HomeMy WebLinkAboutC-6819(A) - Encroachment Agreement EPN N2012-0091 for 701 and 701 1/2 Orchis AvenueRECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
SCANNED
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(EPN 2012-0091)
THIS ENCROACHMENT AGREEMENT supersedes the Encroachment
Agreement executed on August 15, 2001 and recorded on September 10, 2001 as
Official Record No. 20010636910 in the Office of the County Recorder of Orange
County, California.
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this rb4h day of J'UINE: , 2012, by and between Veronica R. Kitchen,
a widow, ("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 701 and 701 '/2
Orchid Avenue (existing duplex), Newport Beach, California 92625 and legally
described as Lot 1, Block 741 of the Map of Corona Del Mar, as shown on a map
recorded in Book 3, Pages 41 through 42 inclusively of Miscellaneous Maps in the office
of the County Recorder of Orange County, County Assessor's Parcel Number 459-072-
11 ("Property").
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Orchid Avenue and
Fourth 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 decorative driveway approach constructed of used brick pavers
encroaching ten feet into the Fourth Avenue public right-of-way;
b. A four -foot wide walkway constructed of used brick pavers encroaching
one foot into the Fourth Avenue public right-of-way;
C. A planter wall with varying heights up to two feet, constructed of used
brick pavers, encroaching up to 6 feet, 2 inches into the Fourth Avenue public right-of-
way;
d. A brick entry walkway with three six-inch steps and varies in widths
between 6 '/2 to 9 feet wide encroaching ten feet into the Fourth Avenue public right-of-
way;
e. A four -inch high planter constructed of used brick pavers encroaching one
foot into the Orchid Avenue public right-of-way;
f. Various private low -growing groundcover, landscaping, and irrigation
improvements encroaching up to ten feet into the Orchid Avenue and Fourth Avenue
public right-of-way and appurtenances as shown on EXHIBIT "A" attached hereto and
as approved by the Public Works Department.
g. 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:
Encroachment Agreement Page 12
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 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
Encroachment Agreement Page 13
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:
CITY ATTORNEY'S OFFICE
Dater I Z-
By:
Aaron C. Harp,
City Attorney
ATTEST:
Date: 23 i.D ,.
ei ni Elrown, City Clerk
�LW PpRT
O�
u s
CITY OF NEWPORT BEACH,
a California Municipal corporation
Date: G 47
By: (;
Nancy G dner,
Mayor
OWNER(s):
Date: � - �,% 2—'
By: %�
Veronica R. Kitchen
Owners must sign in the presence of notary public
ATTACHMENTS: EXHIBIT A —Plans as approved by Public Works
Ilcnb-20Muserslpbwlsharedl1-encroach Vow agreements12010n2012-0091 701 and 701.5 orchid ave
(kitchen). docx
Encroachment Agreement Page 15
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
CIVIL CODE § 1189
State of California
County of btt c
On S before me, 14', wL- Re, , Ko LW —POL `r G
Date Here Insert Name and Title of the OLAcer
personally appeared (0C4_nk�re-r'
--Name(s) of Signer(s)
e
who proved to me on the basis of satisfactory
evidence to be the persoaK whose name(a)- is/ar�-_'
subscribed to the within instrument and acknowledged
to me that .he/she/tlaer� executed the same in
r� b+sVher/the1F authorized capacity(V.&), and that by
KIM RIEFF JWig/her/t[> i, signature( on the instrument the
Commission #E 1967536A person�W, or the entity upon behalf of which the
Notary Public - California a person acted, executed the instrument.
Orange County
MY Comm. Expires Jan 26, 2016+ 1 certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand a d official al.
Signature:
Place Notary Seal Above Signature of Notary bli
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:
❑ Corporate Officer — Title(s):
Individual
❑ Partner — J Limited 1-1 General
Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
RIGHT THUMBPRINT
OF SIGNER
Number of Pages:
Signer's Name:
Corporate Officer — Title(s):
❑ Individual
❑ Partner — ❑ Limited ❑ General Top of thumb here
❑ Attorney in Fact
Trustee
Guardian or Conservator
❑ Other:
Signer Is Representing
(9 2010 National Notary Association • NationalNotary.org - 1-800-US NOTARY (1-800-876-6827) Item #5907
ACKNOWLEDGMENT
State of California
County of ®R- .N)C- e } ss.
On ` �yr)c 1'. , 2-V f .2-- before me, M , K E v t� R--r- C-ice ,
Notary Public, personally appeared '- C k- rZ-iI-1; D Fs 6--r� r.�
who proved to me on the basis of satisfactory evidence to be the person(K whose
name,`/�f`e subscribed to the withi , instrument and acknowledged to me that
h� A. Ythy executed the same in h herdthr authorized capacity(i`), and that by
he Oir signatures(w) 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. .
'1 M. KENDRICK
WITNESS my hand and official seal. COMM. #1877789
0 NOTARY PUBLIC - CALIFORNIA
ca COUNTY OF ORANGE O
My Comm. Expires January 23. 2014
Signature (seal)
ACKNOWLEDGMENT
State of
County of ) ss.
On before me,
Notary Public, personally appeared
California
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 P a g o 16
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