Loading...
HomeMy WebLinkAboutC-6677 - Encroachment Agreement EPN N2011-0283 for 312 East Ocean Frontr-SGANNF­ RECORDING REQUESTED BY AND Recorded in official Records, orange County V WHEN RECORDED RETURN TO:aly, Clerk -Recorder Iliogl!iliDillllll'lillitillill6lillllllliill(lllflllllllllllllllllllll 36.00 Public Works Department 2011000609048 11:12 am 11/30/11 City of Newport Beach 143 413 Al2 11 Post Office Box 1768 0.00 0.00 0.00 0.00 30.00 0.00 0.00 0.00 Newport Beach, CA 92658-8915 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2011-0283) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this day of October, 2011, by and between Michael Oshay and Linda Oshay, Trustees of the Michael and Linda Oshay Family Trust established October 6, 1999, �� P ("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 property located at 312 E. Ocean Front, Newport Beach, California 92661 and legally described as Lot 7, Block 2 of The Newport Bay Tract, as shown on a map recorded in Book 4, Page 16 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 048-082-17 ("Property"). WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the East Ocean Front 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. A 2 -foot by 6 -foot wide by 36 -inch high pilaster constructed of beige flagstone pavers with a precast stone cap located at the back of the existing boardwalk within the East Ocean Front right-of-way; b. A 2 -foot by 4 -foot by 36 -inch high pilaster constructed of beige flagstone pavers with a precast stone cap and bronzed address numbers located at the back of the existing boardwalk within the East Ocean Front right-of-way; c. A 4 -foot wide wrought iron gate with an inwards swing located a minimum of 8 inches from the back of the existing boardwalk within the East Ocean Front right-of-way; d. A 4 -foot wide entry walkway constructed of beige flagstone pavers located from the back of the existing sidewalk within the East Ocean Front right-of- way to the property line; e. A patio constructed of beige flagstone pavers located between the entry walkway and the property line; f. A 16 -foot long by 36 -inch high wrought iron fence located a minimum of 8 inches from the back of the existing boardwalk within the East Ocean Front right-of-way; g. A 36 -inch high block wall with a smooth beige stucco finish located along the westerly property line, located a minimum of 8 inches from the back of the existing boardwalk within the East Ocean Front right-of-way; h. Various private low -growing groundcover and landscaping not to exceed 36 inches in height located from the back of the existing boardwalk within the East Ocean Front right-of-way to the property line and appurtenances 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: Encroachment Agreement Page 12 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 not be entitled to reasonable attorneys fees and costs incurred. Encroachment Agreement `' ; f 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 1 4 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 Date: By: Leon ie Mulvihill, Assistant City Attorney ATTEST: Date: VBLeili-rown,City Clerk CITY OF NEWPORT BEACH, a California Municipal corporation Date: By: Davia Kiff, City Manager OWNER(s): Date: \'Z�) By� M\ir,,hael Oshay, Truste The ichael and Lin Oshay Family Trust PO 1/// Date: 1l "7�i i inda Oshay, Trus -ri-- ftA Family Trust Owners must sign in the presence of notary public ATTACHMENTS: EXHIBIT A—Plans as approved by Public Works Ilcnb-20051userslpbwlsharedll-encroachlrow agreements120111n2011-0283 - 312 e. oceanfront (michael and linda oshay family trust).docx9.21.10 Encroachment Agreement Page 15 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California /� ,� (� County of r -A / y Q On �� �1� KI r �- ¢- ARAS NO P_V 4 --t C, I before me, Date I�bre Insert Name and Tie of the Officer personally appeared Vi b M- - L. HARRIS c mnission 0 1840150 MM" Public - CsIftfil is Ofsap County C Msr 12 1 Place Notary Seal and/or Stamp Above Name(s) or Signer(s) who proved to me on the basis of satisfactory evidence to be the person( whose nameoj is/,w subscribed to the within instrument and acknowledged to me that he/s)(e/tr* executed the same in his/121/tNeir t[j& authorized capacity(iX), and that by his/signature( on the instrument the person, or the entity upon behalf of which the person (16acted, 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 h nd o icial steal. Signature:; ` Signature of Notary Public 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 Title or Type of Document: _ Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Corporate Officer — Title(s): j Individual -i Partner — Fj Limited ❑ General Top of thumb here C Attorney in Fact Trustee ❑ Guardian or Conservator Other: Signer Is Representing: Number of Pages: Signer's Name: _.! Corporate Officer — Title(s): ❑ Individual I Partner — ❑ Limited ❑ General Top of thumb here -� Attorney in Fact C: Trustee [-1 Guardian or Conservator Other: Signer Is Representing U2008 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 — EXTENT OF (N) CUT .5 TCAE VENEER ON Ei1ST FACADE. 