HomeMy WebLinkAboutC-9178-1 - Encroachment Agreement EPN N2001-091 for 2721 EbbtideRECORDING REQUESTS AND
WHEN RECORDED RETURN TO:
r Public Works Department
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in Officia, , i�cords, County of Orange
Gary Granville, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(EPN2001-091)
THIS AGREEMENT is made and entered into this J.
�day
of , 200°1, by and between Barry Behrstock (hereinafter "OWNER"), and the City
of ewport 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 2721 Ebbtide, Newport Beach,
California and legally described as Lot 47, Tract 3660, as shown on a map recorded in Book
144, Pages 9-11 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 Ebbtide Road, right-of-
way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 2721 Ebbtide, Newport Beach,
California and legally described as Lot 47, Tract 3660, as shown on a map recorded in Book
144, Page 9-11 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 mutually agreed that PERMITTED IMPROVEiviENTS shall be defined as a
slate on concrete planter borders 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 -NAY, including but not limited to,
the maintenance, removal, repair, renewal, replacement or enlargement of existing or future
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public facilities or impruvements, CITY may remove pui dons 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.
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:
/°1,%U
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By: --
CitAl
anager
1:01TIN0113:7i
Y�
Barry Behrstock
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On 2001, before me, 7e
personally appeared rzz Iri /-LIL57c% , personally
known to me (or proved to a on the basis of satisfactory evidence) to be the person*
whose nameM is/.am subscribed to the within instrument and acknowledged to rile that
he/&he4hay has executed the same in his/her authorized capacity(ieo, and that by
his/hefA4ei; signature(s.) on the instrument the person* or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Nq ary Public in and for aid State
(This area for official notarial seal)
KATHERINE WOO COFFIN b
Commission # 125M IL
i Notary Public - Callfomia
Z orange County
My Comm. Expires Mar26, 2004
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On U-+Rv �' 2009 before me, � -\ 5 �� U., `°
personally appeared �� l > w' 9 persona
known to me o-na®-erg tl�e--basis- f--satisfactory-evidence) to be the perso (s
whose nam (s) is re subscribed to the within .in!4rument and acknowI d ed to me that
he/she he has executed the same in his/he /their uthorized capacity ies), and that by
his/he el signatur s) n the instrument the perso s) r the entity upon be alf of which the
person acted, execute the instrument.
WITNESS my hand and official seal. '""'"
CATHY FISHER
Commission # 1174329
Zgw-,' Notary Pubiic - California
Zorange County
My Comm. Expires Feb 21, 2002
Notary Public kak for said State
(This area for official notarial seal)
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