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
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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
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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
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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
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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
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Comm. #1008878 nn
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ORANGE COUNTY ��`ll`JJJJJJ
Comm. Expires Nov. 11, Igo;!