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HomeMy WebLinkAboutC-2720 - Encroachment Agreement (for 2692 Bayshore Drive)€� Z. ma's.= ski r i..P s {IJ s a. : .t r (" RECORDING REQUESTED AND —A;_' ;— i 995 12 _ 40 Ph (mil WHEN RECORDED RETURN TO: () City Clerk of iit -t, ,114erriAtVi City of Newport Beach Gary I 6j7.1nv iP. _iErk-1=i_P.rciPr Post Office Box 1768 r.n-3e 1 t, i 6 gee;: 1 C.v0 3300 Newport Boulevard ?ti;;= Newport Beach, CA 92659-1768 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT THIS AGREEMENT is made and entered into this 1 y day of �.,� d—! 1995, by and between J.A.W. Family Trust dated August 26, `i994, Michael J. Hoppe Jr. Trustee (hereinafter "OWNER"), and the City of Newport Beach, California, a municipal corporation organized and existing under and by virtue of its Charter and the Const the laws of the State of California, (hereinafter "CITY WITNESSET H: WHEREAS, OWNER desires to construct certain non-st improvements (hereinafter "PERMITTED IMPROVEMENTS") within Bayshore Drive Utility Easement (hereinafter "EASEMENT") that located adjacent to a portion of Lot 171, Block 54, of Irvine Subdivision, as shown on a map recorded in Book 1, Page 88 inclusively of Miscellaneous Record Maps in the office of the County Recorder of Orange County, California; also known as 2692 Bayshore Drive, Newport Beach, California; and is 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 EASEMENT; 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 mutually agreed that PERMITTED IMPROVEMENTS shall be defined as decorative stone pavers at grade and raised 18" high planter with stone veneer fence and appurtenances in the Bayshore Drive EASEMENT 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 EASEMENT, 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, 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 2 EASEMENT to exercise its primary rights associated with said EASEMENT, 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 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 : ATTEST: City Attorney City Cler CITY OF NEWPORT BEACH, a Municipal corporation By: ,\X)i4 OWNERS: Mayor 4 STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE On January 31 personally appeared , personally known to me evidence) to be the person(-5-) whose name(e-) is/arc subscribed to the within instrument and acknowledged to me that he/chc/trey hic executed the same in his/hcr-/thcir authorized capacity(.-er-), and that by his/her signature (-s-3 on the instrument the person (-e-) or the entity upon behalf of which the person acted, executed the instrument. , 1995, before me, Michael J. Hoppe, Jr. Kathleen A. Allen Notary P-blic in and for said State (This area for official notarial seal) STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE • OFFICIAL SEAL ='- Kathleen A. Allen ARY PUBLIC • CALIFORNIA ORANGE COUNTY *Comm. Expires Oct 2. 1995 v On 2Vara / 199 before me;, 4r6-0-( 071 447- personally appeared 2�17 f'1 7.4, S 4'ci µi d' -�7,-7aec.. g e_i cC% ^/ <( , personally known to me (or proved t%6 me on the basis of s isfactory evidence) to be the person whose name aL) is are -,subscribed to the within instrumentand_acknowledged to me that helshe/ he executed the same in hisfher(their ,authorized capacities)', and that by his/her/(heir) signatures on the instrument the person6T.or the entity upon behalf of which the persons(s)jacted, executed the instrument. WITNESS ,hand and o,ff ic}ftl Seal. i Notary Public in an for s d State F:\WP51\AG\BAYSHORE.ENC giAi Shauna Lyn Oyler • =��� • Comm #1002681 (3� "Wsie;g!INOTARV PUBLIC CALWOPINI4"r ORANGE COUNTY Comm. Expires Aup 22. 1997 i .... .. c .-c v .. .. (This area for official notarial seal) 7ANcL