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Home My WebLink AboutC-6546 - Encroachment Agreement EPN N2001-163 for 2121 Windward LaneRecorded in Official Records, County of Orange Gary GranvilleClerk Recorder '11!"1"1''11'.!11'1' 1''II!11'''li'`.1'11I1i"11'II��C IFEE 2001033563612,5spm 05124101 200 25 Al2 6 0.00 0 00 0.00 0.00 C.00 G 00 O.GO 0.00 Space above this line for Recorder's use only. ENCROACH IMENT AGREEMENT (EPN2001-163) THIS AGREEMENT is made and entered into this day of 2001, by and between Samuel C. McCulloch; hereinafter "OWNER", and the City of Ne port Beach, California, a municipal corporation organized and existing ander 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 Windward Lane, Newport Beach, California and legally described as Tract 3975, Lot 5 as shown on a map recorded in Book 181, Pages 45 — 46 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 "PERMITTEE; IMPROVEMENTS") within Windward Lane right-of- way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 2121 Windward Lane, Newport Beach, California and legally described as Tract 3975, Lot 5 as shown on a map recorded in Book 181, Pages 45 — 46 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; 1 R`CURDING REQUESTED AND WHEN RECORDED RETURN TO: I,fl 9 Public Works Department City of Newport Beach v Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 Recorded in Official Records, County of Orange Gary GranvilleClerk Recorder '11!"1"1''11'.!11'1' 1''II!11'''li'`.1'11I1i"11'II��C IFEE 2001033563612,5spm 05124101 200 25 Al2 6 0.00 0 00 0.00 0.00 C.00 G 00 O.GO 0.00 Space above this line for Recorder's use only. ENCROACH IMENT AGREEMENT (EPN2001-163) THIS AGREEMENT is made and entered into this day of 2001, by and between Samuel C. McCulloch; hereinafter "OWNER", and the City of Ne port Beach, California, a municipal corporation organized and existing ander 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 Windward Lane, Newport Beach, California and legally described as Tract 3975, Lot 5 as shown on a map recorded in Book 181, Pages 45 — 46 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 "PERMITTEE; IMPROVEMENTS") within Windward Lane right-of- way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 2121 Windward Lane, Newport Beach, California and legally described as Tract 3975, Lot 5 as shown on a map recorded in Book 181, Pages 45 — 46 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; 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 slate colored concrete sidewalk, drive approach, and appurtenances in Windward Lane 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 as 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. 2 d. That should the CITY be required to enter unto 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 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, waive, 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. 3 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first -above written. APPROVED AS TO FORM: By: , L_-,� City Attorney ATTEST: it Clerk 11 CITY OF NEWPORT BEACH, a Municipal corporation By: �• '�-- City Manager L, Samuel C McCulloch STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On 2001, before mb45)Xa a^- ? personally appeared rsonally known to me (or proved to me on the basis of satisfactory evide e) to be the person,(s'j whose name( ')&are subscribed to the -within instrument and acknowledged to me that /she/they pias m executed the sae int,hi er/their authorized capacity(ie;), and that by 47her/their signatureKon the instrument the person 4 or the entity upon behalf of which the erson acted, executed the instrument. WI ESSJTy hand and official seal 5HX-NA LYN OYLER Commission # 1164149 Notary Public in and aid Staz � Nosary Public - CalJornia Orange Co ;nty MY Comm. Expires Dec 5, 2J31 w"w+r (This area for official notarial seal) STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On ► 1 AV �- 2001, before me, � �� V ks personally appeared _ �- , persona known to me to be the perso s) whose nam m"subscribed re subscribed to the within in rument and acknowled d to me that he/she/ a has ex:cs ed the same in his/her/ eir uthorized capacity les and that by his/her/ eir ignatur ) n the instrument the perso s) r the entity upon behalf of which the person acted, execute the instrument. WITNESS my hand and official seal. LEILANI V. IN Commission # 1170960 Notary Public - California > L :? orange '{7 Notary Public in and for said State Myc, m,ife Jon 25,2002 (This area for official notarial seal) F:\Users\PBW\PArciniega\EP's\EP-2001 \agmt-EP01-163McCulloch-MRN.doc 5 F—"-7j� SLAB sues r -i SLASA I SLAB -3 SLAB SLAB -1b L SLAB -6 i Footprint of Existing House 1 II SLAB -8 �XA1i�IT N200I- Ila3 54o\ PORCF+3 i I' PORCK2 0 SLAB -13 _� r— SLAB -14 SLAB -12 McCulloch Project - 2121 Windward - Dover Shores, Newport Beach DAVID W.BACKSTROM GENERAL CONTRACTOR P.O. BOX 3322 NEWPORT BEACH, CA 92659