HomeMy WebLinkAboutC-6957 - Encroachment Agreement EPN N2006-0185 for 133 Agate AvenueLo
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RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
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Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
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200600078257310:54am 11/20/06
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2006-0185)
THIS AGREEMENT is made and entered into this day of
Nftm6e(, , 2006, by and between, Maclovio Espinoza (authorized signature) on
behalf of Ageta LLC. (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 133 Agate Avenue, Newport Beach, California 92662 and legally
described as Lot 19, Block 7 of The Resubdivision of Section One 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 Agate Avenue right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot
19, Block 7 of The Resubdivision of Section One 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 133 Agate Avenue, Newport Beach,
California; 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
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WHEREAS, the parties hereto desire to execute an agreement providing for fulfillment
of the conditions required by CITY to permit OWNER to construct 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, (1)
A concrete step encroaching 0.90 foot (2) A concrete pilaster which encroaches
0.50 foot; (3) a mailbox 10 inches wide and 2 foot long encroaching 1.10 foot
into the public right-of-way of Agate Avenue as shown on EXHIBIT "A" attached
hereto and as approved by the Public Works Department. In addition, if any of
the PERMITTED IMPROVEMENTS actually built or installed during the time of
construction vary from the PERMITTED IMPROVEMENTS approved herein,
such variations or changes must be approved in advance 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, if in
substantial conformance with the 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-day 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:
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a. OWNER may construct and install PERMITTED IMPROVEMENTS and
appurtenances incidental thereto, in substantial conformance with the
plans and specifications on file in the CITY's Public Works Department,
and as described on Exhibit "A" attached hereto.
b. OWNER shall maintain the PERMITTED IMPROVEMENTS in accordance
with generally 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 in advance of its intention to accomplish
such work, provided that an 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.
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(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 the 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) day 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.
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8. The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
9. The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by
reason of the authorship of the Agreement or any other rule of construction
which might otherwise apply.
10. This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
11. A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
12. OWNER shall at OWNER'S own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
13. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
APPROVE AS TO FORM:
By: r--
Aaron Harp, Asst. City Attorney
0
LaVonne Harkless, City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By: 24 -
Homer Blud , City Manager
OWNER: Ageta, LLC
By.
Maclovio pinoza
Authorized Signature on behalf of
Ageta, LLC
I
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE )
On IVOVeMb4pr . 200% , before me, JQsef�Y.a A . N40ar'4 iU4-
personally appeared AAC.-O1 J l ay l ao70 . personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person(,5) whose name(s') is/fie
subscribed to the within instrument and acknowledged to me that he/sey has executed the same
in his/hex/h-eir authorized capacity(i. , and that by his/liar signature(o) on the instrument the
person(g) or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
— LL -�—' 0"c�4
Nj1ry P lic in and for said State
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE )
On
personally appeared
200, before me,
(This area for official notarial seal)
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 he/she/they has executed the same
in his/her/their authorized capacity(ies), and that by his/her/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.
Notary Public in and for said State
(This area for official notarial seal)
FA
E,XROACHMENT EXH,JIT
133 AGATE AVENUE
NEWPORT BEACH, CA
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AGATE AVENUE \
EASEMENT FOR STREET
AND PUBLIC UTILITIES
LAND s 1 3 21.46 S.F.
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R=10.00'
L-15.71'
T=10.00'
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SET L&T STAMPED
LS 6723 ON 1' 0/S
ONLINE
ncl-_.. P.LS. 6723 C) CONC Q
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EXP. 9-30-08
SCALE: 1 "=20'
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CITY CLERK'S ACKNOWLEDGMENT
State of California
County of Orange
On November 8 , 2006, before me, LAVONNE M. HARKLESS,
CITY CLERK OF THE CITY OF NEWPORT BEACH, personally appeared
Homer L. Bludau , 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 person acted, executed the instrument.
Dated this 8th day of November
CAPACITY OF SIGNER
Municipal Corporation Officer
City Manager
SIGNER IS REPRESENTING:
2006.
WITNESS my hand and official seal.
LAVONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
DESCRIPTION OF ATTACHED
DOCUMENT:
Encroachment Agreement
EPN2006-0185
# of Pages 9
City of Newport Beach Document Date: November 3, 2006
Signer(s) other than named:
Maclovio Espinoza
Aaron C. Harp