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HomeMy WebLinkAboutC-3714 - Encroachment Agreement EPN N2013-0062 for 400 Catalina DriveRECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 SCANNED Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder 1131124111111111 �Ig *II NO FEE $o o 0 6 2013000554221 8:03 am 09126113 47 422 Al2 7 0.00 0.00 0.00 0.00 18.00 0.00 0.00 0.00 Exempt from Recording Fees Pursuant to Government Code §§ 6103 & 27383 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN 2013-eri621 HIS ENCROAC ENT A REEMENT ("Agreement") is made and entered into this �i day of Rsr , 2013, by and between Robert and Jennifer Jackson, husband and wife ( Owner"), and the City of Newport Beach, California, a California municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California ("City"). WITNESSETH: WHEREAS, Owner is the vested owner of property located at 400 Catalina Drive, Newport Beach, California 92663 and legally described as Lot 12, Block 12 of Tract 27, as shown on a map recorded in Book 9, Page 26 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 049-071-27 ("Property"). WHEREAS, Owner has constructed certain non-standard improvements as further described herein ("Improvements") within the City's Sewer Easement (hereinafter "Easement") that is located on the Property. WHEREAS, said Improvements may interfere in the future with City's ability to construct, operate, maintain, and replace City and other public facilities and improvements within said Easement; WHEREAS, City desires to transfer the existing sewer lateral existing under the Improvements to the Owner; and NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1. It is mutually agreed that Improvements shall be defined as: a. The existing foundation and residential structure that encroaches upon the City's Easement. 2. It is mutually agreed that Transferred Improvements shall be defined as: a. The existing sewer lateral which extends from the City's sewer main to the residential structure as shown on EXHIBIT "A" attached hereto. 3. Owner and City further agree as follows: a. Owner shall maintain the Transferred Improvements in accordance with generally prevailing standards of maintenance, and pay all costs and expenses incurred in doing so. b. If City or other public facilities or improvements are damaged by the installation or presence of the Improvements, Owner shall be responsible for the cost of repairs. c. That should City be required to enter onto said Easement to exercise its primary rights associated with said Easement, 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 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 Improvements affected by such work by City in accordance with the current laws existing at the time of the renewal, replacement, or restoration of the Improvements. iii) City agrees to bear only the cost of any removal of the Transferred Improvements affected by such work by City. iv) Owner agrees to pay all costs for the renewal, replacement, or restoration of the Improvements in accordance with the current laws existing at the time of the renewal, replacement, or restoration of the Improvements. 4. 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 Easement and remove all or part of the Improvements. Termination because of breach shall be upon a minimum of ten (10) calendar 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 not be entitled to reasonable attorneys fees and costs incurred. 5. Owner shall defend, indemnify and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, Encroachment Agreement Page 12 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 Improvements. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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] Encroachment Agreement Page 13 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 111S/0 Date: By: Aaron C. Harp, City Attorney ATTEST: q. Date: By: Lei ant Brown, City Clerk ATTACHMENTS: CITY OF NEWPORT BEACH, a California Municipalucorporation Date: If! q f ! 3 B r avid City a . • er OWNER(s): Date: � By: R be Jackson Date: 012.210 By: [END OF SIGNATURES] Owners must sign in the presence of notary public EXHIBIT A —Existing Sewer Lateral Encroachment Agreement Page 14 LJ I❑ Lv"'.c.kid`c-G`.C;�,c,`�%g�cv`�Ei'�U^�(.`� CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of I'G 'lC -C_ On-CC?Cefi.(Er4,,,i before me, Date personally appeared } 14; w. I\I0-fary T(L li c, Here In Name/and Title of the Officer Name(s) of Signer(s) KIM RIEFF Commission # 1967536 Notary Public - California Orange County IA Comm. • Ues Jan 26 2016 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person whose name is/aP6 subscribed to the within instrument and acknowledged to me that he/sbe/tb•ey- executed the same in his/beithOauthorized capacity,ies) and that by his/hpr/the signature,(s(on the instrument the person(); or the entity upon behalf of which the person(,sracted, 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. Signature: OPTIONAL Signature of Notary Public Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: Number of Pages: ❑ Corporate Officer — Title(s): 1, Individual Partner — ❑ Limited ❑ General Attorney in Fact Trustee Guardian or Conservator Other: Signer Is Representing: RIGHT THUI OF SIG PRINT R Top of thumb here Hi Corporate Officer — Title(s): 11 Individual ❑ Partner — Limited -! General El Attorney in Fact ❑ Trustee 111 Guardian or Conservator ❑ Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here © 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 ACKNOWLEDGMENT State of California County of (Jyr&Y C:tL . } ss. On t o, -'t L2 before me, f�nn r .iqua•(' 11 c> Notary Pubic, personally appeared 2.c harA j.kb- C nn ,who 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 executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), 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. PENNY AUTUMN aCOMM. #1925372 z cc Notary Public • California ' B. z Orange County My Comm. Expires Feb. 12, 2015 ACKNOWLEDGMENT State of California County of } ss. On before me, Notary Public, personally appeared ,who 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 executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), 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. Signature (seal) Encroachment Agreement Page 15 Transferred Improvements: Existing sewer lateral located below the residential structure. 0 20 40 Feet Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. Imagery: 2009-2011 photos provided by Eagle Imaging www.eagleaerial.com Owner: Robert and Jennifer Jackson Address: 400 Catalina Drive 7/5/2013 N2013-0062 Exhibt "A" Page 1 of 1