HomeMy WebLinkAboutC-8664-1 - Encroachment Agreement EPN N2021-0230 for 387 Vista BayaBatch 10764154 Confirmation
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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
Page 3 of 4
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
40.00
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2021000413918 9:20 am 06124121
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0.00 0.00 0.00 0.00 30.00 0.00 0.000.000.00 3.00
above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2021-0230)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
3rd day of June, 2021, by and between James Edward Dobson and Marsha S. Kramer,
Husband and Wife 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 387 Vista Baya,
Newport Beach, California, 92660, Orange County, County Assessor's Parcel Number 426-
091-36, and as legally described in 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 Vista Baya 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 Edward Dobson and Marsha S. Kramer Encroachment Agreement 1
https://,,s.secure-recoi-ding.com/Batch/Confirmation/10764154 06/24/2021
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 N2021-0230)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
3rd day of June, 2021, by and between James Edward Dobson and Marsha S. Kramer,
Husband and Wife 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 387 Vista Baya,
Newport Beach, California, 92660, Orange County, County Assessor's Parcel Number 426-
091-36, and as legally described in 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 Vista Baya 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 Edward Dobson and Marsha S. Kramer Encroachment Agreement 1
a. A seventeen (17) foot wide decorative driveway approach bottom, with a
twenty-one (21) foot decorative driveway approach, constructed of brick pavers
tan in color encroaching up to twelve (12) feet into the Right -of -Way; and,
b. A five (5) foot wide decorative carriage walk constructed of brick pavers tan in
color encroaching up to twelve (12) feet into the 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
or future public facilities or improvements, City may remove portions of
Permitted Improvements, as required, and in such event:
James Edward Dobson and Marsha S. Kramer Encroachment Agreement 2
(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
agreements of whatsoever kind or nature are merged herein. No verbal agreement
or implied covenant shall be held to vary the provisions herein.
James Edward Dobson and Marsha S. Kramer Encroachment Agreement 3
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]
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James Edward Dobson and Marsha S. Kramer Encroachment Agreement 4
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
James Edward Dobson and Marsha S. Kramer Encroachment Agreement A-1
Exhibit "A"
Legal Description
A.P.N.: 426-091-36
Real property in the City of Newport Beach, County of Orange, State of California, described as follows:
LOT 15 OF TRACT NO. 2609, AS SHOWN ON A MAP RECORDED IN BOOK 80, PAGE 35 OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXCEPTING THEREFROM ALL OIL, GAS AND OTHER MINERALS CONTAINED WITHIN THE PROPERTY
ABOVE DESCRIBED, WHETHER NOW KNOW TO EXIST OR HEREAFTER DISCOVERED, AND ALL OIL, GAS
AND OTHER MINERAL RIGHTS BELONGING TO OR APPERTAINING TO SAID PROPERTY AND THE
EXCLUSIVE RIGHT TO PRODUCE, MINE, EXTRACT AND REMOVE OIL, GAS AND OTHER MINERALS
UPON, FROM AND THROUGH SAID PROPERTY AND THE EXCLUSIVE RIGHT TO INJECT IN, STORE
UNDER AND THEREAFTER WITHDRAW FROM SAID PROPERTY, OIL, GAS AND OTHER MINERALS AND
PRODUCTS THEREOF, WHETHER PRODUCED FROM SAID PROPERTY OR ELSEWHERE, BUT ALL OF THE
FOREGOING RIGHTS SHALL BE EXERCISED ONLY BY THE DRILLING OF WELLS INTO OR THROUGH
SAID PROPERTY AT DEPTHS BELOW 500 FEET FROM THE SURFACE OF THE GROUND FROM LOCATIONS
ON ADJACENT OR NEIGHBORING LANDS AND IN SUCH MANNER AS NOT TO DISTURB THE SURFACE OF
SAID PROPERTY OR ANY IMPROVEMENTS LOCATED UPON THE SURFACE THEREOF, AS RESERVED IN
THE DEED FROM PAULINE S. FAGAN, A WIDOW, RECORDED JANUARY 13, 1958 IN BOOK 4161, PAGE
439 OF OFFICIAL RECORDS.
EXHIBIT B
PERMITTED IMPROVEMENTS PLAN
James Edward Dobson and Marsha S. Kramer Encroachment Agreement B-1
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTO NEY'S OFFICE a California municipal corporation
Date: "leu f Date: JUN 2 2 2021
By: aZ By:
Aaron C. Harp Gr e . Leung
City Attorney �y`b' C anager
ATTEST: OWNER(S): James Edward Dobson
Date:_ ���.� and Marsha S. Kramer, Husband and
Wife as Joint Tenants
Date:
Signed in Counterpart
By: By:
Leilani I. Brown James Edward Dobson
City Clerk Joint Tenant
Date:
Signed in Counterpart
By:
Marsha S. Kramer
Joint Tenant
[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 Edward Dobson and Marsha S. Kramer Encroachment Agreement 5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTO NEY'S OFFICE
Date: S 12 W Zo I
By:
l"- 4-1�
Aaron C. Harp
City Attorney '0
ATTEST:
Date:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
IS
Grace K. Leung
City Manager
OWNER(S): James Edward Dobson
and Marsha S. Kramer, Husband and
Wife as JoinTefiant�
Date: A /s / 21
By: By: ,- ..
Leilani I. Brown James ward Dobson
City Clerk Joint Tenant
Date: S L2-
B -
Marsha S. Kramerr
Joint Tenant
[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- - -- -
Edward Dobson and Marsha S. Kramer 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 Californi
County of L 1 ss.
On iC—,Rc)>i 20i1 be ore me, Notary
Public, personally appeare 1 .who proved to
me on the basis of satisfactory evidence to be the person(s) whose names) 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.
�M1Y.Y::: f.:W.tiY.Y:.Y: •1 :•.'hY.'.S15i .'Y.tiL'.Yi h'.•.Y.'�_.
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WITNESS my hand and official seal. D COIMME#228 646
NOTARY PUBLIC • CALIFORNIA b
...� Orange County }
Commission Expvas March 192023
'.•.W.YhY.tiLY.YJN.Y.•.LYh'.•.Y.Y.Yfti :'.L•.tYMYr:
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
County of -Iss.
On 20 before me, Notary
Public, personally appeared 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)
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James Edward Dobson and Marsha S. Kramer Encroachment Agreement 6