HomeMy WebLinkAboutC-6449 - Encroachment Agreement EPN N2000-254 for 2720 and 2730 Bayside DriveV
EV
FECORDING REQUEST. AND
%,f.1HEN RECORDED RETURN TO:
Rec,^,rdcd i , official 11cccrds, Cou:;^� of Orange
rracy Gran�,;ille, Clerk -Recorder
Full WDepartment ry
X11 !1! )
� � nI�� i i�j i j �l=i� i u� ��! � (1
City of Newport Beach !iI!!il:.�!,�f!! � �1 !!� �l1,� i, �l.l, 11111,1 ii! _t,
Post Off-ce��o 768 %Oi!� u�OW � 1. i ��� t, ,;4��i� j
3.5vu Newport Voulevard 119 11 Fi12 11
Newport Beach, CA 92658-8915 ���� ,�.+y�: 2�.,)�� � `,+�
Y Ct_F1ZK_
' Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
2720 AND 2730 BAYSIDE DRIVE
(EPN2000-254)
THIS AGREEMENT is made and entered into this /5�- day of
2001, by and between Shelley Nora Walker and Joan Dale Scarboro/ (hereinafter
"OWNERS"), 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"), "OWNERS" are the OWNERS of property located at 2720 &
2730 Bayside Drive, Newport Beach, California and legally described as Lots 1 & 3, Block 333
of Corona del Mar Tract as shown on a map recorded in Book 3, Pages 41 through 42
inclusively of Miscellaneous Maps and as modified by N.B.L.L.A. No. 81-1 recorded June 12,
1981 in Book 14099, Page 148 of the Official Records in the office of the County Recorder of
Orange County, California (hereinafter "the PROPERTY");
WITNESSETH:
WHEREAS, OWNERS desires to construct and maintain certain improvements
(hereinafter "PERMITTED IMPROVEMENTS") within Bayside Drive right-of-way (hereinafter
"RIGHT-OF-WAY") that is located adjacent to the PROPERTY; and
WHEREAS, CITY Fire Department has reviewed plans for the PERMITTED
IMPROVEMENTS and approved plans subject to OWNER'S agreement to the terms and
conditions of this Agreement; and
WHEREAS, OWNERS has committed to be responsible for OWNER's pro rata share,
four -ninths (4/9ths), of maintenance and repair of existing common driveway improvements;
and
1
05/31/01
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 execute an agreement providing for fulfillment
of the conditions required by CITY to permit OWNERS to construct and maintain said
PERMITTED IMPROVEMENTS to provide driveway access to the PROPERTY from Bayside
Drive.
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 an
extension of an asphalt concrete driveway access (3" A.C. on 4" base) with concrete curb,
landscaping, and appurtenances in the RIGHT-OF-WAY as shown on EXHIBIT "A".
2. CITY will permit OWNERS to repair, maintain, use, operate, repair and replace
said PERMITTED IMPROVEMENTS and appurtenances incidental thereto, within a portion of
RIGHT-OF-WAY, all in substantial conformance with plans on file in the CITY. CITY will
further allow OWNERS to take all reasonable measures necessary or convenient in
accomplishing the aforesaid activities
3. OWNERS shall prepare and submit to the Public Works Department and
General Services Department for approval, a Landscape Plan, including specimen trees, to
soften the view of the proposed dwellings and the driveway extension in the area shown on
Exhibit A. The Landscape Plan shall consider the effect on the view of pedestrians on the
footpath and those on the footbridge as well as the view of motorists on Bayside Drive. All
landscaping on the approved plan shall be planted prior to occupancy of the improvements on
the PROPERTY.
4. OWNERS shall install residential fire sprinkler systems in each dwelling unit to
the satisfaction of the Building and Fire Departments.
5. OWNERS shall post signs prohibiting and prohibit the parking of motor vehicles
within the area of the PERMITTED IMPROVEMENTS as designated by the Fire Department
and Public Works Department.
