HomeMy WebLinkAboutC-6711 - Encroachment Agreement EPN N2008-0275 for 2301 Orchard DriveRECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
U 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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ENCROACHMENT AGREEMENT
(EPN2008-0275)
THIS AGREEMENT is made and entered into this 14th day of July, 2008, by and
between Jeffrey W Cheng (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 2301 Orchard Drive, Newport Beach, California 92660 and legally
described as Lot 7 of Tract 14288, as shown on a map recorded in Book 671, Pages 47
through 48 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange
County, California Assessor Parcel Number 439-342-20.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Orchard Drive right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot 7
of Tract 14288, as shown on a map recorded in Book 671, Pages 47 through 48 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, California; also
known as 2301 Orchard Drive, Newport Beach, California 92660; 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,
(1) A 37 -foot wide driveway constructed of brown stone pavers encroaching
10 feet into the public right-of-way
(2) A variable width entry walkway with varying widths from 6 -feet to 15 -feet
wide constructed of dark brown stone pavers encroaching 10 feet into the
public right-of-way;
(3) Various private landscaping not to exceed 30 inches in height and various
private irrigation improvements encroaching up to 10 feet into the public
right-of-way;
and appurtenances in the Orchard Drive 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
VA
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
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.
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(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.
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,
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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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
CITY OF NEWPORT BEACH,
a Municipal corporation
APPROV D AS TO FORM:
ByC By:
Aaron Harp, Asst. City Attorney omer Bludau, ity Manager
AT'
is
LaVonne Harkless, City Clerk
OWNER:
By:
Jeffrey Z, e n g
f:\users\pbw\shared\encroach\row agreements\2008\n2008-0275-2301 orchard drive (cheng).doc
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CALIFORNIA• ACKNOWLEDGMENT
State of California
County nlJ
ram
On ' 00 before me, Wavii 1• eymm Nofmi pu iic
Dae I Here Inser Name and Title of th Officer
personally appeared
IEILANI 1. BROWN
Commisslon # 1633477
• -�Notary Publk - Califomla
Orange County
p1my Comm. Expires Jan 25, 2010
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person( whose name(-&} is/afe subscribed to the
within instrument and acknowledged to me that
he/sheg-iey executed the same in his1heW#H,* authorized
capacity(.iee}, and that by his/"^"'+rorr 4ei -signature(-&) on the
instrument the person(a)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 offi �al sal.
Signature d4&
Signure of Notary Public
OPTIONAL at
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 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 •
Top of thumb here
El Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On JUI(A�T 2Dd
personally appeared
before me, LILA-A/Q UAS4/A)G7Z
Notary Public,
who
proved to me on the basis of satisfactory evidence to be the person whose name is/4,
subscribed to the within instrument and acknowledged to me that he/�e/�`I�y executed the
same in his/II/09T authorized capacity�s), and that by his/Kr/t*K�r signature) o on the
instrument the person), or the entity upon behalf of which the person Yacted, 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.
N t 41 P A lic in and for said State
OPTIONAL INFORMATION
L. WASHINGTON
Commission # 155691:2 [
Notary Public - California
Los Angeles County
(SEAL) Nb Comm. Expires Mar 6,200
Title or Type of Document: uvMVCHMEAT AC-EEMPJT
Date of Document:
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