HomeMy WebLinkAboutC-6886 - Encroachment Agreement EPN N2010-0125 for 218 Hazel Drive00
RECORDING REQUESTED AND
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s
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(EPN2010-0125)
THIS AGREEMENT is made and entered into this :� ice' day of July, 2010,
by and between Jeffrey S. Simon, Trustee of The Jeffrey Simon Family Trust
established January 1, 1994 (hereinafter "OWNER"), and the City of Newport Beach,
California, a municipal corporation organized and existing under and by virtue of its
Charter and the Constitution and the laws of the State of California, (hereinafter
"CITY"). OWNER is the owner of property located at 218 Hazel Drive, Newport Beach,
California 92625 and legally described as Lot 36, Block A of Tract No. 673, in the City
of Newport Beach, County of Orange, State of California, as per map recorded in Book
20, Page 17 and 18, of miscellaneous maps, in the office of the county recorder of said
county and that portion of Lot 35, Block A of Tract No. 673, in the City of Corona Del
Mar, County of Orange, State of California, as per map recorded in Book 20, Page 17
and 18 of miscellaneous maps, recorded in the office of the county recorder of said
county, described as follows: Beginning at the most Southerly corner of said Lot 35;
Thence north 0 degrees 29 minutes West 65.38 feet to the Northeasterly corner of said
Lot; Thence north 50 degrees 22 minutes West 32.69 feet along the Northeasterly line
of said lot; Thence South 0 degrees 29 minutes East to the Northeasterly line of the
land described in the deed to Ethel H. Klamroth and Gertrude K. Andrews, recorded
August 18, 1945, in Book 1321 Page 427 of Official Records, California Assessor
Parcel Number 052-182-07.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Hazel Drive right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described
as Lot 36, Block A of Tract No. 673, in the City of Newport Beach, County of Orange,
State of California, as per map recorded in Book 20, Page 17 and 18, of miscellaneous
maps, in the office of the county recorder of said county and that portion of Lot 35,
Block A of Tract No. 673, in the City of Corona Del Mar, County of Orange, State of
California, as per map recorded in Book 20, Page 17 and 18 of miscellaneous maps,
recorded' in the office of the county recorder of said county, described as follows:
Beginning at the most Southerly corner of said Lot 35; Thence north 0 degrees 29
minutes West 65.38 feet to the Northeasterly corner of said Lot; Thence north 50
degrees 22 minutes West 32.69 feet along the Northeasterly line of said lot; Thence
South 0 degrees 29 minutes East to the Northeasterly line of the land described in the
deed to Ethel H. Klamroth and Gertrude K. Andrews, recorded August 18, 1945, in
Book 1321 Page 427 of Official Records; also known as 218 Hazel Drive, Newport
Beach, California; and
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 execute an 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 12-foot wide driveway constructed of beige cobblestone pavers
encroaching one foot into the Hazel Drive public right-of-way;
b. A 5-foot wide carriage walkway constructed of beige cobblestone
pavers encroaching one foot into the public right-of-way;
C. A 25-foot wide driveway constructed of beige cobblestone pavers
encroaching one foot into the Hazel Drive public right-of-way;
d. A variable width carriage walkway constructed of cobblestone
pavers set on a permeable sand base with widths varying from 6' to
7'-9" encroaching ten feet into the Hazel Drive public right-of-way;
e. Various private landscaping in the planting area behind the
sidewalk and parkway not to exceed 30 inches in height
encroaching up to ten feet in the public right-of-way and
appurtenances in the Hazel Drive 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
Encroachment Agreement 12
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 at any
time by giving 60-day notice, 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.
Encroachment Agreement r 1:� �, e 13
(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 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
Encroachment Agreement 14
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 pertaining to this Encroachment Agreement.
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 15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
OFFICE OF THE CITY` TTORNEY a Municipal corporation
By: By:
yn e D. uchamp,+ D Kiff,
Assistant it Attorney i�G' `c / City Manager
OI1`�
ATTEST: OWNER:
By: �� ' By:
Leilani Jerk Offrey S. Simon, Trustee
The Jeffrey Simon Family Trust
U
0 �n [OWNERS MUST SIGN IN PRESENCE OF NOTARY PUBLIC]
ATTACHMENTS: EXHIBIT A —Plans as approved by Public Works
Encroachment Agreement P ,-r tt 16
CERTIFICATE OF ACKNOWLEDGEMENT
State of California
County of ORANGE
On 11.-2A t20t D before me, LOCH , Notary Public,
personally appeared ZeW- c&-- 11' - 'Tv proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that&/she/they executed the same ir:fs/her/their authorized
capacity(iq8�, and that bytes/her/their signature on the instrument the person, or the entity upon
behalf of which the person(,s4 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. �....r
M.LOCEY
Signature Commission # 1864451
z -r Notary Public - California
Z Orange County
My Comm. Expires Oct 7, 2013
(Seal)
RTIFICATE OF ACKNOWLEDGEMENT
State of California
County of ORANGE
On Y 1 7i(l 11 b before me, Notary Public,
personally appeared who proved to me on the ba is of satisfactory
evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/s-ht� executed the same in his/�r authorized
capacity(ees), and that by his/#erAf eir 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 hand and official seal.
Signature
(Seal)
N .:ar f PU011C - Calitornia z
i Orange County r
My Comm. Expires Au 16, 2013
Encroachment Agreement Pa g i 17
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Fanuly Trust
ADDRESS: 218 Hazel Drive
Newport Beach, CA 92625
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Exhibit "A"
- FD Sheet 1 of 1
N2010-0125
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. p,�f�* t �� �- ^< u ��^•-fi �J�« ��-
13. If any term or portion of this Agreement is held to be invalid, illegal, or Z1�/j9
otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions of this Agreement shall continue in full force and
effect.
Encroachment Agreement f" a c e 15