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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 Nt gh Nguyen Clerk-R3cor let 11 II'I it 0: llhIIIIIII III illl n$ N 0 0 0 t, 8 4 i 4 2 3 ti+ 2014000290893 11:50 am 07122114 65 413 Al2 F13 7 0.00 0.00 0.00 0.00 18.00 0.00 0.00 0.00 ounty 27.00 Space above this line For Recorder's use only. 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: It,rr' i leFC 1.)V in(s:) .)c7 }I€'.(a )V• it ilCr 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 IY d..•YE1�•' tll� rC; �IJt7il:,Ih1G I08` Li YIliiKK"„ :<< GOUT e)l Iapait. 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 iulatitN ies ii ancl `tiy dCUUn biUL�{ ;1dfUdll;Bi;a:;! iti =! C') '[ Ui COIIIl1U1s:'lit J II ,CliUi,jt@, ist lis'': Ot.IJity 41I p,ff Csalifornia. 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) Jmtww& 201s 6 'pA.LL (Cream colored r smooth stucco) '1 0 tl b Nt ii 1 / : 1T/1FLTj T GUR / L 1 1 1» 1; Stair risers and landings (Creamand gray colored stone with metal/iron handrails) Owner; Case Family Trust Address: 2704 Cliff Drive b / N.c N2014-0156 Exhibit Page 1 of 1