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HomeMy WebLinkAboutC-3454 - Encroachment Agreement EPN N2007-0239 for 1315 Sussex Lane701 RECORDING REQUESTED AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92659-1768 Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder 1II1IIIII11II IIII III11111IIIIIII111IIIIIIIII11II IIIIIIIIIIIII111130.00 2007000505819 10:48am 08114/07 104 212 Al2 9 0.00 0.00 0.00 0.00 24.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2007-0239) THIS AGREEMENT is made and entered into this day of 2001, by and between Blain D. Skinner and Bridget L. Skinner (hereinafter "OWNER"), and the City of Newport Beach, California, a municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California, (hereinafter "CITY"). OWNER is the owner of property located at 1315 Sussex Lane, Newport Beach, California 92660 and legally described as Lot 66 of Tract 1896 in the City of Newport Beach, County of Orange, State of California as shown on a map recorded in Book 114, Pages 43 through 45 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California. WITNESSETH: WHEREAS, OWNER desires to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Sussex Lane right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot 66 of Tract 1896 in the City of Newport Beach, County of Orange, State of California as shown on a map recorded in Book 114, Pages 43 through 45 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; also known as 1315 Sussex Lane, Newport Beach, California; and 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 1 WHEREAS, the parties hereto desire to execute an 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 (1) a 5'x7' entry walkway located adjacent to the curb face, constructed of grouted brick paving over a concrete base; and (2) appurtenances in the Sussex Lane 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 at any time by giving 60-day notice, 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: 2 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. 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 Agreement, the prevailing party shall 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. 4 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. 5 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. CITY OF NEWPORT BEACH, a Municipal corporation APPROVED AS TO FORM: By: Aaron' Harp, Asst. City Attorney ATTEST: tfAki.J7/ ry By: O€P C jL �✓ LaVoneLbfarkl , City Clerk By: Homer Bludau, ity Manager OWNER: By: Blain D. Skinner ridget L. Skinner f:\users\pbw\shared\encroach\row agreements\2007\n2007-0239 1315 sussex (skinner).doc 6 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT rt!"T•W-74S S!c3 4 N,:ss,^ s�S �! .�Cs� • ash • c�. c C .:���c .� State of California ss. County of On �ravjv t6)- &, '2O0 I before me, lei lay c 1 • I Ov,AO] VV PL,thJI( Date Name and Title of Officer (e.g., Jane Doe, Notary ublic") personally appeared140mW I-- -FJt4dp Name(s) of Signer(s) LERMA I. BROWS,personally known to me Co • 1633477 ❑ proved to me on the basis of satisfactory Nolay Public - Gaillard° f evidence °tags Cam* EONS ,Wn26.201 to be the person($ whose name(sj is/are- subscribed to the within instrument and acknowledged to me that he/she/thoy executed the same in his/hor/thcir authorized capacity(iee)- and that by his/her/their signature(,s}on the instrument the person(s), or the entity upon behalf of which the person(z) acted, executed the instrument. WITNESS Inv hand and official seal. Signature ot NNotary ublic� 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 Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Number of Pages: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney -in -Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here © 1999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.nationalnotary.org Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827 STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On 47./4 7 2c , 200 7', before me, OA ✓ fraiLe 4Le personally appeared 9,Cig/A) 7jq 1//a Sj'/j/t/CA proved to me on the basis of satisfactory evidence to be the person*.whose name subscribed to the within instrument and acknowledged to me that hem has executed the same in his/I cr4hcir authorized capacity , and that by hisMertIMIT signature(**on the instrument the person( or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for ,id State STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) _A AAAAJ./LJs AAA A AAr DAVID E. REGULA COMM. #1723663 3 � ' � • �� NOTARY PUBLIC - CALIFORNIACAUF� ' ORANGE COUNTY O My Comm. Expires February 4. 2011 k l Y Y Y1t Y YY (This area for official notarial seal) On rJ LAY 26 , 200/ before me, 5ilin C. Ptdi/, 4.ni� ptr pe c personally appeared gn,D&&i JEhm19,) .J /Aidg 2. gne {or proved to me on the basis of satisfactory evidence* to be the person' whose name - subscribed to the within instrument and acknowledged to me that.l;pc}she/##er has executed the same in 144e/her eir authorized capacity(iesfi, and that by .4+sfherhheir signatureks) on the instrument the person(,a'jor the entity upon behalf of which the person acted, executed the instrument. WIT SS my hand and official seal. ary Public in and for sa,''State DAVID E. REGULAW N ) COMM. #1723663 n Y..1 NOTARY PUBLIC • CALIFORNIA ORANGE COUNTY O My Comm. Expires February 4. 2011 YYYY Y Y Y sr -r-v" Y Y Y (This area for official notarial seal) 7 La Lir La 4.0 TREE = POWER POLE = SEWER CLEANOUT = WATER MEI ER BOX SV.wp.-12. oor Drkit/A1,K (23 PROPERTY LINE ri PIzIV F-•vvAy • G1216 .1/ 1\?0,2-4itvwAY kniA1112--- fit LIE-P CURB FACE oi\J(12.E.TF pA \A NG, GRoymb t591( PAv \wk.- CoisJ( CITY OF NEWPORT BEACH ENCROACHMENT PERMIT PERMIT No. t\k 02 3`) ADDRESS 1 Z21 SUEX LAI\J APPLICANT 14iCketSiVier OWNER NI v1i2( Doi 61,0 tf I vi DESCRIPTION OF OF WORK ercuito( 1ri•c)z- 0, over loae, ft) Yep loc& tic te-f.(tvi or crtfc tha, 15 in Oti6rep "ik"