HomeMy WebLinkAboutC-1737 - Encroachment Agreement (for 265 Morning Canyon Road)RECORDING REQUEST. 7
co T=THEN RECORDED RETURN TOQ:
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City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
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Recorded in the County of Orange, California
Gary L. Granville, Clerk/Recorder
'IIIII I11111111111 I IIII IIIII I1 II 111 i1 II III I IIII III No Fee
1996@194852 2; 54pm 04/19/96
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
THIS AGREEMENT is made and entered into this /5:1 day of
G, , 1996, by and between Steven Gabriel (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");
WITNESSET H:
WHEREAS, OWNER desires to construct certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Morning
Canyon Road right-of-way (hereinafter "RIGHT-OF-WAY") that is located
adjacent to Lot 4, Tract 1116, as shown on a map recorded in Book 36,
Pages 19 and 20 inclusively of Miscellaneous Maps in the office of the
County Recorder of Orange County, California; also known as 265
Morning Canyon Road, Newport Beach, California; and
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:
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1. It is muLua _y agreed that PERMITTED I, ROVEMENTS shall be
defined as a grouted "Napa Valley" stone pavers driveway approach,
grouted "Napa Valley" stone pavers carriage walkway, turf block
driveway approach, and appurtenances in the Morning Canyon Road 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.
2
d. Thy. : ,uld CITY be required to e. er 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 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.
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7. OWNER agree 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:
ATTEST:
City Attorney
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
OWNER:
By:
Steven Gabriel
4
STATE OF CALIFORN___
COUNTY OF ORANGE
On
ss:
February 23, , 1996, before me,
personally appeared
Steven Gabriel
Roberta M. Kern
personally known to me
e as
ev-i=) to be the person(&) whose nameO ij)ae subscribed to the
within instrument and acknowledged to me that hc/they has executed
the same in is h ! he authorized capacity( a), and that by
'h cir signature(g) on the instrument the person(w) or the
entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
n ko2L,-)
Notary Public in and for said State
Roberta M. Kern
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE
On 7 —�
personally appeared
persona11 known to me (or proved toe on the basis of satisfactory
evidence) to be the person(j whose name& is/ re subscribed to the
within instrument and acknowledged to me that he/she/ he 1rab. executed
the same in his/herkthe' authorized capacit es) an
7`• ERTA�1i.KE
ROBRN
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COMMISSION #977541 X
i�r�,.e. Notary Public California is
az AIVI
Yi ORANGE COUNTY C.
My Commission Expires
November 8. 1996
(This area for official notarial seal)
IIZENE ^UT!_[R
that by
his/her heir.--gignaturia)) on the instrument the perso (s)' 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
F:\WP51\GILBERT\AG\GABRIEL.96
(This area for official notarial seal)
to Ft
Comm. #1008878
NOTARY PUBLIC CALIFORNN
ORANGE COUNTY
Comm. Expires Nov. 11, 1997
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