HomeMy WebLinkAboutC-1961 - Encroachment Agreement (for 4908 River Avenue)WHEN RECORDED RETURN Rec
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Post Office Box 1768 MBLlC��
( 3300 Newport Bouleva d , t IF�9R78Ef,;..._;A02 60� 00385200030.00 0.00 0.00 0.00
U Newport Beach, CA 926 •-1768
City of Newport Beac
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ENCROACHMENT AGREEMENT
THIS AGREEMENT is made and entered into this ,VOL day
of }-)A , 1997, by and between Dave Fabian and Lisa Fabian
(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 4908 River Avenue, Newport Beach, California and legally
described as Lot 34, Tract 3162, as shown on a map recorded in Book
95, Pages 16, 17, and 18 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 River Avenue right-of-way (hereinafter "RIGHT-OF-WAY") that is
located adjacent to 4908 River 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 exposed aggregate (washed concrete) concrete driveway
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approach and appurtenances in the River Avenue r.,ght-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,
renewal, replacement or enlargement of existing or future public
2
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 not.ice spec3.fying 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
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the land whether fee o- 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:
City Attorney
ATTEST:
91V,91-71/ /19 is4,4V_e_-,,
City Clerk
vuezik
CITY OF NEWPORT BEACH,
a Municipal corporation
OWNER:
By:
By:
By:
4
STATE OF CALIFORNIA
ss:
COUNTY OF ORANGE (l
On , 1997, before 3e, iae-e//--- g oy/�/'
personally a peared kez/i a sa Fab/a 4I ►
personally known to me (orroved to me on the basis of satisfactory
evidence) to be the person whose name is/ s . cribed to the
within instrument and ac wledged to me that he/shehas executed
the same . his/her ei authorized capacity t, and that by
his/her signatur s 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 Public in man for s'id State
(This area for official notarial seal)
STATE OF CALIFORNIA
ss:
COUNTY OF ORANGE
personally appeared
personally known to e (or . oved to
evidence) to be the perso (s whose na
within instrument and acknowledged to me
the same_ in his/her heir authorized
his/her,(thei signatu
OF
Shauna Lyn Oyler
Comm #1002681 7-71
NOTARY PUBLIC CALIFORNIA5
ORANGE COUNTY �J
Comm Expires Aug 22, 1997
v vv v�
On /o _ , 1997, before me, JRENE AtJTLER
64(
on the instrument the perso
entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
n
2
Comm. #1008878
NOTARY PUBLIC CALIFORNIA
ORANGE COUNTY
Comm. Expires Nov. 11, 1997 'I
the basis of satisfactory
is subscribed to the
that he/she they has executed
capacit (�� , and that by
or the
(This area for official notarial seal)
I R E t4E BUTLE
Comm. #1008878
JTARY PUBLIC CALIF
ORANGE COUNTY
Comm. Expires Nov. 11, 1007 01
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