HomeMy WebLinkAboutC-8223-1 - Encroachment Agreement EPN N2016-0069 for the Intersection of Rue Villars Street and Big Canyon DriveDocument -1963227 -Page -1
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Page 1 of t
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
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Space above this line for Recorders use only.
Exempt from Recordation Fees Govt. Code § 27383
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2016-0069)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
25th day of July, 2016 2016, by and between the Canyon Lakes Community Association, a
California non-profit corporation ("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, City has a public utilities easement generally located at the intersection
of Rue Villars Street and Big Canyon Drive, and continuing through the middle of Rue
ViIlars, Newport Beach, California, 92660 and legally described as within Lot A of Tract
7800, as shown on a map recorded in Book 304, Pages 35 through 37 Inclusively, of
Miscellaneous Maps in the office of the County Recorder of Orange County ("Public Utilities
Easement');
WHEREAS, Owner is the vested owner of the underlying real property burdened by
the Public Utilities Easement;
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") over a section the Public Utilities
Easement;
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 the Public Utilities Easement; and
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:
Canyon Lakes Community Association Encroachment Agreement 1
about:blank 09/28/2016
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Space above this line for Recorder's use only.
Exempt from Recordation Fees Govt. Code § 27383
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2016-0069)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
25th day of July, 2016 2016, by and between the Canyon Lakes Community Association, a
California non-profit corporation ("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, City has a public utilities easement generally located at the intersection
of Rue Villars Street and Big Canyon Drive, and continuing through the middle of Rue
Villars, Newport Beach, California, 92660 and legally described as within Lot A of Tract
7800, as shown on a map recorded in Book 304, Pages 35 through 37 Inclusively, of
Miscellaneous Maps in the office of the County Recorder of Orange County ("Public Utilities
Easement");
WHEREAS, Owner is the vested owner of the underlying real property burdened by
the Public Utilities Easement;
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") over a section the Public Utilities
Easement;
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 the Public Utilities Easement; and
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:
Canyon Lakes Community Association Encroachment Agreement 1
I . City and Owner acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference into this Agreement.
2. It is mutually agreed that Permitted Improvements shall be defined as:
a. 1,680 square feet of decorative paving constructed of tan colored stone
pavers within the Public Utilities Easement over a section of Rue Villars, as
approved by the Public Works Department and as shown on Exhibit A,
attached hereto and incorporated herein by reference.
b. 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 the specified portion of the Public Utilities Easement, 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 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, 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. Should City be required to enter onto said Public Utilities Easement to
exercise its primary rights associated with said Public Utilities Easement,
including but not limited to, the maintenance, removal, repair, renewal,
Canyon Lakes Community Association Encroachment Agreement 2
replacement or enlargement of existing or future public facilities or
improvements, 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 parry, 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 Public Utilities Easement 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 land, whether fee or otherwise;
and shall be recorded in the Office of the County Recorder of Orange County,
California.
10. The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be adjudicated in
a court of competent jurisdiction in the County of Orange, California.
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
Canyon Lakes Community Association Encroachment Agreement 3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: `l 116
By:
Aaron C. Harp ae
City Attorney
ATTEST -
Date:
Date: " 4�
By: (4' t j -� KWI----
Leilani I. Brown
City Clerk
ATTACHMENTS
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:`��
Dave Kill
City Manager
OWNER(S): Canyon Lakes Communitv
Date: q k4l �u
V
By: /0
nny aria Duke
Treasurer
[END OF SIGNATURES]
Owners must sign in the presence of notary public
Exhibit A — Permitted Improvements Plan as Approved by
Public Works
Canyon Lakes Community Association Encroachment Agreement 5
the authorship of the Agreement or any other rule of construction which might
otherwise apply.
12. This Agreement represents the full and complete 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 be 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 or 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 NEXT PAGE]
Canyon Lakes Community Association Encroachment Agreement 4
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of
ss.
[OR
me,
me on the basis of satisfactory evidencd to be the pert
within instrument and acknowledged to me that he(
authorized capacity(104,and that by his/ signatl
entity upon behalf of which the personX acted, executed
11�Ic1,1 �>ap1.1m`z Notary
,2.. , who proved to
�hose name(a'Fsare subscribe to the
executed thame in his a their
n the instrumthe person or the
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
GRISELCA SAPIENS
WITNESS my hand and official sealCommission # 1994507 Z
i_o`', Notary Public - California z
Z `t=' Orange County
My Comm. Expires Oct 19, 2016
S)gnature (seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of� r
On
before me,
on the basis of satisfactory evidence to belthe OersonW whose names,) is/are
instrument and acknowledged to me that he/stye/they executed the same In
capacityNs), and that by hisnwltheir signatures(s) on the instrument the pers
behalf of which the person(s) acted, executed the instrument.
Notary
_, proved to me
ribed to the within
,r)their authorized
or the entity upon
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. LAURIE A. NEMS
Commission # 2124633
Notary Public - California,2
tu 23 23, 2Orange County
Comm.CE fires 019
Si ature (seal)
Canyon Lakes Community Association Encroachment Agreement 6
EXHIBIT A
PERMITTED IMPROVEMENTS PLAN
Canyon Lakes Community Association Encroachment Agreement A-1
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