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HomeMy WebLinkAboutC-5978 - Encroachment Agreement EPN N2000-243 for 2121 Westcliff DriveRecorded in Official Records, County of Orange Gary Granville, Clerk, -Recorder n��; FEE 90000411187 r a m 08!07100 110 3 Al2 12 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENTAGREEMENT (EPN2000-243) THIS AGREEMENT is made and entered into this _ day of !.,,1,: 2000, by and between Don R. Hankey on behalf of Hankey Investment Company ereinafter "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 2121 Westcliff Drive, Newport Beach, California and legally described as portion of Lot 2, Tract 4225, as shown on a map recorded in Book 153, Pages 23 and 24 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 Irvine Boulevard right-of- way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 2121 Westcliff Drive, Newport Beach, California and legally described as Lot 2, Tract 4225, as shown on a map recorded in Book 153, Pages 23 and 24 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, 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; 01 [RECORDING REQUESTED A; WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach i Post Office Box 1768 U 3300 Newport Boulevard Newport Beach, CA 92659-1768 Recorded in Official Records, County of Orange Gary Granville, Clerk, -Recorder n��; FEE 90000411187 r a m 08!07100 110 3 Al2 12 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENTAGREEMENT (EPN2000-243) THIS AGREEMENT is made and entered into this _ day of !.,,1,: 2000, by and between Don R. Hankey on behalf of Hankey Investment Company ereinafter "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 2121 Westcliff Drive, Newport Beach, California and legally described as portion of Lot 2, Tract 4225, as shown on a map recorded in Book 153, Pages 23 and 24 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 Irvine Boulevard right-of- way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 2121 Westcliff Drive, Newport Beach, California and legally described as Lot 2, Tract 4225, as shown on a map recorded in Book 153, Pages 23 and 24 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, 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; 01 NOW, THEREFORE, in _ .nsideration of the mutual promises, .ne parties hereto agree as follows: 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as a 14 -feet high pole sign in a 12 -inch high raised concrete planter and appurtenances in Irvine Boulevard 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 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. 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, 2 the maintenance, removal, rep.. , renewal, replacement or enlarge. _,nt 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 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. 3 CITY OF NEWPORT BEACH, a Municipal corporation APPROVED AS TO FORM: IF By: By; %44&� lloex� City Attorney City Ma ager City Clerk 4 OWNER: Hankey Investment Company By: Authorized Agent on behalf o Hankey Investment Company STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) On V I4 � i 2000 before me, IAC .l oy , V, personally appeared *r U Oo�ri i k fSS ,personal known to me ) to be the person whose name s is re ubscribed to the within instrument and acknowled ed to me that lie/sheth as executed the same in his/her eir uthorized capacit ie and that by his/her h signatur�n the instrument the perso s) r the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. LEILANI V. INES Commission # 1170960 Z No-,aryPublic - CaOrange Counfyl forma Notary Public in and for said State MyC,arnm.ExpiresJon25,2002 (This area for official notarial seal) STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) tf- On tA-1 �j U , 2000, before me, r'1 personally appeared 1 ))on �k"-, Le L// , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(O whose name(s) is/ate subscribed to the within instrument and acknowledged to me that he/she/they has executed the same in his/her/their authorized capacity(ios), and that by his/her/their signature() on the instrument the person(s) or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. 40-y-7 1 -1 Z, U1, -�, , - Notary Public in and for said State (This area for official notarial seal) F:\USERS\PBMGWONG\WP51\AGBORDEN-PROMELIS-EPN2000-243NH.DOC 5 HANKEY INVESTMENT COMPANY, LP LIMITED PARTNERSHIP AGREEMENT THISED PARTNERSHIP AGREEMENT (the "Agreement") dated as 6 of January 1, 1992, is entered into by and between Don R. Hankey and,.Lorie Hankey, as the General Partners (the "General Partners") and all those persons whose names appear as Limited Partners on Exhibit "A" attached hereto and incorporated herein by reference as the Limited Partners (collectively referred to as the "Limited Partners"). ARTICLE 1 ORGANIZATION 1.1 Formation. The General Partners and the Limited Partners agree to form a Limited Partnership (the "Partnership" herein) under the Uniform Limited Partnership Act pursuant to Title 2, Chapter 2, of the California Corporations Code) (the "Act" herein). 1.2 Name. The name of the Partnership shall be Hankey Investment Company, LP, provided, however, the General Partners may, in their sole discretion, change the name of the Partnership at any time and from time to time may upon demand require the Limited Partners to execute the appropriate documents, including, but not limited to, a Certificate of Limited Partnership, therefor. ARTICLE 2 BIJSINESS OF THE PARTNERSHIP The business of the Partnership shall be the acquisition,. ownership, improvement, leasing, financing and operation of real property. ARTICLE 3 PRINCIPAL PLACE OF BUSINESS The principal office of the Partnership shall be located at 309 N. Vermont Avenue, Los Angeles, California 90004, or at such other place or places as the General Partners may hereafter determine. ARTICLE 4 TERM The Partnership shall commence upon the date of this Limited Partnership Agreement first hereinabove mentioned and shall continue for a period of twenty-five (25) years thereafter unless terminated sooner because of the dissolution,a-nd winding up of the Partnership in accordance with the provisions of Article 11 hereof or by operation of law. 1 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first hereinabove written. General Partners: (a- --- ---- ------- Don R. Hankey 20 Limited Partners: Don Robert Hankey, Trustee of the Don Hankey Trust Dtd 2/22/90 Frances M. Hankey, Trustee of the Frances Hankey Trust Dtd� 1.1-31190 Barbara Hankey -Rogers, Trustee of the Barbara Rogers Trust Dtd 2/5/90 M 2 L1 14 f 5 �` CL Q Q cr W O Z Z W W P_. 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