HomeMy WebLinkAboutC-6706 - Encroachment Agreement EPN N2009-0303 for 303 Poinsettia AvenueO;
RECORDING REQUESTED AND
•.�� WHEN RECORDED RETURN TO:
v Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Space above this line for Recorder's use only. I
ENCROACHMENT AGREEMENT 1
(EPN2009-0303)
THIS AGREEMENT is made and entered into this 23rd day of October, 2009, by and
between M & N Investment Properties LLC (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 303 Poinsettia Avenue, Newport Beach, California
92625 and legally described as Lot 3, Block 242 of Corona Del Mar Tract, as shown on a map
recorded in Book 3, Pages 41 through 42 of Miscellaneous Maps in the office of the County
Recorder of Orange County, California Assessor Parcel Number 052-133-26.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Poinsettia Avenue right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot
3, Block 242 of Corona Del Mar Tract, as shown on a map recorded in Book 3, Pages 41
through 42 of Miscellaneous Maps in the office of the County Recorder of Orange County,
California; also known as 303 Poinsettia Avenue, Newport Beach, California 92625; 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
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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 9 -foot, 8 -inch wide by five-foot long carriage walk and a 9 -foot, 8 -inch
wide entry walkway constructed of "Scofield Chromix Admixture C-20
Limestone" colored concrete encroaching up to ten feet into the Poinsettia
Avenue public right-of-way;
b. Various private landscaping in the planting areas in the parkway and
between the property line and sidewalk not to exceed 30 inches in height
encroaching up to ten feet into the Poinsettia Avenue public right-of-way;
C. Various private low -growing groundcover in the planting area measured a
minimum of 18 inches from the curb face;
d. Various private irrigation improvements encroaching up to ten feet into the
Poinsettia Avenue public right-of-way and; and appurtenances in the
Poinsettia 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.
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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.
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
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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
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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.
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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.
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:
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By:
*nett . Beauch p,
Assistant City Attorney
ATTEST:
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By:
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Leilani I. Brown, City Clerlkj
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CITY OF NEWPORT BEACH,
a Municipal corporation
By: \ c
DaW A. Kiff,
City Manager
OWNER:
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By: (�
Lee A. Miller
Managing Member, M& N Investment Properties LLC
OWNER:
Bye
homas Nicholson
Managing Member, M& N Investment Properties LLC
F:\Users\PBW\Shared\ENCROACH\ROW Agreements\2009\N2009-0303-303 Poinsettia Ave (M&N Investment Prop LLC).doc
CALIFORNIA
State of California
County of V"NYJ�i
On 3
Date
personally appeared
L. WASHINGTON
Commission # 1640150
-s« Notary Public - California z
Z Orange County D
M Comm. Expires Mar 12, 2013
Place Notary Seal Above
who proved to e on the basis of satisfactory evidence to
be the person( whose name is%#subscribed to the
within instrument and acknowled ed to me that
he/s��e,/t executed the same in hi /h r/t* authorized
captcit� and that by his 1R /th�, ignature Jon the
instrument the 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 CalifoAa that the foregoing paragraph is
true and correct.
WITNES
Signat e
OPTION L
seal.
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Signer's Name:
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❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHTTHUMBPRINT
OF SIGNER
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❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General Hill
❑ Attorney in Fact •
❑ Trustee Top of thumb here
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On I c> /zC, /c <t before me, ����� � �% , t�,,��>�.,v Notary Public,
personally appeared k r, a , Q. IV—c � � who
proved to me on the basis of satisfactory evidence to be the person) whose namep07Jare
subscribed to the within instrument and acknowledged to me that6e>he/they executed the
same in 6i oher/their authorized capacity0els , and that by his/herAhe+r signature(49) on the
instrument the person(,$), or the entity upon behalf of which the person(.s') acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(SEAL)
Notary ublic in and for said State
OPTIONAL INFORMATION
SHERYL V. BROYM
COnM S81on 0 t oom
Notay Pubk - clowMn
Oranpt County
_MyComm. n Oct 18 1$
Title or Type of Document: E ,Nc_0.0A c;H m Er A & rz e't=-.vr E.v
Date of Document: 10 / -2- 3 / o -7
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On d ) CA ?, -�(� "before me, 1 W i S- , �,�✓ ( S Notary Public,
personally appeared /' e(--- A � , who
proved to me on the basis of satisfactory evidence to be the person( whose name(6)&re
subscribed to the within instrument and acknowledged to me that(jg�he/they executed the
same in(:�i>er/their authorized capacity(, and that by his er/their signature( -
,,4 on the
instrument the person( s , 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.
4/ (SEAL)
Nota P II 1n an or said State
OPTIONAL INFORMATION
Title or Type of Document:
Date of Document:
M. S. LAVERS
• Commission # 1634077
92 -o Notary Public - California
Orange County
My Comm. Expires Jan 1, 20101
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