1 F-YRST FLOOR ONLY. I I ('N) PRECAST 15TONE TNRESNOLD I I it II 4A-3 .1 - LINE OF RENORKED CANTILEVERED BALCONY ABOVE - (N) PRECAST STONE TNRESNOLD 10'-0" zONTYARD SETBACK ID' -3" 3 TO FACE OF (N) UT STONE VENEER - ----Lm LL1 0 o OWNER: Oshay ADDRESS: 312 E. Ocean Front Newport Beach, CA 92661 ?/A FIP w Q 2 W .�F-j-L.AWN PROVIDE (N) NETAFIM DRIP IRRIGATION IN FRONT PLANTER TO MINIMIZE INAT ER SPRAY ON (IV) 1=rNCF_ 36"HlCiH PIS WAI-L smooTH BEIGrr CTu(co `D L _ 21 1 �P J `rxu rL a If U.1 1 w I V Exhibit "A" Sheet 1 of 1 N2011-0283 Q) Ld D.a: Pis Job #: 614 ACKNOWLEDGMENT State of California County of Los Ph54-ke S }ss. On \0 --\-] - \ \ before me, Notary Public, personally appeared L�, ,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 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. Cjktl- Signature (seal) ACKNOWLEDGMENT to • loom State of California":o County of Los -Iss. AJ' On Ib_�-i -0 before me, 5uskna M Ce 1 e c b n , Notary Public, personally appeared L�n�A .--) 06\,�.i ,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 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. L'� �a Signature (seal) Encroachment Agreement USANA M, µ onmsslOn I NOW -.f.' LOS Ang" Co" My amm EX so Oct is, Page 16 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On �c �° Err �� 2cii before me, �� ��s <� r��-� (✓ Date Here Insert Name and Title of the Officer ' personally appeared y) c�iL �� ? % "oy Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) iSWare subscribed to the within instrument and acknowledged to me that he/i /they executed the same in his their authorized capacity(ies), and that by his ee�their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. "�" Commisslon 1l06W5 certify I under PENALTY OF PERJURY under the laws i U Notary Public -• Calilofnta of the State of California that the foregoing paragraph is l us Angeles County 11. My Comm tz0!!es JW 1), 2012 true and correct. WITNESS my hand and official seal.. Signature Place Notary Seal Above Signature of Notary Public 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: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual Corporate Officer — Title(s): — ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General • ❑ Attorney in Fact • Top of thumb here ❑ Trustee Top of thumb here ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 02007 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 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Z cS A , l r On Nead Mbzr' �_f>o/f before me, /.' I rs � �t_� , er- 9#.,• - Date Here Insert Name and Title of the Officer personally appeared l,'1 ; c �� S h /+ Y Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/arm 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/h,6r/their 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 NI GUSTI GAUTIER of the State of California that the foregoing paragraph is .,,Commission • 1806815 true and correct. l� Notary Puofic - - California Los Cot My Comm Angeles Juin ty 2012 WITNESS my hand and official seal. Signature 4"t-4 Place Notary Seal Above Signature of Notary Public 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: Capacity(ies) Claimed by Signer(s) 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 Top of thumb here Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator E. Other: Signer Is Representing RIGHTTHUMBPRINT OF SIGNER as © 2007 National Notary Association • 9350 De Soto Ave., P.O. Boz 2402 • Chatsworth, CA 91313-2402 • www.NationaiNotary.org Item #5907 Reorder: Call Toll -Free 1-800-876-6827 ACKNOWLEDGMENT State of California County of On before me, (insert narne and title of the officer) personally appeared 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/s d111y executed the same in his/her/their authorized capacity(ies), and that by his/her/the' 'gnature(s) on the instrument the person(s), or the entity upon behalf of which the per s) acted, executed the instrument. I certify under PENALTY OF PERJURY un he laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and offici Signature (Seal) (this area for official notarial Government Code 27361.7 I certify under penalty of perjury that the Notary Seal on the document to which this statement is attached reads as follows: Name of the Notary: .�1 >'S, ', A -a / 11/( ,_ ("�-A, JfL tA Date Commission Expires: l ( Ilk / I County Where Bond is Filed: Lw CL Lte . e 1 Commission Number: 15 t UDIAC), 4- ManufacturerNendor Number: Place of Execution: &A -L -17,t " Q, Date: 'P Signature: I certify under penalty of perjury and the laws of the State of California that the illegible portion of this document to which this statement is attached reads as follows: Place Exec Signature: