HomeMy WebLinkAboutC-7166-1 - Encroachment Agreement EPN N2017-0300 for 525 El Paseo DriveDocument -3 955645 -Page- I
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
1111111111111111111111111111111111111111111111111111111111111111111111142.00
*$ R 0 0 0 9 5 6 0 5 9 0$*
201700039070012:12 pm 09/14117
175 NC -5 Al2 F13 12
0.00 0.00 0.00 0.00 33.00 0.00 0.00 0.00
above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2017-0300)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
28th day of June, 2017, by and between Robert M. Hubert as Trustee of the Robert and
Sidsel Hubert Trust dated May 18, 2010 ("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 525 EI Paseo Drive,
Newport Beach, California, 92625, Orange County Assessor's Parcel Number 050-291-27
and as legally described on Exhibit A, attached hereto and incorporated herein by reference
("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as further
described herein ("Permitted Improvements") within the EI Paseo 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:
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:
Robert M. Hubert Encroachment Agreement
about:blank 09/14/2017
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Space above this line for Recorder's use
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2017-0300)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
28th day of June, 2017, by and between Robert M. Hubert as Trustee of the Robert and
Sidsel Hubert Trust dated May 18, 2010 ("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").
i:ixyrr_II161
WHEREAS, Owner is the vested owner of property located at 525 EI Paseo Drive,
Newport Beach, California, 92625, Orange County Assessor's Parcel Number 050-291-27
and as legally described on Exhibit A, attached hereto and incorporated herein by reference
("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as further
described herein ("Permitted Improvements") within the EI Paseo 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:
Robert M. Hubert Encroachment Agreement 1
a. A 14 -foot wide decorative driveway constructed of gray non -grouted stone
pavers encroaching 2 -feet into the EI Paseo Drive right-of-way, as approved by
the Public Works Department and as shown on Exhibit B, 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 B.
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 and restoration of these public facilities or improvements to their
condition at the time of entry into this Agreement.
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.
Robert M. Hubert Encroachment Agreement 2
(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.
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
Robert M. Hubert Encroachment Agreement 3
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]
Robert M. Hubert 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: to /0-1 r
�'�✓�i��
Aaron C. Harp cu -awl
AttorneyCity
Da TEST: a 14, 11
&Ikk .�
brownLeilani 1.
City Clerk
ATTACHMENTS:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:0 � 14jq
By: G
Dave Kiff
City Manager
OWNER(S): Robert M. Hubert, Trustee
of the Robert and Sidsel Hubert Trust
dated May 18, 2010
49�/.�W/irc/
RWerrlTrustee
%.-FTAert
[END OF SIGNATURES]
Owners must sign in the presence of notary public
Exhibit A — Legal Description of Property
Exhibit B — Permitted Improvements Plan as Approved by
Public Works
Robert M. Hubert Encroachment Agreement 5
ACKNOWLEDGMENT
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 ) ss.
On 20 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 lawsof the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
ACKNOWLEDGMENT
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 Q (Tin Pte- }ss.
On 20� beforep my� o Notary
Public, personally appeared 1 / 1,1� n er 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 hhpaddnd/dgqand official seal.
Signature
TODD F. JACK
Notary public - California
a _ -a z
Z :n �.. ®% Orange County Z
Commission # 2162926 n
Comm. Expires Aug 18, 2020
Robert M. Hubert Encroachment Agreement 6
1:*A:I1:311re1
LEGAL DESCRIPTION OF PROPERTY
Robert M. Hubert Encroachment Agreement A-1
RECORDING REQUESTED BY:
'WHEN RECORDED MAIL TO:
CHRISTINA McGONIGLE, ESQ.
MCGONIGLE & HUNSAKER, LLP
2000 E. Fourth St., Suite 306
Santa Ana, CA 92705
APN: 050.291.27
Recorded in Official Records, Orange County
Hugh Nguyen,Clerk•Recorder
1111111111/11111111111111111,11111111111111111111111/1111/1111llul111118.00
.$ R 0 0 0 8 5 0 8 8 6 8 8:
20160003104813:45 pm 07/07116
37 416 A09 F13 4
0.00 0.00 0.00 0.00 9.00 0.00 0.00 0.00
AFFIDAVIT - DEATH OF TRUSTOR/TRUSTEE
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
ROBERT M. HUBERT, Trustee, of legal age, being first duly sworn, deposes and says:
I. SIDSEL HOYGAART HUBERT, is the decedent mentioned in the attached certified copy of
Certificate of Death (attached hereto) and is the same person as SIDSEL H. HUBERT, named as a Trustor and a Trustee
in that certain Declaration of Trust, known as THE ROBERT AND SIDSEL HUBERT TRUST Dated May 18, 2010,
executed by ROBERT M. HUBERT and SIDSEL H. HUBERT, as Trustors and Trustees.
2. At the time of the decedent's death, decedent was an owner as a Trustee, of certain real property
acquired by a Quitclaim Deed recorded on May 26, 2010, as Instrument No. 2010000246035, in Official Records of
Orange County, California, covering the following described property situated in the City of Newport Beach, County
of Orange, State of California:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF.
Commonly known as: 525 EI Paseo Dr., Newport Beach, CA 92625-1836.
3. 1, ROBERT M. HUBERT, am the remaining Trustee of the same trust under which said decedent held
title as a Trustee pursuant to the deed described above, and am designated and empowered pursuant to the terms of said
trust to serve as Trustee thereof.
