HomeMy WebLinkAboutC-6780 - Encroachment Agreement EPN N2011-0222 for 534 Westminster Avenue0
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RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
v
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92658-8915
Recorded in Official Records, Orange
Tom Daly, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(EPN2011-0222)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this 28th day of July, 2011, by and between Ocean Development Group, LLC, a
California Limited Liability Company ("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 534 Westminster
Avenue, Newport Beach, California 92663 and legally described as Lot 9, Block 30 of
The First Addition to Newport Heights, as shown on a map recorded in Book 4, Page 94
inclusively of Miscellaneous Maps in the office of the County Recorder of Orange
County, County Assessor's Parcel Number 425-092-08 ("Property").
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Westminster Avenue
right-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 six-foot wide entry walkway constructed of beige cobblestone pavers
encroaching five feet into the public right-of-way;
b. A variable height block wall with heights from 18 inches to 24 inches high
constructed of grey split face CMU blocks encroaching up to five feet into the
public right-of-way;
c. Various private low -growing groundcover and landscaping not to exceed 36
inches in height encroaching up to five feet into the public 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
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
Encroachment Agreement 11 :z g e 12
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,
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.
Encroachment Agreement , ;, q 3
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:
OFFICE ,J�,JE ATTORNEY
Date:
By:
L ie Mulvihill, l" �' Assistant City Attorney e-
ATTEST: ' I
Date:
By:
�kw—
Leilan[vBrown, City Clerk
CITY OF NEWPORT BEACH,
a California Municipal corporation
Date: o I�_�
By:
Da " iff,
City Manager
OWNER(:
Date: YY'
By:
James a ' naging Member for
Oce Development Group, LLC
Owners must sign in the presence of notary public
ATTACHMENTS: EXHIBIT A —Plans as approved by Public Works
llcnb-20051userslpbwlshareMI-encroach Vow agreements\2011\n2011-0222 -534 westminster ave
(ocean dev group I1c).docx9.21.10
Encroachment Agreement5
ACKNOWLEDGMENT
State of California
County of d V'CLVV:o - } ss.
On AV-G 2 , 2oX` before me, IAA LoC"
Notary Public, personally appeared J acres CAO-✓+-Elk
,who proved to me on the basis of satisfactory evidence to be the personK whose
name,(<&are subscribed to the within instrument and acknowledged to me that
(SPshe/they executed the same irC5D;�her/their authorized capacity(iesT,- and that by
&js/her/their signatures n the instrument the person(a)-or the entity upon behalf of
which the person, o 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.LOCEY
• Commission # 186445,
WITNESS my hand and official seal. -. Notary Public - California
Orange County
M Comm. Expires Oct 7, 2013
Signa ure (seal)
ACKNOWLEDGMENT
State of California
County of Cl�Ge,rc - } ss.
On ,A Lq 1-7 , ZUtI before me, v&(-
Notary Public, personally appeared t'7, cu, 1 j4 V— -V+-
,who proved to me on the basis of satisfactory evidence to be the person(<whose
name(oKj 6Rare subscribed to the within instrument and acknowledged to me that
E'she/they executed the same indg/her/their authorized capacity(ip'3), and that by
(F Rher/their signatures($) on the instrument the person(< or the entity upon behalf of
which the person(,$) 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.
WITNESS my hand and official seal.
M. LOCEY
Commission #t 1864451
i s Notary Public - California
Z Orange County
4 Comm. Ex ires Oct 7, 2013
(seal)
Encroachment Agreement Page 16
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OWNER: Ocean Development
Group. LLC
i
ADDRESS: 534 Westminster Ave. I
Newport Beacli, CA 92663
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Exhibit "A"
Sheet 1 of 1
N2011-0222
71 /-969889 p.2
REVISED OPERATING AGREEMENT
FOR
OCEAN DEVELOPMENT GROUP, LLC
THIS LIMITED LIABILITY COMPANY was formed on the I0'i day of October, 2010 and this
revised Operating Agreement (Agreement) has been made by the 2008 Martin Family Trust as of
December 10, 2010. The following business entities and individuals shall be known as and
referred to as "Members" and individually as a "Member."
