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HomeMy WebLinkAboutC-6487 - Encroachment Agreement EPN N2003-317 for 324 Aliso Avenuer - co RECORDING REQUESTED AND 9 WHEN RECORDED RETURN TO: V Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92659-1768 Recorded in Official Records, county of Orange Tom DaIY, Clerk -Recorder �lllllllllilill`II'I!`II',`11111111'II!'i19111',I!'II'!lllllllllli`�� FE 2003001225246 02-.36PM 10/06103 117 92 Al2 7 0 00 0 00 0 oo 0.00 0.00 0.00 a.00 0,00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2003-0317) THIS AGREEMENT is made and entered into this �Z day of g 2003, by and between Mark Carver and Denise Carver, (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 324 Aliso Avenue, Newport Beach, California, 92663 and legally described as lot 11, block 18 of the ;i First Addition to Newport Heights Tract, as shown on a map recorded in Book 4, Page 94, 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 Aliso Avenue right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to lot 11, block 18 of the First Addition to the Newport Heights Tract, as shown on a map recorded in Book 4, Page 94, inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; also known as 324 Aliso Avenue, Newport Beach, California, 92663 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 (35"WX35LX 58" H) stone veneered mail box, acid -wash finished concrete walk with sawcut pattern and appurtenances in the Aliso Avenue right-of-way 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 VA 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 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. 3 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. APPROVED AS TO FORM: By: City Att hey ATTEST: By: City Clerk CITY OF NEWPORT BEACH, a Municipal corporation By: 9/0-6�z, ." City anager Mark Carver By: ,Q 11'x,1 c C6_J.(1&A - Denise Carver 4 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of I it On V� �" before me to Date �- Name Ti e of Off' er (e.6., " an D e, o Publi ") personally appeared 97UU�t- Name(s) of Signer(s) AI personally known to me LEILANI I. BROWN ❑ proved to me on the basis of satisfactory Commission # 1336673Z evidence Notary Public - California 7 - Orange Orange CouL25, icy Comm, Expims i006 to be the perso(s whose namesare subscribed to the within insent and acknowledged to me that he/ he executed the sa in his/he /thei author capacityi and that y his/he signatur (s) on the instrument the perso r the entity upon behalf of which the perso (s acted, executed the instrument. WIT"Iyo NESS my hand and official seal. IATA_n� 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 ElCorporate Officer— Title(s): Top of thumb here ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: © 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 STATE OF CALIFORNIA) ) ss: COUNTY OF ORANGE ) On S � 10 2003, before me, personally appeared AADvv-- DW-j3Ev:-'j , personally known to me ( ory evidenee) to be the person(4 whose names) is/alae subscribed to the within instrument and acknowledged to me that he4e/thyy has executed the same in his/y r/th4ir authorized capacity(i/s), and that by his/qr/thVir signature(o 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. STATE OF CALIFORNIA) OFFICIAL SEAL TIFFANY SILVA NOTARY PUBLIC • CALIFORNIA C OMIMSSOIENCOUNTTY�y • My � Exp. May 12, SM (This area for official notarial seal) ) ss: COUNTY OF ORANGE ) On Se,�.��w�9-,1�- b� , 2003, before me, l personally appeared AL �✓y personally known to me (srprGved to me faeter„ ev;aee'� to be the person( whose name is/ap6 subscribed to the within instrument and acknowledged to me that Yie/she/they has executed the same in Ks/her/t(ir authorized capacity(), and that by 1s/her/tor signature() on the instrument the personwor the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. OFFICIAL SEq�� TIFFANY SILvA NOTARY PUBLIC. CALIFORNIA IEOQCOUNTY ksn Exp. May 1� SOOs (This area for official notarial seal) f:\users\pbw\shared\encroach\row agreements\2003\2003-0317 324 aliso ave.doc 5 X 3-63� •I ltb A c c A V'h`N culks, e'* Pc 9 _ a r . :t , L " /.� v�l`:. �:,-`,•: ``�'I:`F •-'a�+'i. ~:1 � - awl .Q V S, 1 irN� f: .l H% f. hh �j k •''i::{-. .. Sir:'. ':C :; ., .-, :i.. ry H •Q' r,ar 'Y 0 f_ J. •`t F. 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