HomeMy WebLinkAboutC-3126 - Encroachment Agreement for EPN N2013-0252 for 2515 Island View 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 Rc ds, Orange County
Hugh Nguyen, Clerk -Recorder
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Exempt from recording fees pursuant to Govt. Code section 27383
NO FEE
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2013-0252)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this 12th day of July, 2013, by and between Massoud Kashanchi and gictna Kashanchi,
Trustees of the Kashanchi Trust, dated October 20, 2011 ("Ownerla 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 2515 Island View
Drive, Newport Beach, California 92615 and legally described as Lot 33, of Tract 6385,
as shown on a map recorded in Book 235, Pages 1 through 5 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, County
Assessor's Parcel Number 458-071-34 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Island View 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 7-foot by 5-foot carriage walk constructed of beige limestone pavers
encroaching up to 10 feet in the Island View Drive public right-of-way, 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
vo r1 lc-
Massoud Kashanchi and -Neva Kashanchi, Trustees of the Kashanchi Trust, dated
October 20, 2011 Encroachment Agreement 2
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 Toss,
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
(1ciia. 04.
Massoud Kashanchi and Elena Kashanchi, Trustees of the Kashanchi Trust, dated
October 20, 2011 Encroachment Agreement 3
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]
frog
Massoud Kashanchi and Ewa Kashanchi, Trustees of the Kashanchi Trust, dated
October 20, 2011 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' O FICE
Date: "7/ i 15
By: .�_. C �-- By:
Aaron C. Harp
City Attorney
ATTEST: .� 2�,13
Date:
By:
Atto,
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California unicipal corporation
Date: 7' Z5- I-`J
Dave IZi
111 City Manager
OWNER(S): Massoud Kashanchi and
Elena Kashanchi, Trustees of the
Kashanchi Trust, dated October
20,2011
Date: 1 1 C-- 13
Massoud Kashanchi
Trustee, Kashanchi Trust
Date: %/7 0/43
By: =
G E—le.na Kashanchi
Trustee, Kashanchi
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENT: Exhibit A —Permitted Improvements Plan as Approved by
Public Works
«t/2 GL
Massoud Kashanchi and Elona Kashanchi, Trustees of the Kashanchi Trust, dated
October 20, 2011 Encroachment Agreement 5
ACKNOWLEDGMENT
State of Californj
County of Or 61 1-0 } ss.
On , )11j f 20 before me,
D �'�� /�'fki 4 /VD Q ( , Notary Public, personally appeared
Q aA. (� ✓1 L" �'t ! ho
proved to me on the basis of satisfactory evidence to be the persoi4) ose nam are
subscribed t he within instrument and acknowledged to me t he/ /they executed the
same in his(r/their authorized capacity(_is< and that by his e /their signatures(sry on the
instrument the person(s'r or the entity upon behalf of which the erson(. 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.
ian re
'TAI�
Commission M 1929468
Notary Public - California
0range County
"tem. Ex Tres Mar 25620151
(seal)
ACKNOWLEDGMENT
State of Calyfp,�
County of Li/ ((AA } ss.
n �(�
O
®�- yip , o(e 4/ -8(7
A5je i 5hdn eh,
proved to me on the basis of satisfactory evidence to be the perso
subscribe -o the within instrument and acknowledged to
same in hi /her/their authorized capacity i ,and that by
instrumen the person,(s), or the entity upon behalf of which
instrument.
20/ before me,
, Notary Public, personally appeared
who
whose name. i are
that executed the
her/their signatures(on the
e person,(cted, executed the
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.
Sign efre
LO A IDGE
Commission * 1929458
Notary Public - California
Orange County
* Comm. Ex fres Mar 25 2015
(seal)
Massoud Kashanchi and Kashanchi, Trustees of the Kashanchi Trust, dated
October 20, 2011 Encroachment Agreement 6
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EXHIBIT A
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