HomeMy WebLinkAboutC-6876 - Encroachment Agreement EPN N2011-0109 for 423 Begonia Avenuer
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
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Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92658-8915
Recorded in Official Records, Orange County
Torn Daly, Clerk-R )rder
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ENCROACHMENT AGREEMENT
(EPN2011-0109)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this day of April, 2011, by and between Gary P. and Kathleen M. Kearns, husband
and wife as community property ("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 423 Begonia
Avenue, Newport Beach, California 92625 and legally described as Lot 17 of Block 329
of Map of Corona Del Mar, as shown on a map recorded in Book 3, Page 41 inclusively
of Miscellaneous Maps in the office of the County Recorder of Orange County, County
Assessor's Parcel Number 459-102-19 ("Property").
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Begonia Avenue and
First Street rights -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. Four 1-foot 7-inches by 8-feet 5-inches wide carriage walks constructed
with flagstone pavers which encroaches up to 10 feet into the First Street
right-of-way;
b. One 13-feet 1-inch by 8-feet 9-inches wide entry walkway constructed with
flagstone pavers which encroaches up to 10 feet into the First Street right-
of-way;
C. One 26-feet by 3-feet wide walkway constructed with flagstone pavers
which encroaches up to 3 feet into the First Street right-of-way;
d. One 1-foot 7-inches wide by 8-feet 5-inches wide carriage walk
constructed with flagstone pavers which encroaches up to 10 feet into the
Begonia Avenue right-of-way;
e. One 5-feet wide by 6-feet wide carriage walk and one 1-foot by 6 feet wide
entry walkway constructed with flagstone pavers which encroaches up to
10 feet into the Begonia Avenue right-of-way;
f. Various private low -growing ground cover in the planting area measured a
minimum of 18 inches from the curb face on the Begonia Avenue and First
Street rights -of -way;
g. Various private landscaping not to exceed 36 inches in height encroaching
up to 8 feet 6 inches into the Begonia Avenue and First Street rights -of -
way;
h. Various private irrigation improvements encroaching up to 10 feet into the
First Street right-of-way;
and appurtenances in the Begonia Avenue and First Street rights -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
Encroachment Agreement Page 12
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.
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
Encroachment Agreement Page 13
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.
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:
OFFICE OF THE CITY ATTORNEY
Dqte:..NAtZ(/
B
Leonie Mulvihill,
Assistant City Attorney
ATTEST:
Date:
An
Leilani Brown, City Clerk
CITY OF NEWPORT BEACH,
a California Municipal corporation
Date:
David Kiff,
City Manager
OWNER(s :
Date:
FA
Owners must sign in the presence of notary public
ATTACHMENTS: EXHIBIT A —Plans as approved by Public Works
f.\users\pbw\shared\encroach\row agreennents\2011\n2011-0109-423 begonia avenue drive (kearns).doc9.21. 10
Encroachment Agreement Page 15
ACKNOWLEDGMENT
State of New York
County of Westchester } ss.
On /i1✓l�f I ' 1 ZO ) l before me, the undersigned, a notary public in and for
said state, personally appeared y /', KE/}/U , personally known
to me or 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
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
otary Public
LIZANDRA RODRIGUEZ
Notary Public, State of New Yorfr�
No. 01 R06024355
Quallfled In Westchester County
Commission Expires May 10th, 2011L
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On Li 1. 2'i , 2011 before me, M Locey, Notary Public, personally
appeared
ec.r- vkk . I_ cow v-s
who proved to me on the basis of satisfactory evidence to be the person(8� whose
name(g' Ore subscribed to the within instrument and acknowledged to me that
he/they executed the same in hieir authorized capacity(, and that by
his,hVheir signature(a�'on the instrument the person(�5), or the entity upon behalf of
which the person(,5)�cted, 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.
)11T-A- - - (SEAL)
Notary Public in and for said State
OPTIONAL INFORMATION
Title or Type of Document:
Date of Document:
M. LOCEY
Commission # 1864451
ia
llotary Public - California
ZOrange County
My Comm. Expires Oct 7, 2013 t
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