HomeMy WebLinkAboutC-9160-1 - Encroachment Agreement EPN N2002-024 for 311 Fernleaf Avenue0-
RECORDING REQUESTED AND
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WHEN RECORDED RETURN TO:
V
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in Official Records, County of Orange
Darlene Bloom, Interim Clerk -Recorder
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2002-024)
THIS AGREEMENT is made and entered into this f day of
2002, by and between John P. Kenney (hereinafter "OWNER"), and the
City of Newport each, 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 311 Fernleaf Avenue, Newport Beach,
California 92625 and legally described as all of Lot 11, portion of lot 13, of Corona Del Mar
Tract as shown on a map recorded in Book 4, Pages 31, 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 Fernleaf Avenue right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to, all of Lot 11, portion of lot 13, of
Corona Del Mar Tract as shown on a map recorded in Book 4, Pages 31, inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, California; also
known as 311 Fernleaf 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, one King Palm ( 36 Inch box ) , vine, landscaping (shrubs not to exceed 36 inches in
height) and appurtenances in the Fernleaf 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
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 all or 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.
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
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(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.
APPROVEDAS TO FORM:
By:
City Attorney
ATl
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By: �r
City M nager
OWNER:
In
John P. Kenrdj
4
STATE OF CALIFORNIA
ss:
COUNTY OF ORANGE
On c � iV10
personally appeared
, 2002_, before me, le'061 1 �� �rov�lyi. �r%l FAA iG
known--to-nee (or proved to me on the basis of satisfactory evidence) to be the person(4
whose name(-s) is/em subscribed to the within instrument and acknowledged to me that
he/sheM rey has executed the same in his/*erAfmgf- authorized capacity(i€s , and that by
his/Ih #ftir signatureks*on the instrument the person(*or the entity upon behalf of which the
person acted, executed the instrument.
LEI 1. BROWN
Commission it 1336673
WITNESS my hand and official seal. Z Notary Public -California
Orange County
My Comm. Fxires Jan 25, 2006
Notary Public in and for said State
S1 _ It J �'� f (This area for official notarial seal)
'rN, s i
On L , 2002_, before me, N ('1PLI, 1,
personally appeared ,,--tn � . �} A��a�uh��. �'(t (0 , personally
known to me + + ; a ' evidemo to be the perso (s
whose namE as iso subscribed to the within instrument and acknowledged to me that
he/sh agriaturegion
has executed the same in his/her/ heir authorized capacity ies , and that by
his/her the instrument the perso 6(s)r the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in a'Kdfor said State
CATHY FISHER
Commission # 1341009
Notary Public - Calffomia
Orange County
* Coma• Expires Feb 21, M
(This area for official notarial seal)
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