known to me (or proved to me on "the basis of satisfactory evidence) to be the person(s)
whose name(s) Ware 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 hand and official seal.
Notry P blic in and for said State
11�41 611z1
STATE OF C*H-F� )
) ss:
COUNTY OF 4")
personally appeared
Q1 :2002, before men,
y �— .1
JEANETTE MCVEY
=r; Notary Public, State of Texas
i My Commission Expires
June 18. 2006
(This area for official notarial seal)
personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
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 hand and official seal.
Wot/rv
Public in and for said State
F:\Users\PBW\Shared\ENCROACH\ROW Agreements\2002\2002-000 308 Iris.doc
JEANETTE MCVEY
Notary Public, State of Texas
ram` My Commission Expires
June 18. 2006
(This area for official notarial seal)
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
oS G_� (4=:- ss.
On V�ft ` �_G,\) & 0!� before me,
Date I \ ., m Na' an'Title of Officer (e.g., "Jane Doe, Nc
personally appeared � /� �- � 1 AZ-1. S_ l 0 sl
Name(s) of Signer(s)
CATHY FISHER
Commission # 1341009
z Notary Public - California
Orange County
OMYCOmm. Expires Feb 21, 2WS
personally known to me
❑ proved to me on the basis of satisfactory
evidence
to be the person s) whose nam (s) is are
subscribed to the within instr ent an
acknowledged to me that he/she ey xecuted
the sam in his/her heir authorize
Capacit i and that y his/he the'
signature s) n the instrument the person s or
the entity upon behalf of which the person6
acted, executed the instrument.
ITNESS my hand ano offi ial seal.
ed
Place Notary Seal Above Si ature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached_LDocument
Title or Type of Document:
"P IJ a- J c) j. - 0
Document Date: - C) � Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual
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❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
01999 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 - Chatsworth, CA 91313-2402 - www.nationalnotary.org Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827
0 wv.e.-v D��a s k�'^"` av� EXHIBIT A
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