HomeMy WebLinkAboutC-6897 - Encroachment Agreement EPN N2011-0330 for 320 and 320 1/2 Larkspur AvenueSCANNED
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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
Tom Daly, Recorded in Official Records, Orange County
Clerk-
Ir ' 11 127.00
2012000029883 115 pry 01119112
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2011-0330)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this 174V day of NOWwtb-e,,2 , 2011, by and between James A. Palmer and
Susan E. Palmer, 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 320 and 320 1/2
Larkspur Avenue (existing duplex), Newport Beach, California 92625 and legally
described as the northeasterly 12 '/2 feet of Lot 20 and Lot 22, Block 238 of Corona Del
Mar City of Newport Beach, as shown on a map recorded in Book 3, Pages 41 and 42
inclusively of Miscellaneous Maps in the office of the County Recorder of Orange
County, County Assessor's Parcel Number 052-102-03 ("Property").
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Larkspur 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. A 4-foot wide carriage walk constructed of "Davis Pebble #641" colored
concrete encroaching up to ten feet into the Larkspur Avenue public right-of-
way;
b. Two entry walkways at 3-foot, 6-inch and 3-foot wide constructed of "Davis
Pebble #641" colored concrete encroaching one foot into the Larkspur
Avenue public right-of-way;
c. Various private low growing groundcover, landscaping, and irrigation
improvements encroaching up to ten feet into the Larkspur Avenue 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 =tu` 2
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 Page 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 ".1,, g 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 T E CITY ATTORNEY
Date
By:
Aaron C.
Harp,
City Attorney
ATTEST:
Date:
r
By.
Leilani rown, C ty dlerk
CITY OF NEWPORT BEACH,
a California Municipal corporation
Date: j- 3--12-
By:
DAd Kiff,
City Manager
OWNER(s):
Date: 11 /r7/2c c
�es A. Palmer /
0
Owners must sign in the presence of notary public
ATTACHMENTS: EXHIBIT A —Plans as approved by Public Works
I\cnb-2005\users\pbw\shared\l-encroach\row agreements\2011\n2011-0330 320 and 320.5 larkspur ave
(pahner).doc9.21.10
Encroachment Agreement => ;° 5
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of CaliforrnniaN
County of fo�AJC-:::-E
Oiy/ xo, before me,
Date I Here Insert Name and Title of the Officer '
personally appeared AVl 0
L. HARRIS
Commission #r 1840150
Notary Public - California
Orange County
M Comm. Expires Mar 12, 13
who proved to me on the basis of satisfactory
evidence to be the person whose names) is/�Q
subscribed to the within instrument and acknowledged
to me that he/,Ae/fiKey executed the same in
his/t authorized capacity] , and that by
his/ NAir signatureN on the instrument the
personA, or the entity upon behalf of which the
personN acted, executed the instrument.
certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS m d official seal.
Si nature
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 Document
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
Ci Partner — ❑ Limited ❑ General Top of thumb here
Attorney in Fact
❑ Trustee
-I Guardian or Conservator
❑ Other:
Signer Is Representing:
Number of Pages:
Signer's Name:
❑ Corporate Officer— Title(s):
❑ Individual
❑ Partner — ❑ Limited ❑ General Top of thumb here
__i Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
Other:
Signer Is Representing:
V 2008 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item 45907 Reorder: Call Toll -Free 1-800-876-6827
ACKNOWLEDGMENT
State of California
County of Jj,unq e, } ss.
On I before me, acts
Notary Public, impersonally appeared �t , �. e "
kw"t
5us,r7 F:-. 12e, I A4er-
,who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) iql rel subscribed to the within instrument and acknowledged to me that
lie/spe e executed the same in hp�e heir authorized capacity(ies), and that by
lyts/IVer/ eir 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.
q1 :2 . - —
Sig
ACKNOWLEDGMENT
State of California
County of
On
Notary Public, personally appeared
ss.
before me,
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BEAU ROOUEMORE
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COitPlut. #1 96330
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NOTARY PUBLIC • CALIFORNIA
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ORANGL COUNTY
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My Comm. Expires April 24, 2012
(seal)
,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 P a g e, 16
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Owner: James and Susan Palmer
Address: 320 Larkspur Ave.
Corona Del Mar, CA 9262.5
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Exhibit "A"
Sheet 1 of 1
N2011-0330