HomeMy WebLinkAboutC-6674 - Encroachment Agreement EPN N2011-0302 for 227 Evening Canyon RoadSCANNED
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RECORDING REQUESTED BY AND Recorded in official Records, orange county
WHEN RECORDED RETURN TO: Tom Daly, clerk -Recorder
v 1111111111111111111111111111111111111111111111111111111111111111111111 111111l 27.00
Public Works Department 2011000649129 9:03 am 12/13/11
City of Newport Beach 47 412 Al2 8
Post Office Box 1768 0.00 0.00 0.00 0.00 21.00 0.00 0.00 0.00
Newport Beach, CA 92658-8915
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2011-0302)
THIS ENCROACHMENT AGREEMENT supersedes the Encroachment
Agreement (EPN98-246) executed on August 4, 2006 and recorded on August 10, 2006
as Official Record No. 2006000535761 and Encroachment Agreement (EPN2006-0338)
executed on July 15, 1998 and recorded on August 27, 1998 as Official Record No.
19980567443 in the Office of the County Recorder of Orange County, California.
TSS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this h day of R)VM-F_ &r. , 2011, by and between Jeffrey H. Margolis
and Deborah Hult Margolis, trustees of the Margolis Family trust dated December 23,
1998 ("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, Owner is the vested owner of the property located at 227 Evening
Canyon Road, Newport Beach, California 92625 and legally described as Parcel 1 of
the City of Newport Beach Lot Line Adjustment No. 2009-009, and recorded as Official
Record No. 2011000010726, in the office of the County Recorder of Orange County,
County Assessor's Parcel Numbers 052-191-08 and 052-191-09 ("Property").
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Evening Canyon 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.
s:
a. A 22 -foot wide curb opening with a 19 -foot 3 -inch wide driveway
encroaching 10 -feet into the Right -of -Way, constructed with quartzite
pavers;
b. A 26 -foot wide curb opening with a 20 -foot wide driveway encroaching 10 -
feet into the Right -of -Way, constructed with quartzite pavers;
c A carriage walk varying in width from 7 -feet to 11 -feet encroaching 10 -feet
into the Right -of -Way, constructed with quartzite pavers;
d. A wall varying in height from 12 -inches to 18 -inches encroaching 12 -
inches into the Right -of -Way, constructed of 6 -inch concrete block with a
combination of beige and brown stone fagade;
e. Various low -growing plants and appurtenances within the 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
Encroachment Agreement Page 12
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 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,
Encroachment Agreement Page 13
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 dates written below.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Dat ' 1/ 7141
By:
L71
eonie Mulvihill,
Assistant City Attorney tl�
ATTEST:
Date:
By: SX4 � - �)Y�
Leilani Brown, City berk
CITY OF NEWPORT BEACH,
a California Municipal corporation
Date: \\l2 'k -A\
By:-� 1�
Davi iff,
City Manager
OWNER(s):
Date:"L-TJ
By:
X.Wr*e"'y_bKAa_rg_o_1is, Trustee
The Margolis Family Trust
Date: 101q(
Deborah Hult MXrgolo, T`r,stee
The Margolis Family Tru?
Owners must sign in the presence of notary public
ATTACHMENTS: EXHIBIT A—Plans as approved by Public Works
f:\users\pbw\shared\1-encroach\row agreements\2011\n2011-0302 227 evening canyon rd (margolis
family trust) .doc9.21.10
Encroachment Agreement Page 15
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of D
On ` I befor e,
Date
personally appeared
' PIA491-S
,r� Her Insert Name and Title of the Officer '
��) V
Name(s) of Signer(s)
who proved to me on the basis of satisfactory
evidence to be the person whose name is/�
subscribed to the within instrument edged
and acknowl
to me that he//tiff executed the same in
his//ti sir authorize capacity(l s), and that by
L. HARRIS
Commission #r 18401:501
his/W!*ir signature) on the instrument the
Notary Puck- CalH
LIDM Orange
person* or the entity upon behalf of which the
perso�N�--A acted, executed the instrument.
`A
County
Comm• E ire: Mar
12
13
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 off' ial seal.
Signature•
Place Notary Seal and/or Stamp Above
OPTIONAL Signature of Notary Public
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:
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
Signer's Name:
Corporate Officer — Title(s):
❑ Individual
❑ Partner — 7 Limited E General Top of thumb here
C Attorney in Fact
Fj Trustee
❑ Guardian or Conservator
El Other:
Signer Is Representing:
C Corporate Officer — Title(s):
C 1 Individual
Partner F1 Limited _] General Top of thumb here
C Attorney in Fact
-: Trustee
I Guardian or Conservator
=1 Other:
Signer Is Representing:
u2uu8 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
ACKNOWLEDGMENT
State of California
County of dA/b6�- } ss.
On 34 2VII before me, /� �� ✓ L � G� �7 °
Notary Public, personally appeared S5
,who proved to me on the basis of satisfactory evidence to be the personj9 whose
name,, is/subscribed to the within instrument and acknowledged to me that
he/ tlW executed the same in his/� authorized capacity(, and that by
hisA f* signaturesrp�n the instrument the personR), or the entity upon behalf of
which the person(Pfsacted, 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. BRENDA LEE BAUMGARTNER
m ,;:' Commission No. 1906028
v
NOTARY PUBLIC- CALIFORNIA
ORANGE COUNTY
a�� ZitaVV)Al�
My Comm. Expires September 30, 2014
Signature (seal)
ACKNOWLEDGMENT
State of California
County of 644-rl% }ss.
On 6576he-2.v 3/r app/ before me, ,%� Ge-Z�r /lkty Z
Notary Public, personally appeared z&Z6,771WIC60645
,who proved to me on the basis of satisfactory evidence to be the persong whose
name(i�-is/a.subscribed to the within instrument and acknowledged to me that
/she/ executed the same in /her/tl�authorized capacity), and that by
f�her/tlr signatures(s) on the instrument the person, or the entity upon behalf of
which the persor6,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
BRENDA LEE BAUMGARTNER
g �•,�;-' Commission No. 1906028 n
� " � NOTARY PUBLIC -CALIFORNIA
My Comm. Expires September 30, 2014
(seal)
Encroachment Agreement Page 16
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Address: 227 and 233 Evening 73\, G 7 .46, Exhibit "A"
Canyon Road AD 7�Page 1 of 1
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