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HomeMy WebLinkAboutC-3112 - Encroachment Agreement EPN N2013-0204 for 233 Morning Canyon RoadRECORDING 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 1111 I 1111 7II INN I I$�I *II 30.00 *SR 0 0 0 2014000010701 9:02 am 01110114 47 422 Al2 F13 8 0.00 0.00 0.00 0.00 21.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2013-0204) THIS ENCROACHMENT AGREEMENT ("Agreement") supersedes the Encroachment Agreement recorded on July 22, 2013 as Official Record No. 2013- 000436169 in Office of the County Recorder of Orange County, State of California. THIS AGREEMENT is made and entered into this 10th day of December, 2013, by and between PLEASANTVILLE ROAD PARTNERS, LLC, a New Jersey 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 233 Morning Canyon Road, Newport Beach, California 92625 and legally described as Lot 9 of Tract 1116, as shown on a map recorded in Book 36, Pages 19 through 20 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 052-201-23 ("Property"); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Morning Canyon Road 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 decorative entry walkway varying in width up to 10 feet constructed of stone pavers with brick ribbon, encroaching up to 10 feet into the Morning Canyon Road Right -of -Way; b. A 23-foot wide decorative curb opening constructed of colored concrete and brick ribbon, encroaching up to 10 feet into the Morning Canyon Road Right -of -Way; as approved by the Public Works Department and as shown on Exhibit A, attached hereto and incorporated herein by reference. c. 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. Pleasantville Road Partners, LLC Encroachment Agreement 2 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: (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. Pleasantville Road Partners, LLC Encroachment Agreement 3 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. 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] Pleasantville Road Partners, 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 ATTORNEY'S OFFICE Date: .2j _ 13 By: U,10(At I\/1 Lc? Aaron C. arp City Attor ey ATTEST: f I Date: 1 ` �` I By: a Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: 1 1 `-1 By: �AL---AN Dave `\1 City Manager OWNER(S): Pleasantville Road Partners, LLC, a New Jersey limited liability company Date: / /p i., By:. Steven Adler Manager Date: U/0//::5 By: eZ Debora Adler Manager [END OF SIGNATURES] Owners must sign in the presence of notary public ATTACHMENT: Exhibit A —Permitted Improvements Plan as Approved by Public Works Pleasantville Road Partners, LLC Encroachment Agreement 5 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of On ,2,t--k ' Lo "-i Date personally appeared } before me,ie-NNf(FE AMU lifIULvC11 tQ FFAK `j C ubucC Here Insert Name and TitIL of the Officer Name(s) of Signer(s) JENNIFER ANN MULVEY Commission # 2045022 Notary Public - California Orange County My Comm. Expires Oct 12, 2017 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person($ whose name(} is/ar6 subscribed to the within instrument and acknowledged to me that he/sly/they executed the same in his/hwithjair authorized capacity,(jes), and that by his/Ir/t signature() on the instrument the person(sy, 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 Signature: / OPTIONAL Though this section is optional, completing this information can deter alteration qf t e document or fraudulent reattachment of this form to an unintended documen -- nd and official seal. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): • Partner — ❑ Limited ❑ General • Individual D Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: © 2013 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 ACKNOWLEDGMENT State of eatifarrita N6C`' u' (66'1 County of OM,6`i'LSG-i } ss. On te f,G to 20 13 before me, L N 11\041\0134 , Notary Public, personally appeared S TE Veg.hr f f LGcC (Xb )1..,.----1 , 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. 141-6A,\aokA, LYNETTE D. MINNAAR ;OTARY PUBLIC OF NEW JERSEY My Commission Expires 7110/2018 Signature (seal) ACKNOWLEDGMENT State of California- N -S6`1 County of &S(T- } ss. �8 On zceyv1/4h4A, (0 201:3 before me, L YkGfl E MI istNA4411. , Notary Public, personally appeared 061331 / PLOK - , 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 LYNETTE D. MINNAAR NOTARY PUBLIC OF NEW JERSEY My Commission Expires 711012018 (seal) Pleasantville Road Partners, LLC Encroachment Agreement 6 6' HIGH WOOD :E 4 GATE NEW 1' HIGH BLOCK WALL PER THE NEWPORT BEACH BLOCK WALL STANDARDS Planting Note: SITE PLAN SCALE I/8".I'-0" N N2013-0204 - Exhibit A SCANNED 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 11 II II11 IU 1 I I II 111 II 27.