HomeMy WebLinkAboutC-5086 - Encroachment Agreement EP97-103 for 233 Agate AvenueRECORDING REQUEST 1 AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in the County of Orange, California
Gary L. Granville, Clerk/Recorder
III I I I I II II I I DM I I III II No Fee
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ENCROACHMENT AGREEMENT
(EP97-1 03)
THIS AGREEMENT is made and entered into this /23 day of
1997, by and between Robert Fuller; hereinafter "OWNER", and the City of Nevu{5ort 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"), "OWNER" is
the owner of property located at 233 Agate Avenue, Newport Beach, California and legally
described as Lot 7, Block 8, Map of Resubdivision Section One of Balboa Island; as shown on
a map recorded in Book 6, Page 31 inclusively of Miscellaneous Maps in the office of the
County Recorder of Orange County, California;
WITNESSETH:
WHEREAS, OWNER desires to construct and maintain certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within Agate Avenue right-of-
way (hereinafter "RIGHT-OF-WAY") that is located between and adjacent to 233 Agate
Avenue, Newport Beach, California;
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:
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1. It is mutuall, agreed that PERMITTED IMPROVE ENTS shall be defined as two
(2) concrete step, raised concrete patio (2' high) with a 2' high open wooden fence on top of a
2' high retaining stone verner wall with 4'-6" high stone verner pilasters (5 each), and
appurtenances in Agate 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, replace
or repair any private -owned or CITY -owned pipeline, conduit or cable located in or under said
PERMITTED IMPROVEMENTS, except as otherwise provided herein.
c. If private -owned, 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 the 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:
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(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 defend, 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 agrees 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.
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APPROVED AS TO FORM:
By:
City Attorney
CITY OF NEWPORT BEACH,
a Municipal corporation
ATTEST: OWNER:
City Clerk
By:
A/I /--ttk
Robert F Iler
4
STATE OF CALIFORNIF
) ss:
COUNTY OF ORANGE )
On - ize 997, before me,(1 4 4/ ''-z4
personally_ appeared -'i?e4
�persona� known to ryle, or-preved--is-me-s -the- basis---ef satisfactory evidence) to be the
person() whose name()(1ar>6 subscribed to the within instrument and acknowledged to me
tt at he We/ i has executed the same i his Ig'/t err authorized capacity(i ), and that by
his lam'/flgatr signature(;g,) on the instrument the person(R) or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
22/4
Iic in and for safState
(This area for official notarial seal)
CHER L L CIAV
Commission # 1132973
Notary Public — California
Los Angeles County
My Comm. Expires May 31, 2001
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE )
On GL/ & / , 1997, bef r�
personally app ed anme. � i�/ Pis aK a-y..,
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
perso (s hose names) is bscribed to the VjhiQ instrument and acknowledged to me
that he/she as execute the same in his/her t authorized ca ac� , and that pby
his/her/gnaturpn the instrument the persothe entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for aid State
F:\USERS\PBW\GW ONG\W P51\AG\FULLBI.DOC
Eaa�. Shauna Lyn Oyler
Comm. #1002681
O^^
( ' ; NOTARY PUBLIC CALIFORNIAU,
RANGE COUNTY n
v�y�r� , Comm. Uplift Aug. 22, 1997 -+
(This area for official notarial seal)
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