HomeMy WebLinkAboutC-2777 - Encroachment Agreement (for 324 Poppy Avenue)RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Clerk
City of Newport Beach
P. O. Box 1768
3300 Newport Boulevard
Newport Beach, California
92658-8915
BuC # 94-0663269
15—NOV —1994 03:11
Recorded in Official Records
of Orange Court/, California
Lee A. Branch, Count/ Recorder
Pa3e 1 of 8 Fees: $
Tan:
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
THIS AGREEMENT is made and entered into this
October, 1994, by and between Walter Impey and Randi Impey, husband and wife as
Joint Tenants, hereinafter referred to as "OWNERS", 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 referred
to as "CITY".
RECITALS:
/9-&(
day of
WHEREAS, "OWNERS" are the owners of real property known as 324 Poppy
Avenue, Corona del Mar, California and legally described as (the "PROPERTY"), and;
WHEREAS, "OWNERS" desire to construct certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within a portion of
an existing Right -of -Way across the property (hereinafter "RIGHT-OF-WAY"), as
on a map recorded in Book 20, Page 18 inclusively of Miscellaneous Maps in the
office of the County Recorder of Orange County, California, and;
WHEREAS, the "PERMITTED IMPROVEMENTS" proposed to be placed on,
over, or within the limits of the "RIGHT-OF-WAY" are ordinarily prohibited within
public right-of-way areas, without an approved encroachment permit. However, in
consideration of "OWNERS"' assent to the conditions of this "AGREEMENT" shall
be allowed by special permission under this "AGREEMENT" and by permit from
the City Building Department, Public Works Department and Utilities Department,
to construct these proposed "PERMITTED IMPROVEMENTS" with specific
conditions, and;
WHEREAS, "PERMITTED IMPROVEMENTS" will constitute a burden upon the
"CITY's" ability to maintain and operate the "CITY's" utilities within said "RIGHT-OF-
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Fri
WAY". As a result, "CITY" requires "OWNERS" to assume all responsibility for these
encroaching, "PERMITTED IMPROVEMENTS" and all encroaching installations,
improvements, and landscaping, and;
WHEREAS, the parties desire to enter into this "AGREEMENT" which
provides conditions to allow the "OWNERS" to install and maintain
"PERMI I"1 ED IMPROVEMENTS",
NOW THEREFORE, in consideration of the mutual promises, the parties
agree as follows:
1. It is mutually agreed that "PERMI1"1 ED IMPROVEMENTS" shall be
defined as 1) concrete stairway, 2) 3 feet, 6 feet and 9 feet high terraced block
planter walls, and 3) overhanging wood decking with railing 18 feet above the
existing top of curb, and appurtenances in the Hazel Drive "RIGHT-OF-WAY" as
shown on Exhibit "A" attached hereto and as approved by the City Engineer.
2. "CITY" will permit "OWNERS" to construct, reconstruct, install,
maintain, use, operate, repair and replace "PERMIT' ED IMPROVEMENTS" and
incidental appurtenances within a portion of the "RIGHT-OF-WAY", all in
substantial conformance with plans and specifications on file in the "C1'1'Y".
"CITY" will further allow "OWNERS" to take all reasonable measures necessary
or convenient in accomplishing these activities.
3. Rights granted under this "AGREEMENT" may be terminated by "CITY"
at any time at "CITY's" sole discretion, by giving 60 days written notice, specifying
in the 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. "OWNERS" and "CITY" further agree as follows:
a. "OWNERS" may construct and install "PERMITTED
IMPROVEMENTS" and incidental appurtenances in substantial conformance
with plans and specifications on file in the City's Public Works Department, and
as described on attached Exhibit A.
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b. "OWNERS" 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 in this "AGREEMENT"
shall be construed to require "OWNERS" to maintain, replace or repair any
"CITY" owned pipeline, conduit or cable located in or under the permitted
improvements, unless required by this "AGREEMENT".
c. If any public facilities property or improvements are damaged by
the installation or presence of "PERMITTED IMPROVEMENTS", "OWNERS"
shall be responsible for the cost of repairs.
d. Should "CITY" be required to enter onto the "RIGHT-OF-WAY" to
exercise its primary rights associated with the "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, or
excavate as necessary the encroaching, "PERMl FI ED IMPROVEMENTS", as
required, and in such event:
(i) "CITY" shall notify "OWNERS" of its intention to remove the
"PERMITTED IMPROVEMENTS" if any emergency situation
does not exist;
(ii) "OWNERS" 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
"PERM11-1 ED IMPROVEMENTS" affected by such work;
(iv) "CITY" will not be responsible for any damage to the
"PERMI I 1 ED IMPROVEMENTS" which may result from
there removal;
(v) "OWNERS" agree to pay all costs for renewal or restoration
of the "PERMITTED IMPROVEMENTS".
