HomeMy WebLinkAboutC-7734-1 - Encroachment Agreement EPN N2019-0428 for 311 Grand CanalBatch 5082214 Confirmation
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Attn: City Clerk's Office
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
36.00
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201900033488411:24 am 09105119
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0.00 0.00 0.00 0.00 27.00 0.00 0.000.000.00 3.00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2019-0428)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
21st day of August, 2019, by and between James M' Martin and Joelle A. Martin, Husband -
and Wife as Community Property ("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 311 Grand Canal,
Newport Beach, California, 92662, Orange County Assessor's Parcel Number 050-151-24
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 Grand Canal 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:
James M. Martin and Joelle A. Martin Encroachment Agreement 1
https:Hgs.secure-recording.com/Batch/Confirmation/5082214 09/05/2019
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Attn: 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 N2019-0428)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
21St day of August, 2019, by and between James M. Martin and Joelle A. Martin, Husband
and Wife as Community Property ("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 311 Grand Canal,
Newport Beach, California, 92662, Orange County Assessor's Parcel Number 050-151-24
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 Grand Canal 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:
James M. Martin and Joelle A. Martin Encroachment Agreement 1
a. A twenty-eight (28) foot long flush planter, not to exceed one (1) foot in height,
installed between the back of existing sidewalk and property line, with plantings
not to exceed twenty-four (24) inches in height from sidewalk elevation,
encroaching three (3) feet into the Grand Canal right-of-way; and
b. A four (4) foot wide light tan stone tile walkway, installed at grade, encroaching
up to three (3) feet into the Grand Canal right-of-way, as approved by the Public
Works Department and as shown on Exhibit B, 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 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
James M. Martin and Joelle A. Martin Encroachment Agreement 2
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.
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
James M. Martin and Joelle A. Martin Encroachment Agreement 3
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]
James M. Martin and Joelle A. Martin 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 ATTO N Y'S OFFICE
Date: tot
By: a -k -, �-
f:bf-Aaron C. Harp \�`q
City Attorney cel
ATTEST:
Date: . 4• 11
1►►1 i Its ►�
Leilani :.
City Clerk
r44
LI FOR/
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 9'30'1?
By:
Gr K. Leung
Manager
OWNER(S): James M. Martin and Joelle
A. Martin, Husband and Wife as
Community Property
Date:'T f y
By: -
Jarpr%s M. Ma
Own..er—
Date:}
By.
Joelle A. Martin
Owner
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENTS: Exhibit A - Legal Description of Property
Exhibit B - Permitted Improvements Plan as Approved
by Public Works
James M. Martin and Joelle A. Martin 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 Californ•a
Count of -) ss. c�t_
On M 20� before me,- V1 -V -V Notary
Public, pe onally appeared �1 ,-v� P �, /�(\ W NLS ��;,� wl o 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. SHANNON HEALY FINNEY
ti Notary Public - California z
Orange County n
Commission N 2208508
My Comm. Expires Aug 3, 2021
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
Count of ss.
On J 20 b ore meas n� c\�/ Notary
Public, pershnally appeared : � ae- /V ylv, t provefd 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. ;'''``'' SHANNON HEALY FINNEYNotaryPubliic-California
Orange County
Commission N 2208508
My Comm. Expires Aug 3, 2021
Signature (seal)
James M. Martin and Joelle A. Martin Encroachment Agreement 6
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
James M. Martin and Joelle A. Martin Encroachment Agreement A-1
EXHIBIT "A"
Lot 31 In Bieck 14 of Section 4, Balboa island, In the City of Newport Beach, County of orange. State of Califomla, as per
PM recorded In Book 7, Page 37. of Mtmllansous Maps records of said County.
Except therefrom all oil, pas, minerals and other hydrocarbon substances, lying below a depth of 500 fest, without the right
of surface entry.
APN.050-15] 24
EXHIBIT B
PERMITTED IMPROVEMENTS PLAN
James M. Martin and Joelle A. Martin Encroachment Agreement B-1
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