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HomeMy WebLinkAboutC-8665-2 - Encroachment Agreement (for Lot N, Tract 907)Recorded in the County of Orange, California Gary L. Granville, Clerk/Recorder 27.00 19970494991 09 ;15am 10/06/97 008 23010390 23 14 Al2 8 6.00 21.00 0.00 0.00 0.00 0.00 Space above this line for Recorder's use only. OCT f 51997 ENCROF,CHMENT (3'REEN1ENT - THIS AGREEMENT is made and entered into this J-� day of ,,-1997, by and between Lido Isle Community Association (Mailing Address: J. Jeff Pence, President, 701 Via Lido Soud, Newport Beach, CA 92663), (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"); 1 WITNESSETH: WHEREAS, OWNER desires to construct certain improvements, (hereinafter "PERMITTED IMPROVEMENTS") in the landscaped median located within Piazza Genoa right-of-way (hereinafter "RIGHT-OF-WAY"), Newport Beach, California and legally described as Lot N, Tract 907, as shown on a map recorded in Book 28, Page 31 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, 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; follows: NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as five (5) "Queen" Palms, seven (7) "Kentia Palms, "Phoenix Robelini", "Strelitzia Reginae", "Agapanthus Africanus", Rock Outcroppings, irrigation, decorative lighting, and appurtenances in the landscaped 1 RECORDING REQUESTED AND WHEN RECORDED RETURN TO Public Works Department City of Newport Beach Post Office Box 1768 1 3300 Newport Boulevard v Newport Beach, CA 92659-1768 Recorded in the County of Orange, California Gary L. Granville, Clerk/Recorder 27.00 19970494991 09 ;15am 10/06/97 008 23010390 23 14 Al2 8 6.00 21.00 0.00 0.00 0.00 0.00 Space above this line for Recorder's use only. OCT f 51997 ENCROF,CHMENT (3'REEN1ENT - THIS AGREEMENT is made and entered into this J-� day of ,,-1997, by and between Lido Isle Community Association (Mailing Address: J. Jeff Pence, President, 701 Via Lido Soud, Newport Beach, CA 92663), (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"); 1 WITNESSETH: WHEREAS, OWNER desires to construct certain improvements, (hereinafter "PERMITTED IMPROVEMENTS") in the landscaped median located within Piazza Genoa right-of-way (hereinafter "RIGHT-OF-WAY"), Newport Beach, California and legally described as Lot N, Tract 907, as shown on a map recorded in Book 28, Page 31 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, 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; follows: NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as five (5) "Queen" Palms, seven (7) "Kentia Palms, "Phoenix Robelini", "Strelitzia Reginae", "Agapanthus Africanus", Rock Outcroppings, irrigation, decorative lighting, and appurtenances in the landscaped 1 median within Piazza Genoa 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. In addition, the OWNER shall pay the cost of electricity for both the decorative lighting and the irrigation controller. The OWNER shall maintain all landscaping at a maximum height of 3 -feet within the designated sight -distance zone. 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, rerrl�oval, 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 W 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. 