5. "OWNERS" shall not be permitted by virtue of this "AGREEMENT"
to install any additional improvements in "CITY" "RIGHT-OF-WAY" in the
future, without first obtaining all the required permits for such work as may be
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proposed and not without special permission from "CITY", in writing, for any
such additional installations or construction, and;
6. In the event either party breaches any material provision of this
"AGREEMENT", the other party at its option may, in addition to other legal
remedies available to it, terminate this "AGREEMENT", and, in the event the
breaching party is "OWNERS", "CITY" may enter upon the "RIGHT-OF-WAY"
and remove all or part of the improvements installed by "OWNERS".
Termination because of breach of this "AGREEMENT" shall be based 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 or
condition of this "AGREEMENT", the prevailing party shall be entitled to
reasonable attomey's fees and costs incurred.
7. "OWNERS" 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, 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. "OWNERS" agree that this "AGREEMENT" shall remain in full force
and effect from execution; 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.
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IN WITNESS WHEREOF, the parties have caused this "AGREEMENT" to
be executed on the day, month and year first above written.
Approved as to Form:
Ro in Clauson, Assistant City Attorney vClarence Tu • er, Mayor
City of Newport Beach,
a municipal corporation
Attest:
i Cy�C
Wanda Raggio, lerk
Walter and Randi Impey
Husband and Wife as Joint Tenants
Walter Imp_e_y,Sbezzi
Randi Impey, Owner
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of
County of Ort-.a,m.gJ-
On t 5, I09 Y before me,
DATE
Tm.E OF OFFICER - E.G..'JMtE DOE. NOI4R/ RIBUC'
personally appeared fwr ek; Oa. Z.
NAME(S) OF 9GNER(S)
❑ personally known to me - OR -
OFFICIAL SEAL 1
VIRGINIA A. VARIN N
NOTARY PUBLIC - CALIFORNIA
COMMISSION iY 986097 C
ORANGE COUNTY
My Commission ExP Ally 20, T 997 rt
proved to me on the basis of satisfactory evidence
to be the persons whose name® is/Orris/Olp subscribed
to the within instrument and acknowledged to me
that he/she executed the same in his/her
authorize capacity e), and that by his er
signatures on the instrument the perso , or the
entity upon behalf of which the perso (s acted,
executed the instrument.
WITNESS my hand and official seal.
V�CNrua 1 A . v ovV A.
SIGNATURE OF NOTARY
THIS CERTIFICATE MUST BE ATTACHED TO
THE DOCUMENT DESCRIBED AT RIGHT:
Though the data requested here is not required by taw.
it could prevent fraudulent reattachment of this form
OPTIONAL SECTION
— OPTIONAL SECTION —
CAPACITY CLAIMED BY SIGNER
Though statute does not require the notary
to fin In the data below. doing so may prove
Invaluable to persons retying on the document.
❑ INDIVIDUAL
❑ CORPORATE OFFICER(S)
TM-E(S)
❑ PARTNER(S) ❑ LIMITED
❑ GENERAL
❑ ATTORNEY -IN -FACT
❑ TRUSTEE(S)
❑ GUARDIAN/CONSERVATOR
❑ OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
State of California
County of Orange
On / /9-7VL before
me, Irene Butler. Notary Public,
personally appeared (;67j� Q 4km---r-J
personally known to me - OR -
1 i._ A n
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G
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s s � r -•••-- v �-
IR'SUTLER
Comm. *1008878
TARY PUBLIC CALIFORN
ORANGE COUNTY
Comm. Expires Nov. 11, 1997 "
Jy
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),
orthe entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
CAPACITY CLAIMED BY SIGNER
Individual
Corporate Officer
Limited Partner
General Partner
Attorney -in -Fact
Trustee(s)
Guardian/Consery for
Other>%/A-- z/v
Si ner Is Representing:
DESCRIPTION OF ATTACHED DOCUMENT
Title or Type of D cument z
/
Number of Pages
/o-/f-yy
Date of Document
7
Signer(s) Other Than Named Above