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HomeMy WebLinkAboutC-9213-1 - Encroachment Agreement EPN N98-57 for 1042 West Bay AvenueRECORDING REQUESTED , ,ND WHEN RECORDED RETURN TO: Recorded in the county of orange, California � Gary L. Granville, Clerk/Recorder Public Works Department Fee t City of Newport Beach III II I I II I III I II II II III I II No v Post Office Box 1768 005 19006675 119080567441 09 , 23dm 08/27/9$ 3300 Newport Boulevard Al2 7 6.00 18.00 0.00 0.00 0.00 0.00 Newport Beach, CA 92659-1768 Space above this line for Recorder's use only. 1. ENCROACHMENT AGREEMENT (EP98-57) THIS AGREEMENT is made and entered into this 7 day of , 1998, by and between John J. Jakosky III and Jakosky Trust B, Jack J sky rustee; i hereinafter "O'WNER", 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 1042 West Bay Avenue, Newport Beach, California and legally described as Lot 1, Block 5, Tract 626, as shown on a map recorded in Book 30, Pages 40 and 41 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 .11th Street right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 1042 West Bay Avenue, Newport Beach, 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 r WHEREAS; the parties hereto desire to execute an agreement provid:ipg forjjilfillm`t of the conditions required by CITY to permit OWNER to reconstruct and maiTain s i l PERMITTED IMPROVEMENTS; NOW, THEREFORE, in consideration of the mutual promises, the parties hero agree as follows: 1 1. It is m%.il:-.ally agreed that PERMITTED IMPROVEMENTS shall be defined as existing raised cor,-;;- ate, planter, existing flush planter, concrete flush planter, concrete mow strip, lawn with irrigati m, sand blasted colored concrete walk, concrete driveway approach with sand blasted finish, landscaping, and appurtenances in 11th Street right -of -away as shown on EXHIBIT "A" attached hereto, conform to City Council Policy L-8, and as approved by the City Engineer. In addition, all landscaping shall have a maximum height of 24-inches. 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 far ;tFld under this Agreement may be terminated by CITY at any time by giving 60 days' not`-"cs, specifying in said notice the date of termination. CITY shall incur no liability whatsoever n tie event of the termination of this Agreement, or subsequent removal of improvements by C"OCY. 4. OWNER and CITY further agree as follows: a. OWNER may construct an,4 ino+all D�R�/IITTCh : . __ 1{\rnn!n n .. .. v... .V.1 . ♦V v CIV7LIV I J dn(d 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. Off' ,'1`IE"R shall maintain the PERMITTED IMPROVEMENTS in accordance with general prevLi c.; -,tandards of maintenance, and pay all costs and expenses incurred in doing so. However % Bing herein shall be construed to require OWNER to maintain, replace or repair any private;-oN /i-.ed or CITY -owned pipeline, conduit or cable located in or under said PERiviiTTED IMPROVEMENTS, except as otherwise provided herein. c. If private -owned, City, or other public facilities or improvements are damaged by the instaiiation or presence of rcRMHTTED IMPROVEMENV T S, vVvivER shah 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 i ights; associated with said RIGHT-OF-WAY, including but not limited to, the maintenance, re°raoval, repair, renewal, replacement or enlargement of existing or future 2 public facilities or improvements, CITY may remove pot eons of the PERMITTED IMPROVEMENTS, as required, and in such event: 0) CITY shall notify OWNER of its intention to accomplish such work, if any emergency situation does not exist. /iil 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 t".