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Home My WebLink AboutC-6460 - Encroachment Agreement EPN N2001-219 for 2220 Cliff DriveP RECORDING REQUESTED AND 23 WHEN RECORDED RETURN TO: S Public Works Department City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 Recorded in Official Records, County of Orange Gary Granville, Clerk -Recorder 111111111111111111111111111111111111111111111111111111116.00 20010503394 0120pm 07125101 109 73 Al2 6 0.00 0.00 0.00 0.00 10.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2001-219) r' THIS AGREEMENT is made and entered into this -� day of 2001, by and between James Donald Nelson (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 2220 Cliff Drive, Newport Beach, California and legally described as Lot 1, Block 5, Tract No.919, as shown on a map recorded in Book 29, Pages 31 to 34 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; WIT NESSE T H: WHEREAS, OWNER desires to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Cliff Drive and Fullerton Avenue right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 1, Block 5, Tract No.919, as shown on a map recorded in Book 29, Pages 31 to 34 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; also known as 2220 Cliff Drive, Newport Beach, California; and WHEREAS, said P-E—RMITTED 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; 1 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 maximum high retaining wall, concrete steps with landing, stairway retaining walls/railing (36 -inches maximum height), landscaping, and appurtenances in the Tustin Avenue and Beacon Street right-of-way as shown on EXHIBIT "A" attached hereto and as approved by the City Engineer. All landscaping within the public right-of-way at the Northeasterly corner of Fullerton Avenue and Cliff Drive shall be grass/ground cover and 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 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. In addition, all ._.,idscaping within the public right -L Nay shall 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 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; (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 bru-ch shall be upon a minimum of te.. (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 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. ~1 4i a�V!_4 (�� ATTEST: City Clerk CITY OF NEWPORT BEACH, a Municipal corporation OWNER: By: City Mana er Donald Nelson STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) 2\& On 4 ) , 2001, before me, personally appeared 'J ok-;S I4,j��DN I perset� -to-- e r proved to me on the basis of satisfactory evidence) to be the person( whose nameis are subscribed Q the within instrument and acknowledged to me tha he she/they his executed the same in hi her/their authorized capacity ie, and that by is�her/their signatureXon the instrument t e person�or the entity upon behalf of which the person acted. executed the instrument. l —� LEILANI V. INE$ Commission # 1170960 WITNESS my hand and official seal. 15 .-� No'aryPublic- California Orange County L%My Carom. Expires Jan 25, 2002 Notary Public in and for said State (This area for official notarial seal) STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On �i�/"�� , 2001, before me, personally appeared 140YY I- 11, nIV1,UlM ain0 1ANOD(Vr'/y ' +-0EU-e45 , personal,Ly known to me -(sr--rid-to-me-on-thesis-a-safis acto_ry_ evidence) to be the persons hose nam s s/�"ubscribed to the in instrument and acknowledged to me that he/she/executed the same in his th(ei authorized capacit Ries and that by his/herF(acted, signature( bn the instrument the perso6 or the entity upon behalf of which the person executed the instrument. WITNESS rrly hand and official seal 44'V '- N' " � M4� Notary Public in and for said State FAWP51 \GILBERT\AG\NELS0N-ENC2001-NH �_ LEILANI V. INES Commission # 1170960 Z � No-ary Public - California ' Orange County My Ccmm. Expires Jan 25, 2002 ■ (This area for official notarial seal) Z 0 F— CL W A Lo W J x r� NO��_� Z 0 F— CL W A Lo W J x