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Home My WebLink AboutC-8488-1 - Encroachment Agreement EPN N2017-0146 for 1301 Kings RoadDocument -3273052 -Page -1 .t RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Public Works Department City of. Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Page 1 of 1 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder 30.00 •$ R 0 0 0 9 2 7 4 6 8 4$ i 2017000199745 2:25 pm 05116117 47 NC -5 Al2 F13 8 0.00 0.00 0.00 0.00 21.00 0.00 0.00 0.00 use only. ENCROACHMENT AGREEMENT (EPN N2017-0146) THIS ENCROACHMENT AGREEMENT ("Agreement') is made and entered into this 251h day of April, 2017, by and between Trever Gregory and Chelsea Gregory, Husband and Wife as Joint Tenants (collectively "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 1301 Kings Road, Newport Beach, California 92663 and legally described as Lot 35, Block E of Tract 1219, as shown on a Map recorded in Book 38, Pages 26 through 27 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 049-222-24 ("Property"). WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Kings Road right-of-way (hereinafter "Right -of -Way") that is located adjacent to the 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 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: It is mutually agreed that Permitted Improvements shall be defined as a. A variable width entry walkway with widths from five feet (T) to seven feet (T) constructed with gray sand finish concrete encroaching ten feet seven about:blank 05/16/2017 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN N2017-0146) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 25th day of April, 2017, by and between Trever Gregory and Chelsea Gregory, Husband and Wife as Joint Tenants (collectively "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 1301 Kings Road, Newport Beach, California 92663 and legally described as Lot 35, Block E of Tract 1219, as shown on a map recorded in Book 38, Pages 26 through 27 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 049-222-24 ("Property"). WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Kings Road right-of-way (hereinafter "Right -of -Way") that is located adjacent to the 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 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. It is mutually agreed that Permitted Improvements shall be defined as: a. A variable width entry walkway with widths from five feet (5') to seven feet (7') constructed with gray sand finish concrete encroaching ten feet seven inches (107") into the Right -of -Way, as shown on Exhibit "A" attached hereto and as approved by the Public Works Department. b. 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 with or without cause and at any time without notice. The City shall make good faith efforts to provide notice (60) days 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. 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. Trever Gregory and Chelsea Gregory, Husband and Wife as Joint Tenants Page 12 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 not 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. 8. 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. 9. 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. 10. 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. Traver Gregory and Chelsea Gregory, Husband and Wife as Joint Tenants Page 13 11. 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. 12. 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. 13. 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] Trever Gregory and Chelsea Gregory, Husband and Wife as Joint Tenants Page 14 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: �.A�IZ/% By: Aaron C. Harp 6kkW4•LL(.11 City Attorney ATTEST: Date: By: &— ) Leilani I. Brown City Clerk ATTACHMENTS: CITY OF NEWPORT BEACH, A California municipal corporation Date: SS t3)\-�) By: Dave City Manager OWNER(S): Trever Gregory and Chelsea Gregory, Husband and Wife as Joint Tenants Date: Li l 2Ae `l l BY"C/i,� /y Trever Gregory Joint Tenant Date: 9 1,z u i 1 By: 7 ^ .tdf I c, Chelsea Gregory Joint Tenant [END OF SIGNATURES] Owners must sign in the presence of notary public EXHIBIT A—Plans as approved by Public Works Trever Gregory and Chelsea Gregory, Husband and Wife as Joint Tenants Page 15 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. 7 WITNESS my hand and official seal. c C-� anrew4picU Signature (seal) 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) Trever Gregory and Chelsea Gregory, Husband and Wife as Joint Tenants Page 16 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of ') (�) ) OnV _ before me, Susan W. Manrow, Notary Public Date -I- Here Insert Name and Title of the Officer personally appeared i LV7� f Cs 0,0V of Signer(s) 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 helshe/they executed the same in NsAl4er/their authorized capacity(ies), and that by#isl#ter/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. SUSAN W MANROW Commission # 2120382 `a "-e: Notary Public - California i z Orange County > M Comm. Ex ares Aug 19,2019t 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 steal. Signatr & W Signature of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached C Title or Type of Document: Document Date: 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: Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: G'd6V" d2'L.'L✓4L !/G'./2"✓G'+�4'a.'✓�'✓4� di "✓�. ate, ' vG'✓4L� ✓Q�J.'b-'!ii'./iV"✓ -✓G`�. L(' 0 1 • • • • • • • • :11 • :11 . .: L41 sora piyo!il _ ConerO'e en /01 walkway ' V I. �I �I GRAVEL BAGS j D7 e RUNOFFVENT I HTE / 85118 FS 30 LAW, I 1L . PA 5% I MAIN LEVI FF=85.47 FP=84.55