HomeMy WebLinkAboutC-9036-1 - Encroachment Agreement EPN N99-443 for 310 Fernleaf AvenueRECORDING REQUESTIL ,ND
WHEN RECORDED RETURN TO: Recoroea in the county of orange, California
Gary L. Granville, clerk/Recorder
City Clerk Office I C No Fee
i City of Newport Beach 19990843813 12; 01pm 12/10/99
U Post Office Box 1768 005 28024920 28 04
� 6.00 18.00 0.00 0.00 0.00 0 , 00
3300 Newport Boulevard All
Newport Beach, CA 92659-1768
Space above this line for Recorder's use only.
.ENCROACHMENT AGREEMENT
(EP99-443)
THIS AGREEMENT is made and entered into this day of
1999, by and between Marguerite Cagigas (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 310 Fernleaf Avenue, Newport Beach, California
and legally described as portion of Lot 12, Block 233, Map of Corona Del Mar, as shown on a
map recorded in Book 3, Pages 41 and 42 inclusively of Miscellaneous 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") withi,1 he Fernleaf Avenue right-
of-way (hereinafter "RIG'- T-OF-WAY") that is located adjacent ',.o 310 Fernleaf 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 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:
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1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as a
raised concrete patio with 3'-1" high wooden fencing, concrete step, and appurtenances in the
Fernleaf Avenue right -of -away as shown on EXHIBIT "A" attached hereto and as approved by
the City 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 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
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 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, rY may remove portions of the PERMITTED IMPROVEMENTS,
as required, and in such event:
0) CITY shall notify OWNER of its intention to accomplish such work,
if any emergency situation does not exist.
(ii) OWNER shall be responsible for ar! r raging 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 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 shail 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 shall accept the fact that surface drainage water may enter onto the
"SUBJECT PROPERTY" from "RIGHT-OF-WAY" located in the City of Newport Beach, County
of Orange, State of California, as depicted on Exhibit "A" attached hereto, whether naturally or
as a result of the development or improvement of the "RIGHT-OF-WAY".
8. OWNER shall accept and waive any and all liabili'y for any damages to the
"SUBJECT PROPERTY" caused by the flow of such surface drainage water onto the
"SUBJECT PROPERTY". GWNER shall defend, indemnify, waive, and hold harmless CITY, its
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City Council, boards and c--emissions, officers and employees t, -nm 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 to surface drainage water
entering the "SUBJECT PROPERTY" from the "RIGHT-OF-WAY".
9. 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:
City Clerk
CITY OF NEWPOR'k- BEACH,
a Municipal corporation
OWNER:
By:
Cit Manager
By: *Vuerite
Cagiga
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STATE OF CALIFORNIA
r�
) ss:
COUNTY OF ORANGE )
On / .1999, before
personally appeared
known---to-tale--(or proved to me on' the basis of satisfacto
me, 441e )-MI -- ,
personally -
evidence) to be the person
whose nameoi�/a.r-e subscribed to the within instrument and acknowledged to me that
tsh6iithey has executed the same in ,,hise their authorized capacity(ies-7, and that by
leerrj her signature -on the instrument the erson S- -or the enV-: upon
�) p () � p behalf of which the
person acted, executed th :� instrument.
WITNESS my hand and oMcial seal.
DEBBIE TRUONG{QUACH
Cammwon # 1217310
i Notary Public - Califamio
Orange Caw*
Notary Public in nd for said State Mhrear"`"'Bo
"`AWX_
(This area for official notarial seal)
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On 1999, before me,Qv-�� k ) ,
personally appeared LaJ. ,Ae- yC f \\t,.,r `A 1 ��o rv�-. t✓, ,,,V&4 , personally
known to me o me o to be the perso (s
whose naME10 is/ re ubscribed to the within instrument and acknowledged to me that
he/she/ he has executed the same in his/her/ e— authorized capacity `es , and that by
his/her heir ignature s@ on the instrument the person Dor the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public Aa-0 for said State
(This area for official notarial seal)
F\USERS\WP51\GILBERTIAG\CAGIGASE ---443CDM.DOC
CA7 FISHER
4 P Commission # 1174329
Notary Public - California �¢
Orange County
My Comm. Bakes Feb21, 20
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