HomeMy WebLinkAboutC-5934 - Encroachment Agreement EPN N2000-235 for 400 Tustin AvenueRecorded in Official Records, County of Orange
Gary Granville, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(EPN2000-235)
I M,
THIS AGREEMENT is made and entered into this '�?'%( day of
2000, by and between Scott McFetters (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 Tustin Avenue,
Newport Beach, California and legally described as Lot 1, Block 26, 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;
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Tustin Avenue and Beacon
Street right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 1,
Block 26, 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 Tustin 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
1
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
U
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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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2000-235)
I M,
THIS AGREEMENT is made and entered into this '�?'%( day of
2000, by and between Scott McFetters (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 Tustin Avenue,
Newport Beach, California and legally described as Lot 1, Block 26, 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;
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Tustin Avenue and Beacon
Street right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 1,
Block 26, 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 Tustin 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
1
WHEREAS; the partie. lereto desire to execute an agree ,nt 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 36-
inch high wall, colored concrete steps with landing, stairway wing walis, Iandscaping, and
appurtenances in the Tustin Avenue and Bcacon Street right-of-way as shown on EXHIBIT "A"
attached hereto and as approved by the City Engineer. All Iandscaping within the public right-
of-way shall be maintained a maximum height of 36-inches above the top of curb. 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
IiabiIity whatsoever in the event of the termination of this Agreement, or subsequent removal of
improvements by CITY.
4. OWNER and CITY further agree as foliows:
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 s maintain the PERMITTED IMPR JEMENTS in accordance
with general prevailing standards of maintenance, and pay all costs and expenses incurred in
doing so. In addition, all Iandscaping within the public right-of-way shalt be maintained a
maximum height of 36-inches above the top of curb. However, nothing herein shall be
construed to require OWNER to maintain, replace or repair any CITY -owned pipeline, conduit
or cable Iocated 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 Iimited 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 C!TY;
(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
ihis Agreement, and, in the ant the breaching party is OWNEI 0AITY 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 agree that this Agreement shail 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.
Wan•
rte►-- -
Al
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
OWNER:
By:
City NAFnager
Scott McFetters
STATE OF CALIFORNIA)
)ss:
COUNTYOFORANGE
On , 2000, before me, A? tj) Wt94S'ck'dZpersonally appeared
'�cb 'FEt749S , pefse lIyknown4Q—me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name) is/are subscribed to the within
instrument and acknowledged to me that he/she/they his executed the same in his/her/their
authorized capacity(i), and that by his/her/their signature$) on the instrument the persons
or the entity upon behalf of which the person acted, executed the instrument.
Notary Public in and for said State
FARID K. MANSOUR1
COMM.#1117081
0 NOTARY PUBUC•CALIFORNIA -
- ORANGECOUNTY (t)
My Gonim, Explres Nov. 18 2OOO
(This area for official notarial seal)
STATE OF CALIFORNIA)
) ss:
COUNTYOFORANGE )
On Jt1tv' 'U , 2000, before me, L'€A V'I ''1 tviC- personaily appeared
4 \i M. -ronaiiy known to me (-er--proved to me on the -basis of
to be the personIIwhose nam 2ssubscribed to the within
instrument and acknowledged to me that he/she/-xecuted the same in his/her
authorized capacity4and that by his/her/ eir ignaturpon the instrument the perso
orthe entity upon behalf ofwhich the person-):cted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
F:\WP51 \GILBERTA,G\MCFETTERSEpN2OOO235NH
LELANI V. NES
Commjssjon # 170960
No-ary Puoc - Cofc-nio
0range County
My C:rn. Expires Jon 25, 22
(This area for official notarial seal)
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