HomeMy WebLinkAboutC-9173-1 - Encroachment Agreement EPN N2001-231 for 512 South Bay FrontRECORDING REQUESTE, {ND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
V
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in Official Records, County of Orange
Gary Granville, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(EPN2001-231)
THIS AGREEMENT is made and entered into this % �t-X_ day
of `� , 2001, by and between Diana King (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 512 South Bay Front, Newport Beach, California
and legally described as Balboa Island Resubdivision, Section 1, Block 11, Lot 1 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 and maintain certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within South Bay Front right-of-
way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 512 South Bay Front, Newport
Beach, California and legally described as Balboa Island Resubdivision, Section 1, Block 11,
Lot 1, 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, Callfornia;
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 Ggreed that PERMITTED IMPROVEi\,.�NTS shall be defined as a
12 inch high CMU wall 6 inches wide with stucco finish, landscaping and appurtenances in
RIGHT-OF-WAY as shown on EXHIBIT "A" attached hereto and as approved by the City
Engineer. Landscaping to be kept to a maximum height of 2 feet. 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 as 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 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
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public facilities or impro,,ements, CITY may remove POIeons 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 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.
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CITY OF NEWPORT BEACH,
a Municipal corporation
APPROVED AS TO FORM:
By: By:
ity Attorney Cit anager
City Clerk
OWNER:
B- r
Diana King
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On 1 v 2001, before rye, 41 Pi^
personally appear d a ersonally
known to me (or roved to me on the basis of se&factory evidence) to be the person/M
whosename( are subscribed to the with' instrument and acknowledged to me that
he/Mr/
hey .�xecuted the same in his/heir authorized capacit (-i6s), and that by
hiheir signature�on the instrument the Derson(s) or the entity uaon behalf of which the
person acted, executed the instrument.
TNESS my hand and official seal.
Notary Public in and fors id Stat L
(This area for official notarial seal)
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
SHAUNA LYN OYLER
Commission # 1164149 z
Notary Public - California
Orange County
My Comm. Expires Dec 5, 2001
On h 0 1 �' , 2001, before me,,lI
personally appeared I. )Ui G i h h r personall
known to me or proved to me on the basis of satisfactory evidence) to be the perso s)
whose n me sl�s/ re subscribed to the within instrument and acknowledged to me that
he/she h has exec ted the same In his/her irk uthorized capacityIe ,)and that by
his/her elr ignatur s on the instrument the person s) r the entity upon behalf of which the
person cted, execute the instrument.
WITNESS my hand and official seal. LEILANI V. INES
.. Commission # 117096D
Notary Public - Califorrin
rI^ / Orange County
My Cornm. Expires Jan 25, =
Notary Public in and for said State
(This area for official notarial seal)
F:\Users\PBW\PArciniega\EP's\EP-2001\agmt-EP01-231 King-Bl.doc
LEILANI V. INES
Commission # 117o960
Z , Notary Public - Carifomiq
Orange County
My Comm. Expires Jon25, 2002
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