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HomeMy WebLinkAboutC-6701 - Encroachment Agreement EPN N2010-0060 for 2320 Second Avenue0 r— RECORDING REQUESTED AND WHEN RECORDED RETURN TO: v Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92659-1768 '� � �i:� i ,i (`:`,t t<ii �(r•. �.�t11� (.iUal_��� �._uttlt�j: t, } Doly.Cletk­RFcc;.Gcr 0 ;ii] �l Ilk il� i IIIil�ill�;ill: lei i 1!�II' 0"Ii�i1/Ij} {J', ti4;1 C,,.i it i7 00 L1 00 (J.Gi) G.00 0 Oo Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2010-0060) THIS AGREEMENT is made and entered into this 26th day of February, 2010, by and between Michael Dilley, Trustee of the Michael Dilley Living Trust Dated April 4, 2005 (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 2320 Second Avenue, Newport Beach, California 92625 and legally described as the southeasterly 57' of Lots 2 and 4, except the northeasterly 20' of Lot 4, Block 529 of Corona Del Mar, as shown on a map recorded in Book 3, Pages 41 through 42 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California Assessor Parcel Number 459-092-10. WITNESSETH: WHEREAS, OWNER desires to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Second Avenue right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as the southeasterly 57' of Lots 2 and 4, except the northeasterly 20' of Lot 4, Block 529 of Corona Del Mar, as shown on a map recorded in Book 3, Pages 41 through 42 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; also known as 2320 Second Avenue, 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: 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as: a. A five-foot wide walkway with two 7 -inch risers constructed of "Bluestone" pavers with and a wooden handrail/post encroaching up to ten feet into the Second Avenue public right-of-way; b. A variable height retaining curb wall with heights from six-inch to one -foot high constructed of brick pavers encroaching 7'/2 feet into the Second Avenue public right-of-way; and appurtenances in the Second Avenue 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, Encroachment Agreement Page 12 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. 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 Encroachment Agreement Page 13 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 C TY TTORNEY By: My ett D. Beauchamp, Assistant City Attorney ATTEST: In ilani I. Brown, City C CITY OF NEWPORT BEACH, a Municipal corporation By: Davi . Kiff, City Manager OWNER(s): By.lWichael Dilley, Trustee Michael Dilley Living Trust Dated April 4, 2005 ATTACHMENTS: EXHIBIT A—Plans as approved by Public Works STATE OF CALIFORNIA ) COUNTY OF ORANGE ) On , 201_, 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. S'c g-�"A�j Notary Public in and for said State (This area for official notarial seal) Encroachment Agreement Page 15 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ,moi c�C,,;ra �avza. T.�aa.�>'+aaS��aS..'? A a..:�S,�S..s�;.:...:�4 sa �. �> �i h c�<..� Ate. s,.�a�> �a> s..,.-_'..s�.,�aS�.-'�>,:�C,:�.,�aS �C,a.S:s�r a ca.A�c�_`:�,•,s,C�.--\.' State of California County of -72 �f�C> On o��o aO/ before me, Ut_L l;AN IVA* li_�Iy'U, KMQy Date �j Here Insert Name and Tit of he 'Officer personally appeared ��� ` \ �� Name(s) of Sioner(s) L. WASHINGTON Commission � 1840150 Notary Public - California D 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 whose name is/4A subscribed to the within instrument and acknowledged to me that he/ e/ y executed the same in his/Kauthorized capac ty ), and that by his/l*tf*r, signaturtekon the instrument t e person or the entity upon behalf of which the personYacted, 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 d ff' is seal. 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 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 •joqw ❑ 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: ©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 0 0 It �. e.,...,- a4 X9;1; 1)1-)4. ,01 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ' t County of OnV �U Date personally appeared Pat SHANA ELISE STANLEY Commission #E 1861499 Z . �� Notary Public - California ZOrange County M Comm. Ex roes Aug16, 2013 who proved to me on the basis of satisfactory evidence to be the person(,] whose name(g) islVe subscribed to the within instrument and acknowledged to me that he/she/tlAy executed the same in his/lir/tVir authorized capacity(Os), and that by his/h,or/tl�bir signatureA 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. WITNESS my hand and official seal. Signature Place Notary Seal and/or Stamp Above /- lSignature of Notary Public OPTIONAL V 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 I I I I N, "I, a 4 Mw a Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: CI Corporate Officer— Title(s): ❑ Individual =1 Partner — ❑ Limited General Top of thumb here ❑ Attorney in Fact C7 Trustee ❑ Guardian or Conservator 0 Other: Signer Is Representing Signer's Name: ❑ Corporate Officer— Title(s): ❑ Individual L i Partner — ❑ Limited General Top of thumb here Attorney in Fact 1-1 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