HomeMy WebLinkAboutC-9163-1 - Encroachment Agreement EPN N2002-0197 for 1514 Balboa Avenuel
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�- RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in official Records, County of Orange
Darlene Bloom, Interim Clerk=Recorder
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2002-0197)
THIS AGREEMENT is made and entered into this Iyrk day of
�►�� , 2002, by and between Sharon J. Tetrault (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 1514 Balboa Avenue.,
Newport Beach, California 92662 and legally described as lot 40 of Tract 742, as shown on a
map recorded in Book 23, Page 42, 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 Balboa Avenue right-of-way
(hereinafter "RIGHT —OF-WAY") that is located adjacent to lot 40, tract 742, as shown on a
map recorded in Book 23, Page 42, inclusively of Miscellaneous Maps in the office of the
County Recorder of Orange County, California; also known as 1514 Balboa 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 Public Utility Easement; 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 reconstruct 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, wooden fence (height not to exceed 36") and appurtenances in the Balboa Avenue right-
of-way as shown on EXHIBIT "A" attached hereto and as approved by the Public Works
Department. In addition, the proposed PERMITTED IMPROVEMENTS may vary at the time
of construction. Hence, any changes must be approved 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 Public Utility Easement, 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
therefore 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
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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 Public Utility Easement to
exercise its primary rights associated with said, Public Utility Easement including but not
limited to, the maintenance, removal, repair, renewal, replacement or enlargement of existing
or future public facilities or improvements, CITY may remove all or 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,
replacement, 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, 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
Public Utility Easement 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
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(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.
APPROVED TO FORM:
By:
Citv Attornev
AT]
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
City anager
OWNER:
Sharon J. Tetrault
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STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On �� , 2002, before me, vlel—
personally a pearedpersonally
known to me (or proved to me on the basis of satisfactory evidence) to be the persor�(s-)
whose name
'(s)(Joare subscribed to the within instrument and acknowledged to me that
he
s�hey has executed the same in hiq_ their authorized capacity), and that by
his/her/their signatur�w on the instrument the persoDD,$) or the entity upon behalf of which the
person acted, executed the instrument.
C--W)TNESS my hand and official seal.
"Notary Public in and fors id State
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
SHAUNA LYN OYLER
Commission # 1331209 Z
Notary Public - California
Z Orange County
My Comm. Expires Dec 5, 2005
(This area for official notarial seal)
On � - �� 2002, before
�) ,
me,Q�:
personally appeared �Vy\
personally
known to me (
a&i of -satisfactory -evidence) to be the
perso (s)
whose nam (s) is/subscribed to
the within instrument
and acknowledged to me that
he/she they has executed the same
in his/her heir authorized
capacity les , and that by
his/he <tthDeirignaturdgbn the instrument the perso (s) or the entity upon behalf of which the
person acted, executed the instrument.
LATHY FISHER
WITNESS my hand and official seal. Commission#1341009 Z
Z -s Notary Public - California >
Z
O Orange County
My Comm. Expines Feb 21, 2006
Notary Public in and aid State
(This area for official notarial seal)
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