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Home My WebLink AboutC-6478 - Encroachment Agreement EPN N2003-183 for 220 Opal AvenueW r RECORDING REQUESTED AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92659-1768 Recorded it) Official Ri cis, County of Orange Toni Daly, Clerk-Recoraer 111!!11:1111111!I11111',111i 11110 111[11: !I'Ilil111111!I!I!NO FEE 2003001001031 10AOan? 08120103 %14 110 Al2 7 -10 a ;i6 0 00 c 00 0.00 0 00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2003-0183) THIS AGREEMENT is made and entered into this day of , 2003, by and between Kurt and Christine Franzen, Trustees of the Franzen Family Trust Dated April 21, 1986 (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 220 Opal Avenue, Newport Beach, California, 92662 and legally described as lot 23, block 12 of section one of Re -Subdivision of Balboa Island as shown on a map recorded in Book 6, Page 30, inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California. WITNESSETH: WHEREAS, OWNER desires to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Opal Avenue right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to lot 23, block 12 of section one of Re -Subdivision of Balboa Island as shown on a map recorded in Book 6, Page 30, inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; also known as 220 Opal Avenue, Newport Beach, California, 92662 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 1 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 Stone inlaid concrete patio, pedestals, picket fence located a minimum of 6 feet 4 inches (6'- 4") from the face of curb (height of fence not to exceed 4'-6" above sidewalk), planter along the entire frontage flush with side walk ( Plant height not to exceed 36"), and appurtenances in the Opal Avenue right-of-ways as shown on EXHIBIT "A" attached hereto and as approved by the Public Works Department. In addition, the proposed PERMITTED IMPROVEMENTS may vary at the time of construction. Hence, any changes must be approved by the Public Works Department and shall be 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 therefore 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 2 or Irepair 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 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, replacement, 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, replacement, 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, 3 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. CITY OF NEWPORT BEACH, a Municipal corporation APPROVED AS TO FORM: 4,/By: City Attorriey , City PAanager ATTEST: ff CAV Y City Clerk OWNER: Franzen Family Trust, Dated April 21, 1986 4 IN By: - Christine Fran; -7/1, Trustee STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) On 111-H W EF —TU A E , 2003, before me, SR✓ (oE 0 e I EWA1 ejJ KQ, 00FA0 Q90C personally appeared i<CST-'F/-�AN2a /-k N.6 044N2EN� personally known to me ( to be the person(s) whose name(s) 49>are subscribed to the within instrument and acknowledged to me that e/they has executed the same in her/their authorized capacity(ies), and that by 4W-ter/their 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. x'/1111 � STATE OF CALIFORNIA SERGE P.C. DEMYANENKO COMMMOn # 1248313 ISy Pd3 k - California 10 Angeles County WCOmm. BVIOM Apr 3.2005 (This area for official notarial seal) ) ss: COUNTY OF ORANGE( On A �/ 2003, before me, personally appeared �io► er �,_ �)ll (�U ��A& &A. ffiar�k,16S personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that 4o4 a/they has executed the same in mer/their authorized capacity(ies), and that by Ja+s>her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person acted, executed the instrument. 5 WITNESS my hand and official seal. LEILANI 1. sRowN Commission # 1336673 Z Z Notary Public - California = orange County My Comm, minas Jan 25,20 06 Notary Public in and for said State (This area for official notarial seal) f:\users\pbw\shared\encroach\row agreements\2003\2003-183 220 Opal.doc 5 4'-4 tq NO T SPA4 -- (ISM�ll'ti� tA e-aytt" Ct& A.Te P EXHIBIT A Sheet 1 of 2 Y• I:��E PiA6&) N&1N C -L& 4TE1> FRANZEN RESIDENCE 220 Opal Avenue Balboa Island, CA 92662 Lot 23, Block 21, Sec 1, Balboa Is. 323/937.4270 $rt k - S'4`I + EL. S.5v NEIN "C*4s E)' -I" ,tTPACIA--t ;�►- n I' ,, DIP `►ice E_ $ mp + G�1S'�1 &",( 'S•F ,- SCD,g+.�2cc(� EXHIBIT A Sheet 2 of 2 n aJo1-PCt�w� r�IR; m [lilt ,i �►�i�m--ym It —)2fl---� t� #4 fzi5 •r'Ati- FRANZEN RESIDENCE 220 Opal Avenue Balboa Island, CA 92662 Lot 23, Block 21, Sec 1, Balboa Is. 323/937.4270