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HomeMy WebLinkAboutC-2895 - Encroachment Agreement (for 211 East Bay Front)EXEMPT 2ECOED/,U PEA? 6Dileeati5A)T Go ' 6,03 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 Space above this line foL ., . e ii �iya.�L in �F.. +irk,!Ti riAr1L 02—FEB--1994 11 m w% A 'a, AM Recorded 111 +.!! ! 1+_ldl RN+_0r'. T 7i OrangeCounty, oil3ii:ls California Lee A. Branch, s ('runty Recorder p�ryy i 20 C'_...-a As.. i +l �l ee.s: ¥ 'SA ter Tax: $ n nn +:7ii. i' V.V:I /bs- 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. 1 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: 2 (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 4