HomeMy WebLinkAboutC-9221-1 - Encroachment Agreement EPN EP97-461 for 2500 Cliff DriveRECORDING REQUESTED AND
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WHEN RECORDED RETURN TO:
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Public Works Department
City of Newport Beach
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Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in the County of Orange, California
Gary L. Granville, Clerk/Recorder
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ENCROACHMENT AGREEMENT
(EP97-461)
THIS AGREEMENT is made and entered into this '/� day of
6tcl 1997, by and between Ivan Page Sowers (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 2500 Cliff
Drive, Newport Beach, California and legally described as Lot 1, Block 2, Tract 919, as
shown on a map recorded in Book 29, Page 32 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 and El Modena
Avenue right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 1,
Block 2, Tract 919, as shown on a map recorded in Book 29, Page 32 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, California;
also known as 2500 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 partie- , iereto desire to execute an agreem. , it providing for fulfillment
of the conditions required 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 IMPROVEMENTS shall be defined as
grouted brick carriage walkway, grouted brick walkway, 4-foot high grouted brick mailbox,
landscaping (Star Jasmine, Juniperus Chinensis, Azalea, Bare Root Rosea, Dusty Miller), and
appurtenances in the Cliff Drive and El Modena Avenue right -of -away as shown on EXHIBIT
"A" attached hereto and as approved by the City Engineer. In addition, all landscaping shall
not exceed 8-feet in height.
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 shu., maintain the PERMITTED IMPRO. _MENTS in accordance
with general 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.
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 brew., shall be upon a minimum of ten (1,-, days' 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.
6. OWNER shall 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 agree 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.
APPROVED AS TO FORM:
By:
City Attorney
ATTEST:
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
OWNER:
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STATE OF CALIFORNIA
) ss:
COUNTY OF ORANGE )
On 1997, before me, personally appeared
-T11 V\ P�C1�, ,�rnnJ�f personally known to met or proved to me on the basis of
satisfactory vidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they his 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
Nota Public in and for sa'd tate
Monica S. Kutz
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Comm #1013469
NOTARY PUBLIC CALIFORNIA"'
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ORANGE COUNTY
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Comm Expires Jan. 13. 1998 '4
(This area for official notarial seal)
STATE OF CALIFORNIA )
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COUNTY OF ORANGE )
O G �3 997 before me`v XaJen4 4 `t ersonall a eared
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f/ e � c'S5 , personally known to (or oved to me on the
e basis of
satisf ctory evidence) to be the persoI6i(�whose nam® i are subscribed to the wit in
instrument and acknowledged to me that he/she>fi�y executed the same in his/h
authorized capac' les and that by his/he hel slgnatur4& on the instrument the perso
or the entity upon behalf of which the person cted, executed the instrument.
WITNESS my hand and official seal.
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Notary Public in a for said tate
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SHAUNA LYN OYLER
Commission # 1164149
Notary Public - California
Orange County
My Comm. Expires Dec S, 2001
(This area for official notarial seal)
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