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Home My WebLink AboutC-4108 - Encroachment Agreement (for 413 Iris Avenue)RECORDING REQUESTEL AND WHEN RECORDED RETURN TO: nor 17. ifi( City Clerk City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 717•73i', rfs ,� RFC flri_9-1I lii � 7 �� _,_ Rµcnri [s Jl - 31i3C JWI:.;. Lee A. r 9r- Count i.:ecnrder Palle i is-'s Fees '� .._i, Space above this line for .,..---- - ENCROACHMENT AGREEMENT PasT4P TH S AGREEMENT is made and entered into this day of 4 Q , 1993, by and between Main S. Wall and Pauline M. Wall (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 the laws of the State of California, (hereinafter "CITY"); W ITNESSET H: WHEREAS, OWNER desires to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Iris Avenue right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 13, Block 335, Tract Corona Del Mar, as shown on a map recorded in Book 3, Pages 41 and 42 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; also known as 413 Iris 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 loose bricks over sand with treated landscape timbers (6 inches wide) 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 1 with plans and specifications on file in the C TY. 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. 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, and enlargement of existing sidewalk, 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; 2 (iv, OWNER agrees to pay all L:osts 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 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 PS TO FORM: By: City Attorney ATTEST: 3 CITY OF NEWPORT BEACH, a Municipal corporation By: OWNER: Bv: By: "Main S. Wall / %/% Pauline M. Wall" STATE OF CALIFORNIA )ss. COUNTY OF O GE ) personally appeared Pin Y%%GC r`o E7 ' d personally known to me (or prdvedfi to me on the basis of f satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that .he/fie/they executed the same in hie/her/their authorized capacity(ies), and that by hie/fir/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Notary Public in a •'d for s d State STATE OF CALIFORNIA ) SS: COUNTY OF ORANGE On 'S 61-nb /, 1993, before me, 1Y3r\ personally appeared VY1..3 {1 - Ld. t 1 a08 ?au t t ne) uk o i l , known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) ±s7`are subscribed to the within instrument and acknowledged to me that hi,g41 ex -/their executed the same in hi.s•/ /their authorized capacity(ies) , and that by hi..s-/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 `7z7,,., 1?7,r, MARY ANN BRZUCKI COMM. * 988533 Notary Public — California ORANGE COUNTY Q My Comm. Expires MAR 21 . 19997 .41 (This area for official notarial seal) T 7