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Home My WebLink AboutC-6608 - Encroachment Agreement EPN N2005-087 for 120 Kings Placeco C) RECORDING REQUESTED AND WHEN RECORDED RETURN TO: gPublic Works Department V City of Newport Beach Post Office Box 1768 Newport Beach, CA 92659-1768 Recorded in Official Recc Orange County Toni Ua7y, Clerk -Recorder i11�11 If!I!!6iIIIbI!II!I!'�!IIIIIII!i! Ili!IIIA11111111!1Illli4 1124.00 Z"DO 000257621 10:30am 04/06/05 211 1"tG &12 7 0.00 0.00 0 00 0.00 18.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2005-0087) THIS AGREEMENT is made and entered into this day of 2005, by and between Brian E. Brooks and Sylvia C. Brooks (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 120 Kings Place, Newport Beach, California, 92663 and legally described as Lot 1, Block E of Tract 1219, as shown on a map recorded in Book 38, Pages 26 through 27, 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 Kings Place right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 1, Block E of Tract 1219, as shown on a map recorded in Book 38, Pages 26 through 27, inclusively, of Miscellaneous Maps in the office of the County Recorder of Orange County, California; also known as 120 Kings Place, 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 construct 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 garden walls with stone veneers varying in height from 8" to 36" tall with a stone cap, a carriage walk with 2 risers constructed using flagstone set in concrete, four, 3 -foot diameter river rock aggregate pavement stepping stones set in gravel, and appurtenances in the Kings Place right-of-way as shown on EXHIBIT "A" attached hereto and as approved by the Public Works Department. In addition, if any of the PERMITTED IMPROVEMENTS actually built or installed during the time of construction vary from the PERMITTED IMPROVEMENTS approved herein, such variations or changes must be approved in advance 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, provided that they are all in substantial conformance with the 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 on file in the City's Public Works Department, and as described on Exhibit "A" attached hereto. FA b. OWNER shall maintain the PERMITTED IMPROVEMENTS in accordance with generally 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 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, provided that an 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. APPROVED AS TO FORM: By:' Dax4 a -,m. Z-eu f City Attorn y ATTEST: B y:/I, xlz" City Clerk CITY OF NEWPORT BEACH, A Municipal corporation By: �- Cit anager 4 OWNER: /-� ►� .r BrooksBrian E. By: is C. Brooks STATE OF CALIFORNIA) ) ss: COUNTY OF ORANGE ) On XN 2005, before m Ao d1 qa--- o personally y appearedt--1qr1Q1% �, Cihz)��4// r0i71c5 personally known tom (or pr ed to me on the basis of satisfactory evidence) to be the perso I ho na(s) ' ares bscribed to the within instrument and acknowledged to me that he/sh /(hey as executed the same in his/her/ eir a horized capaci(ies), and that by his/h their ignatur (s) n the instrument the person(s) or the entity upon behalf of which the person acted, executed the instrument. ESS my hand and official seal. ry Public in and far-gPaid S STATE OF CALIFORNIA) ) ss: COUNTY OF ORANGE ) On personally appeared , 2005, before me, SHALRYA LYN ()YLE-R aolwy € V!nrri;,%,ian 1331209 zt ai y Pubii� - Culitornia o arl'lJQ County comm. Expires CNX 5, 2005 (This area for official notarial seal) personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they has executed the same in his/her/their authorized capacity(ies), and that by his/her/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. 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CITY CLERK'S ACKNOWLEDGMENT State of California County of Orange On March 29 , 2005, before me, LAVONNE M. HARKLESS, CITY CLERK OF THE CITY OF NEWPORT BEACH, personally appeared Homer L. Bludau , personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. Dated this 29th day of March CAPACITY OF SIGNER Municipal Corporation Officer City Manager SIGNER IS REPRESENTING: 2005. WITNESS my hand and official seal. G��O- LA ONNE M. HARKLESS, CITY CLERK CITY OF NEWPORT BEACH, CALIFORNIA DESCRIPTION OF ATTACHED DOCUMENT: Encroachment Agreement EPN2005-0087 # of Pages 7 City of Newport Beach Document Date: 03/29/2005 Signer(s) other than named: Brian E. and Sylvia C. Brooks Donna M. Bigi