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Home My WebLink AboutC-5078 - Encroachment Agreement EP97-249 for 230 Agate Avenue00 0 RECORDING REQUEST ) 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 IIIII I I II II I I I I I I I I I I I I II Na Fee 19970444622 3:18pm 09/11/97 005 24008038 24 25 Al2 6 6.00 15.00 0.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EP97-249) THIS AGREEMENT is made and entered into this 31 day of Z-4.4 I`% , 1997, by and between Wayne A. Carlson and Mary Carlson; hereinafter "OWNER", 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 "CITY"), "OWNER" is the owner of property located at 230 Agate Avenue, Newport Beach, California and legally described as Lot 40, Block 10, 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 230 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: 1 1. It is mutuali, agreed that PERMITTED IMPROVE...ziNTS shall be defined as 31" high wooden lattice fence with three (3) each 4" X 4" posts, concrete patio with slate tile, and a 14" high block planter, 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: 2 (i) CITY shall notify OWNER of it:. .ntention 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. 3 APPROVED AS TO FORM: By: By: City Attorney ATTEST: 46-47\i , , City Clerk CITY OF NEWPORT BEACH, a Municipal corporation By: OWNERS: Bv• ayne A. arlson atldSCI-t- ry Carlson 4 STATE OF CALIFORNIi ss: COUNTY OF ORANGE ) On ✓ " " % , 1997, before me, cd, y;s%a `0///e - personally appeared y1(1)-y CC,Y')_scv7 /ijayy2e ,' Crr/S 22 personally known to me (er proved—t--me on the basis of satisfactory evidence) to be the person(s) whose name(s) A/are subscribed to the within instrument and acknowledged to me that he/she/they has executed the same in h s/ka-er/their authorized capacity(ies), and that by • ii€fher/their 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. ( Notary Public in and for said State STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) ," +4, � Marsha Miller V,.. Comm. #1013029 ; r!F J (rtrt '� ••��NOTAR"PUBLIC CALIFORNI i s ,ORANGE COUNTY Comm Expiros Jan 3. 199B ".4 )v vaveivvv4vvvl (This area for official notarial seal) On -,G4-! c? / , 1997, before me, i t n _ l% 1%/" personally app ared V071,1e• r%GIGS uif.�� ,( personally known to me (or roved to me on the basis of satisfactory evidence) o be the perso hose nam isubscribed to the within instrument and ackno !edged to me that hehas executed the same in his/her/their authorized capacity = and that by his/heignatur&on the instrument the person or the entity upon be of which the persod, executed the instrument. 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