Loading...
HomeMy WebLinkAboutC-9082-1 - Encroachment Agreement EPN N99-338 for 126 Apolena AvenueRECORDING REQUESTE1 ND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 Recorded in the County of orange, California Gary L. Granville, Clerk/Recorder 1111111111111111111111111111 No Fee 005 20022354 209990633296 09:28am 09/01/99 77 Al2 6 6.00 15.00 0,00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EP99-338) THIS AGREEMENT is made and entered into this 114� day of Ot44 1999, by and between Joel A. Markss; 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 126 Apolena Avenue, Newport Beach, California and legally described as Lot 17, Block 6, Map of Resubdivision Section Three o 3alboa Island; as shown on a map recorded in Bock 7, Page 15 inclusively of MiscellaneOU, 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 Apolena Avenue and Park Avenue right-of-wa,� (hereinafter "RIGHT-OF-WAY") that is located adjacent to 126 Apolena Avenue, Newport Beach, 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 agreemi;;it providing for fulfillment of the conditions required by CITY to permit OWNER to recc;r �;truct and maintain said PERMITTED IMPROVEM'-NTS; 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 30- inch high picket fence, gmuted brick pavers, and appurtenances on Apolena Avenue and Park 1 Avenue right -of -away as ,'n, .n on EXHIBIT "A" attached hereto u.id as approved by the C ty 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 conf�- rinance with plans and specifications on file in the CITY. CITY will further allow OWW_R 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 public facilities or improvements, CITY may remove portions of the PERMITTED IMPROVEMENTS, as required, and in such event: 2 (i) .TY shall notify OWNER of its intent, '; to accomplish such work, if any emergency situatioi, .foes 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 OWNED. :;ITY may enter upon the RIGHT-OF-WAY and remove all or part of the improvement.3 installed by OWNER. Termination because of a:each 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 t' ie 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. 3 CITY OF NEWPC BEACH, a Municipal corporation APPROVED AS TO FORM: By: City Attorney ATTEST: Q. �Omt4v 0T+I City Clerk OWNER: By: City Manager By: Joel A. arkss L I I Y UI- NL W rUK I BLALH 'UBLIC WORKS DEPARTML T SKETCH FOR ENCROACHMENT PERMIT NO. EP- 9 ) -- _� 3 g -1 i.u. i rT 1 OF 2 LEGEND, G) = TREE -0- = POWER POLE = SEWER CLEANOUT ® = WATER METER BOX Job Address (p ����F�� Owner uo L 'q- Telephone No. /8) 2� -17149 — O%O'f li x x x x S 1,0,6 WALAC ________________-____-_______ _= Existing Curb and Gutter P'eOP©SEp A i z-- �5 1pl`�z 1,4--- x'/w '4 Center line of street �f99 pp cansiaure Date g Please make a sketch of the Immediate vicinity showing all property lines, dimensions street naves, location of trees, light standards, fire hydrants, parking meters or other existing Improvements which might be affected by the proposed encroachments. (SEE REVERSE SIDE) Works shall be done according to City Specifications and Is subject to City inspection. z�XHIBI T /4 STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE ) On ,57, / / 19 , fore me��� b1 /G2 ' personally appear 0 2 y � �at-, perso ally known to me (or roved to me on the basis of satisfactory evidence) to be the perso9w whose name i are subscribed to the 'thin instrument and acknowledg d to me that she/they as executed the same i i /her/their authorized capacity s)� and that by is her/their signature on the instrument the perso or the entity upon behalf of which the rson acted, execut d the Instrument. WIT S my hand and official seal. Notary Public in d or said ate (This area for official notarial seal) STATE OF CALIFORNIA ShA'L'NA LYN OYLER Commission ## 1164149 Z , -�►' No�ary Public - California Zz Orange County MY Comm. Expires Dec 5, 2001 ) ss: COUNTY OF ORANGE ) On 1999, before me,r personally appea �M� L .\wp.�� Lam,\� ,�,� personall known to me ��-to-nra_tbe_�aasis-o to be the persor�(s whose na (s) is/ ee�subscribed to the within i . s rument and acknowledged to me that he/she h s executed the same in his/i per/t eir authorized capacit 'ie4 and that by his/her/ eir signaturkss on the instrument the perso s)Ir the entity upon behalf of which the person ac ed, executed the instrument. WITNESS my hand and official seal. Notary Public in a dsaid State (This area for official notarial seal) F:\USERS\PBW\GWONG\WP51\AGWARK '399-338BI.DOC CAT HY ;«+ER Commission # 1 174329 Z Notary Public - California Orange County My Comm. EqDres Fab 21. 2W2 V 5