°° *$ R 0 0 0 6 0 5 1 4 7 2$* 2013000436169 10:51 am 07122/13 47 422 Al2 F13 7 0.00 0.00 0.00 0.00 18.00 0.00 0.00 0.00 Exempt from recording fees pursuant to Govt. Code section 27383 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2013-0204) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 19th day of June, 2013, by and between Pleasantville Road Partners, LLC, a New Jersey Limited Liability Company ("Owner"), and the City of Newport Beach, California, 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 233 Morning Canyon Road, Newport Beach, California 92625 and legally described as Lot 9 of Tract 1116, as shown on a map recorded in Book 36, Pages 19 through 20 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 052-201-23 ("Property"); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Morning Canyon Road 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: 2. It is mutually agreed that Permitted Improvements shall be defined as: a. A decorative entry walkway varying in width up to 10 feet constructed of stone pavers with brick ribbon, encroaching up to 10 feet into Right -of - Way; b. A 15-foot wide decorative driveway approach constructed of concrete and brick ribbon, encroaching up to 10 feet into Right -of -Way, as approved by the Public Works Department and as shown on Exhibit A, attached hereto and incorporated herein by reference; and c. 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. Steven Adler and Debora Adler Encroachment Agreement 2 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: (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. Steven Adler and Debora Adler Encroachment Agreement 3 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. 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] Steven Adler and Debora Adler 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 ATTOR EY'S OFFICE Date: By: Aaro ". Harp City Attorney ATTEST: Date: /. q.1 ?v CITY OF NEWPORT BEACH, a California municipal corporation Date: i 3 By: Dave City Manager OWNER(S): Pleasantville Road Partners, LLC, a New J se Date: �/,/.3 By: By: Steven Adler Manager Co 2-1/ t 3 Leilani I. Brown City Clerk Date: By: J2(, De ora Adler Manager [END OF SIGNATURES] Owners must sign in the presence of notary public ATTACHMENT: Exhibit A —Permitted Improvements Plan as Approved by Public Works Pleasantville Road Partners, LLC Encroachment Agreement 5 ACKNOWLEDGMENT State of California County of Rep } ss. On JUXIe_ Z' 20 I 5 before me, 44. (j �JZ.'a�-W3i-e,"r , Notary Public, personally appeared -' E v�,n Ad te.y- proved to me on the basis of satisfactory evidence to be the person whose name,((Sare subscribed to the within instrument and acknowledged to me that e she/they executed the same i /her/their authorized capacity(, and that byj' /her/t eir signatures on the instrument the person(;, 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. Signature H. CLEARWATER Commission # 1853951 Notary Public - California Orange County My Comm. Expires Jul 11, 2013 (seal) ACKNOWLEDGMENT State of Californi County of U1C ante. } ss. On jt P, 2 I 1 , 20 13 before me, H. CI e &rh)Q�-ter , Notary Public, personally appeared ' e-bo r y Pt cd 1 PX , who proved to me on the basis of satisfactory evidence to be the persong whose name(,> 14 are subscribed to the within instrument and acknowledged to me t t he/they executed the same in his/Otheir authorized capacity l), and that by his er their signatures on the instrument the person(, 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. L± Signature H. CLEARWATER Commission # 1853951 L Notary Public - California z z_ Orange County �_ _ _ _ _ My Comm. Expires Jul 11, 2013 t (seal) Steven Adler and Debora Adler Encroachment Agreement 6 Planting Note: All plant material within pubic right-of-way to be less the 3' high. All plant material from curb to 18" to be low growing ground cover. 0 0 k Li 1 Single Brick Band 0 • i Flag Stone Double Brick Ban --NOANTI 91 IN IOW 'TO co rr m m RAt= m r rn rEpl -1 0 0 c3 Az Dm prP r- u� Dr m O 0 Encroachment Agreement Drawing 233 Morning Canyon Rd. Owner. Pleasantville Road Partners, LLC Address: 233 Morning Canyon Rd. Corona Del Mar, CA 92625