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Home My WebLink AboutC-2698(A) - Encroachment Agreement (for 3000 Cliff Drive)ct (;1 RECORDING REQUESTE,_, AND WHEN RECORDED RETURN TO: City Clerk City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 Space above this line for 1 ENCROACHMENT AGREEMENT G2,Gi.✓or. i 88 nrir 7 7 i84 +� 4 4. G -a -T i.i i3�fiF 4i YtL43P 'd. ReOrijeu i ij nffiriAl Record;, of Orange il3C i.rtiuiiia: California itxa Lee A. Branch, County Rerorder HIS AGREEMENT is made and entered into this o::% day of /__ 1993, by and between William B. Bennett and Fran R. Bennett , (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"); W I T N E S S E T H: WHEREAS, OWNER desires to install certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Santa Ana Avenue right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 5, Block 11, First Addition to Newport Heights Tract , as shown on a map recorded in Book 4, Page 94 of Miscellaneous Maps in the office of the County Recorder of Orange County, California; also known as 3000 Cliff Drive, Newport Beach, California; and WHEREAS, OWNER removed a portion of CITY sidewalk and is replacing the sidewalk in a different location, 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; 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 a four (4) foot wide public sidewalk, a three (3) foot high Ceder Picket Fence with gate, a three (3) foot wide carriage walk and Decorative brick planters at grade around trees and adjacent to the carriage walk located along the Santa Ana Avenue frontage within the Santa Ana Avenue right-of-way in conformance with the City Council Policy L-6 and as shown on 1 EXHIBIT "A" attach," hereto and as approved bl ,he City Engineer. 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, 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; 2 (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 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. APPROVED TO FORM: By: City Attorney ATTEST: 3 CITY OF NEWPORT BEACH, a Municipal corporation OWNER: By: By: STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE On � , 1993, befo - 'e, the undersigned, a Notary Public in an• •r the State .-rsonally appeared Kevin Murphy o me to be the City Manager of the City of Newport Beach - • Wanda E. Raggio , known to me to be the City -rk of the Ci •f Newport Beach, known to me to be the per - s whose names are subsc -d to the within instrument, : acknowledged to me that they exe --• the same. TNESS my hand and official seal,. Notary Public in and for said State STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE On 1 j A , 1993, before me, )�L , , 3 7,�" , personally appeared )i l.(,l R rn ('i �lJ /l I T ip( 1�J ,personally known o me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal tA�� Signature COUNCIL\e-benet.enc (This area for official notarial seal) 46. OFFICIAL NOTARY SEAL MICHELE S. HOOTON Netary Public — California ORANGE COUNTY> My Comm. Expires JUN 26,1994 `n . V 4 STATE OF CALIFORNIA )ss. COTY OF ORANGE On D/ / 993 personally aaeared personally known to satisfactory evidence) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. efore e , a / me (or p to be the WITNESS my hand and official seal. ash z,,24 4 ovto me on the ba 1's of person(s) whose name(s) is/are Notary Public in for s %d State Shauna Lyn Oyler; Comm. #1002681 /N NOTARY PUBLIC CALIFORNIAw ORANGE COUNTY O Comm. Expires Aug. 22, 1997 A. C4 irk- '9 Pe Vre/ vI__ - Rnrr POLIN TO STP- FT Orc IbirePOIN cocoa 4 fI 4r!'� d xtfrDP rtb 8 4x< d it.'NC �3JCS iil.i!'Or %/AM Fyr+e ce a•R recrnrst Rarer, SEE vET'IL -- aonNi• e-an Lt —NEu GONG. sivEunLK �AFwN, 66L42 IN FANtC{L,24.w4 TvPWL 4 wcs 57w a+voz w.wrtiz ez Q..TReE 4. 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