HomeMy WebLinkAboutC-6691 - Encroachment Agreement EPN N2010-0039 for 2815 Ebbtide RoadCS
RECORDING REQUESTED AND
S
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
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2010000282200 8:16 am 061/10/10
62 417 Al2 8
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Space above this line for Recorder's use only.
ENCROACHMENTAGREEMENT
(EPN2010-0039)
THIS AGREEMENT is made and entered into this 5t" day of February, 2010, by
and between Alan Bynder (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 2815 Ebbtide Road, Newport
Beach, California 92625 and legally described as Lot 50 of Tract 3660, as shown on a
map recorded in Book 144, Pages 9 through 11 inclusively of Miscellaneous Maps in
the office of the County Recorder of Orange County, California Assessor Parcel
Number 458-661-07.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Ebbtide Road right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described
as Lot 50 of Tract 3660, as shown on a map recorded in Book 144, Pages 9 through 11
inclusively of Miscellaneous Maps in the office of the County Recorder of Orange
County, California; also known as 2815 Ebbtide Road, 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:
I . It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined
as:
a. A nine -foot wide carriage walkway constructed of multi -color
flagstone pavers encroaching ten feet into the public right-of-way;
b. A 3 '/2 -foot high block wall faced with multi -color flagstone veneers
encroaching one inch into the public right-of-way
and appurtenances in the Ebbtide Road 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.
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.
Encroachment Agreement Page 12
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.
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.
Encroachment Agreement Page 1 3
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 day and year first above written.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By:
yne aup,
Assistant City Att ney \$ cj
pi�r 110 is
ATTEST:
In
ATTACHMENTS:
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
DaW A. Kiff,
City Manager
OWNER(s):
Alan Bynder
EXHIBIT A—Plans as approved by Public Works
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
On , 201_, before
,Notary Public, personally appeared (owners;
who prZsubscribc
the basis of satisfactory evidence to be the
person(s) whose name(s) is/arhe within instrument and acknowledged to me
that he/she/they has executed/her/their authorized capacity(ies), and that by
his/her/their signature(s) on theerson(s) or the entity upon behalf of which the
person acted, executed the inst
WITNESS my hand and9fricial seal.
Notary PubWin and for said State
(This area for official notarial seal)
Encroachment Agreement Page 15
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of 094&(6GC_
00-i,ri UaL before me,DU�M liV A51+)n N � b -M q ��''_ C ,
Date ,� - 1 , Here Insert Name an Title of the Officer
personally appeared
L. WASHINGTON
Commission # 1840150
-: Notary Public - California =
Orange County
My Comm. Ex ires Mar 12, 2013
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person whose name is/ subscribed to the
within instrument and ackn wle ed to me that
he/N/t executed the same in his/ r/tVjif authorized
capacity,A), and that by his/Xr/ttAir signature on the
instrument the person, or the entity upon "behalf of
which the person 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. v)
WITNESS rriv hb6dnd official seal.
Signatu
OPTIONA�
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: `r(A�V/�l [J A/- —45MEMT
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
.p of thumb le,e
Number of Pages:
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact 10111.
❑ Trustee Top of thumb here
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
@2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotaryorg Item #5907 Reorder: Call Toll -Free 1-800-876-6827
CALIFORNIA• ACKNOWLEDGMENT
�a aaS •� � � �.5,. �a A �S.�aS,_ yac as ,LaS,.sa�. �5,. �5,�' �a. �a �a' ca,�a �as� .,s�S;� s�,asaa'.�.�s��S,.w.,TS!
State of California
County of
On (3
Da e
personally appeared
�. WASHINGTON
Commission # 1840150
Notary Public California
Z�Orange County
My Comm. Expires Mar 12, 2013
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person&ent
ose nameJs/subscribed to the
within instr and act now_ led ed to me that
he/A/t executed the same in his/hh@Wi authorized
capacity�)1, and th t y his/h*tl�r signatureKon the
instrument the p r o for the entity upon behalf of
which the person 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-
Inougn the mtormation 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 — r-1 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 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
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