HomeMy WebLinkAboutC-2895 - Encroachment Agreement (for 211 East Bay Front)EXEMPT 2ECOED/,U
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RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
City Clerk
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
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02—FEB--1994 11 m w% A
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7i OrangeCounty,
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Lee A. Branch, s ('runty Recorder
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ENCROACHMENT AGREEMENT
THIS AGREEMENT is made and entered into this y6L day of
, 1994, by and between William and Pamela Goode
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 I T N E S S E T H:
WHEREAS, OWNER desires to reconstruct certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within the East
Bay Front public right-of-way (hereinafter "RIGHT-OF-WAY") that is
located adjacent to Lot 16, Block 5 of Balboa Island Section 5 as
shown on a map recorded in Book 8, Page 9 of Miscellaneous Maps in
the office of the County Recorder of Orange County, California; also
known as 211 East Bay Front, Balboa Island, 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 brick patio and 3' high brick wall which will encroach
approximately five (5) feet into RIGHT-OF-WAY 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 further allow OWNER to
take all reasonable measures necessary or convenient in accomplishing
the aforesaid activities.
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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 or enlargement of existing or future
public facilities or improvements, CITY may remove 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.
5. City is presently in the process of formulating an
Encroachment Policy along East Bay Front on Balboa Island and
anticipates that a formal Encroachment Policy will be implemented in
the near future. In such event that an encroachment policy is
approved by the CITY:
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(i) OWNER agrees to bring existing encroachments
into conformance with the Encroachment Policy with 90 days upon
receipt of written notification by the Public Works Director.
(ii) OWNER agrees to complete an Encroachment Permit
Application and pay all fees required by this policy for the
existence of these encroachments or OWNER will remove all
Encroachments from RIGHT-OF-WAY within 90 day.
6. 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.
7. 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.
8. 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 AS TO F'RM:
By:
ney
ATTEST:
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
OWNER:
By:
3
Goode
By:
Pamela Good
SCALE: NONE
NEWPORT BAY
- EAST BAY FRONT SIDEWALK --\
3' BRICK WALL -
211 EAST BAY FRONT
AREA OF ENCROACHMENT
EXHIBIT A
STATE OF CALIFORNIA )ss.
COUN Y OF ORANGE ) l
On 02y/ before .me, //G?G�f�� �l�l /�'
per na 1 ly ap are � iih 21794. 4/ �t CJ �td'_c,
pe onally known to me (or proved td 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
he/she/they executed the saine 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
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in andfor said State
Shauna Lyn Oyler k
Comm. # 1002681
NOTARY PUBLIC CALIFORNIA '
ORANGE COUNTY Q
y =� ` Comm Exprra Aug 22.T1997 -I.
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE )
On , 1
Notary Public in and for the St
Clarence J. Turner , known
Newport Beach and Wanda E
me to be the City Clerk of the Cit
be the persons whose names are subs
and acknowledged to me that they e
WITNESS my hand and offic
STATE OF CALIFORNIA
ss:
94, b
te,
to
efore e, the undersigned, a
perso ally appeared
me . be the Mayor of the City of
, known to
Newport Beach, known to me to
ibed to the within instrument,
uted the same.
Notary Publ
in and for said State
COUNTY OF ORANGE ) `
n �677/aa'c DO , 1994, before me, VJ �`( �Z-CLZa //j jJ
(y
rsonally appeared (� ////Q �19 C1 /7C%
QjafCc�a%r/IAti' -��6� ,personally 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 he/she/they 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 person(s) acted, executed the instrument.
WITNESS my hand and official seal
Signatu
seal)
ag\e-goode.enc
Shauna Lyn Oyler;
Comm #1002681 (•71
NOTARY PUBLIC CALIFORNIV
ORANGE COUNTY n
Comm. Expires Aug 22. 1997 1
v . V v v v.
(This area for official notarial
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