HomeMy WebLinkAboutC-9156-1 - Encroachment Agreement EPN N2002-099 for 341 Evening Canyon RoadLP
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RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
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
IIIII IIIII IIIII IIIII H1111111 11H 1111111111111111111110.00
2009.0522880 02 '19prn 06,21102
200 69 Al2 10
0.00 0.00 0.00 0.00 18.00 0.00 0.00 0.00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2002-099)
2�2
GREEMENT is made and entered into this /�� day of
2002, by and between Judy Lee (hereinafter "OWNER"), and the City of
NewpA 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 341 Evening Canyon Road, Newport Beach,
California 92625 and legally described as Parcel "A" of re -subdivision 113 and being a
portion of lot 141, Tract 1116, as shown on a map recorded in Book 5047, Pages 105-108,
inclusively of Official Record Book 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 Evening Canyon Road right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to, Parcel "A" of re -subdivision 113
being a Portion of lot 141, Tract 1116 as shown on a map recorded in Book 5047, Pages 105-
108, inclusively of Official Record Book in the office of the County Recorder of Orange County,
California; also known as 341 Evening Canyon Road, 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, concrete patio, with 2 (14" high) poured concrete benches, 34" high poured concrete
counter top, concrete block walls with smooth exterior plaster finish ( height not to exceed 3'
above the patio ground level), low -voltage lighting, landscaping (plant heights not to exceed
48") and appurtenances in the Evening Canyon Road. 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.
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
therefore on file in the CITY's Public Works Department, and as described on Exhibit "A"
hereto attached.
2
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 that 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.
APPROVED A S TO FORM:
By:
City Attorney
ATTEST:
By: C, 40 - -�
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By: C44LZ..',
City anager
A \_C
By:
Judy Lee
4
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE
�- Aoi
On 7 , 2002, before e, l��Z G
personally(a eared �( Xe personally
known to me (or proved to me on a basis of satisfactory evidence) to be the persons-s)'/
whos namp(s-- re subscribed to the within instrument and acknowledged to me that
he she hey has executed the same in his er/ eir authorized capacity(es) and that by
his/ er/ eir signature(i0 on the instrument the person(q)or the entity upon behalf of which the
person acted, executed the instrument.
WITNE S'my hand and official seal.
otary Public in and foe�gaid Sta
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On �� , 2002, before m
SHAUNA LYN OYLER
Commission # 1331209
`z hd Notary Public - Californiai
Z Orange County
My Comm. Expires Dee 5, 2005
(This area for official notarial seal)
1 P,I 1l111t
Pab)(G
personally appeared f'10Y1/Itf �. MMM4 5 L--AVUVIVICi JVI- Mf rI-%SS personally
known to me he —basis -of -sa ' ) to be the persor6)
whose name&is/ re ubscribed to the within instrument and acknowledged to me that
he/she/ he has executed the same in his/her/ eir authorized capacity(g)and that by
his/her/ ei signature�on the instrument the person or the entity upon behalf of which the
person acted, executed the instrument.
LEILANI I. BROWN
WITNESS my hand and official seal. Commission1336673
i Notary Public - Califomia z
Orange County
My Comm, Explrea Jan 25, 2006
Notary Public in and for said State
(This area for official notarial seal)
F:\USERS\PBW\Shared\ENCROACH\ROW Agreements\2002\2002-034 Ocean Blvd.doc
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CANNA(LILY), ZANTED.ESCHIA(CROWBOROUGH), AND HOSTA(LILY) SPECIES
ALL PLANTS 2'-0" TO 3'-0" MAXIMUM HEIGHT
DICKSONIA(FERNS), STRELITZIA(BIRD OF PARADISE) SPECIES
ALL PLANTS 3'-0" TO 4'-0" MAXIMUM HEIGHT
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EXHIBIT A
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LOW VOLTAGE LIGHTING(TYP.)
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