2
6. OWNERS shall bring the common driveway improvements between the
PERMITTED IMPROVEMENTS and Bayside Drive up to a state of repair by repairing any
damage caused by construction activity and by seal coating or slurry seal the common
driveway improvements prior to occupancy of the new dwelling units being constructed.
7. OWNERS shall not unduly restrict access to the other properties taking access
from the common driveway during the construction of the PERMITTED IMPROVEMENTS and
new dwelling units.
8. OWNERS shall not store construction materials or equipment in areas westerly
of the prolongation of the OWNER's alley property line or in greenbelt areas that will not be
disturbed by the construction of the PERMITTED IMPROVEMENTS.
9. OWNERS shall fence the construction site and materials storage areas. Fencing
shall be covered with green cloth material.
10. Rights granted under this Agreement may be terminated by CITY at any time by
giving 60 days' 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.
11. OWNERS and CITY further agree as follows:
a. OWNERS shall construct PERMITTED IMPROVEMENTS and
appurtenances incidental thereto, in substantial conformance with the detailed plans and
specifications therefor on file in the CITY's Public Works Department, and as shown on Exhibit
"A" hereto attached.
b. OWNERS shall maintain the PERMITTED IMPROVEMENTS in
accordance with general prevailing standards of maintenance, and pay all costs and expenses
incurred in doing so. However, nothing herein shall be construed to require OWNERS to
maintain, replace or repair any private -owned or CITY -owned pipeline, conduit or cable
located in or under said PERMITTED IMPROVEMENTS, except as otherwise provided herein.
C. If private -owned, City, or other public facilities or improvements are
damaged by the installation or presence of PERMITTED IMPROVEMENTS, OWNERS shall
be responsible for the cost of repairs.
3 05/31/01
d. OWNERS shall be responsible for his pro -rata share, four -ninths (4/9ths),
of the cost of maintaining the existing common driveway between the curb on Bayside Drive
and the prolongation of the westerly property.
e. Should the 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 OWNERS of its intention to accomplish such
work, if any emergency situation does not exist.
(ii) OWNERS shall be responsible for arranging for any renewal 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) OWNERS agree to pay all costs for renewal or restoration of the
PERMITTED IMPROVEMENTS.
12. 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 OWNERS, CITY may enter upon the
RIGHT-OF-WAY and remove all or part of the improvements installed by OWNERS with one
exception. That one exception shall be the CITY cannot deny vehicular access to the subject
property. Termination because of breach shall be upon a minimum of ten (10) days' 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.
13. OWNERS shall defend, indemnify, waive, 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 aril„ ig from or in any manner connecteu with the design, construction,
maintenance, or continued existence of the PERMITTED IMPROVEMENTS.
14. OWNERS 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
against the PROPERTY in the Official Records of the County Recorder of Orange County,
California.
15. OWNERS agrees that this Agreement shall always be prior and superior to and
shall be recorded prior to any mortgage, deed of trust or any other hypothecation for security
hereafter placed on the PROPERTY. OWNERS agrees to execute and deliver to CITY any
instrument that may be deemed necessary to effect subordination to this Agreement of any
mortgage or deed of trust or other hypothecation already recorded against the PROPERTY,
such that the covenants, conditions and restrictions in this Agreement shall be binding upon
and effective against any OWNERS whose title is derived through foreclosure or trustee's sale
or otherwise.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first -above written.
APPROVED AS TO FORM:
By:
Citv Attornev
CITY OF NEWPORT BEACH,
a Municipal corporation
By: C)�L�.
