HomeMy WebLinkAboutC-6781 - Encroachment Agreement EPN N2011-0162 for 2032 Miramar Drive"A', N 1ED
i
r" Recorded in Official Records, Orange County
of Tom Daly, Clerk -Recorder
RECORDING REQUESTED BY AND IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 27,00
V WHEN RECORDED RETURN TO: 2011000393365 9:43 am 08/10/11
Public Works Department 47 412 Al2 8
City of Newport Beach o.00 0.00 0.00 0.00 21.00 0.00 0.00 0.00
Post Office Box 1768
Newport Beach, CA 92658-8915
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2011-0162)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this 6t" day of June, 2011, by and between James M. Lipkowski and Tina L. Lipkowski,
Trustees of the 2005 Lipkowski Family Trust established April 5, 2005 ("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 2032 Miramar
Drive, Newport Beach, California 92661 and legally described as Lot 24 of Tract No.
948, as shown on a map recorded in Book 30, Pages 6 and 7 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, County
Assessor's Parcel Number 048-272-16 ("Property").
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Miramar Drive 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 3-foot tall planter wall, spanning 20 feet and constructed of stucco
encroaching up to 1-foot into the Miramar Drive right-of-way;
b. Install artificial lawn, constructed with Polyethylene Monofilament with
Thatch, within the 3-foot 6-inch wide parkway along the Miramar Drive
right-of-way;
C. Various private landscaping not to exceed 2-feet in height and various
private irrigation improvements in the said planter encroaching up to 1-foot
into the Miramar Drive 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.
Encroachment Agreement Page 12
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,
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
Encroachment Agreement Page 13
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, THECITY ATTORNEY
Da e
By - -
onie Mulvihill,
Assistant City Attorney\
ATTEST: Q
Date: D'2-
By: dm� S -r
Leilani Brown, City Clerk
`Lr Foams
ATTACHMENTS:
CITY OF NEWPORT BEACH,
a California Municipal corporation
Date:
By: C�l
Dav"idAiff,
City Manager
OWNER(s):
Date: ,
James Ij/a!Ljp�koki, Trustee
l% 200 L�i�wski Family Trust
Date
A
Tina L. Lipkowski, Trustee
2005 Lipkowski Family Trust
Owners must sign in the presence of notary public
EXHIBIT A —Plans as approved by Public Works
f.lusersWbwlsharedlencroachVow agreements\2011\n2011-0162-2032 miramar dr (Iipkowski family trust).doc9.21.10
Encroachment Agreement Page 15
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of r_47 kIC, I
OnA L Jl L O/ Lore me, L, LA/WI S
Date Here Insert Name and Title of the Officer '
personally appeared ��/ [� A.
Name(s) of Sianer(s)
who proved to me on the basis of sat)sfactory
evidence to be the persoewhose name is/a
subscribed to the ithin instrument and acknc . 6eYle
to me that he/sm/thy` executed the same in
his/f/t authorizes{ `capacity, and that by
L. HARRIS his/ r/ r signature(npon
on the instrument the
Commission; 1gg0150 person(or the entity behalf of which the
Notary Public _ California person(, acted, executed the instrument.
Orange County
Comm. Ex Tres Mar 12,
2013 1 certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my ha�q an of seal.
Signatur9-
Place Notary Seal and/or Stamp Above OPTIONAL Signature of Notarylic
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:
; ] Corporate Officer — Title(s):
L 1 Individual
•
❑ Partner — ❑ Limited I General Top of thumb here
Attorney in Fact
❑ Trustee
Guardian or Conservator
Other:
Signer Is Representing:
Number of Pages:
Signer's Name:
❑ Corporate Officer — Title(s):
1.1 Individual
Partner — ❑ Limited i-_ 1 General
Attorney in Fact
Cl Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing
RIGHT THUMBPRINT
OF SIGNER
.• of thumb here
0 2008 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
ACKNOWLEDGMENT
State of California
County of U�,,&ck-p } ss.
On , ��� /l before me, qN+JZXhArdl) T(JTotiZ't y�s�� C
Notary Public, personally appeared ,cP1e-% MTc1.AEL C +Pk�c>rsiei
,who proved to me on the basis of satisfactory evidence to be the person(s) whose
names) is are ubscribed to the within instrument and acknowledged to me that
he/sh %they executed the same in his/her/�fPe
authorized capacity(ies), and that by
his/he the, signatures(s) on the instrument`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.
SAHIR LAKHANI
W T ESS my hand and official seal. -. CommlSSion # 1854413Notary Public - California i
Z Orange County D
My Comm. Ex fires Jun 16, 2013
S i qP76ture (seal)
ACKNOWLEDGMENT
State of California
County of )SS.
On
Notary Public, personally appeared
before me,
,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 hand and official seal.
Signature
(seal)
Encroachment Agreement Page 16
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