HomeMy WebLinkAboutC-3104 - Encroachment Agreement EPN N2013-0201 for 460 Catalina DriveSCANNED
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Recorded in Official Records, Orange County
Hugh Nguyen Clerk -Recorder
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2013000466570 3:04 pm 08/05/13
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Exempt from recording fees pursuant to Govt. Code section 27383
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2013-0201)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this 25th day of July, 2013, by and between SCEL Properties LLC, a Delaware limited
liability company ("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 460 Catalina Drive,
Newport Beach, California 92663 and legally described as Lot 7, Block 21 of Tract First
Addition to Newport Heights, 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 425-093-02 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Catalina Drive right-of-
way (hereinafter "Right -of -Way") that is located adjacent to Property;
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
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:
1. 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. A variable width entry walkway with widths from 5-feet to 12-feet
constructed with gray colored concrete with diamond shaped score lines,
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 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
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 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 Permitted Improvements, as required, and in such
event:
SCEL Properties LLC Encroachment Agreement 2
(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 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 the authorship of the Agreement or any other rule of construction which
might otherwise apply.
SCEL Properties LLC Encroachment Agreement 3
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]
SCEL Properties LLC Encroachment Agreement 4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTO NEY'S OFFICE a California municipal corporation
Date: 7�a/% Date: ?- JD" 13
By:
Aare. Harp
City Attorney
ATTEST:
Date: 1. 30.13
By:
Leilani I. Brown
City Clerk
By:
Dave
\Y City Manager
OWNER(S): SCEL Properties LLC
Date: 4- ' 1 • 13
By:
Jonathan Mark Bruce
President, SCEL Prof-rti LLC
Date: 7 / f i / .
By:
Brian Eid
Treasurer/Asst. Secretary, SCEL
Properties LLC
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENT: Exhibit A —Permitted Improvements Plan as Approved by
Public Works
SCEL Properties LLC Encroachment Agreement 5
State of California
County of oit.9.v4,4_
ACKNOWLEDGMENT
} ss.
On .7 ?,3 , 20 /3 before me,
c/vsy,,,. M. /1/4.+4v.-0.r,i.✓ , Notary Public, personally appeared
✓o.v.0745.9i../ rY owek- /,t✓ci_ '6G'4-79 , who
proved to me on the basis of satisfactory evidence to be the person(,s1 whose name() is/aFe
subscribed to the within instrument and acknowledged to me that he%sh&tt%y executed the
same in his/her/thcir authorized capacityE+es), and that by his/I,er/li r8ir signatures(.>) on the
instrument the person('), or the entity upon behalf of which the personfA acted, executed the
instrument.
I certify under PENALTY OF PERJURY
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
State of California
County of or2.04.44`
under the laws of the State of California that the
�PSen'.rFsJUSTIN M. HENDERSON
C0 NIrtil # 1944843
NOTARY PUBLIC•CALIFORNIA
ORANGE COUNTY N
('Fold t' MY COMM. EXP. July 21, 2015
ACKNOWLEDGMENT
} ss.
(seal)
On 7/p/3 20 /3 before me,
t/vl. , Notary Public, personally appeared
/x¢/4rr/ i_f_2/D , who
proved to me on the basis of satisfactory evidence to be the person(p) whose name( is/as
subscribed to the within instrument and acknowledged to me that he/sl ie/they executed the
same in his/her/their authorized capacity(ies-) and that by his/ire,/their signatures(s) on the
instrument the person(,s-), or the entity upon behalf of which the person 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.
•
JUSTIN M. HENDERSON
5LA Uf j
e ': ";. Comm. # 1944843 XI
NOTARY PUC3LIC•CALIFORNIA
OANGE COUNTY
CIO RV# MY COMM. EXP. July 21, 2015
(seal)
SCEL Properties LLC Encroachment Agreement 6
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Exhibit "A"
Sheet 1 of 1