HomeMy WebLinkAboutC-1982 - Encroachment Agreement (for 323 Jasmine Avenue)RECORDING REQUESTED AN
WHEN RECORDED RETURN TO:
City Clerk
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. Granvil
I1111111111111111111ll111111111111111111111111e' Clerk/Recorder 1111111 No
Fee
1
005 24005735 24 63 70176190 10:55am 04/17/97
Al2 7 7.00 18.00 0.00 0.00 0.00 0.00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
THIS AGREEMENT is made and entered into this r7. /-, day
of (,-.P-8-0 1997, by and between Nancy Gardner (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
323 Jasmine Avenue, Newport Beach, California and legally described as
Lot 23, Block--236", Map of Corona Del Mar, 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 and maintain certain non-
standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within
the Jasmine Avenue right-of-way (hereinafter "RIGHT-OF-WAY") that is
located adjacent to 323 Jasmine 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. It is mutually agreed that PERMITTED IMPROVEMENTS shall be
defined as a 3' high wooden lattice fence, various landscaping
1
(—Bougainvillea", Oleander" , and —Dwarf" trees) , and
appurtenances in the Jasmine 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
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, removal, repair,
2
renewal, replacement ur 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
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
3
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:
ATTEST:
City Attorney
A/,
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
OWNER:
By:
By:
4
STATE OF CALIFORNIA )
ss
COUNTY OF ORANGE` )
��'ccY,
On ` of
personally appeared VirG (
personally known to me (of pr
evidence) to be the person(;)
within instrument and acknowledg
the same in 4/her/t* aut
h/her/trr signature (j on
entity upon behalf of which the
WITNESS my hand and official
1997, befo
rdne)r
ved to
hose
d
per
al.
e me,
on the basis of satisfactory
ame (') is/avee subscribed to the
o me that 44/she/thy has executed
rized capacity(s), and that by
instrument the person(g) or the
n acted, executed the instrument.
Notary Public in and for -aid State
STATE OF CALIFORNIA
COUNTY OF ORANGE
On 3 o2 S—q7 , 199 , before me, RMNEBUTI1R
personally known to me (Qr pr ed to me on t - .. of satisfactory
evidence) to be the person(, whose name(s i /are subscribed to the
within instrument an acknowledged to me that he/ /they has executed
the s me in his/ e /their authorized capacity es), and that by
his/ie /their 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.
(This area for o
cial notarial seal)
personally appeared
ss:
Notary Public in and for said State
0
cU
Comm. #1008878
NOTARY PUBLIC CALIFORNIAA
ORANGE COUNTY
Comm. ExpHrs Nov. 11, 1997 "I
(This area for official notarial seal)
Comm. COMM
NOTARY PUBLIC - CALIFORNI
ORANGE COUNTY
Comm. Expires Nov. 11, 1997 4
F:\USERS\WP51\GILBERT\AG\GARDNER97.DOC (EP97-42)
5
tt E)( e. c.c. STDS
,,AJA
V•
Lra
V
3ASm1t•1E AvEr406
}- bUSE ( 3 z.3)
_ r}-rce.'l; curb J a.S Wti he co wC: M.2.4-
'3 > Lishe. (t i Kdj .max ...2i"q nc`SkLor' z - *t-c,`s°` t
l - 4 r vako Ile14.,
Z.- Oteow4.r- r,
3 _ ro 4-rc•est /
WoOPEN I.ATT%Ct! FENCE
"r* SCtGT\oa ExH/8ir 'a„
State of California
County of Orange
on 7-%�
personally appeared
before
personally known to me - OR - Y \
'-1114111Crktil
Comm. 11008878 INOTARY PUBLIC CALIFORNORANGE COUNTY
Comm. Expires Nov. 11, 1997 J
me, Irene Butler, Notary Public,
proved to me on the basis of satisfactory evidence
to be the erson(whos names is ire)
subscribed to the within instrument and
acknowledged to me that he/sheey>
executed the same in his/her-t i authorized
cap —a -city ie )? and that by his/her ell)
ure(s)- n the instrument th person ,
orthe entity upon behalf of which th erson sy
acted, executed the instrument.
WITNESS my hand and official seal.
CAPACITY CLAIMED BY SIGNER
Individual
Corporate Officer
Limited Partner
General Partner
Attorney -in -Fact
Trustee(s)
Guardian/Conservator
V Other: ���
Signer is Representing:
DESCRIPTION OF ATTACHED DOCUMENT
,5� � f •
itle or Type of Document
Number of Pages
/-7-97
Date of Document
Signer(s) Other Than Named Above