ity Manage
OWNERS:
92
SILjNEj> (r1 COuNTe12. PAP -T
City Clerk Shelley Nora Walker
RLC:ml
f:\users\cat\s h a red\en croachme nt\ag bra ndt2720bayside. doc
By: 5(ONCD JtJ CDUNTek>_P t> I
Joan Dale Scarboro
5 05/31/01
STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE)
On V
personally appeared
known to me 14f -m
2001, before me, [?I Imv) I V - l ocs
Vgrirlri M. h4at-V-mss ----_,_.personal)
to be the perso s
whose n U is" subscribed to the within instrument and acknowledged to me that
he/she/ has execu Ad the same in his/her hei authorized capacit �Ies , and that by
his/her/ ei signatureUson the instrument the person s) r the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
S4� V, couw
Notary Public in and for said State
LEILANI V. INES
Commission # 1170960
Nv-ary Public - Colifomio
j OranOe County
y C�-rnm. Expires Jan 25, 2002
LEILANI V. INES
(This area for official notarial seal) Z" Commission # 1170960 Z
Na ary Public - Californsa
STATE OF CALIFORNIA Z\ z,y orange County
�3'� My C:,mm. Exoires Jan 25, 2002
ss:
COUNTY OF ORANGE)
On 2001, before me,
personally appeared , personally
known to me (or 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 has executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(This area for official notarial seal)
A
14. OWNERS 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 -
against the PROPERTY in the Official Records of the County Recorder of Orange County,
California.
15. OWNERS agrees that this Agreement shall always be prior and superior to and
shall be recorded prior to any mortgage, deed of trust or any other hypothecation for security
hereafter placed on- the PROPERTY. OWNERS agrees to execute and- deliver- to- CITY any
instrument that may be deemed necessary to effect subordination to this Agreement of any
mortgage or deed of trust or other hypothecation already recorded against the PROPERTY,
such that the covenants, conditions and restrictions in this Agreement shall be binding upon
and effective against any OWNERS whose title is derived through foreclosure or trustee's sale
or otherwise.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first -above written.
APPROVED AS TO FORM:
By:
City Attorney -
ATTEST:
City Clerk-
RLC:mi
f:\users\cat\shared)encroachmentlagbrandt2720bayside. doe
CITY OF NEWPORT BEACH,
a Municipal corporation
A
City Manager
OWNERS:
By:
Shelley- Nora- Walker
By:
,1 n Date Scarboro
nti/,i1 /n1
STATE OF OAMf�&RNIA)
) ss:
COUNTY OF Of AW3EV�z6=1-r
On ��2j �� 200 before me,
personalty appeared personally
known to me (or proved to me on 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
has executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(This area for official notarial seal)
STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE)
On 2001, before me,
personally appeared , personally
known to me (or 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
has executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(This area for official notarial seal)
14. OWNERS 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
against the PROPERTY in the Official Records of the County Recorder of Orange County,
California.
15. OWNERS agrees that this Agreement shall always be prior and superior to and
shall be recorded prior to any mortgage, deed of trust or any other hypothecation for security
hereafter placed on the PROPERTY. OWNERS agrees to execute and deliver to CITY any
instrument that may be deemed necessary to effect subordination to this Agreement of any
mortgage or deed of trust or other hypothecation already recorded against the PROPERTY,
such that the covenants, conditions and restrictions in this Agreement shall be binding upon
and effective against any OWNERS whose title is derived through foreclosure or trustee's sale
or otherwise.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first -above written.
APPROVED AS TO FORM:
By:
City Attorney
ATTEST:
City Clerk
RLC:ml
f: \users\cat\s ha red\encroach me nt\ag bra ndt2720bays ide. doc
CITY OF NEWPORT BEACH,
a Municipal corporation
City Manager
OWNERS:
IN
Shelley Nor Walker
Joan Dale Scarboro
5
05/31/01
STATE OF CALIFORNIA)
) ss:
COUNTY OF ORAIIGE� 4WJ0
On J j i�) , 2001, before me, �d r& ,
personally appeared e e,. W (e-
,personally
known to me (or 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 has executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the
person i acted, executed the instrument.
WITNESS my hand and official seal.
it ZJF h SARA T. KN
AD LER
NOTARY PUBLIC -CALIFORNIA
Y a
Notary Public in and for said State NIONO COUNTY 0
1 COMM. EXP. JAN. 26, 2004
(This area for official notarial seal)
64)
05/31/01
GOI ENROD AVE I
N
I
0
0
0
N
Z
Z �
O W
co 0-
z
LLJ
F— Z
X w
W
}
W2
U
� z
o w
EXHIBIT "A"
iZ