HomeMy WebLinkAboutC-6305 - Encroachment Agreement EPN N2003-01400 for 127 East Bay FrontRecorded in official Records, County a1 Orange
'rom Daly, Clerk -Recorder
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200300059280109,00am 05122/03
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ENCROACHMENT AGREEMENT r'
(EPN2003-01400)
THIS AGREEMENT is made and entered into this 6 day of
2003, by and between Glenn M. Lewis and Dorothea Lewis; 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 127 East Bay Front, Newport Beach,
California and legally described as Lot 18, Block 4, Map of Resubdivision Section Five of
Balboa Island; as shown on a map recorded in Book 8, Page 9 inclusively of Miscellaneous
Maps in the office of the County Recorder of Orange County, California;
WITNESSETH:
WHEREAS, OWNER, desires to construct and maintain certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within Park Avenue and East
Bay Front right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 127 East Bay
Front, Newport Beach, California and legally described as Lot 18, Block 4, Map of
Resubdivision Section Five of Balboa Island; as shown on a map recorded in Book 8, Page 9
inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County,
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
RECORDING REQUEST AND
WHEN RECORDED RETURN TO:
0
Public Works Department
-5
City of Newport Beach
Post Office Box 1768
v
3300 Nevtport Boulevard
Newport Beach, CA 92659-1768
Recorded in official Records, County a1 Orange
'rom Daly, Clerk -Recorder
Ililffli!!ill III! !111111i!flllli!iii!!!II11111i11T111!11i1III!11111►NO EEE
200300059280109,00am 05122/03
'119 92 is1
0.70 0.00 6.00 0.00 0.00 0.00 0.00 0,00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT r'
(EPN2003-01400)
THIS AGREEMENT is made and entered into this 6 day of
2003, by and between Glenn M. Lewis and Dorothea Lewis; 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 127 East Bay Front, Newport Beach,
California and legally described as Lot 18, Block 4, Map of Resubdivision Section Five of
Balboa Island; as shown on a map recorded in Book 8, Page 9 inclusively of Miscellaneous
Maps in the office of the County Recorder of Orange County, California;
WITNESSETH:
WHEREAS, OWNER, desires to construct and maintain certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within Park Avenue and East
Bay Front right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 127 East Bay
Front, Newport Beach, California and legally described as Lot 18, Block 4, Map of
Resubdivision Section Five of Balboa Island; as shown on a map recorded in Book 8, Page 9
inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County,
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
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as 12 -
inch high planter wall, 24 -inch high raised patio, landscaping, and appurtenances on East Bay
Front and Park Avenue right -of -away as shown on EXHIBIT "A" attached hereto and as
approved by the City Engineer. In addition, the proposed PERMITTED IMPROVEMENTS
may vary at the time of construction. Hence, any changes must be approved by the City
Engineer and shall be on shown on the "As Built" plans.
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 private -owned or CITY -owned pipeline, conduit or cable located in or under said
PERMITTED IMPROVEMENTS, except as otherwise provided herein.
c. If private -owned, 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 the 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
2
public facilities or imp, ✓ements, CITY may remove F tions 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 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.
1
APPROVED AS TO FORM:
By:IL�Lcp LQ
City Attorney
ATTEST:
ity Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
OWNER:
By:
94�-
City Ma ager
B
Y:yr4 eJ,
Glenn M. Lewis
STATE OF CALIFORNIA
) ss:
COUNTY OF ORANGE )
On , 2003. before me,
personally app red e-ymr�M- l?N?SS , person +q�
kRet��nrn- (or proved to me on the basis of satisfactory evidence) to be the personas
whose name(s),Ware subscribed to the within instrument and acknowledged to me that
khey has executed the same iffier -(their authorized capacity(ies), and that by
hist heir signature(s) on the instrument the person(s) or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal. DONNA L. GREEN
Commission * 1350108 Z
Z Notary Public - California
Orange County
(aR�Publi'c in and for said State MCorr'm•EresApr7,2006
(This area for official notarial seal)
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On U , 2003, before rnei,
personally app red ,�� p �;S , persr
14PO_ n e (or proved -To me on the basis of satisfactory evidence) to be the person(s)
whose name(s) Ware subscribed to the within instrument and acknowledged to me that
4aisbe/they has executed the same in hisl4wlt eir authorized capacity(ies), and that by
-hfsA eWtheir signature(s) on the instrument the person(s) or the entity upon behalf of which the
person acted, executed the instrument.„�„��
WITNESS my hand and official seal. DONNA L. GREEN
Commission* 1350108 Z
Notary Public - California
Orange County
My Comm. Bores Apr 7, 2006
ary Public in and for said State
(This area for official notarial seal)
F:\USERS\PBW\GWONG\WP51\AG\LEWISEPN2003-0140-127 EASTBAY FRONTBI.DOC
5
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of Californian ,n
County of
On� 1 IU005, before me,
personally appeared
LEfLANI 1. BROWN
Commission # 1336673 Z
z . o Notary Public - California
Orange County
My Comm. Expires Ja 25, 2006
In
}ss
i. 1.
P�nm 4-firy Pubih
I
L4personally known to me
❑ proved to me on the basis of satisfactory
evidence
to be the perso (s whose na� is are
subscribed to the within inst e and
acknowledged to me that he/ the xecuted
the sam in his/h /the' author'
capacity, les and that by his/he e'
signatur s n the instrument the perso s , ox
the entity upon behalf of which the perso (s
acted, executed the instrument.
WITNESS my hand and official seal.
0(2�&t -1� l, Bmnl__
Place Notary Seal Above Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual
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❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
0 1999 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 - Chatsworth, CA 91313-2402 - www.nationalnotary.org Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827
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