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HomeMy WebLinkAboutC-2686(A) - Encroachment Agreement EPN N2012-0022 for 211 Evening Canyon RoadSCAN ED RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Recorded in Official Records, Orange County Tom Daly, Clerkll ider ico CIIIIVI IIII�IilI1IIl III IIIIII, 11 \ I\\\ lII\\ � , I30 , 00 *$ R 0 0 0 4 7 3 3 2 3 6$* 2012000218415 2:22 pm 04117112 47 412 Al2 9 0.00 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 (EPN 2012-0022) THIS ENCROACHMENT AGREEMENT supersedes the Encroachment Agreement executed on August 6, 1986 and recorded on September 3, 1986 as Official Record No. 86-399874 in the Office of the County Recorder of Orange County, California. THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 611` day of RIVAtzci, , 2012, by and between Donald A. Clark and Donna I. Clark, trustees of the Clark Living Trust dated 1985 ("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 211 Evening Canyon Road, Newport Beach, California 92625 and legally described as Lot 124 of Tract 1116, as shown on a map recorded in Book 36, Pages 19 through 20 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 052-191-04 ("Property"). WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Evening Canyon Road right-of-way and sewer and water easements within the property (hereinafter "Right -of - Way"). 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; 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. Retaining walls and planter walls of varying heights, stairs, patio flatwork, constructed of sandy colored ledger stone and beige colored limestone cap within the sewer and water easements; b. Four planter walls of varying heights up to 9 inches, constructed of sandy colored ledger stone and beige colored limestone caps encroaching up to 2 feet 9 inches into the Evening Canyon Road Right -of -Way; c. Decorative driveway constructed of sandy colored ledger stone encroaching 10 feet into the Evening Canyon Road Right -of -Way; d. Carriage walk along the entire Evening Canyon Road frontage, constructed of sandy colored ledger stone encroaching 10 feet into the Right -of -Way; e. Various landscape with maximum height of 36 inches, drainage and appurtenances within the sewer and water easements and the Evening Canyon Road Right -of -Way; 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: 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 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 Encroachment Agreement Page 13 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 Date: 3/I.Sit 2— By: Aaron City Attorney p, ATTESTr ��r Date: �� C Y' ei Brown, City Clerk CITY OF NEWPORT BEACH, a Californi • Municipal corporation Date: Z 1 2_ By: David Ki , City Manager OWNER(s): Date: By:�- Donald A. Clark, Trustee Clark Living Trust Date: � _ 11 By: na I. Clark, Trustee Clark Living Trust Owners must sign in the presence of notary public ATTACHMENTS: EXHIBIT A — Plans as approved by Public Works f.luserslpbwlsharedl9-encroachlrow agreements\2012\n2012-0022 211 evening canyon drive.doc Encroachment Agreement Page 15 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of CaliforniaEiRAPI County of Or ?L o? 2 ON before me, Date '' // personally appeared �Ai/i1� A'/6ll Here Insert Name and Title of the Officer Name(s) of Signer(s) CIVIL CODE § 1189 L. HARRIS Commission # 1840150 L o•";a Notary Public - California Z Orange County Comm. E2tres Mar 12, 2013 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(kwhose nam1 is/ar subscribed to the within instrument and acknowledgdd - to me that he/s/thr executed the same in his//tfir authorized capacity5), and that by his/ /K0r 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. WITNESS my hanc'r pfficial seal. Signatu OPTIONA Signature of Notary Public Though the information below is not required by law, it ma rove 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: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — Li Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHT THUI OF SIG PRINT R Top of thumb here ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — EL Limited ❑ General ❑ Attorney in Fact ❑ Trustee EL Guardian or Conservator Other: Signer Is Representing: © 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) RIGHT THUMBPRINT OF SIGNER Top of thumb here Item #5907 ACKNOWLEDGMENT State t zit&f'duof County of 0 ret.ije, } ss. On TY1&n 1 (, j.D/Z b ore me, /fljj a Li edallotary Public, personally appeared I titig j ( A- . /4fj driiia-- .--r: C4i,r/& ,who proved me on the basis of satisfactory evidence to be the person(s) whose name(s) i are ubscribed to the within ins ent and acknowledged to me that he/she/ xecuted the same in his/he /the' uthorized capacity(ies), and that by his/he he' Aignatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. California I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.- MARTHA P. PINEDA. WITNESS my hand and official seal. v Signature/h t Commission N 1861474 Ji Notary Public - California z Orange County M Comm. Ex iris Au 29, 2013' ACKNOWLEDGMENT State of County of } ss. (seal) California On before me, Notary Public, personally appeared ,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 SEWER AND WATER EASEMENT ENCROACHMENTS Owner: Clark Living Trust Address: 211 Evening Canyon Road Exhibit "A" Page 1 of 2 72' 33'.44'W 3.14.&5' evo aa.Law EVENING CANYON ROAD ENCROACHMENTS 12' NJ V�_" 'A'.b gAb^SIJP l.. j• AP. z/ .uor r.'!�r%.'eI';ir r. f !//, fc/e�!ir�/r.rrr r..•. i) ! 8C CCS 8 O >, C oo o 0) •C _v o -o :• -o 0 y o `r CD c rU j • C E co W o o .E c 0-oo nn U n. Qa O a) J IZ N ''2V,W /r✓i W 1. N. 72" 33 44'W 2N.36' t Y. • r•• .. . • ti ... • . i. \ ,f ; =14'.1 ,I' •.6'-9 . 5-�-,- • • _.,4'„1" 4'-2° i f pµ Owner: Clark Living Trust Address: 211 Evening Canyon Road Exhibit "A" Page 2 of 2