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HomeMy WebLinkAboutC-6305 - Encroachment Agreement EPN N2003-01400 for 127 East Bay FrontRecorded 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 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 Top of thumb here ❑ 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 �a � � �` EAST BAY FRONT 4�- � � �` EAST BAY FRONT