HomeMy WebLinkAboutC-2731 - Encroachment Agreement (for 406 Aliso 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
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ENCROACHMENT AGREEMENT
THIS AGREEMENT is made and entered into this /2eJ,i_. day of
, 1994, by and between Mark Schultheis (hereinafter
"OER"), and the City of Newport Beach, California, a
corporation
Charter and
California,
organized and existing under and by virtue
the Constitution and the laws of the State
(hereinafter "CITY");
W ITNESSET H:
WHEREAS, OWNER desires to construct certain non-
improvements (hereinafter "PERMITTED IMPROVEMENTS") wit
Pirate Road right-of-way (hereinafter "RIGHT-OF-WAY") that
municipal
of its
0
located adjacent
Height, as shown
of Miscellaneous
1s
to Lot 2, Block 28, First Addition to Newport
on a map recorded in Book 4, Page 94 inclusively
Maps in the office of the County Recorder of
Orange County, California; also known as 406 Aliso Avenue,
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
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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 a 3' high wood fence 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. However,
nothing herein shall be construed to require OWNER to maintain,
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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. 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
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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.
APPROVES AS TO FORM:
By
City Attorney
ATTEST:
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
WNERS:
By:
Mayor
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STATE OF CALIFORNIA )
COUNTY OF os LAngeles ) ss:
DTt�E
On January 17, 1995 , kRR1, before
personally appeared MARK SCHULTHEIS
, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person (A) whose name( ) is/ama
subscribed to the within instrument and acknowledged to me that
heA3thocidathNudziox executed the same in his/ „ic authorized
capacity(kaxX, and that by his /otUadac signature (') on the
instrument the person(') or the entity upon behalf of which the
person acted, executed the instrument.
me, Marilyn F. Merlo
WITNESS my hand and official seal.
Notary Publin and for said State
MARILYN F. MERLO
COMM. *1028468
Notary Nolte — California
LOS ANGELS COUNTY i
My Comm. Expire. NOV 9.1998
(This area for official notarial seal)
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE
On 7 /) 994, before. me,115 _; /1a �I,
personally appeared c� �i;' / e J r 5 �t �� <a c ' : ./
personally known to me (or proved/to me on -,the basis of satisfactory
evidence) to be the person(s): whose name4s'j)is/are subscribed to the
within instrument and acknowledged to me thaL_he/shejthey°executed the
same in his/her/theirauthorized capacitKies), and tThat by
his/her/(heirsignature O:on the instrument the persons)) or the
entity upbehalf of which the persons(s) acted, executed the
instrument.
WITNESS my ha
Notary Public in -arid for :'said State
d offi J al seal.
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taZ4kgeie.QiNOTARy' M)BUC CAUFORNIA"' 1• ORANGE COUNTY n
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