DATED: June 29, 2016
r,7
ROBERT M. HUBERT, Trustee
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.
Subscribed and sworn to (or affirmed) before me
on this 29" day of June, 2016, by
ROBERT M. HUBERT, proved to me on
the basis of satisfactory evidence to be the
person who appeared before me.
3;_.—/'.c0,,0
Signature / i (This area for official seal.)
EXHIBIT "A"
A PORTION OF LOT 94, TRACT 1701, AS SHOWN ON A MAP RECORDED IN BOOK 53,
PAGES 9 AND 10 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY,
CALIFORNIA. DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT OF REVERSE CURVATURE IN THE WESTERLY BOUNDARY
OF SAID LOT 94, SAID POINT BEING 65.68 FEET SOUTHERLY OF THE
NORTHWESTERLY CORNER OF SAID LOT 49, SAID 65.68 FEET BEING MEASURED
ALONG A CURVE CONCAVE EASTERLY, HAVING A RADIUS 504.13 FEET AND A
CENTRAL ANGLE OF 70 2756"; THENCE NORTHERLY ALONG SAID CURVE THROUGH
A CENTRAL ANGLE OF 20 37'30" A DISTANCE OF 23.09 FEET; THENCE SOUTH 63'01'
41" EAST 158.62 FEET TO A POINT ON A CURVE CONCAVE EASTERLY HAVING A
RADIAL AT THIS POINT BEARING SOUTH 830 42'06" EAST AND A RADIUS OF 325.00
FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
3015' 26" A DISTANCE OF 18.48 FEET TO A POINT OF REVERSE CURVATURE; THENCE
ALONG SAID REVERSE CURVE WHICH HAS A RADIUS OF 50.00 FEET THROUGH A
CENTRAL ANGLE 590 31' 27" A DISTANCE OF51.94 FEET TO A LINE TANGENT; THENCE
SOUTH 620 33'55" WEST ALONG SAID LINE TANGENT 315.00 FEET; HAVING A RADIUS
OF 240.00 FEET, SAID POINT ON A CURVE, CONCAVE NORTHWESTERLY HAVING A
RADIUS OF240.00 FEET, SAID POINT BEING ON THE COMMON BOUNDARY BETWEEN
SAID LOT 94 AND LOT 20 OF TRACT 2334, AS SAID TRACT IS SHOWN ON A MAP
THEREOF RECORDED 1N BOOK62, PAGE 20 OF MISCELLANEOUS MAPS, RECORDS OF
ORANGE COUNTY, CALIFORNIA, THENCE NORTHEASTERLY ALONG SAID CURVE TO
THE POINT OF BEGINNING.
RESERVING UNTO GRANTOR ITS SUCCESSORS AND ASSIGNS:
(a) ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS AND
OTHER HYDROCARBONS BY WHATSOEVERNAMIl KNOWN THAT MAY BE WITHIN OR
UNDER THE PARCEL OF LAND HEREINABOVE DESCRIBED TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR
AND STORING IN AND REMOVING THE SAME FROM SAID LAND OR ANY OTHER
LAND INCLUDING THE RIGHT TO WHIPSTOCKOR DIRECTIONALLY DRILL AND MINE
FROM LAND OTHER THAN THOSE HEREINABOVE DESCRIBED OIL OR GAS WELLS,
RUNNELS AND SHAFTS INTO, THROUGH ORACROSS THE SUBSURFACE OF THE LAND
HEREINABOVE DESCRIBED, AND TO BOTTOM SUCH WHIPSTOCKED OR
DIRECTIONALLY DRILLED WELLS, RUNNELS AND S1 OTS UNDERAND BENEATH OR
BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES WITHOUT,
HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH
THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE OF THE LAND
HEREINABOVE DESCRIBED.
(b) THE RIGHT TO EMPLACE ON, UNDER AND ACROSS SUCH LOT TRANSMISSION
LINES AND OTHER FACILITIES FORA COMMUNITY ANTENNA TELEVISION SYSTEM
AND THE RIGHT TO ENTER UPON SAID LOT TO SERVICE, MAINTAIN, REPAIR,
RECONSTRUCT AND REPLACE SAID LINES AND FACILITIES PROVIDED HOWEVER,
THATTHE EXERCISE OF SUCH RIGHTS DOES NOT UNREASONABLY INTERFERE WITH
GRANTEE'S REASONABLE USE AND ENJOYMENT OF SAID LOT.
(c) RIGHTS, LICENSES AND EASEMENTS OVER THE LOT FOR PURPOSES SET FORTH
IN SECTIONS 1, 2 AND 4 OF ARTICLE VIII OF THE DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS HEREINAFTERDESCRIBED, TOGETHER WITHTHE
RIGHT TO CONVEY SAME; PROVIDED, HOWEVER, THAT THE EXERCISE OF SUCH
RIGHTS DOES NOT UNREASONABLE INTERFERE WITH GRANTEE'S REASONABLE USE
AND ENJOYMENT OF SAID LOT.
WA: 1IMkid
PERMITTED IMPROVEMENT PLANS
Robert M. Hubert Encroachment Agreement B-1
ROBERT M. fiUBER% D.D.S.
"I El PA%$#jYC
CDADNA DEL MAIC CA
U.S.A,
4e73—�S2-5
a(ITW6 DFc' ATcv-`-
C7✓cY(i 04wpEN'i
.;--e [,c //q"= r 6w.
i
EXHIBIT B
1 OF 1
uemrY
X.t NO
LwG