HomeMy WebLinkAboutC-9128-1 - Encroachment Agreement EPN N2005-0427 for 2216 Cliff DriveN
RECORDING REQUESTED AND
i WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recoided in Official Records, Orange County
Torn Daly, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(EPN2005-0427)
THIS AGREEMENT is made and entered into this day of
OC'"U�Wr_ , 2005, by and between Greg Reese and Susan Harvey -Reese, trustees
of the G & S Reese Family Trust, (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 2216 Cliff Drive, Newport Beach, California 92663 and legally
described as Lot 2, Block 5 of Tract 919, as shown on a map recorded in Book 29, Pages 31
through 34 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 Cliff Drive right-of-way (hereinafter
"RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot 2, Block 5 of
Tract 919, as shown on a map recorded in Book 29, Pages 31 through 39 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, California; also
known as 2216 Cliff Drive, Newport Beach, 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
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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, 3'
high retaining wall located 5' from face of curb with a tan stucco finish and stairs with 42"
handrails in the Cliff Drive 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, 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 by CITY at any time by
giving 60-day 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 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 require OWNER to maintain,
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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 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.
Termination because of breach shall be upon a minimum of ten- (10) day 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.
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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.
APPROV D AS TO FORM:
/� SS i-CILkA• t— City Attorney
ATTEST:
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
City M ager
OWNER: G & S Reese Family Trust
By: "'4,J ���
&red Reese, Trustee
By: 4oki
s n H e -Reese, Trustee
0
STATE OF CALIFORNIA
) ss:
COUNTY OF ORANGE ) _
('ck �r
On 3 ( , 200s, before me,
personally appeared C f � Rees 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.
M OWLE JOHWN ON `f' MICHELLE JOHNS'
WITNESS my hand and official seal. s CornmhMon01442Q38 Comm"onN 1442':
i Notary Pulft — Coutorniq z Notary PubN% Coliro nic i
ConwOrange�County Orono* County
My 3Q 2W M C e* N 30, 2007
otary Public in an or said State
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE )
On oC'�c JPY 31 , 2(
personally appeared 6us(f- v-\
(This area for official notarial seal)
before me, M44'Q'
r vNI -
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. MICHELLEJOHNSON
s Comminlon N 1442938
t Notary Public — ColltornIVO
Orange County
My Comm. E a
Notary Public in and or said State
(This area for official notarial seal)
F:\USERS\PBW\Shared\ENCROACH\ROW Agreements\2005\N2005-0427 2216 Cliff Dr(Reese).doc
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EXISTING ELEVATIONS
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SIDEWALK AS REQ'D BY PUBLIC WORKS
WOW IN PUBLIC RIGHT OF WAY TO BE UNDER
SEPARATE ENCROACHMENT PERMIT.
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EXIST. WALL - DEMO
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PROPOSED NEW CRIB (RETAINING) WAL�
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SEE GRADING PLAN AND LANDSC. FOR
PILASTER BEYOND
L
EXIST. GRADE LINE
MAX, HAT WITHOUT A GUARDRAIL
3FT MAX. N.A. TO T.W.
NEW WALL • CM
W/ EXTERIOR PLASTER
TO MATCH ADJACENT WALL
EXIST. WALL - DEMO -
LOW WALL FTG - SEE ENGRG DETAIL -/
KEYSTONE WALL FTG - SEE ENGRG DIGS / CALCS
. 3a�3
CITY CLERK'S ACKNOWLEDGMENT
State of California
County of Orange
On November 8 , 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 8th day of November
CAPACITY OF SIGNER
Municipal Corporation Officer
City Manager
SIGNER IS REPRESENTING:
2005.
WITNESS my hand and official seal.
oclV �� lyh , 144�
LAVONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
DESCRIPTION OF ATTACHED
DOCUMENT:
Encroachment Agreement
EPN2005-0427
# of Pages 9
City of Newport Beach Document Date: 10/31/2005
Signer(s) other than named:
Greg Reese & Susan Harvey -Reese
Aaron C. Harp