HomeMy WebLinkAboutC-6873 - Encroachment Agreement EPN N2011-0088 for 700 Heliotroper"
RECORDING REQUESTED BY AND
W
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92658-8915
Reco clad in Official Records, Orange County
Torn Daly Clerk -Recorder
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ENCROACHMENT AGREEMENT
(EPN2011-0088)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this 21 st day of March, 2011, by and between Richard and Elizabeth L. Cushman,
husband and wife as joint tenants ("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 700 Heliotrope
Avenue, Newport Beach, California 92625 and legally described as Lot 2 of Block 735
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 459-042-10 ("Property").
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the 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. Two decorative entry walkways with varying widths to a maximum width of
7-feet constructed with "Golden Ray Quartzite" pavers encroaching 10-
feet into the public right-of-way;
b. Various private landscaping not to exceed 36-inches in height and various
private irrigation improvements encroaching 10-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.
Encroachment Agreement iJ �_ g ,,s 12
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
otherwise, and shall be recorded in the Office of the County Recorder of Orange
County, California.
Encroachment Agreement;; 13
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 4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
OFFICE OF TH CITY ATTORNEY
Da L
By.
Leonie Mulvihill,
Assistant City Attorney
ATTEST: 2� I
Date:
r
By:
bm--
Leilani Brown, City Clerk
CITY OF NEWPORT BEACH,
a California Municipal corporation
Date: 'A k-Li 1 i �
By: cv
Davi iff,
City Manager
OWNER(s)-
Date:
B`y: - -
ichard us man
Date: ,3
/.�By:
EliTAeth L. Cushman
Owners must sign in the presence of notary public
ATTACHMENTS: EXHIBIT A —Plans as approved by Public Works
f.- Itemp ltempla tes lcon tracts lencroachmen t agreement. dotx9.21. 10
Encroachment Agreement Page 15
ACKNOWLEDGMENT
State of Calif rnia
County ofSS.
,who proved
namor"Lis
he/sh the
his/he eir
which t be
to me on the basis of satisfactory evidence to be the person whose
re subscribed to the within in�rument and acknowlries
d to me that
executed the same in his/h�f/thei�r authoriz d capacit_'and thatby
signatures s) on the instrumenfie perso s or the eupon behalf of
rso (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. M
L. GLEE*
WITNESS my hand and official seal. COMM. # 1778388
NOTARY PUBLIC - CALIFORNIAC
SAN DIEGO COUNTY
My Comm. Expires Nov. 5, 2011
L
gnature (seal)
State of California
County of
ACKNOWLEDGMENT
SS.
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
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California ���
County of O94�Na
On horlL A
Date
before me, �A12-121 S , I OTAP- y %7 )&_(
n AA ere Insert Name and Title of the Officer
personally appeared �i�'✓1
Name(s) of Signer(s)
ra L.
Commission #1840150
LoNotary Public - California
Orange County
Comm.Mv 1
who proved to me on the basis of satisfactory
evidence to be the person whose nam'W) is/�wi
subscribed to the within instrument and acknowledged
to me that he/AeMt 6y executed the same in
his/Nr/t%ir authorized capacity(i)4.), and that by
his/h�(/t%a 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 ha / official seal.
Signatur
Place Notary Seal and/or Stamp Above Signature of Notary Public
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
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 — i❑ Limited ❑ General
❑ Attorney in Fact
11 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 ❑i General Top of thumb here
❑ Attorney in Fact
71 Trustee
Guardian or Conservator
❑ Other:
Signer Is Representing:
02008 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
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