HomeMy WebLinkAboutC-9032-1 - Encroachment Agreement EPN N99-446 for 1821 Kings RoadN �
RECORDING REQUESTED AND Recorded in the county of orange, California
CIA.o WHEN RECORDED RETURN TO: Gary
IIII IIII IIII IIIIIIII IlllIlk/RecoNOeFeL
I Public Works Department 19990812268 08; 52dm 11/24/99
1U City of Newport Beach 005 19012959 19 61
Post Office Box 1768 Al2 7 6.00 18.00 0.00 0.00 0.00 0.00
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT )
(EP99-446)
�6
THIS AGREEMENT is made and entered into this Ml h day nf
- - J -
A n 1999, by and between The Hill Family Trust, Rush N. Hill II, Trustee
(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 1821 Kings Road, Newport Beach, California and
legally described as Lr.t 7, Tract 1221 (hereinafter "SUBJECT PROPERTY"), as shown
on a map recorded in Book 41, Page 11 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 Road right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 7, Tract 1221, as shown
on a map recorded in Book 41, Page 11 inclusively of Miscellaneous Maps in the office
of the County Recorder of Orange County, California; also known as 1821 Kings Road,
Newport Beach, California; and
WHEREAS, said PERMITTED IMPROVEMENTS may in rfere in the future with
CITY'S ability to construct, operate, maintain, and replace :;ITY and other public
facilities and improvements within RIGHT-OF-WAY; and
11
WHEREAS; the parties hereto desire to execute an agreement providing for fulfillment
of the conditions requirc;J.i 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 IMPROVEMI:=NTS shall be defined as
exposed pea gravel colored concrete/stone driveway/approach, stone carriage walkway, two
(2)" planters with King" palm tree and low voltage lighting, cast stone mailbox, landscaping,
and appurtenances in the Kings Road right-of-way as shown on EXHIBIT "A" attached hereto
and as approved by the City Engineer. All landscaping shall not block view and/or exceed 3-
feet in height within 5' from the back of curb in the Kings Road right-of-way. 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 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 IMPK(_- VEMENTS in accordance
with general prevailing standards of maintenance, and pay all cost: 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 PERfJ!ITTED IMPROVEMENTS,
as required, and in such e,!ent:
(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 (ermination. In the event of litigation commenced with respect o
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 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 sI !it
arising from or in any manner connected with the design, construction, maintenance, or
continued existence of the PERMITTED IMPROVEMENTS.
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 frorn 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:
l
By:
City Attorney
AT1
City Clerk
F:\WP51 \GI LBERT\AG\HILLEP99-446CH.DOC
By:
City Mana er
OWNER: The Hill Family Trust
B, 1 _
ush . Hill II, Trustee
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
5 �� personally On �� �� 1999, before me, �^
L ` personally —known me (or roved to me on the basis of
satisfactory evidence) to be the person( whose name\j is re subscribed to the within
instrument and acknowledged to me that he/ he/they his execute(' the same in his her/their
authorized capacity(i�), and that by'his er/their signature(q 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 a for said State
CATHY rISHER
Commission # 1174329
< Notary Public - Ccalifomia
7 Orange County
MY Comm. Expires Feb 21, 2002
(This area for official notarial seal)
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On '30 199
9, before me personally appeared
personally known me
IL
I e ' e rso (s) whose n (s is/ rem ubscribed to the wi n
instrument and ack wledged to me th he/ he executed the same in his/her heir
authorized capacity ies , and that by his/he t it slgnatur (s� on the instrument the perso s
or the entity upon behalf of which the person s acted, executed the instrument.
WITNESS my hand and official seal.
—C�'�'� A"A' Q--F
Notary Public in a fo said State
Commission # 1 174329
Notary Public California
orange County
My Comm. Expires Feb 21, 2002
(This area for official notarial seal)
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