2008 Martin Family Trust Jaynes Martin, Trustee
Kathleen Cotter
As of the above date the Members, through their agent, Rebecca Travell, have formed the Ocean
Development Group Limited Liability Company named above under the laws of the State of
California. Accordingly, in consideration of the conditions contained herein, they agree as
follows:
ARTICLE I
Company Formation and Registered Allent
1.1 FORMATION. The Members hereby form this Limited Liability Company ("Company')
subject to the provisions of the Limited Liability Company Act as currently in effect as of
this date. A Certificate of Formation shall be filed with the Secretary of State.
1.2 NAME. The name of the Company shall be: Ocean Development Group, LLC.
1.3 REGISTERED OFFICE AND AGENT. The location of the registered office of the
Company shall be: Rebecca Travell 6191 E Calle Pantano, CA 92886.
1.4 TERM. The Company shall continue in a perpetual period untess dissolved by its registered
agent or organizer of the Articles of Organization.
(a) Members whose capital interest as defined in Article 2.2 exceeds 50 percent vote for
dissolution; or (b) Any event which makes it unlawful for the business of the Company to be
carried on by the Members; or
(c) The death, resignation, expulsion, bankruptcy, retirement of a Member or the occurrence of
any other event that terminates the continued membership of a Member of the Company, or
(d) Any other event causing dissolution of a Limited Liability Company under the laws of the
State of California.
71,'-g69889 p.3
1.5 CONTINUANCE OF COMPANY. Notwithstanding the provisions of ARTICLE 1.4, in
the event of an occurrence described in ARTICLE 1.4(c), if there are at least two remaining
Members, said remaining Members shall have the right to continue the business of the Company.
Such right can be exercised only by the unanimous vote of the remaining Members within ninety
(90) days after the occurrence of an event described in ARTICLE 1.4(c). If not so exercised, the
right of the Members to continue the business of the Company shall expire.
1.6 BUSINESS PURPOSE. The purpose of the Company is to engage in any lawful act or
activity for which a Limited Liability Company may be formed under the Limited Liability
statutes of the State of California. Specifically, the Company plans to invest in and develop new
residential real estate.
1.7 PRINCIPAL PLACE OF BUSINESS. The location of the principal place of business of
the Company shall be:
17924 Via Ranchero, Yorba Linda, CA
or at such other place as the Managers from time to time select.
1.8 THE MEMBERS. The name, percentage of membership and place of residence of each
member are contained in Exhibit 2 attached to this Agreement.
1.9 ADMISSION OF ADDITIONAL MEMBERS. Except as or otherwise expressly
provided in the Agreement, no additional members may be admitted to the Company
through issuance by the company of a new interest in the Company without the prior
unanimous written consent of the Members.
ARTICLE 2
Capital Contributions
2.1 INITIAL CONTRIBUTIONS. The Members initially shall contribute to the Company
capital as described in Exhibit 3 attached to this Agreement. The agreed value of such property
and cash is $100.
2008 Martin Family Trust James Martin, Trustee $99.00
Kathleen Cotter $1.00
2.2 ADDITIONAL CONTRIBUTIONS. Except as provided in ARTICLE 6.2, no Member
shall be obligated to make any additional contribution to the Company's capital.
71 /'-g69889 pA
ARTICLE 3
Profits, Losses and Distributions
3.1 PROFITSILOSSES_ For financial accounting and tax purposes the Company's net profits or
net losses shall be determined on an annual basis and shall be allocated to the Members in
proportion to each Member's relative capital interest in the Company as set forth in Exhibit 2 as
amended from time to time in accordance with Treasury Regulation 1.704-1.
