HomeMy WebLinkAboutC-8837-2 - Encroachment Agreement EPN N2008-0012 for 2961 Cliff DriveOR
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RECORDING REQUESTED AND
WHEN RECORDED RETURN TO: Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
Public Works Departmentf�il�i i�l� NO ���
City of Newport Beach
Post Office Box 1768 200800053822010:49ain 11118108
Newport Beach, CA 92659-1768 106 254 Al2 7
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Exempt from Recording Fee
Pursuant to Govt Code § 6103
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2008- ooI Z )
THIS AGREEMENT is made and entered into this 5th day of May, 2008, by and
between Mehran Forouzan Rad, Member, Ramban, LLC (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 2961 Cliff Drive, Newport Beach,
California, Assessor Parcel Number 049-103-01 and legally described as Lot Park Z Block B of
First Addition to Newport Heights, 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
(hereinafter (the "Property")
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the right-of-way on Santa Ana Avenue
and Avon Street (hereinafter "RIGHT-OF-WAY") that is located adjacent to the Property; 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
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:
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1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as,
follows: (1) a new curb which shall be 30 feet long and which shall be built in accordance with
City standards along Santa Ana Avenue at the location where there is currently an existing
curb cut; (2) grass along Santa Ana Avenue between the curb and the Property line adjacent
to Santa Ana Avenue; and (3) Jute netting and ground cover along a berm/diverter hump that
shall be located adjacent to the Property line along Avon Street which shall be no more than
four inches high and which encroaches twelve feet and eight inches into the public right -of way
all 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, if 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, in whole or in part, by
CITY at any time by giving 60-day notice, specifying in said notice the date the rights, in whole
or in part, granted under this Agreement are terminated. CITY shall incur no liability
whatsoever in the event of the termination of any or all rights granted under this Agreement, or
subsequent removal of any or all of the Permitted Improvements by CITY. If any of the rights
granted under this Agreement are terminated, in whole or in part, OWNER shall execute an
amended Encroachment Agreement or any other documents required by the City, which shall
define the OWNERS rights under this Encroachment Agreement, if any, after said termination
and said documents shall be filed with the County Recorder.
4. OWNER and CITY further agree as follows:
a. OWNER may construct and install PERMITTED IMPROVEMENTS and
appurtenances incidental thereto, in substantial conformance with the plans and specifications
on file in the CITY's Public Works Department, and as described on Exhibit "A" attached
hereto.
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 -equire 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 and shall take immediate action to make said repairs in conformance with
City standards and requirements.
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 in advance 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 the 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.
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Termination because of breach shall be upon a minimum of ten (10) day notice, with the notice
specifying the date of termination.
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.
8. The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be adjudicated in a court of
competent jurisdiction in the County of Orange.
9. The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by reason of the
authorship of the Agreement or any other rule of construcc'Jon which might otherwise apply.
10. This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations and
agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied
covenant shall be held to vary the provisions herein.
11. A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of a!�y subsequent breach of the same or
any other term, covenant or condition contained herein, whether of the same or a different
character.
12. OWNER shall at OWNER'S own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including federal, state,
county or municipal, whether now in force or hereinafter enacted.
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13. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement
shall continue in full force and effect.
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: �.--
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F:\Users\CAT\Shared\Encroachment\2961 Cliff Drive (4).doc
CITY OF NEWPORT BEACH,
a Municipal corporation
Ramban, LLC
5
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On 2008 before me,el, 47
Notary Public, personally appeared a�ho "proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/ape subscribed to the within
instrument and acknowledged to me that he/ -r executed the same in his/he it
authorized capacity(ies), and that by his/tiQd4i4eair sii:Inature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
4 -, 1'e-- (SEAL)
Notary Public in an for said State
OLA BOYKIN
Commission # 1775744
i Notary Pub1IC - California
Los Ang0198 County
CgMI Nov21,2011
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