HomeMy WebLinkAboutC-6651 - Encroachment Agreement EPN N2009-0305 for 1701 Miramar DriveRECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2009-0305)
THIS AGREEMENT is made and entered into this 25th day of October, 2009, by
and between Ronald H. Conzonire and Marilyn L. Conzonire (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 1701
Miramar Drive, Newport Beach, California 92661 and legally described as Lot 31 and
32, except the southeasterly 31 feet of Lot 31, Block H of Tract 518, as shown on a
map recorded in Book 17, Pages 33 through 36 inclusively of Miscellaneous Maps in
the office of the County Recorder of Orange County, California Assessor Parcel
Number 048-211-36.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Miramar Drive and I Street
right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally
described as Lot 31 and 32, except the southeasterly 31 feet of Lot 31, Block H of Tract
518, as shown on a map recorded in Book 17, Pages 33 through 36 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, California;
also known as 1701 Miramar Drive, 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
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:
It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined
as:
a. A 6 -foot wide by 3 '/2 -foot long and 9 '/2 -foot wide by 3 '/2 -foot long
carriage walks constructed of used brick pavers encroaching up to
ten feet into the Miramar Drive public right-of-way;
b. A 50 -foot wide by 6 -foot long carriage walk constructed of "EI
Segundo" white brick pavers set on a permeable sand and gravel
base encroaching up to 12 feet into the I Street public right-of-way;
C. Three 4 -foot square tree well constructed of 2 -inch by 4 -inch
pressure treated border around the three street trees encroaching
up to 12 feet into the I Street public right-of-way; and
appurtenances in the Miramar Drive and I Street 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:
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.
Encroachment Agreement Page 1 2
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.
Encroachment Agreement Page 13
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 Page 14
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:
OFFICE OF THE CITY ATTORNEY
ATTEST:
B'�
Lei ani Brown, City Cle =F'
-
CITY OF NEWPORT BEACH,
a Municipal corporation
By: (-,- 1.
Da 'd giff,
City anager
OWNER(s):
By: &e�//.
Ronald H. Conzon re
By: &6AJ
(.or►z .
Marilyn . Conzonir
ATTACHMENTS: EXHIBIT A—Plans as approved by Public Works
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
On , 200_, before me,
,Notary Public, personally appeared (owners)
, 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 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)
Encroachment Agreement Page 15
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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State of California
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Date :NVjD
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L. WASHINGTON
Commission # 1840150
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My Comm. Expires Mar 12, 2013
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person whose nam s) is subscribed to the
within instrument and acknowledged to me that
he/s / executed the same in his authorized
cap city(i , and that by his;Xr/ it signatures, on the
instrument t e pers ror the entity upon behalf of
which the personXacted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true andcorrect.
WITNESS y hand ici 1 I.
Signatur
Signature of Notary Public
OPTIONAL
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Title or Type of Document:
Document Date:
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Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact •
❑ Trustee Top of thumb here
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Number of Pages:
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing
RIGHTTHUMBPRINT
OF SIGNER
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@2007 •9350 •• Soto Ave., PO.Box 240241 911-800-876-6821
CALIFORNIA•ACKNOWLEDGMENT
State of California r
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Date Here Insert
personally appeared
L. WASHINGTON
Commission # 1840150
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Place Notary Seal Above
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Name(s) of Signer(s)
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who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) )Mare subscribed to the
within instrument and acknowledged to me that
"f,/s) /they executed the same in ?/}/their authorized
capacity(ies), and that by X4 Xtheir signature(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. 111)
WITNESS my hknd_d f;iffigia'seal.
Signature / / O� ( /—
jV Signature of Notary Public
OPTIONAL -s
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 DocgHent
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Number of Pages:
GIVl
Signer's Name:
Signer's Name:
❑ Individual
❑ Individual
❑ Corporate Officer — Title(s):
❑ Corporate Officer — Title(s):
❑ Partner — ❑1 Limited ❑ General
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
•
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•
❑ Trustee
Top of thumb here
❑ Trustee
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❑ Guardian or Conservator
❑ Guardian or Conservator
❑ Other:
❑ Other:
Signer Is Representing:
Signer Is Representing:
0 2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll -Free 1-800-876-6827
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LEGEND
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