3.2 DISTRIBUTIONS. The Members shall determine and distribute available fiords annually or
at more frequent intervals as they see fit. Available funds, as referred to herein, shall mean the net
cash of the Company available after appropriate provision for expenses and liabilities, as
determined by the Managers. Distributions in liquidation of the Company or in liquidation of a
Member's interest shall be made in accordance with the positive capital account balances
pursuant to Treasury Regulation 1.704-1(b)(2)(ii)(b)(2). To the extent a Member shall have a
negative capital account balance, there shall be a qualified income offset, as set forth in Treasury
Regulation 1.704-1(b)(2)(ii)(d).
ARTICLE 4
Management
4.1 MANAGEMENT OF THE BUSINESS. The name and place of residence of each
Manager is attached as Exhibit 1 of this Agreement. By a vote of the Members holding a
majority of the capital interests in the Company, as set forth in Exhibit 2 as amended from
time to time, shall elect so many Managers as the Members determine, but no fewer than
one, with one Manager elected by the Members as Chief Executive Manager,
4.2 MEMBERS. The liability of the Members steal I be limited as provided under the laws of the
California Limited Liability statutes. Members that are not Managers shall take no part whatever
in the control, management, direction, or operation of the Company's affairs and shall have no
power to bind the Company. The Managers may from time to time seek advice from the
Members, but they need not accept such advice, and at all times the Managers shall have the
exclusive right to control and manage the Company. No Member shall be an agent of any other
Member of the Company solely by reason of being a Member.
4.3 POWERS OF MANAGERS. The Managers are authorized on the Company's behalf to
make all decisions as to (a.) the sale, development lease or other disposition of the Company's
assets; (b) the purchase or other acquisition of other assets of al l kinds; (c) the management of al I
or any part of the Company's assets; (d) the borrowing of money and the granting of security
interests in the Company's assets; (e) the pre -payment, refinancing or extension of any loan
affecting the Company's assets; (f ) the compromise or release of any of the Company's claims or
debts; and. (g) the employment of persons, firms or corporations for the operation and
management of the company's business_ In the exercise of their management powers, the
Managers are authorized to execute and deliver (a) all contracts, conveyances, assignments
leases, sub -leases, franchise agreements, licensing agreements, management contracts and
maintenance contracts covering or affecting the Company's assets; (b) all checks, drafts and other
orders for the payment of the Company's funds; (c) all promissory notes, loans, security
71, ^g69889 p.5
agreements and other similar documents; and, (d) all other instruments of any other kind relating
to the Company's affairs, whether like or unlike the foregoing.
4.4 CHIEF EXECUTIVE MANAGER. James Martin, as Managing Member, is named Chief
Executive Manager and shall have primary responsibility for managing the operations of the
Company and for effectuating the decisions of the Managers. He is hereby authorized to perform
all duties set forth in item 4.3 and will have the responsibility for managing all aspects of the job,
including managing the day to day operations and making all decisions in regard to that project_
4.5 NOMINEE. Title to the Company's assets shall be held in the Company's name or in the
name of any nominee that the Managers may designate. The Managers shall have power to enter
into a nominee agreement with any such person, and such agreement may contain provisions
indemnifying the nominee, except for his willful misconduct.
4.6 COMPANY INFORMATION. Upon request, the Managers shall supply to any Member
information regarding the Company or its activities. Each Member or his authorized
representative shall have access to and may inspect and copy all books, records and materials in
the Manager's possession regarding the Company or its activities. The exercise of the rights
contained in this ARTICLE 4.6 shall be at the requesting Member's expense.
4.7 EXCULPATION. Any act or omission of the Managers, the effect of which may cause or
result in loss or damage to the Company or the Members if done in good faith to promote the best
interests of the Company, shall not subject the Managers to any liability to the Members.
