HomeMy WebLinkAboutC-4451 - Encroachment Agreement (for 508 San Bernardino Avenue)RECORDING REQUESTS_ AND
WHEN RECORDED RETURN TO:
City Clerk/ ? Y�
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
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ENCROACHMENT AGREEMENT
r2aS7-627
THIS AGREEMENT is made and entered into this // -"4 day of
Ay/As-I' , 1993, by and between John Magner and Linda Magner
(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
State of California, (hereinafter "CITY");
W ITNESSET H:
the laws of the
WHEREAS, OWNER desires to construct certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within the
San Bernardino Avenue right-of-way (hereinafter "RIGHT-OF-WAY")
that is located adjacent to Lot 3, Block 33, First Addition to
Newport Heights, as shown on a map recorded in Book 4, Pages 94
inclusively of Miscellaneous Maps in the office of the County
Recorder of Orange County, California; also known as 508 San
Bernardino 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
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 a 32 inch high wooden fence with a 3 feet wide gate
opening to the property and appurtenances as shown on EXHIBIT "A"
attached hereto and as approved by the City Engineer.
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
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further allow OWNEit to take all reasonable mea6ures 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. 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, construction or
enlargement of existing or future sidewalk, 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 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.
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5. In the event either party breaches a,iy 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 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 agree 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 AS TO FORM:
By:
City
ATTEST:
By:
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
OWNER:
LMCILAJ
Linda Mag er
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STATE OF CALIFORNII, )
) ss:
COUNTY OF ORANGE )
On ) J,$ 1/ , 1993, before
me,R/T D4.;, Ali',"
personally appeared Kevin Murphy
personally known to me to be the City Manager of the City of
Newport Beach and Wanda E. Raggio , known to me to be the
City Clerk of the City of Newport Beach, 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 his/her/their 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 persons(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature L � J
seal)
z
cookrii
s;+? 21. 1917
STATE OF
CALIFORNIA
SS:
COUNTY OF ORANGE
z`
(This area for official notarial
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PAT DE LA HUNT
COMM.* 988739
Notary Public — California
ORANGE COUNTY
My Comm. Expires MAR 21, 1997
On !ice �, , 1993, before me, /7-
Rp-rsopiall •.eared
own to me (or proved to me on/,tne basis of
isfactory evi ence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
his/her/their 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
persons(s) acted, executed the instrument.
WITNESS my hand and official seal.
(This area for official notarial seal)
OFFICIAL SEAL
JANANNE HOLDEN
Notary Public -California
ORANGE COUNTY
My Commission Expires
November 5,1993
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