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HomeMy WebLinkAboutC-6779 - Encroachment Agreement EPN N2011-0130 for 341 Hazel DriveRECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92658-8915 SCANNED Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 30.00 201100044911411.51 am 09/12/11 7 414 Al2 9 O.00 0.00 0.00 0.00 24.00 0.00 0.00 0:00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2011-0130) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 24th day of April, 2011, by and between Michael J. O'Neill and Jean A. O'Neill, husband and wife as community property with the right to survivorship ("Owner"), and the City of Newport Beach, California, a California municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California, ("City"). WITNESSETH: WHEREAS, Owner is the vested owner of property located at 341 Hazel Drive, Newport Beach, California 92625 and legally described as Lot 7 of Block A of the Tract No. 673 as per map recorded in Book 20, Pages 17 and 18 of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 052-181-19 ("Property"). WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Hazel Drive and Poppy Avenue rights -of -way (hereinafter "Right -of -Way") that is located adjacent to the Property. 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 enter this 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 16 foot wide driveway approach constructed with gray flagstone pavers encroaching up to 10 feet into the Hazel Drive public right-of-way; b. A walkway adjacent to the driveway approach varying in width up to 6 feet 2 inches encroaching up to 10 feet into the Hazel Drive public right-of-way; c. A planter wall with varying height up to 12 inches and constructed with flagstone encroaching up to 10 feet into the Hazel Drive public right-of-way; d. Various private low growing groundcover, landscaping, and irrigation improvements encroaching up to 10 feet into the Hazel Drive public right-of- way; e. Various private landscaping in the planting area between the property line and sidewalk, not to exceed 36 inches in height, encroaching up to 1 foot into the Poppy Avenue public right-of-way; f. A 3 feet 6 inches wide walkway constructed of brick pavers encroaching up to 1 foot into the Poppy Avenue right-of-way; and appurtenances 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 with or without cause and at any time without notice. The City shall make good faith efforts to provide notice (60) days in advance of termination 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 Encroachment Agreement Page 12 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 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 not 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, Encroachment Agreement Page 13 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. 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 dates written below. APPROVED AS TO FORM: OFFIC ITY ATTORNEY Date: 71 By: ?)� Leonie Mulvihill, Assistant City Attorney ATTEST: Date: AS l/"V`ti Nw- Leilani Brown, _dMONOWN.- City Clerk ATTACHMENTS: CITY OF NEWPORT BEACH, a California Municipal corporation Date: A11111AN By: Davi Kiff, City Manager OWNER(s�� l Date.}} By: Michael J O'Neill Date: 2_ 2kq _ 1 By: Owners mus sign ir°theeplesence of n tary public —Plans as approved by Public Works f.-luserslpbwlsharedlencroachlrow agreements120111n2011-0130 341 hazel drive (oneill).docx. 2 1. 10 Encroachment Agreement P a g e 15 ACKNOWLEDGMENT State of CaliArnia County of lY Pr-StdR } ss. On r`lg-v ap, a O 1 l before me,��Y1 Notary Public, personally appeared f`) �c�ge✓l J - ('j` rie,� ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/af-e subscribed to the within instrument and acknowledged to me that he/s4eA4&y executed the same in his/heir authorized capacity(ies), and that by his/h,er/theh signatures(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 foregoing paragraph is true and correct. WITNESS my hand and official seal. under the laws of the State of California that the NA ConWNtbn +! fwt76 lob, mom* c« RAN 21 Signature State of California County of Ri v-?--sc c-U ACKNOWLEDGMENT SS. (seal) On 71 za 1 I I before me, Ckr &� Sm �A Notary Public, personally appeared J cam. A . b,Yl e-1 1 ,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 signatures(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 an icial seal. CAROL SMITH COMM. #1772620 N NOTARY PUBLIC - CALIFORNIA _ RIVERSIDE COUNTY My Comm. Expires November B, 2011 Signature (seal) Encroachment Agreement Page 16 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA) COUNTY OF ORANGE ) On 0( I , 2011 before me, M Locey, Notary Public, personally appeared David Kiff who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature 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. Iw M. LOCEY WITNESS m hand d official seal. .0 Commission #� 1864451 my anNotary Public • California Orange County MY Comm. 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