HomeMy WebLinkAboutC-6759 - Encroachment Agreement EPN N2008-0409 for 800 Via Lido NordRECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
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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
(EPN2008-0409)
THIS AGREEMENT is made and entered into this 30th day of October, 2008, by and
between Noel G. Watson and Phyllis H. Watson, Trustee of the Watson Family Trust of 1992
established March 18, 1992 (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 800 Via Lido Nord, Newport Beach, California 92663 and
legally described as the northwesterly one-half of Lot 348 and all of Lot 349 of Tract 907, as
shown on a map recorded in Book 28, Pages 25 through 36 inclusively of Miscellaneous Maps
in the office of the County Recorder of Orange County, California Assessor Parcel Number
423-271-11.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the four -foot wide public utilities
easement adjacent to the Via Lido Nord rigr' f-way (hereinafter "RIGHT-OF-WAY") that is
located adjacent to the parcel legally descrii as the northwesterly one-half of Lot 348 and
all of Lot 349 of Tract 907, as shown on a man recorded in Book 28, Pages 25 through 36
inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County,
California; also known as 800 Via Lido Nord, Newport Beach, California 92663; and
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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,
(1) Two entry walkways with widths of 20-foot and 4-foot constructed of beige
flagstone pavers encroaching four feet into the four -foot wide public
utilities easement adjacent to the Via Lido Nord right-of-way;
(2) A 36-foot wide driveway approach constructed of beige flagstone pavers
encroaching four feet into the four -foot wide public utilities easement
adjacent to the Via Lido Nord right-of-way;
(3) A 4-foot by 6-inch wide trench drain encroaching four feet into the four -
foot wide public utilities easement adjacent to the Via Lido Nord right-of-
way;
(4) Various private landscaping not to exceed 20 inches in height and various
private irrigation improvements encroaching up to four feet into the four -
foot wide public utilities easement adjacent to the Via Lido Nord right-of-
way;
and appurtenances in the four -foot wide public utilities easement adjacent to the
Via Lido Nord 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.
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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.
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.
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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.
4
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,
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
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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.
APPROVED AS TO FORM:
By: Z,,-- ( , ,
Aaron Harp, Asst. City Attorney
ATTEST:
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CITY OF NEWPORT BEACH,
a Municipal corporation
By:
Homer Blud u, City Manager
[evil TO
v. Watson,
Trustee
OWNER:
By: L ��
Phyllis H. Watson,
Trustee
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"OFFICIAL SEAL"
Joan E. Anderson
Notary Public, State of Illinois
My commission Expires Jan. 18, 2009
FA
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of h o5
On NOMbPJU H, Gl�' before me, Ahr) fa Puy (1 G
Date H re Insert Name and tle of the Officer
personally appeared
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County
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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 signature(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 /z/;1VO
Place Notary Seal 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:
❑ 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
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing
RIGHTTHUMBPRINT
OF SIGNER
..
0 2007 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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