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HomeMy WebLinkAboutC-8923-2 - Amended and Restated Encroachment Agreement EPN N2022-0210 for 621 Rockford Road8/10/22, 11:51 AM Batch 14485572 Confirmation RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Attn: City Clerk's Office City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder 11II III III 1 1111 I I I I II 34.00 *$ R 0 0 1 3 8 9 7 3 6 6 9* 202200027419211:39 am 08/10/22 90 CR-SC06 Al2 10 0.00 0.00 0.00 0.00 27.00 0.00 0.000.000.00 0.00 Space above this line for Recorder's use only. AMENDED AND RESTATED ENCROACHMENT AGREEMENT (Encroachment Permit Number N2022-0210) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 5th day of August, 2022, by and between Covey Christensen and Danae Christensen Husband and Wife as Joint Tenants ("Owner"), and the City of Newport Beach, a California municipal corporation and charter city, organized and existing under and by virtue of its Charter and the Constitution, and the laws of the State of California ("City"). RECITALS WHEREAS, Owner is the vested owner of property located at 621 Rockford Road, Newport Beach, California, 92625, Orange County Assessor's Parcel Number 475-031-18 and legally described on Exhibit A, attached hereto and incorporated herein by reference ("Property"); WHEREAS, Owner of the Property, and City entered into that certain agreement, Agreement for Non -Standard Improvements, dated March 8, 2021, which was recorded as instrument number 2021000253209 in the Recorder's Office for the County of Orange on April 14, 2021; WHEREAS, Owner of the Property and City entered into that certain agreement, Agreement for Non -Standard Improvements dated December 1, 2021, which was recorded as instrument number 2022000002849 in the Recorder's Office for the County of Orange on January 4, 2022 (collectively "Former Agreements"); WHEREAS, the Former Agreements permitted an existing sixty three foot (63') long by thirty inch (30") tall retaining wall that encroaches six feet (6') six inches (6") into the existing ten foot (10') wide City Storm Drain easement; and a new twenty two foot (22') long by thirty six inch (36") tall retaining wall that encroaches six feet (6) six inches (6") into the existing ten foot (10') wide City Storm Drain easement; and an existing sixty three foot (63') long by thirty inch (30") tall retaining wall that encroaches six feet (6) six inches (6") into the Right -of -Way; and a new twenty two foot (22') long by thirty six inch (36") tall retaining wall that encroaches six feet (6) six inches (6") into the Right -of -Way, respectively; Covey Christensen and Danae Christensen Encroachment Agreement 1 https://gs.secure-recording.com/Batch/Confirmation/14485572 5/6 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Attn: City Clerk's Office City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Space above this line for Recorder's use only. AMENDED AND RESTATED ENCROACHMENT AGREEMENT (Encroachment Permit Number N2022-0210) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 5th day of August, 2022, by and between Covey Christensen and Danae Christensen Husband and Wife as Joint Tenants ("Owner"), and the City of Newport Beach, a California municipal corporation and charter city, organized and existing under and by virtue of its Charter and the Constitution, and the laws of the State of California ("City"). RECITALS WHEREAS, Owner is the vested owner of property located at 621 Rockford Road, Newport Beach, California, 92625, Orange County Assessor's Parcel Number 475-031-18 and legally described on Exhibit A, attached hereto and incorporated herein by reference ("Property"); WHEREAS, Owner of the Property, and City entered into that certain agreement, Agreement for Non -Standard Improvements, dated March 8, 2021, which was recorded as instrument number 2021000253209 in the Recorder's Office for the County of Orange on April 14, 2021; WHEREAS, Owner of the Property and City entered into that certain agreement, Agreement for Non -Standard Improvements dated December 1, 2021, which was recorded as instrument number 2022000002849 in the Recorder's Office for the County of Orange on January 4, 2022 (collectively "Former Agreements"); WHEREAS, the Former Agreements permitted an existing sixty three foot (63') long by thirty inch (30") tall retaining wall that encroaches six feet (6') six inches (6") into the existing ten foot (10') wide City Storm Drain easement; and a new twenty two foot (22') long by thirty six inch (36") tall retaining wall that encroaches six feet (6) six inches (6") into the existing ten foot (10') wide City Storm Drain easement; and an existing sixty three foot (63') long by thirty inch (30") tall retaining wall that encroaches six feet (6) six inches (6") into the Right -of -Way; and a new twenty two foot (22') long by thirty six inch (36") tall retaining wall that encroaches six feet (6) six inches (6") into the Right -of -Way, respectively; Covey Christensen and Danae Christensen Encroachment Agreement 1 WHEREAS, Owner desires to update the design of the Existing Encroachment in substantial conformance with the Former agreement and construct certain non-standard improvements as further described herein ("Permitted Improvements") within the 10-foot wide storm drain easement Right -of -Way (hereinafter "Right -of -Way") that is located adjacent to 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 into 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: City and Owner acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 2. It is mutually agreed that Permitted Improvements shall be defined as follows, as approved by the Public Works Department and as shown on Exhibit B, attached hereto and incorporated herein by reference: a. An existing sixty three foot (63') long by thirty six inches (36") tall retaining wall that encroaches six feet (6) six inches (6") into the existing ten foot (10') wide City Storm Drain easement; and a new twenty two foot (22') long by thirty nine inch (39") tall retaining wall that encroaches six feet (6) six inches (6") into the existing ten foot (10') wide City Storm Drain easement. b. In addition, if any improvements actually built or installed during the time of construction vary from 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. 3. 