HomeMy WebLinkAboutC-2752 - Encroachment Agreement (for 1901 Bayadere Terrace)RECORDING REQUESTED AN
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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Recorded in Official Records
of Orme County, California
Lee A. Branch, County Recorder
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
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THIS AGREEMENT is made and entered into this /,, day of
, 1994, by and between Brian Mock (hereinafter "OWNER"),
d 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");
WITNESSET H:
WHEREAS, OWNER desires to construct certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within the
Bayadere Terrace and Bayside Drive right-of-way (hereinafter "RIGHT-
OF-WAY") that is located adjacent to Lot 171, Tract 2813, as shown on
a map recorded in Book 94, Page 46 inclusively of Miscellaneous Maps
in the office of the County Recorder of Orange County, California;
also known as 1901 Bayadere Terrace, 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. It is mutually agreed that PERMITTED IMPROVEMENTS shall be
defined as cut "Arizona" Flagstone on 3" thick concrete base walk in
the Bayadere Terrace parkway as shown on Exhibit "A" and various
trees; "Purple Plum" (5 each), "Eucalyptus Ficifolia" (5 each), "Stone
Pine" (8 each), "Wash Palms" (2 each), and appurtenances in the
Bayside Drive right -of -away as shown on EXHIBIT "B" attached hereto
and as approved by the City Engineer.
2. CITY will permit OWNER to construct, reconstruct,
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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" and Exhibit "B" 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;
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(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.
7. OWNER agree 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 FORM:,,
By:
City Attorney
ATTEST:
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CITY OF NEWPORT BEACH,
a Municipal corporation
By:
OWNERS:
City ; anager
Brian Mock
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE
On CJIao-A-) a114, 1994, before me aag-t)
personally appeared "Oria.- Lz . (YLCCic—
personally known to me (or p
catisfactviy evidence) to be the person(-3- whose name(o) is/ -are
subscribed to the within instrument and acknowledged to me that
he/shc/thcy his executed the same in his/her/theft authorized
capacity (-yes-) , and that by his/hcr/th it 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.
Public in and for said State
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE
On
personallyappeared
personally known to
evidence) to be the
within instrume
same in hi
his/her
BOLT
Comm. # 963575
• NOTARY Pi12•UC • =FORMA
G•ange Count/
try Cl rm% Expires Dec.13,1996
(This area for official notarial seal)
1994, for me,
C(r/e Qn
me (or proved to me on the basis
of satisfary
perso whose name 4) is/sub ribed to the
d acknow edged to me that he s e/ ey executed the
authorized capacity, and tha by
signatur-O) on the instrument the person( or the
entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and officia seal.
Notary Public in for said State
B:\AG-94L.ENC
EP-94-118
-�� Shauna Lyn Oyler k
uP i� �Ye •\
Comm #1002681
NOTARY PUBLIC CALIFORNIA'
ORANGE COUNTY ()
Camm Expires Aug 22, 1997 1
(This area for official notarial seal)
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