HomeMy WebLinkAboutC-6045 - Encroachment Agreement EPN N2014-0547 for 415 Aliso AvenueA
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 Records, Orange County
Hugh Nguyen, Clerk -Recorder
1111 � ' 1111111111111111111111 I 1111 1111III 1111 1111136.00
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2015000094239 11: 10 am 02/23/15
37 406 Al2 F13 10
0.00 0.00 0.00 0.00 27.00 0.00 o.00 0.00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2014-0547)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this 23rd day of December, 2014, by and between Garrett W. Jones and Ricci J. Jones
as Husband and Wife ("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 415 Aliso Avenue,
Newport Beach, California 92663 and legally described as Lot 21, Block 27 of The First
Addition to Newport Heights, as shown on a map recorded in Book 4, Page 94 of
Miscellaneous Maps in the office of the County Recorder of Orange County, County
Assessor's Parcel Number 049-064-17 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Aliso 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
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:
Jones Encroachment Agreement 1
a. An entry walkway constructed of 8 -foot by 4 -foot beige concrete pads
encroaching up to 12 feet wide into the Aliso Avenue public right-of-way;
and
b. A 17'/2 -inch square mailbox pilaster constructed of slate stone pavers with
an 18'/2 -inch square beige concrete cap encroaching up to 12 feet into the
Aliso Avenue public right-of-way, as approved by the Public Works
Department and as shown on Exhibit A, 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 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.
Jones Encroachment Agreement 2
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.
(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.
Jones Encroachment Agreement 3
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.
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]
Jones 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: 17/1 jj j IN
By:
Aaron C. Harp
City Attorney
ATTEST: 9111.1 . � ('�
Date: 9
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: "2 11 1
By:
[_
City Manager
OWNER(S): Garrett W. Jones and Ricci
J. Jones1 /�
Date: I oJ 'S �
By: Ihmv
Leilani I. Brown Ga tt W. Jone
City Clerk Husband
Date: 0* 1116
By:
Ricci J.
Wife
[END OF SIGNATURES]
CALIFORNIA NOTARY
ACK. / JURAT -ATTACHED
/at /lots (dP
Ra CO IMP
Owners must sign in the presence of notary public
ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by
Public Works
Jones 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 Orange
On ��� IS before me,
R.H. BADANI, Notary Public
(insert name and title of the officer)
personally appeared f�i cc "'3- S O ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose nam*) is/are
subscribed to the within instrument and acknowledged to me that )*/she/thjaq executed the same in
hX/her/tt*r authorized capacity(ipA;�, and that by bfs/her/930 signature(* on the instrument the
personkaf,, or the entity upon behalf of which the person(a) 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 aLf4��'- rte (Seal)
OPTIONAL
R. H. BADANI
Tum Exp. Mrj 911 2016
Though the information below is not required by law. it nrry prove valuable to persons relying on the document and could prevent l".Mdulcm removal and
reattachment of Ihis form to another document.
Description of Attached Document
"Title or Type of Document: L'n GY Oa C1 rrn.Q/J
Document Date
Number of Pages:
awl 1-5
Signer(s) Other Than Named Above:
(Not including this pa
gc)
ACKNOWLEDGMENT
Statef California
Coun of ) ss.
On 20 before me,
Notary Public, personally appeared
who
prov d to me on the basis of satisfact evidence to a the person(s) whose name(s) is/are
subsbribed to the within instrument nd acknowledged to me that he/she/they executed the
sam in his/her/their authorized pacity(ies), and that by his/her/their signatures(s) on the
instr ment the person(s), or the ntity upon behalf of wh ch the person(s) acted, executed the
instr ent.
1 certi y under PENALTY PERJURY under the laws o he State of California that the
foregoi g paragraph is tru and correct.
WITNE my hand an official seal.
Signature � lA�(� �I',�l(,� seal)
ACKNOWLEDGMENT
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 laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (seal)
Jones Encroachment Agreement 6
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
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 Orange )
On 3, 2-0!5 before me
personally appeared GAKtz L
w
who proved to me on the basis of satisfactory evidence to be the person�"hose name(/are
subscribed to the within instrument and acknowled ed to me that&she/they executed the same in
t�/her/their authorized capacityf i< and that by is er/their signature(<on the instrument the
person(W,or the entity upon behalf of which the person(,s'f acted, executed the instrument.
USA KITADANI HOFFMAN
CWMft$ian * 2051373
I
No" Punic - California z
County
1. My Comm.m. Expires Jan 8, 2018
Place Notary Seal Above
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.
Signatu
OPTIONAL
Though this section is optional, completing this information can deter alternation of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document:
Number of Pages: _�O_ Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s) -T
Signer's Name: W • JON&<
❑ Corporate Officer — Title(s):
❑ Partner -- ❑ Limited ❑ General
It
❑ Attorney in Fact
❑Trustee ❑ Guardian or Conservator
❑ Other:
Signer is Representing:
Document Date:)
ate)-1)XIS
K-1 F -f- A40 PLIca S - TaNO
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner -- ❑ Limite General
❑ Individual ttornev in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Ot
is Representing:
EXHIBIT A
PERMITTED IMPROVEMENTS PLAN
Jones Encroachment Agreement A-1
Jones
415 Aliso Ave
Newport Beach, CA 92663
MING GATE
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