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HomeMy WebLinkAboutC-6555 - Encroachment Agreement EPN N2004-291 for 422 Fullerton Avenue0 LA li 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 TWO (2) COBBLE STONE MOW STRIPS 3 FEET AND 7 FEET FROM BACK OF CURB, SET IN WITH MORTAR AND HAVING A NON -SLIP SURFACE, A 36 INCH HIGH PICKET FENCE 5 FEET BACK FROM BACK OF CURB RUNNING ACROSS THE FRONT PROPERTY LINE, TWO (2) 24 INCH HIGH TERRA COTTA POTS 5 FEET FROM BACK OF CURB, A COBBLE STONE CARRIAGE WALK 4.5 FEET WIDE SET IN WITH MORTAR AND HAVING A NON- SLIP SURFACE and appurtenances in the FULLERTON 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. 2 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. 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 3 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. APPROVED AS TO FORM: By: City Attorney ATTEST: U/ Bye City Clerk CITY OF NEWPORT BEACH, a Municipal corporation By: Cityklanager 4 OWNER: dul&4 q ltlo, MICHAEL ANTHONY H FNER STATE OF CALIFORNIA) ) ss: COUNTY OF ORANGE ) On 2004, before me personally appeared I Vv IGi��OY1� [a to Ii, Pita► i K personally known to me (or proved to me on the basis of satisfactory evidence) to be the person( whose name)Is/ re subscribed to the within instrument and acknowledged to me th t /she/they has executed the same in 6—i)her/their authorized capacity(iS), and that by Chi)sher/their signature(kon the instrument the person(eor the entity upon behalf of which the person acted, executed the instrument. l` WITNESS my hand and official seal. 0alw . ' lr� Notary Public in and for said State STATE OF CALI COUNTY OF ORA 09721 RNIA) N� ) ss: personally appeared 2004, before me LEILANI I. BROWN Commission # 1336673 Z Z .s Notary Public • Califomia Orange County My Comm. t pine Jain 25, 2006 (This area for official notarial sea]) personally known to me (or pro ed to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are sub ribed to the within instrument and acknowledged to me that he/she/they has executed the same ' his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument t person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State n(s) or the entity upon behalf of which the (This area for offici F:\USERS\PBW\Shared\ENCROACH\ROWAgreements\2004\2004-0291 422 FULLERTON (HEFNER).doc 5 I seal) aZ 4)z 6� lu CL K Q1 O IL v ZCS N �S 'W �V V p aZ ti �1 i5 lu v 00) K w C) �V s p tl) li1 rp N ti �1 tf CITY CLERK'S ACKNOWLEDGMENT State of California County of Orange On • r� , 2004, before me, LAVONNE M. HARKLESS, CITY CLERK OF THE CJTY OF NEWPORT BEACH, personally appeared Mt, r L. _, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. Dated this ')th day of 2004. CAPACITY OF SIGNER Municipal Corporation Officer SIGNER IS REPRESENTING: City of Newport Beach WITNESS my hand and official seal. LAVONNE M. HARKLESS, CITY CLERK CITY OF NEWPORT BEACH, CALIFORNIA DESCRIPTION OF ATTACHED DOCUMENT: ©oq-oaq # of Pages % Document Date: Signer(s) other than named: i*t/Int' e/ -AiTAc0nV i7' PlheIf-