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HomeMy WebLinkAboutC-1724(A) - Encroachment Agreement (for 319 Carnation Avenue)RECORDING REQUESTED AN, WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach Post Office Box 1768 U 3300 Newport Boulevard Newport Beach, CA 92659-1768 Recoraea in the county of orange, california Gary L. Granville, Clerk/Recorder 22.00 19970158434 12 ; 59pm 04/07/97 005 10019625 10 33 Al2 6 7.00 15.00 0.00 0.00 0.00 0.00 Space above this line zor Recorder's use only. EriCROACI-1MENT AGREEMENT This Encroachment Agreement supersedes the Encroachment Agreement executed on April 9, 1996 and recorded on April 19, 1996 as Official Record No.19960194851 in the Office of the County Recorder of Orange County, California. THIS AGREEMENT is made and entered into this 211-4-- ._ day of , 19971 by and between Robert Losey (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 319 Carnation Avenue, Newport Beach, California and legally described as portion of Block -D11 and a portion of Carnation Avenue (vacated); southerly of Bayside Drive and westerly of the midline of the vacated extension of Carnation Avenue, Corona Del Mar Map, as shown on a map recorded in Book 3, Pages 41 and 42 inclusively of Miscellaneous Maps in the Office of the County Recorder of Orange County, California; W I T N E S S E T H° WHEREAS, OWNER desires to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Bayside Drive right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 319 Carnation 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 1 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. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as a 3' high terrace block retaining wall, and. appurtenances in the Bayside Drive 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 CITY -owned pipeline, conduit or cable located in or under said PERMITTED IMPROVEMENTS, except as otherwise provided herein. F 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 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 3 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. APPROVED AS TO FORM: BY: ACity Attorney ATTEST: City Clerk 4 CITY OF NEWPORT BEACH, a Municipal corporation it 7 bnager OWNER: STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) On 0������1 `����-; 1997, before me, �! personally appeared (DSP:j , proved to e on the basis of satisfactory p Y evidence) to be the person M whose name (s� A4"/.are subscribed to the within instrument and acknowledged to me that he/-'-.—'- e,y has executed the same in his/heir authorized capacityCi4,$), and that by his/heir signature(*) on the instrument the person(` or the entity upon behalf of which the person acted; executed the. instrument. WITNESS my hand and official seal. Notary P b c >n and for said State (This area for official notarial seal) STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) On i-ly-917 Q0C. RIGH COMIA. f 1031090 NOfory ptWC - Califanb ORANGE COUNTY My Comm. Expires JUL 1.1990 1997, before me, MUN,- 2UTLER personally appeared 'Q rC} personally known to me ( rov,6d o me orL the basis of satisfactory evidence) to be the persor(I whose nam (s) is/� subscribed to the within instrument and ac ledged to me that he/she/ ha0 executed the same in his/her/ hei authorized capacit(ies� and that by his/her hei signatur s on the instrument the person jD 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 (This area for official notarial seal) F:\WP51\GILBERT\AG\LOSEY97.DOC EP97-55 5 sT Comm. #1008878 nn m NOTARY PUBLIC CALIFORNIA ORANGE COUNTY ��`ll`JJJJJJ Comm. Expires Nov. 11, Igo;!