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HomeMy WebLinkAboutC-8715-2 - Encroachment Agreement EPN N2011-0255 for 400 Aliso AvenueN r RECORDING REQUESTED BY AND U WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92658-8915 J Recor:led in Official Re c ` ����P�e°`�t5�ltity Tom Daly, Clerk -Recorder ilii,�lli!'!illil'Ili ll!Illlllilllilillli!lililllllllillllilllliliilll! 27.00 2011000602792 2:49 pm 11/28/11 276 418 Al2 8 0.00 0.00 0.00 0.00 21.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2011-0255) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 31St day of August, 2011, by and between Bruce B. Ibbetson, Trustee of the Bruce B. Ibbetson Trust established June 19, 2007 ("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 400 Aliso Avenue, Newport Beach, California 92663 and legally described as Lot 1, Block 28 of The First Addition to Newport Heights, as shown on a map recorded in Book 4, Page 94 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 049-052-01 ("Property"). WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Aliso Avenue and Beacon Street 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 USPS approved mailbox mounted on a 15 -inch square pilaster constructed of large river rocks encroaching up to twelve feet into the Aliso Avenue public right-of-way; b. A variable width entry walkway with widths from 7 feet to 14 feet, 6 inches and two 6 '/2 -inch risers constructed of grey flagstone pavers encroaching up to twelve feet into the Beacon Street public right-of-way; c. Seven 20 -inch square pilasters with variable heights from 61 inches to 64 inches high constructed of large river rocks encroaching up to 20 inches into the Beacon Street public right-of-way; d. An 18 -inch high planter wall constructed of large river rocks with a 56 -inch high wooden fence spanning between the seven pilasters encroaching up one -foot into the Beacon Street public right-of-way; e. A six-foot wide wooden gate with an inward swing encroaching up to one -foot into the Beacon Street public right-of-way; f. A 17 -foot wide driveway constructed of standard concrete with grey flagstone pavers ribbon encroaching up to twelve feet into the Beacon Street public right-of-way; g. Various private low -growing groundcover and landscaping encroaching up to twelve feet into the Aliso Avenue and Beacon Street public right-of-way 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: 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 12 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, damage, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees (when outside attorneys are so utilized), regardless of Encroachment Agreement Page, 13 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 1=' ,-_ 9 <; 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 T E ITY ATTORNEY Dat By:._. Leonie Mulvihill, Assistant City Attorney ATTEST: Date: 11 a I I By: _ "D� - h7�� Leilani Brown, City Clerk CITY OF NEWPORT BEACH, a California Municipal corporation Date: By: G� DaVH Kiff, City Manager OWNER(s): Date: 7-1� By: Bruce B. Ibbetson, Trustee Bruce B. Ibbetson Trust Owners must sign in the presence of notary public ATTACHMENTS: EXHIBIT A—Plans as approved by Public Works Ilcnb-20051userslpbMsharedl1-encroach lrow agree ments120111n2011-0255 - 400 aliso ave (bruce b. ibbetson trust). docx9.2 1. 10 Encroachment Agreement 1 5 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of Californian j/�- County of lc-NOPI G On &yb4V'I before me, 4A4 personally appeared iD S Here Insert Name and I I[le or the Utticel FF Names) of aigner(s) 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: Corporate Officer — Title(s): Individual Ll Partner — ❑ Limited i_ General Top of thumb here ❑ Attorney in Fact 7 Trustee Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ©2008 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 L. HARRIS Commission # 1840150 who proved to me on the basis of satisfactory Notary Public - California evidence to be the person whose namN) is/a Orange County subscribed to the within instrument and acknowledged My Comm. Expires Mar 12, to me that I Wshe/t"y executed the same in er/thAr authorized capacity), and that by Z/her/thkrsignatureX on the instrument the Is person, or the entity upon behalf of which the mrnl n # 1840150 personl(kacted, executed the instrument. No Public - California Or a County I certify under PENALTY OF PERJURY under the y Comm. Ext Mar 12 29119 laws of the State of California that the foregoing paragraph is true and correct. WITNESS Ny han ficial seal. Signatur Place Notary Seal and/or Stamp 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: Corporate Officer — Title(s): Individual Ll Partner — ❑ Limited i_ General Top of thumb here ❑ Attorney in Fact 7 Trustee Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ©2008 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 CXCJ e)(—=e —ISS. On 117 ( before me, 2C��frYlGl.1� , Notary personally appeared r ,who proved to me on the basis of satisfactory evidence to be the personf�hose name(} is/afs.. subscribed to the within instrument and acknowledged to me that he/she4her executed the same in his/htrttf>& authorized capacity ' , and that by his/heFAhei signaturesf* on the instrument the personls.},.or the entity upon behalf of which the persorge)--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. Signa ure ACKNOWLEDGMENT State of California County of }ss. On Notary Public, personally appeared before me, J. BECKMAN .-COMM. # 1913640 z Z*My NOTARY PUBLIC - CALIFORNIA ?ORANGE COUNTY Comm. Expires Dec. 16, 2014 (seal) ,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. Signature (seal) Encroachment Agreement 16 )I97V ONIlSIX� E m z I F I N I I I I I ---------- ------------------------ 0 0 a1----------- rn �i cli I O uz i Q ai I I:. 1•` --------------- o I o-, --- ----------------- � J •4A'S 55 x �a kl)� .o-05 E