HomeMy WebLinkAboutC-9065-1 - Encroachment Agreement EPN N99-050 for 2800 Cliff Drivet RECORDING REQUESTEL, AND
iA WHEN RECORDED RETURN TO:
IQ
Public Works Department
City of Newport Beach
t Post Office Box 1768
U 3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recoraea in the County of orange, California
Gary L. Granville, Clerk/Recorder
21.00
005 19008974 ,190990255145 4;00pm 04/07/99
Al2 6 6.00 15.00 0.00 0.00 0.00 0.00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT PaS��P �5 9�
(EP 99-050)
THIS AGREEMENT is made and entered into this day of
1999, by and between Donald Ayres (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 2800 Cliff Drive, Newport Beach, California 92663 and legally
described as First Addition to Newport Heights, Block 14, Lot 5 (hereinafter "SUBJECT
PROPERTY"), as shown on a map recorded in Book 1 Page 88 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 "PERMITTED IMPROVEMENTS") within the Cliff Drive right-of-way
(hereinafter "RIGHT-OF-WAY") serving of First Addition to Newport Heights, Block 14, Lot 5,
as shown on a map recorded in Book 1, Page 88, inclusively of Miscellaneous Maps in the
office of the County Recorder of Orange County, California; 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, reconstruct and maintain
said PERMITTED IMPROVEMENTS;
IN
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 entry
steps, retaining wall, 36" high raised planters, 24" high maximum planters within 36' from alley,
and appurtenances in the Cliff Drive RIGHT-OF-WAY as shown on EXHIBIT "A" attached
hereto and as approved by the City Engineer.
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. If permitted improvements 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, then the 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, any new and existing trees, shrubs, and landscaping that are on the
adjacent City property shall be maintained at the roof line of the existing structures at all times.
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.
oil
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 breach shall be upon a minimum of ten (10) days' notice, unless the
breach is cured within sun 10 day period, 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.
3
7. OWNER shall accept the fact that surface drainage water may enter onto the
"SUBJECT PROPERTY" from "RIGHT-OF-WAY" located in the City of Newport Beach, County
of Orange, State of California, as depicted on Exhibit "A" attached hereto, whether naturally or
as a result of the development or improvement of the "RIGHT-OF-WAY".
8. OWNER shall accept and waive any and all liability for any damages to the
"SUBJECT PROPERTY" caused by the flow of such surface drainage water onto the
"SUBJECT PROPERTY". 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 to surface drainage water
entering the "SUBJECT PROPERTY" from the "RIGHT-OF-WAY".
9. 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:
By: By: C
City Attorney City Manager
AT
is
City Clerk
OWNER:
to
By:
Donald Ayres
f:\groups\pubworks\encroach\ROW—agmts\99\99-050AYRES.doc
2/9/99
F
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On 1,14e" /\ IS 1999, before me, /V. siv511 '.I A" c!!�l o
personally appeared &-�?/'w )"5, '-ZZ - , personally
known to me ( etary-evrderrceJ 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.
M. SUSAN DIEGO
Commission # 1173476
Notary Publlc - California
Y " ` Orange County
Notary Public in and for said State qPMV COMM. EVireS Feb IZ2=
(This area for official notarial seal)
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
' �YV 1999, r
On (��� ,I before me, G� l�, CA�
personally appeared _ h� p��5 i., O��f,�(' personally
known to me (er—preyed �., on ti4e--basis_of-safisfac(sryevidence) to be the person(s)
whose name(s) is/a-Fe sLlhscribed to the within instrument and acknowledged to me that
he/s-he/tl-ey has executed the same in his/-I=fe heir authorized capacity(+es), and that by
his/her/th&-signature( } on the instrument the person(-&) or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
LEiLANI V. INES
Commission # 11709601
Notary Public - California
Orange County
,�� y Expires Jan 25, 2J02
(This area for official notarial seal)
LE1LAN V. INES
CommWon # 1170960
Notary Pubifcc - Cali#o►ttia
Orange County
My Comm. E4*M Jan 25, 2002
5
.1 P4 n
.lit — 'ld 7S0 Olga M 9t Id
it
�� n�r� •--- - 'ate g ' � I '� ��^ �11_�Im -_
o ,
I ,s ,y. ° ay d
g
I� o W y �1 =
• i � gqg W
1 (1
IL lL
O lL
J < 11• ;� 4 % iiii i ` �O n
I w
Z 3
LL
III O I_ 1 lit
`� I i0tl •� �YY
T
QQ
I a4u
' On
I• � � �� / LLl � � L 6
ate"
41 I 11I N
5 1
a 1# I 01