HomeMy WebLinkAboutC-3444 - Encroachment Agreement EPN N2006-0241 for 317 East Bay FrontRECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in Official Records. orange County
Tom Daly, Clerk -Recorder
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2007000531645 10:08am 08/28/07
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2006-0241)
THIS AGREEMENT is made and entered into this 14th day of August, 2007, by and
between Eugene J. and Karen M. Lippnik (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 317 East Bay Front, Newport Beach, California
92662 and legally described as Lot 27 of Tract 742 in the City of Newport Beach, County of
Orange, State of California as shown on a map recorded in Book 23, Page 42 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 East Bay Front right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot
27 of Tract 742, as shown on a map recorded in Book 23, Page 42 of Miscellaneous Maps in
the office of the County Recorder of Orange County, California; also known as 317 East Bay
Front, Newport Beach, California 92662; 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
1
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:
(1) A 1-foot high brick planter wall and planter within 2.5-feet of the back of
existing sidewalk planted with ground cover and shrubs not to exceed 1-
feet in height measured from the top of the 1-foot high planter wall;
(2) A 3-foot high brick wall and 1-foot wide planter area located 2.5-feet from
the back of existing sidewalk;
(3) A raised patio constructed with standard colored concrete located 4.5-feet
from the back of walk to property line;
and appurtenances in the East Bay Front 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
2
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, 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.
3
(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.
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
4
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.
CITY OF NEWPORT BEACH,
a Municipal corporation
APPROVED AS TO FORM:
By: l�&OQ- I'7. It a) By:
•
Aaron Harp, Asst. City Attorney
ATTEST:
By
La'Vonne Harkless, City Clerk
Homer Bludau, Lity Manager
OWNER:
B
Bv.
Euge J. Lippn't
F:\Users\PBW\Shared\ENCROACH\ROW Agreements\2006\N2006-0241-317 East Bay Front Revised.doc
6
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On PAiVtJi' \. ' , 2001', before me, -Tha D - L Jo Y-e-
personally appeared r✓ AlC'- L i,op Y1I k ,-per-senaffy known to
e (or proved to me on the basis of satisfactory evidence) to be the person(,$). whose name(s) is/aie
subscribed to the within instrument and acknowledged to me that he/she/they has executed the same
in his/her/Muir authorized capacity(ies-), and that by his/herkheir 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. - � THAUA DE LA TORRE
' Commission # 17161E+6
t '" Notary Public - California
n % Orange county
Notary Public in and for said State
(This area for official notarial seal)
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On 'ti t- \S-} 1*v 200 before me, 'Mc\ De La -rave
L
personally appeared
�aYe� t- Ltppn '-
me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/at=e
subscribed to the within instrument and acknowledged to me that Ise/she/they has executed the same
in Ns/her/their authorized capacity(iies), and that by-his/her/their signature* on the instrument the
person(Es) or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
iladie (6-e
Notary Public in and for said State
THALIA DE LA TORRE
Commission 11746156
Notary Public - California J
Orange County -
(This area for official notarial seal)
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State of California
County of Orange
CITY CLERK'S ACKNOWLEDGMENT
)
)
)
On August 20 , 2007, 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 person acted, executed the instrument.
Dated this 20th day of August 2007.
WITNESS my hand and official seal.
971"-C...-
LAVONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
CAPACITY OF SIGNER DESCRIPTION OF ATTACHED
DOCUMENT:
Municipal Corporation Officer Encroachment Agreement
City Manager EPN2006-0241
SIGNER IS REPRESENTING: # of Pages 10
City of Newport Beach Document Date: August 14, 2007
Signer(s) other than named:
Eugene J. and Karen M. Lippnik
Donna Bigi
14c
I7
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
IIIIIIIIIIIIIIIIIIIII IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIiIIlllllllll NO FEE
2006000357943 01:50pm 05/26/06
121 159 Al2 9
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2006-0241)
HIS AGREEMENT is made and entered into this ) 3 day of
t
2006, by and between Eugene J. and Karen M. Lippnik (hereinafter
"OWNER" 5, 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 317 East Bay
Front, Newport Beach, California 92662 and legally described as Lot 27 of Tract 742, as
shown on a map recorded in Book 23, Page 42 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 East Bay Front right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot
27 of Tract 742, as shown on a map recorded in Book 23, Page 42 of Miscellaneous Maps in
the office of the County Recorder of Orange County, California; also known as 317 East Bay
Front, Newport Beach, California 92662; 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
I\
1
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 (1)
a 1 foot high stone planter wall and planter within 2.5 feet of the back of existing sidewalk
planted with ground cover and shrubs not to exceed 1 feet in height measured from the top of
the 1 foot high planter wall; (2) a 3 foot high stone wall and 1 foot wide planter area located 2.5
from the back of walk; (3) a raised patio constructed with standard colored concrete located
4.5 feet from the back of walk to property line; and appurtenances in the East Bay Front 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.
2
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,
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
3
any term of condition of this Agreement, the prevailing party shall be entitled to reasonable
attorneys fees and costs incurred.
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.
4
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:
-� �- CV
By:�^—
a
Aaron Harp, Asst. City Attorney
ATTEST:
LaVonne Harkless, City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
Homer Blu/c/Agge
anager
OWNER:
By:
By:
Eugene q ippni
F:\Users\PBW\Shared\ENCROACH\ROW Agreements\2006\N2006-0241-317 East Bay Front (Lippnik).doc
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APPLI1
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
ss:
On /I'6/ (', 2006, before me, tiz.. bQ
j y r
personally appeared p, L,c"e'>n (-)1? i i , per-senaily-k-Ftewft-te
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.
Not ry Public in and for said State
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
ss:
EVA DE LA TORRE
Commission # 1514523
Notary Public - California
Orange County
My Comm. Expires Oct 14, 2008
(This area for official notarial seal)
On A4 / r , 200 C, Wore me,EV4 be (tom�(d'� iv64-o.��� pdb/lc_ .
personally a ealfed �a Q r1 l --- —' p yappealed �"t' /V l ' D , perserfewn=t�
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.
$14
Notary Public in and for said State
EVA DE LA TORRE
Commission # 1514523
Notary Public - California t
Orange County
My Comm. Expires Oct 14, 2008
(This area for official notarial seal)
6
CITY CLERK'S ACKNOWLEDGMENT
State of California
County of Orange
On May 24 , 2006, 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 person acted, executed the instrument.
Dated this 24th day of May
2006.
WITNESS my hand and official seal.
LAVONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
CAPACITY OF SIGNER DESCRIPTION OF ATTACHED
DOCUMENT:
Municipal Corporation Officer Encroachment Agreement
City Manager EPN2006-0241
SIGNER IS REPRESENTING: # of Pages 9
City of Newport Beach
Document Date: 05-18-2006
Signer(s) other than named:
Eugene J. and Karen M. Lippnik
Aaron Harp