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Home My WebLink AboutC-7247-2 - Encroachment Agreement EPN N2018-0295 for 518 Marigold AvenueBatch 3632755 Confirmation RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk's Office City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Page 5 of 6 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder II I I111II II I I II I III I I IIII I I II 33.00 *$ R 0 0 1 0 2 3 8 7 3 2$ 201800026936210:19 am 07124118 90 SC5 Al2 9 0.00 0.00 0.00 0.00 24.00 0.00 0.000.000.00 3.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2018-0295) THIS ENCROACHMENT AGREEMENT ("Agreement') is made and entered into this 8th day of June, 2018, by and between Shannon Hondl, an unmarried man and Monica Wise, an unmarried woman as Joint Tenants ("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 518 Marigold Avenue, Newport Beach, California, 92625 and legally described as Lot 20, Block 540 of Tract 186, as shown on a map recorded in Book 3, Pages 41 through 42 inclusively, of Miscellaneous Maps in the office of the County Recorder of Orange County, having County Assessor's Parcel Number 456-206-10 ("Property"); WHEREAS, Owner and City previously entered into an Encroachment Agreement (Encroachment Permit Number N2017-0409), which was recorded as Instrument Number 2017000516451 with the Recorder's Office for the County of Orange on November 30, 2017, and binds Owner by its express terms; WHEREAS, the parties intend that this Agreement shall supersede and replace the previously mentioned Encroachment Agreement and the improvements identified in Instrument No. 2017000516451 and terminate such Instrument No. 2017000516451; WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Marigold Avenue 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 Hondl and Wise Encroachment Agreement Page 1 https:Hgs.secure-recording.com/Batch/Confirmation/3632755 07/24/2018 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk's Office City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2018-0295) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 8th day of June, 2018, by and between Shannon Hondl, an unmarried man and Monica Wise, an unmarried woman as Joint Tenants ("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 518 Marigold Avenue, Newport Beach, California, 92625 and legally described as Lot 20, Block 540 of Tract 186, as shown on a map recorded in Book 3, Pages 41 through 42 inclusively, of Miscellaneous Maps in the office of the County Recorder of Orange County, having County Assessor's Parcel Number 456-206-10 ("Property"); WHEREAS, Owner and City previously entered into an Encroachment Agreement (Encroachment Permit Number N2017-0409), which was recorded as Instrument Number 2017000516451 with the Recorder's Office for the County of Orange on November 30, 2017, and binds Owner by its express terms; WHEREAS, the parties intend that this Agreement shall supersede and replace the previously mentioned Encroachment Agreement and the improvements identified in Instrument No. 2017000516451 and terminate such Instrument No. 2017000516451; WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Marigold Avenue 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 Hondl and Wise Encroachment Agreement Page 1 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, including the termination of Instrument No. 2017000516451, effective upon recordation of this Agreement in the Official Records of the County of Orange, State of California. 2. It is mutually agreed that the Permitted Improvements for this Agreement shall be defined as: a. A varying height wall with a maximum height of eighteen -inches (18") constructed of concrete masonry unit blocks with a stone veneer encroaching up to one -foot (1) into the 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. Upon termination of this Agreement, Owner hereby agrees and convenants to forthwith remove, or cause to be removed, from the Right -of -Way any and all Permitted Improvements and to restore the Right -of -Way to at least as good a condition as such Right -of -Way was in prior to the execution of this Agreement. City shall incur no liability whatsoever in the event of the termination of this Agreement or subsequent removal of improvements by City after first giving Owner a reasonable period of time to remove, or cause to be removed, the Permitted Improvements from the Right -of -Way. 5. Owner and City further agree as follows: Hondl and Wise Encroachment Agreement Page 2 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 and restoration of these public facilities or improvements to their condition at the time of entry into this Agreement. d. That Owner will not permit any dangerous condition to be created on the Right - of -Way or any portion thereof. e. That all acts and things done by Owner on, in or within the Right -of -Way will be done in a careful and reasonable manner, in accordance with all federal, state and local laws. 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) vent: (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 Permitted 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. Hondl and Wise Encroachment Agreement Page 3 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 hereby agrees to and 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. This indemnity shall survive the termination or expiration of this Agreement. 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 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, applicable to Owner's activities granted by this Agreement. 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] Hondl and Wise Encroachment Agreement Page 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: 7U&16 A 2Dt o By Aaron arp City At rney ATTEST- Date.— CITY TTEST:Date. By: Leilani I. Brown City Clerk cy CITY OF NEWPORT BEACH, a California_ municipal corporation Date: ' ) 0 'n By: S. 12, Da City Manager OWNER(S): Shannon Hondl, ai( Ltfmarried man and Monica Wise, alh i*knarried woman as Joint Tenants Date: 3cche_ .ZK j 2j)Ig �nannon meow Joint Te7mlv Date: By: Monica qse Joint Tena t [END OF SIGNATURES] Owners must sign in the presence of notary public ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by Public Works Hondl and Wise Encroachment Agreement Page 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 arGt 0 -e� ss. �I '- On JUnf- Z�, 20 20 /g before me, CA4--h Notary Public, personally appeared S n nDn On ( who proved to me on the basis of satisfactory evidence to be the personWwhose name is/aXe subscribed to the within instrument and acknowledged tom that he/s�e/to6y executed the same in his/fir/their authorized capacity), and that by his/h�rlt it signatures*'on the instrument the person( or the entity upon behalf of which the personVacted, 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. WITNE my hand and official seal. ax� Signature L. Gon # 2 R Commission 2085827 Nobly Public - California Oranp County emyconn.=M30.20191 (sear)- 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 Carnia County of cv— t�' ss. On � (.t V)'T _ 20 4( before me, Notary Public, personally appeared rMn proved to me on the basis of satisfactory evidence to be the personX whose nameX) is/ su`�scribed to the within instrument and acknowledged to me that Pkshe/thy executed the same in h6/her/t�fr authorized capacity( ), and that by */her/t it signatures( on the instrument the personw, or the entity upon behalf of which the personAacted, 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 y hand icial seal. L. GAUTHIER Commission #t 2095827 •� Notary Public - California 4 Orange County Signature Hondl and Wise Encroachment Agreement Page 6 EXHIBIT A PERMITTED IMPROVEMENTS PLAN Ueberroth Community Trust dated November 12, 2003 Encroachment Agreement A-1 EXHIBIT 'A' SHEET 1 of 2 �! .V' � •sa V 6 ' Y ,9 .V•. 1 9 Y yL •1 3ab?1 VYONNA f �N 116Y 114/I' 7F � Y � I� L CV N W t o k 0 C p J L 6' N LL I I J? CV LL � d. �- O ap 0 ccq) c� x CIO LU Z -- ---- _- I I ' 100'0£ : 3NIl AIN3dO�d WQ Z C� p W o ry z 2 0O _ (L - 3 N JI1bM�QIS --- -p W— ar-�0— L U Z Q J � m CD > U � U 3nN3nd a100121bw U X O 4- 0 U Q a 0 Q Q EXHIBIT 'A' SHEET 2 of 2 �1 LAW F" X 0 4.- 01 ------ 0 'c v W, V 0 N N LAW F" X 0 4.- 01 ------ 0 'c v W, V 0 N N