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Home My WebLink AboutC-6491 - Encroachment Agreement EPN N2003-355 for 501 Aliso AvenueJ RECORDING REQUESTED AND `j WHEN RECORDED RETURN TO: U Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92659-1768 Recorded in Official Records, County of Grange Tom Daly, clerk -Recorder !!I!i ll!I! !I!I! II!!I !!I!I i!!!I IIII! !II!! VIII 16.00 200300127254512.56piri 10115103 2.14 110 112 6 0.00 0.00 000 0.00 10.00 000 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2003-0355) THIS AGREEMENT is made and entered into thisday of 7_2�PM03, by and between David E. Adelsohn and Sandra A. Adelsohn trustees of Adelsohn Trust, (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 501 Aliso Avenue, Newport Beach, California, 92663 and legally described as lot 24, Block 37 of 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 Aliso Avenue and Clay Street right- of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to lot 24, Block 37 of 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 501 Aliso Avenue, Newport Beach, California, 92663 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 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 4 - foot wide cement walkway with brick border along Aliso Avenue and an additional walkway of slate stone set in concrete along Clay Street, right-of-ways as shown on EXHIBIT "A" attached hereto and as approved by the Public Works Department. All landscaping within the public rights-of-way is to be 36" in height or less. 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 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 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 K 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, 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 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. 3 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. CITY OF NEWPORT BEACH, a Municipal corporation APPROVED AS TO FORM: 100AA� it i�,, I (,�'; -,yl, ) B y: C/� Z- Z --- .•- City Clerk OWN[ 4 andra Adelsohn, Trustee STATE OF CALIFORNIA) ) ss: COUNTY OF ORANGE � I ,, ,�// 6lic On c ,� j_, 2003, before me, , Uel �Wdl, I V G/Zll� l ,, i personally appeared a1 VI Q/ d C S f personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s)X/are subscribed to the within instrument and acknowledged to me that /they has executed the same in-ltsftTBY/their authorized capacity(ies), and that by Jcr/their signature(s) 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. Z Notary Public in and for said State STATE OF CALIFORNIA) ) ss: COUNTY OF ORANGE ) BARBARA L. RUSSELL COMMI slon # 1776921 Notay PULAC — California Crnnge County MyComm. E2PkM Oct 12, M04 (This area for official notarial seal) On fi. � , 2003, before me, �tt AO( itiwm ` v1� I� personally appeared IhIMCf L, NlAAAM aV`U1 6I QOY16 personally known to me (or proved to me on the basis of satisfactory evidence) to be the person s) hose nam(s) SC -)subscribed to the within instrument and acknowledged to me that he/she hey as executed the same in his/her/ eir uthorized capacitC(ies)and that by his/her/ heir ignature&, n the instrument the persons) br the entity upon behalf of which the person acted, executed the instrument. LEILANI I. BROW -~ Commiasion # 13366N 73 Z Notgry Public lralifamia > WITNESS my hand and official seal. x OMM90 County rpy COMM. EXPhee .lob 25, 2006 Notary Public in and for said State (This area for official notarial seal) f:\users\pbw\shared\encroach\row agreements\2003\2003-355 501 aliso avenue.doc 5 a