HomeMy WebLinkAboutC-2809 - Encroachment Agreement (for 2001 Centella Place)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
Doc: 6 u E rbg c 'rF 7 rf
if.v.or ed in Official Records
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i Orange Count', California °
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
THIS AGREEMENT is made and entered
-XI o�e6 , 1994, by and between Diane
"OWNER"), and the City of Newport Beach
into this day of
C. Berger (hereinafter
, 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 TNE S S E T H:
WHEREAS, OWNER desires to construct certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within the
Santiago Drive right-of-way (hereinafter "RIGHT-OF-WAY") that is
located adjacent to Lot 1, Tract 3379, as shown on a map recorded in
Book 4, Page 83 inclusively of Miscellaneous Maps in the office of the
County Recorder of Orange County, California; also known as 2001
Centella Place, 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
1. It is mutuz Ly agreed that PERMITTED I. ROVEMENTS shall be
defined as a 6' high wood fence, 12" high grouted brick planters, 36"
high hedge, and appurtenances in the Aliso Avenue right -of -away 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.
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. In addition, the owner
shall maintain a maximum height of 3' for the existing hedge located
behind the back of curb on Santiago Drive. 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.
2
d. That .ould CITY be required to e_ _er 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. 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.
3
7. OWNER agree nat this Agreement shall z,_.iain 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:
ATTEST:
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
Mayor
OWNERS:
Diane C. Berger
4
STATE OF CALIFORNIA
) ss:
COUNTY OF ORANGE )
1994, before me,
personally appeared 0, c. i C_ C_. i j AZ
, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) Q/are subscribed to the
within instrument and acknowledged to me that he//they his executed
the ane, in his/Fier'/their authorized capacity(ies) , and that by
his/(herd/their signature(s) on the instrument the person(s) or the
entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Nota'Public in and for said State
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE
) Q 4 0-. I s
OFFICIAL NOTARY SEAL
BETH NEILSON
Notary Public — California
ORANGE COUNTY
My Comm. Expires FEB 10,1995
(This area for official notarial seal)
On (QV cmUer-J17 , 1994, .befo
personally appeared
, personally known to me (or proved to me
evidence) to be the person' whose name C)
within instrument and acknowledged to me that
s_me in 4 her/their authorized capacity(,
/her/their signature) on the instrument the person
entity upon behalf of which the persons(s acted, executed
instrument.
e�s
AW/M_ (;//7
WITN ;1. my hand and officiate seal.
Notary Public in for sd State
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EP-94-342
onfthe basis of satisfactory
are subscribed to the
she/they executed
and that by
or the
the
Shauna Lyn Oyler
Comm #1002681 ARY PUBLIC CALIFORNIA')A
ORANGE COUNTY 0
Comm. Expires Aug 22. 1997 -+
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(This area for official notarial seal)
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