HomeMy WebLinkAboutC-5926 - Encroachment Agreement EPN N2014-0156 for 2704 Cliff Drivecr
COPY
CCO NOT OFR
ihlir; V\/orks l)eparrirnent
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 926588915
Recorded in officinl Records, Carat
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ENCROACHMENT AGREEMENT
(Encroachment Perrnit Number N2014-0156)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this 19th day of June, 2014, by and between Steven M. Case and Linda E. Case as
Trustees of the Case Family Trust dated August 22, 2005 ("Owner'), and the City of
Newport Beach, a California municipal corporation and charter city, organized and
existing under and by virtue of its Charter and the Constitution, and the laws of the State
of California ("City").
RECITALS
WHEREAS, Owner is the vested owner of property located at 2704 Cliff Drive,
Newport Beach, California 92663 and legally described as Lot 4, Block 24 of the First
Addition to Newport Heights Tract, as shown on a map recorded in Book 4, Page 94 of
Miscellaneous Maps in the office of the County Recorder of Orange County, County
Assessor's Parcel Number 049-031-19 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Cliff Drive right-of-way
(hereinafter "Right -of -Way") that is located adjacent to Property;
WI-IEREAS, 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 City Council for the City of Newport Beach considered and
approved these non-standard improvements at a regular meeting on May 13, 2014;
WHEREAS, the parties hereto desire to enter into this 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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2. It is n�ntually agi'eru]'ilrat t'eniiilled I ni)rovenic�nts.hull I30. defined LL:
a. 36-inch retaining wall constructed or cream colored smooth stucco
encroaching up to 74eet 6-inch into the Cliff Drive right-of-way; and
b. Stair risers and landings constructed of cream and gray colored stone with
metal/iron handrail encroaching up to 7-feet 6--inches into the Cliff Drive
right-of-way as approved by the Public Works Department and as shown
on Exhibit A, attached hereto and incorporated herein by reference.
c. In addition, if any improvements actually built or installed during the time
of construction vary from 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.
3. 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 City. City will further allow Owner to take all
reasonable measures necessary or convenient in accomplishing the aforesaid
activities.
4. Rights granted under this Agreement may be terminated by City with or without
cause and at any time without notice. City shall make good faith efforts to
provide sixty (60) calendar days' notice in advance of termination, 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.
5. 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 City's Public Works Department, and as
described on Exhibit A.
b. Owner shall maintain Permitted Improvements in accordance with
generaily 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.
Case Family Trust Encroachment Agreement
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d. should City be required to enter onto said Right -of -Way to exercise its
primary rights associated with said fright -of -Way, including but not limited
to, the maintenance, removal, repair, renewal, replacement or
enlargement of existing or future public facilities or irnprovements, City
may remove portions of 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 Permitted Improvements affected by
such work by City.
(iii) City agrees to bear only the cost of any removal of Permitted
Improvements affected by such work by City.
(iv) Owner agrees to pay all costs for the renewal, replacement, or
restoration of Permitted Improvements.
6. 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 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) calendar days' notice, with the notice specifying the date of termination.
7. In the event of any dispute or legal action arising under this Agreement, the
prevailing party shall not be entitled to attorneys' fees.
8. 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
Permitted Improvements.
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 Owner's interest in the and, whether fee or
otherwise; and shall be recorded in the Office of the County Recorder of Orange
County, California.
Case Family Trust Encroachment Agreement
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11. 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 construction which
might otherwise apply.
12. This Agreement represents the full and cornplete 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 he held to vary the provisions herein.
13. 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 any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same er a different character.
14. 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.
15. 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.
[SIGNATURES ON NI=-XT PAGE]
Case Family Trust Encroachment Agreement
APPROVES) AS TO FORM:
CITY AiTOttNSY S OFF!CE
Date: ( /Lhj i
i
By:
Aaron `G. Warp
City Attorney
ATTEST:
Date:
:aalo�sr,
CUfV OF NEWPORT BEACH,
a California municipal corporation
Date: +` t —
By:
Dav
Icy City Manager
OWNER(S): Steven M. Case and Linda
E. Case, Trustees of the Case Family
Trust dated August 22, 2005
Date:
By.
�HJ i.# Y
Y> .,
Stevern`W Case
Trustee
Leilani I. Brown
City CI,
ATTACHMENT:
Date:
By:
Lind. Case
Trustee
[END OF SIGNATURES]
Owners must sign in the presence of notary public
Exhibit A —Permitted Improvements Plan as Approved by
Public Works
Case Family Trust Encroachment Agreement
ilaaio ot clalii(? ru
County of _'
On
J ss.
( lti / Id 20 before me,
¥r - C c7t.. 1. • r ,1t,meW ry<=T Notary Public, personally appeared
who
proved to me on the basis of satisfactory evidence to be the person(s)'whose names) is/are
subscribed to the within instrument and acknowledged to me that he/sh&tbey executed the
same in his/ber/their authorized capacity(je), and that by his/jeer/th„sir signatures(s) on the
instrument the persons}, 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.
State of California
County of (9 V k L
On L' `M btu. ) (
L `��1 T,t fat l Notary Public, personally appeared
•(- (` z4< who
proved to me on the basis of satisfactory evidence to be the person(s'j whose nameks) islard
subscribed to the within instrument and acknowledged to me that -he/she/they executed the
same in hr/her/tbelt authorized capacity(Jes), and that by his/her/thef signatures(s7 on the
instrument the person(sj or the entity upon behalf of which the person(s) acted, executed the
instrument.
ACKNOWLEDGMENT
} ss.
(seal)
�w
omml8810n No. 7920989
NOTARY nuoLIC•CAupoRNIA
ORANUE COUNTY
Cam* Egwrae JANUANYY,
L. S. JACKSON
20 24 before me,
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.
Signature
Case Family Trust Encroachment Agreement
L S. JACKSON
Commission No. 7920989
NOTARY PUBLIC•CALIPORNIA
ORANGECOUNTY (seal)
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Stair risers and landings
(Creamand gray colored
stone with metal/iron
handrails)
Owner; Case Family Trust
Address: 2704 Cliff Drive
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N.c
N2014-0156 Exhibit
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