HomeMy WebLinkAboutC-9111-1 - Encroachment Agreement EPN N2002-0149 for 400 Fullerton Avenues
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
1 Public Works Department
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in Official Records, County of Orange
Darlene Bloocn. Interim Clerk -Recorder
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2002-O'149)
THIS AGREEMENT is made and entered into this 13�` day of Au ,
2002, by and between David Hogle and Helen Hogle (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 400 Fullerton Avenue, Newport Beach, California
and legally described as Lot 1, Block 29, 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;
W ITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements (hereinafter
"PERMITTED IMPROVEMENTS") within the Beacon Street and Fullerton Avenue right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 1, Block 29, 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; also
known as 400 Fullerton 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
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;
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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 36-
inch high wooden fence with 42-inch high wooden gate, two 42-inches high pilasters, 90-
inches high wooden trellis, landscaping, and appurtenances in the Beacon Street and
Fullerton Avenue right-of-way as shown on EXHIBIT "A" attached hereto and as approved by
the City Engineer. No landscaping will be allowed between the fence and existing curb that
prevents pedestrian access and sight -distance. 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 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. Intersection sight distance shall be provide in accordance with Standard Drawing
STD-110-L.
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. No landscaping will be allowed between the fence and existing curb that prevents
2
pedesrian access. Howe nothing herein shall be const J 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 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 W greement, the prevailing party sl• 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 agree 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.
CITY OF NEWPORT BEACH,
a Municipal corporation
APPROVED AS TO FORM:
9VABy: By:
ity Attorney Manager
ATTEST:
: B � i� e w/
Y
City Clerk
OWNER:
By: i--
David' le
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On Ili" I2 , 200 , before me, SOviaF �personally
appeared I , �elsef Ey
kaowp,„� or proved to Ae on the basis of satisfactory evidence) to be the person($)
whose nameN G/A\e subscribed to the within instrument and acknowledged to me that
gIszfthe�ir
/tfit4,y his executed the same in &ham/t19r authorized capacity(�), and that by
signatureN on the instrument the personN 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
SILVIA P. QUINTANILLA
_llll Commission # 1359216
Notary Public - California z
Orange County
My Conan, EVires Jun 2, 2006
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
(This area for official notarial seal)
SILVIA P. QUINTANILLA \
Comr, fission # 135D216
Z@My
Notary i ubGc - California
Orange County r
Comm. Expires .tun 2, 2CM .'
On 2,2002, before me, Si�UI Cif �, UWAMM `� personally
lA�i W
appeared r�3019&�
(or roved toJme on the basis of satisfactory evidence) to be the person(X)
whose nameN e subscribed to the within instrument and acknowledged to me that
*er'tfte
f iey executed the same in fii�/I&thy authorized capacity(1'�, and that by
signatureN on the instrument the person or the entity upon behalf of which the
personsN acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
�Ul G�l�iv�ti i{a1,i�lf�
� U
(This area for official notarial seal)
SILVIA P. QUINTANILLA
Commission # 1359216
z Notary Public - Cal fomia i
Orange County
MY Comm. Expires Jun 2, 2006
FAWP51\GILBERT\AG\MCHOGLE-400 FULLERTON AVE-N2002-0149-NH
5
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
ss.
On l , V" b�re me,0 r \`
Aj Date to
Namad Title of Officer (e.g., "Jane Doe, Notary Public'
personally appeared I`�� ' ,�&^-Li
- luo 4- i�l7y � �3 � "
Name(s) of Signer(s)
personally known to me
❑ proved to me on the basis of satisfactory
evidence
CATHY F{SHER
Commission # 1341,009 Z
i Notary Public - California
Orange County
My Comm. Expires Feb 21, 2006
to be the perso (s whose name is/ re
subscribed to the within instr ent and
acknowledged to me that he/sh the executed
the sam in his/he their author' d
capacity les and that y his/he ei
signatur (s n the instrument the person s
the entity upon behalf of which the persons)
acted, executed the instrument.
ESS my hand and off ial seal.
Place Notary Seal Above Signatur of Lary P blic
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 Rocument
Title or Type of Document: CA � O—C
Document Date: 3 - `?) . 0 O--
Signer(s) Other Than Named Above: [ "'
Capacity(ies) Claimed by Signer
Signer's Name:
Number of Pages:
El Individual
Top of thumb here
❑ Corporate Officer— Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
0 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
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