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: City Attorney By� City Clerk CITY OFNEWPORT BEACH, aMunicipal corporation By: SA;�;r� OWNER: Lido Isle Community Association By: STATE OF CALIFORNIA ss. I COUNTY OF ORANGE On August 29, 1997 before me, JANE ROBIN VOORHIES JANE ROBIN VCCRMq CommNlllim #10719) t Notary A bill — CcaftmIo Cantu. E�Mw 06f lt>i,19" L* (here insert name and title of the officer), personally appeared J. JEFFREY PENCE , personally known to me,F Aivf;i,t'o/ry(e/ofi to be the person(S whose name(, is/jrc4 subscribed to the within instrument and acknowledged to me that he/.XV; i/y lexecuted the same in his//i14/vetr authorized capacitVii o, and that by hisAjVtg (r signatureo) on the instrument the person& or the entity upon behalf of which the person�A acted, executed the instrument. WITNESS my hand and official seal. (Seal) `--f M-4JIL),_� I I ACKNOWLEDGMENT —All, Purpose —Wolcons Form 237CA—Rev. 1-91 Signature C0991 WOLCOTTS, INC. (price class 8-2) STATE OF CALIFORNIA ss. COUNTY OF ORANGE On August 29, 1997 before me, JANE ROBIN VOORHIES JANE ROBIN V0000 CommWan liiCF)IM [�rPMrs lii.1999 personally appeared J. JEFFREY PENCE (here insert name and title of the officer), , personally known to me,(f1'plr,6vy"04 to be the person( whose name(, isliV subscribed to the within instrument and acknowledged to me that he/.XV0/j/executed the same in his/Mr/W authorized capacit)&V, and that by his`f}dVtgor signature() on the instrument the person& or the entity upon behalf of which the person�A acted, executed the instrument. WITNESS my hand and official seal. II(Seal) `'f V6r—wu'-t>v�/ 1I ACKNOWLEDGMENT—All Purpose —Wolcotts Form 237CA-Rev. 1-91 Signature ©1991 WOLCOTTS, INC. (price class 8-2) STATE OF CALIFORNIA , ) ss: COUNTY OF ORANGE ) 1997, before me personally appeared ersonally known me (or proved to me on the basis of satis act ry evidence) to be the person,(-) whose name(sr' i s/aFersubscri bed to the within instrument and acknowledged to me that h*Vher/they executed the same in his/heF/ter authorized capacity( -ie, and that by his/4efi4ei, signature(ss on the instrument the persona4 or the entity upon behalf of which the persons(.0 acted, executed the instrument. WITNESS my hand and official seal V Notary Lblic in and for said State STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) (This area for official notarial seal) 1997, before me, ,personally appeared �Dee.4 4ersonally known to me (or proved to me on the basis of satisfactory evidence) to be the person(el whose name(.&.) is/a-Fe subscribed to the within instrument and acknowledged to me that h+I`VhefA-He executed the same in his/ @4#' � authorized capacity(4e-&), and that by his/4ef-4m-ii`signature(e) on the instrument the person(s) or the entity upon behalf of which the persons(-s� acted, executed the instrument. WITNESS my hand and official seal Nota Public in and for said State 101 OFFICIAL SEAL VIRGINiAA. VARIN ] NOTARY PUBLIC- CAL iFORNIA N COMMISSION # 1143264 C ORANGE COUNTY My Commission Exp. July 20, 2001 (This area for official notarial seal) OFFICIAL SEAL VIRGINIA A. VARIN NOTARY PUBLIC - CALIFORNIA ` COMMISSIQN # 1143264 C ORANGE COUNTY My Commission Exp. July 20.2M (This area for official notarial seal) 1997, before me, ,personally appeared �Dee.4 4ersonally known to me (or proved to me on the basis of satisfactory evidence) to be the person(el whose name(.&.) is/a-Fe subscribed to the within instrument and acknowledged to me that h+I`VhefA-He executed the same in his/ @4#' � authorized capacity(4e-&), and that by his/4ef-4m-ii`signature(e) on the instrument the person(s) or the entity upon behalf of which the persons(-s� acted, executed the instrument. WITNESS my hand and official seal Nota Public in and for said State 101 OFFICIAL SEAL VIRGINiAA. VARIN ] NOTARY PUBLIC- CAL iFORNIA N COMMISSION # 1143264 C ORANGE COUNTY My Commission Exp. July 20, 2001 (This area for official notarial seal) z��I� o - Z� •S 1 ,N �1wx cor N�1� wok LL 0 p I i I � � IZ, 'JI I O Z_ Z_ Z I 2 �, I� J la Iliii'.I Y It O � ��IU I I6 O Q N Z dd w Q� j Q KQ a I J j w 1 IN W Z w Z w Z Q �Q(�V1 W Ozy Z aa U W OZ? 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