Loading...
HomeMy WebLinkAboutC-7771-1 - Encroachment Agreement EPN N2011-0318 for Seaward Rd/Evening Canyon RdrRECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: v Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92658-8915 990 Recorded in Official Records, Orange County TorIn��lDaly, Clerk -Recorder ��IlJ1��II�I���IJillI�,fli I111 1111II 1I12T00I I 111 11 , $ R 0 0 0 4 6 8 2 3 0 6 $ * 2012000178901 10:19 am 03/29112 47 412 Al 8 0.00 o.00 0.00 0.00 21.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2011-0318) T.HIS E(VCROACH ENT AGREEMENT ("Agreement") is made and entered into this /)� day of OVFfl-%_5.[_-�2, 2011, by and between the Shore Cliffs Property Owner's Association Inc., a California non-profit IRC 501(c)(4) corporation ("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, On November 22, 2011, City Council waived City Council Policy L-6 (Private Encroachments in Public Rights -of -Way) and authorized the City to enter into an Encroachment Agreement with Owner. WHEREAS, Owner is the vested owner of property located at the Northwest corner of the Seaward Road and Evening Canyon Road and legally described as a Portion of Lot 139 of Tract 1116, as shown on a map recorded in Book 36, Pages 19 through 20 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 052-191-21 ("Property"). WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Seaward 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. Installation of five (5) low voltage floodlight fixtures, five (5) GFI receptacles and electrical appurtenances, encroaching up to ten (10) feet into Seaward Road Right -of -Way as shown on EXHIBIT "A" attached hereto and as approved by the Public Works Department. 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. (i) Owner shall be responsible for responding to all complaints regarding light pollution into private homes, roadways or any other types of complaints as a result of the installation of Permitted Encroachment Agreement Page 12 Valerie Vanhorn, CCAM Community Manager Powerstone Property Management 16470 Bake Parkway Irvine, CA 92618 vvanhorn appowerstonepm.com (949) 716-3998 ext. 25 (ii) Owner shall angle the lighting so as to not have a negative impact to the drivers in the community. (iii) Initial and future maintenance of Permitted Improvements shall maintain a ten (10) foot radius clearance around each specified Coral Tree. 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. (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 Encroachment Agreement Page 13 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. 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. Encroachment Agreement P �3 (7 e 14 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Date: 114to 1v i eonie Mulvihill, Assistant City Attorney�� ATTEST: Date: By: UI Leilani Brown, City Clerk ATTACHMENTS: CITY OF NE PORT BEACH, a California unicipal c rporation Date: By: Michae F. Henn, Mayor OWNER(s): Date: By: &-2tL- T,9-� " f Lq.��w4— Patti Taketa, President AO- [2-" � -- l ie Haskell, Vice President Owners must sign in the presence of notary public EXHIBIT A —Plans as approved by Public Works Encroachment Agreement Page 15 ACKNOWLEDGMENT State of California County of brony } ss. On -7 2 () I b fore me, Notary Public, personally appeared at+ I TO-10 n ,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. cRISTAt MCDONALD Commission • 1950140 WITNESS my hand and official seal. Notary Public - California Orange County • M Comm. Ex res Aug28, 2015 Signature (seal) ACKNOWLEDGMENT State of Calif rnia County of SS. i1 On �r�w�b?r 1,%QI befo e me, C s MGIJC�/IU� Notary Public, personally appeared (e ,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 CRISTAL MCOONALD Commission M 1950148 Notary Public - California D Orange County My Comm. Expires Aug28, 2015 (seal) Encroachment Agreement Page 16 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of Californial� County of In O �Vl 1 d On l r�w�� (I before me, I v Date personally appeared Name(s) of Signer(s) CIVIL CODE § 1189 who proved to me on the basis of satisf pry evidence to be the person,(sj�whose namehg� are subscribed to the within instrument and acknowledged to me that 6Y`1phe/they executed the same in hi her/their authorized capacity(ies), and that by CRISTAL MCDONALD his her/their signature(s) on the instrument the Commission # 1950148 Notary Public - California z personkK, or the entity upon behalf of which the Orange County ' person(<acted, executed the instrument. M Comm. Ex Tres Aug 28.2015 r 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: Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached ocume'4 f'n"t,�� Title or Type of Document: em(( Ur,lf-� 0�qr-ceopo+ Document Date: I\fcytll/) VXr 221 2Jt ( Number of Pages: Signer(s) Other Than Named Above: I Capacity(ies) Claimed by Signers; Signer's Name: �_n� ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Scf nd ) 4-eli L,wi'f V 0V)h111 Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ] Other: Signer Is Representing: © 2010 National Notary Association • National Notary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 g- m MINE, ZZp D a Nm EXTERIORS INC OZl 1 `> LANDSCAPE DESIGN M . n 01 z 333 Shipyard Way, Ste. A, Newport Beach, CA 92663 y U) Ph. 949 645 7100 Cell 949 285 9692 www.extedorsinc.nel rick@extedorsinc.net