HomeMy WebLinkAboutC-6777 - Encroachment Agreement EPN N2009-0271 for 401 Belvue Lane1
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RECORDING REQUESTED AND ,.
1 WHEN RECORDED RETURN TO: Tt"'` r'I;,,- car'r�. ``'` 1 1 et
Public Works Department oil,
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92658-1768
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT (�
(EPN2009-0271)
THIS AGREEMENT is made and entered into this Is +" day of
_ U.nei , 2010, by and between James Robert Johansen and Linda June
Johansen, Trustees of the Johansen Family 2000 Trust dated July 17, 2000
(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 401 Belvue Lane, Newport Beach, California 92661
and legally described as Lot 15 of Tract 1090, as shown on a map recorded in Book 35,
Page 24 inclusively of Miscellaneous Maps in the office of the County Recorder of
Orange County, California Assessor Parcel Number 048-251-06.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Miramar Drive and Belvue
Lane right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel
legally described as Lot 15 of Tract 1090, as shown on a map recorded in Book 35,
Page 24 inclusively of Miscellaneous Maps in the office of the County Recorder of
Orange County, California; also known as 401 Belvue Lane, 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 60 foot long by 6 foot tall block wall which encroaches up to 1 foot
into the Miramar Drive public right of way;
b. a 12 foot long by 6 foot tall block wall which encroaches up to 1 foot
into the Miramar Drive public right of way;
c. a 3.5 foot long by 6 inch tall planter wall which encroaches up to 1 foot
into the Miramar Drive public right of way;
d. a 49.5 foot wide by 3.5 foot wide carriage walk constructed of grouted
brick pavers which encroaches up to ten feet into the Miramar Drive
public right of way;
e. a 56 foot wide by 3.5 foot wide green permeable synthetic turf which
encroaches up to ten feet into the Miramar Drive public right of way;
f. an 18 foot by 1 foot grouted brick paver parkway which encroaches up
to 1 foot into the Miramar Drive public right of way;
g. an 8 foot long by 30 inches high brick wall and pilasters which
encroach up to 1.5 feet into the Belvue Lane public right of way;
h. a 12 foot wide by 2 foot wide carriage walk constructed of grouted
brick pavers which encroaches up to two feet into the Belvue Lane
public right of way;
i. a 77 foot wide by 2 foot wide green permeable synthetic turf which
encroaches up to two feet into the Belvue Lane public right of way;
j. a 6 foot by 2 foot grouted brick paver parkway which encroaches up to
2 feet into the Belvue Lane public right of way;
and appurtenances in the Miramar Drive and Belvue Lane 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
Encroachment Agreement Pa g e 12
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 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
replacement, or
IMPROVEMENTS.
to pay all costs for the renewal,
restoration of the PERMITTED
Encroachment Agreement F-' a q , 13
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, 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.
Encroachment Agreement P i g 14
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 P o c, 5
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:
IMyne e Bea c amp,
Assistant City ttorney
ATTEST:
Leilani I: Brown, C
0XILA
CITY OF NEWPORT BEACH,
a Municipal corporation
By: �- G_ l�
David . Kiff,
City Manager
OWNER(s):
By:
James Robert Johan n
The Johansen Family T st
ted July 17 2000
B '
Linda ne Joh en
The Johansen Fa ily Trust
dated July 17, 2000
ATTACHMENTS: EXHIBIT A —Plans as approved by Public Works
STATE OF CALIFORNIA
COUNTY OF ORANGE
On 201&, before 7k)
,Notary Public, personally appeared (owners)
who roved to me on the basis of satisfactory evidence to be the
person whose name( is/ subscribed tote within instrument and acknowledged to me
tha he th has executed the same in his/�r/t r authorized capacity(w, and that by
his/ /th �r sitatura%on the instrument the person or the entity upon be
of which the
per on 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.
ublic in and for said State
L. WASHINGTON
Commission # 1840150
i -� Notary Public - California
Z Orange County
My Comm. Expires Mar 12, 2013
(This area for official notarial seal)
Encroachment Agreement Page 16
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PUBLIC R.O.W.
ENCROACHMENTS
MR ! MRS JOHANSEN
-101 BELVUE LN
201 SHIPYARD WAY * SUITE F
NE PORT BEACH *
CA 92L43
C j
07
NEWPORT BEACH, CA 92641
PH 9 9-413-0990
FAX 949-413-4204
SCALE,
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On June 21, 2010 before me, M. Locey, Notary Public, personally appeared James
Robert Johansen and Linda June Johansen who proved to me on the basis of
satisfactory evidence to be the pers n(s whose nameWare subscribed to the within
instrument and acknowledged to me that he/she�f97 executed the same in his/heldSD
authorized capacity and that by his/h the ignatwfop on the instrument the
perso� 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.
M. LOCE~Y��
WITNESS my hand and official seal. commission # 1864451
• Notary Public - California
Orange County
NIComm. Expires Oct 7, 2013
(SEAL)
Notary ub is in and for said S
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