HomeMy WebLinkAboutC-2813 - Encroachment Agreement (for 1305 Park Avenue)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
08—NOV-1994 12: 35 PM
Recorded in Official Records
of Orange County, California losr
817
Lee A. Branch,, County Recoriipr
Face 1 of 5 Tees: $
Tar,: $
1.7.00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
THIS AGREEMENT is made and entered into this / 1'L4day of -‘47" --0<-1 , 1994,
by and between Anne Lemen (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");
WITNESSETH:
WHEREAS, OWNER desires to retain certain non-standard improvements (hereinafter
"PERMITTED IMPROVEMENTS") constructed within the Park Avenue public right-of-way
(hereinafter "RIGHT-OF-WAY") located adjacent to a portion of Lot 17, Block 1, Section 4 of Balboa
Island Tract as shown on a map recorded in Book 7, Page 37 of Miscellaneous Maps in the office of the
County Recorder of Orange County, California; also known as 1305 Park Avenue, Balboa Island,
California; and
WHEREAS, said PERMI1"I'ED 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 PERMIT1'ED
IMPROVEMENTS;
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as
follows:
1. It is mutually agreed that PERMI 11•ED IMPROVEMENTS shall be defined as a wooden
Arbor that encroaches approximately one (1) foot into the public right-of-way as shown on EXHIBIT "A"
attached hereto and as approved by the City Engineer.
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2. CITY will permit OWNER to construct, reconstruct, install, maintain, use, operate, repair and
replace said PERMI I-1ED 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 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 PERMII1 ED 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 and that
PERMI I-1ED IMPROVEMENTS shall be constructed entirely within the 1305 Park Avenue frontage
and shall not encroach upon the neighboring property.
b. OWNER shall maintain the PERMI I'1'hD 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 PERMU 1'ED IMPROVEMENTS, except as
otherwise provided herein.
c. If City or other public facilities or improvements are damaged by the installation or
presence of PERMI FIED 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 PERMI I'1 ED 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 PERMI 1`1'hD IMPROVEMENTS
affected by such work by CITY;
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(iii) CITY agrees to bear only the cost of any removal of the PERMI 1"1 hD
IMPROVEMENTS affected by such work by CITY;
(iv) OWNER agrees to pay all costs for renewal or restoration of the
PERMI TIED 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 PERMI 1"fhD
IMPROVEMENTS.
7. 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.
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
gym..,
c / Polo`
Anne Lemen
3
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On 7/,7) , 1994, before me,
, personally appeared
>pe (or proved to me on
the basis of satisfactory evidence) to be the person$ whose name(' is/a'subscribed to the within
instrument and acknowledged to me that b fshe/ti4- executed the same in der/their authorized
capacity(i s), and that by h /her/thefr signature(g 'on the instrument the person,Kor the entity upon
behalf of which the personacted, executed the instrument.
WITNESS my hand and official seal
Signatur
A A Ate_ A-
- KATHERINE L. ARMSTRONG
°�kff's. COMM. #1027612 W
0
U y . `, NOTARY PUBLIC - CALIFORNIA
CO X4 - ORANGE COUNTY -&
en: ss`• My Comm. Expires May 25. 1998,( v v v v v v v v v v v v
(This area for official notarial seal)
STATE OF CALIFORNIA )
) ss:
COUNTY OF
ORANGE/ )((;)))._ / 4,4
1� 7/e,e er / , 1994, before me, /-(�-&,/a--- O7, personally appeared , J/r2 Y2 2LY� C�4
V.6 4Id a- �, �U ,personally known to me (or proved to me on
the basis of satisfactory evrdehce) to be the perso6i)whose nanT(s)7i ubscribed to the within
instrume d acknowledged to m that he/she/they executed the same in his/her/their authorized
capaci (i , and that by his/h their s gnatur)on the instrument the perso iRor the entity upon
behalf o which the persgii)'acted, executed the instrument.
WITNESS myand and official seal
Sig ./i _ _0.7I
ague-lemen.enc
Shauna Lyn Oyler z
Comm.$1002681
NOTARY PUBLIC CALIFOMNIAW
ORANGE COUNTY Q
Comm. Expires Aug 22, 1997 -
v
(This area for official notarial seal)
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