-, :afe of termination. !n the eve,nt of litigation commenced with respect to any term of conditttarr, of this Agreement, the prevailing party shall be entitled to reasonable attorneys fees and costs incurred. wave 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; L tali run with the land; shall be binding upon the heirs, successors, and assigns of OWNED`. interest in the land whether fee or otherwise, and shall be recorded in the Office of the Count%, Recorder of Orange County, California. IN WITNESS VHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first -above written. K CITY OF NEWPORT BEACH, a Municipal corporation APPROVED AS TO FORM: By: By: City Al.torrfpy Ci y M� ag ATTEST: OWNER: City Clerk John rJakr III v By: Jakosky st B, Jack J&osky Trustee STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On Jan e- /gi I'M9 4"4— , 1998, before meA AAAAle A iK cr<-!/c,&� personally appeared j6Hl f J 4,410 4cy. personally known to me ( to be the person(.*) whose name(s) is/v-" subscribed to the within instrument and acknowledged to me that he/sbsA4v_ r has executed the same ,This'",C "n 4;-authorized capacity(- , and that by his/hadU if signature on the instrument the person(* or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. )7�40A41 el . a Notary Public in and foi said State STATE OF CALIFORNIA ) ) ss: COUNTY OF ORAN'3E ) Marione A. MCMlllan V Comm. #1074769 O 0 NOTARY PUBLIC - CALIFORNIA ORANGE A COUNTY Comm. Exp. OCt.18,1999 (This area for official notarial seal) On tJlG1 e, /- /9%g , 1998, before me,AAe-14416 4 �qeiglL«V personally app(.-tired C'J4 6 personally known to me ( ) to be the person(&) whose name ,t) is/efe subscribed to the within instrument and acknowledged to me that hefshe #�he)b has executed the same in hisAgerAhei; authorized capacity, and that by his/her/their signature() on the instrument the person(e) or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. � E�� Marjorie A. McMillan Comm. #1074769 ^ c NOTARY PUBLIC -CALIFORNIA u, ORANGE COUNTY 0 Comm. Exp. Oct. 18, 1999 'i Notary Public in and for said State F:\USERS\PBW\GWONG\WP51\AG\Jt k!<OSBP8.DOC ;T6i� ?rpa_ fcr official notari-1 seal) 5 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No. 5907 State of C"1600AA County of *A4K On 161 11 1Mob before me, I�I�I V, IMF , Nwi PUBIC, DATE NAME, TITLE OF OFFICER - E.G., "JANE DOE, NOTARY PUBLIC" personally appeared Y 1 I`v vIM VR,q NAME(S) OF SIGNER(S) Cal. personally known to me e to be the person( whose name is/afe- subscribed to the within instrument and ac- knowledged to me that he/.s4e4#eq executed the same in his/"9e4-r authorized �..,, capacity(), and that by his/e-i-r LEILANI V. INES signaturem on the instrument the personw, Commission # 1 170960 No-oryPUr)IiC- Cal'fornia ; or the entity upon behalf of which the 140i .y Orange Co:.nty personW acted, executed the instrument. %, y C ;+nm. Expires ian 25, M WITNESS my hand and official seal. owa.� U. lYwn� S; GNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION • 8236 Remmet Ave., P.O. Box 7184 • Canoga Park, CA 91309-7184 ;=xIST7N6 �y L�VGLI�lN6 II.Q WPC SAY 1 ^� 0 Nan/ 'Y STJRY S1N�E Mll.i DW�t-t�1�6 1042 %y. -AY 1 6" V9TSP I 6 t ................. . SfTE PLAN Nf-W co;'jJrr-U,--rja,\j/F►CFCK. H e;-N7 f'F�r ,,A EXH1f--I SITE PLAN CONSTRUCTION NOTES: 1 EXISTING RAISED 6" HIGH CONCRETE PLANTER CURB TO 7 CONSTRUCT NEW INTEGRAL COLOR CONCRETE DRIVEWAY REMAIN. WITH SAND BLASTED TEXTURE. 2 EXISTING PLANTER LANDSCAPING TO REMAIN. 18 REMOVE EXISTING CURB CUT. INSTALL NEW 6- CONCRETE 3 : CURB AND CONCRETE SIDEWALK TO CITY OF NEWPORT CONSTRUCT NEW HIGH 6' PLASTERED CONCRETE BLOCK BEACH STANDARDS TO AREA SHOWN HATCHED. PLANTER TO REPLACE EJOSTING 6' CONCRETE PLANTER AC CURB. 19 ! INSTALL NEW IRRIGATION AND SHRUBBERY IN PLANTER. 4 ' MAXIMUM HEIGHT OF PLANTER AND LANDSCAPE NOT TO CONSTRUCT NEW 6' HIGH CONCRETE PLANTER CURB TO EXCEED 24'. REPLACE EXISTING BROKEN 6' CONCRETE CURB. 5 '. '10! INSTALL NEW IRRIGATION AND LAWN IN SHADED AREA. CONSTRUCT NEW 6- WIDE CONCRETE MOW STRIP. 6 ' CONSTRUCT NEW INTEGRAL COLOR SMOOTH FINISH CONCRETE WALK WITH SAND BLASTED TEXTURE. r\ Z �x Hi15 / T "1A "