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 City. City will further allow Owner to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 4. Rights granted under this Agreement may be terminated by City with or without cause and at any time without notice. City shall make good faith efforts to provide sixty (60) calendar days' notice 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. 5. Owner and City further agree as follows: Covey Christensen and Danae Christensen Encroachment Agreement 2 a. Owner may construct and install Permitted Improvements and appurtenances incidental thereto in substantial conformance with the plans and specifications on file in City's Public Works Department, and as described on Exhibit B. b. Owner shall maintain 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 and restoration of these public facilities or improvements to their condition at the time of entry into this Agreement. d. 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 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 Permitted Improvements affected by such work by City. (iii) City agrees to bear only the cost of any removal of Permitted Improvements affected by such work by City. (iv) Owner agrees to pay all costs for the renewal, replacement, or restoration of Permitted Improvements. 6. 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 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) calendar days' notice, with the notice specifying the date of termination. 7. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 8. 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 Covey Christensen and Danae Christensen Encroachment Agreement 3 any such claim or suit arising from or in any manner connected with the design, construction, maintenance, or continued existence of Permitted Improvements. 9. 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 Owner's interest in the land, whether fee or otherwise; and shall be recorded in the Office of the County Recorder of Orange County, California. 10. 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, California. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. [SIGNATURES ON NEXT PAGE] Covey Christensen and Danae Christensen Encroachment Agreement 4 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 Date: 0,2 Z By:s!G -fie✓ Aaron C. Harp o��,.Lti City Attorney 4ev ATTEST: Date: 6, 10& :. City Clerk c0poa% CITY OF NEWPORT BEACH, a California municipal corporation Date:— !K10Vi IF By: 4�1 ��� G c K. Leung Manager OWNER(S): Covey Christensen and Danae Christensen Husband and Wife as Joint Tenant Date: Z/g- /Z-Z By: Covey Chri tensen Owner Date: � I By: D e Christensen Owner [END OF SIGNATURES] Owners must sign in the presence of notary public ATTACHMENTS: Exhibit A — Legal Description of Property Exhibit B — Permitted Improvements as Approved by Public Works Covey Christensen and Danae Christensen Encroachment Agreement 5 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California Couruty of oraV1 e } ss. II,. I1 /'J On V1�1. S , 2 0 - - 20�_ before me, W a I5an 12 , �L 1 Notary Public, personally appeared g: cvrs How who proved to me on the basis of satisfactory evidence to be the personal whose name i /pKe subscribed to the within instrument and acknowled ed to me that&see/th i executed the same ine/Vr/twr authorized capacity(), and that b hi Vkr/tpeir signatures(p) on the instrument the personX, or the entity upon behalf of which the personW 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. 3 _ _ _ - I —ft_ , WITNESS my hand and official seal. �6 �t WALSA;J KITH ty Commission # 2321227 Notary Public California fA - Orange County My Comm. Exp. FEB.11, 2024 Signature (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of a ckvn e, } ss. W4SAIJ On A V�G1, S 20 Zl. beforeme, Notary Public, personally appeared DAKproved to me on the basis of satisfactory evidence to be the personal whose name;( is aie subscribed to the within instrument and acknowledge to me that s /trey executed the same in he ty(eir authorized capacity ' , and that by /her tfeir signatures s on the instrument the person(', or the entity upon behalf of which the person(-sj ac ed, 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 u �'• WALSAN KITH Commission # 2321222 Notary Public - California �V:.: orange County r/ My Comm. Exp. FEB. 11, 2024 (seal) Covey Christensen and Danae Christensen Encroachment Agreement 6 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY For APN/Paruol lDfsi: 476-031.18 ' THE LAND REFERRED TO HEREIN BELOW 1S SITUATED IN THE UNINCORPORATED AREA IN COUNTY OF ORANGE, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: LOT 138 OF TRACT 3619, IN THE CITY OF NEW PORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 128, PAGES 18 TO 21, INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. TOGETHER WITH NONEXCLUSIVE APPURTENANT EASEMENTS OVER LOTS AAND LOTS 141 TO 169 INCLUSIVE OF SAID.TRACT N0, 3367 FOR THE PURPOSES AND AS DESCRIBED IN ARTICLE X111, SECTION 4 OF THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS HEREINAFTER DESCRIBED IN SUBJECT TO, SECTION 2. EXCEPTING UNTO GRANTOR, ITS SUCCESSORS AND ASSIGNS, ALL OIL, .OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN THAT MAY BE WITHIN OR UNDER THE PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME FROM SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE HEREINABOVE DESCRIBED OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES, WITHOUT, HOWEVER THE RIGHT TO DRILL, MINE, STORE, EXPLORE, OPERATE THROUGH THE SUBSURFACE OR THE UPPER 600 FEET OF THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED. Covey Christensen and Danae Christensen Encroachment Agreement A-1 EXHIBIT B PERMITTED IMPROVEMENTS PLAN Covey Christensen and Danae Christensen Encroachment Agreement B-1 Exhibit "B" Sheet 1 of 2 CITY STORM DRAIN ' STORM DRAIN EASEMENT -1 RETAINING WALL AI N H RETAINING OP HEIGHT TO ,E) WALL A ,RYAN OLDHAM N0, C-29715 .n. 4-30-23 OF Encroachment - Retaining Wall in Easement Area SCALE: 1" = 20' 1 1 OLDHAM ARCHIT ECTS Christensen Residence 26S1 E. Chapman Ave. #110, Fullerton, CA 92831 621 Rockford Road, Newport Beach, California 714.482.8296 BLOCK WALL; GROUT SOLID Exhibit "B" Sheet 2 of 2 UPHILL GRADE xQ 0 �z z Q r - #4 VERT © 16" O.C. WATER PROOFING o m MEMBRANE I N 4" (SD35) PERFORATED FOOTING DRAIN, W/1' FILTER FABRIC WRAP W/3#4" ROCK a d a n .d• „ a r' v 2' 6" (3) #4 BAR, CONT. #4 BAR © 16" O.C.