4.8 INDEMNIFICATION. The Company shall indemnify any person who was or is a party
defendant or is threatened to be made a party defendant, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in
the right of the Company) by reason of the fact that lie is or was a Member of the Company,
Manager, employee or agent of the Company, or is or was serving at the request of the Company,
for instant expenses (including attorney's fees), judgments, fines, and amounts paid in settlement
actually and reasonably incurred in connection with such action, suit or proceeding if the
Members determine that he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interest of the Company, and with respect to any criminal action
proceeding, has no reasonable cause to believe his/her conduct was unlawful. The termination of
any action, suit, or proceeding by judgment, order, settlement, conviction, or upon a plea of "no
to Contendere" or its equivalent, shall not in itself create a presumption that the person did or did
not act in good faith and in a manner which he reasonably believed to be in the best interest of the
Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe
that his/her conduct was lawful.
4.9 RECORDS. The Managers shall cause the Company to keep at its principal place of
business the following: (a) a current list in alphabetical order of die full name and the last known
street address of each Member; (b) a copy of the Certificate of Formation and the Company
Operating Agreement and all amendments; (c) copies of the Company's federal, state and local
income tax returns and reports, if any, for the three most recent years; (d) copies of any financial
statements of the limited liability company for the three most recent years.
4
71( A "`t69889 p.6
ARTICLE 5
Compensation
5.1 MANAGEMENT FEE. Any Manager rendering services to the Company shall be entitled
to compensation commensurate with the value of such services.
5.2 REIMBURSEMENT. The Company shall reimburse the Managers or Members for all
direct out-of-pocket expenses incurred by them in managing the Company.
ARTICLE 6
Bookkeeping
6.1 BOOKS. The Managers shall maintain complete and accurate books of account of the
Company's affairs at the Company's principal place of business. Such books shall be kept on
such method of accounting as the Managers shall select.
6.2 MEMBER'S ACCOUNTS. The Managers shall maintain separate capital and distribution
accounts for each member. Each member's capital account shall be determined and maintained in
the manner set forth in Treasury Regulation 1.704-1(b)(2)(iv) and shall consist of his initial capital
contribution increased by:
(a) any additional capital contribution made by him/her,
(b) credit balances transferred from his distribution account to his capital account;
and decreased by. (a) distributions to him/her in reduction of Company capital; .(b) the
Member's share of Company losses if charged to his/her capital account..
6.3 REPORTS. The Managers shall close the books of account after the close of each calendar
year, and shall prepare and send to each member a statement of such Member's distributive share
of income and expense for income tax reporting purposes.
ARTICLE 7
Transfers
7.1 ASSIGNMENT. If at anytime a Member proposes to sell, assign or otherwise dispose of all
or any part of his interest in the Company, such Member shall first make a written offer to sell
such interest to the other Members at a price determined by mutual agreement. If such other
Members decline or fail to elect such interest within thirty (30) days, and if the sale or assignment
is made and the Members fail to approve this sale or assignment unanimously then, pursuant to
the California Limited Liability statutes, the purchaser or assignee shall have no right to
participate in the management of the business and affairs of the Company.
Signed this 100 day of December, 2010.
-4�
J Iies, , T to anaging Member Kathleen Cotter, ember
71," '969889 p.7
Exhibit 1
LISTING OF MANAGERS)
By a majority vote of the Members the following Managers have been elected to operate the
Company pursuant to ARTICLE 4 of the Agreement:
James Martin- Manager
17924 Via Ranchero
Yorba Linda, CA 92886
The above Manager will serve in his capacity until he either unable to serve due to illness or
death. If either of these occur, it is hereby agreed that Kathleen Cotter will take over as
Managing Member_
Signed this 10 day of December, 2010.
Member
11
71,"969889 p.8
Exhibit 2
THE MEMBERS
The name and place of residence of each Member are contained in this attachment to Operating
Agreement
LISTING OF MEMBERS
As of the 10'h day of December, 2010 the following is a list of Members of the Company, their
percentage of membership and their address:
2008 Martin Family Trust 99% Member
James Martin, Trustee 17924 Via Ranchero Yorba Linda, CA 92886
Kathleen Cotter 1 % Member
17924 Via Ranchero, Yorba Linda CA 92886
t
th a ecernber, 2010.
Jac7;!7tee/Managing Member
Kathleen Cotter, Member
7