HomeMy WebLinkAboutC-6903 - Encroachment Agreement EPN N2011-0282 for 546 Fullerton Avenue0
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RECORDING REQUESTED BY AND
I
WHEN RECORDED RETURN TO:
U
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92658-8915
SCANNED
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
I� I 30.00 .�
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2012000145865 10:47 am 03114/12
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2011-0282)
THIS ENCROAWJ AGREEMENT ("Agreement") is made and entered into
this <)4tb day of r, 2011, by and between Adam J. Pliska, a married man
as his sole and separate 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 546 Fullerton Ave,
Newport Beach, California 92663 and legally described as Lot 12, Block 39 of The First
Addition to Newport Heights, as shown on a map recorded in Book 4, Page 94
inclusively of Miscellaneous Maps in the office of the County Recorder of Orange
County, County Assessor's Parcel Number 049-044-01 ("Property").
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Fullerton Avenue and
15th 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. A variable width entry walkway with widths from 8 feet to 12 feet constructed
of beige stone pavers with a grey colored concrete border encroaching up to
ten feet into the Fullerton Avenue public right-of-way;
b. A gentle meandering standard concrete sidewalk encroaching up to ten feet
into the 15t" Street public right-of-way
c. Various private low -growing groundcover and landscaping not to exceed 36
inches in height encroaching up to ten feet into the Fullerton Avenue and 15tn
Street public rights -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 eff
provide notice (60) days in advance of termination specifying in said not
date of termination. City shall incur no liability whatsoever in the event
termination of this Agreement, or subsequent removal of improvements by
4. Owner and City further agree as follows:
a. Owner may construct and install Permitted Improvement.,
appurtenances incidental thereto, in substantial conformance w
plans and specifications on file in the City's Public Works Department, ana
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.
Encroachment Agreement Page 12
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
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
Encroachment Agreement Page 13
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
Dat 2 31�t2/
By. V
Aarcn C. Harp,
City Attorney
CITY OF NEWPORT BEACH,
a CalifPd'qllop—
'a Municipal corporation
Date:
By:
C.. qn�A
Davi Kiff,
City Manager
ATTEST:3' OWNER:
Date: �� Date:
By: By:
Leilani Brcv Clerk Adam J. Pliska
ATTACHMENTS:
Owners must sign in the presence of notary public
EXHIBIT A —Plans as approved by Public Works
Ilcnb-20051userslpbwlsharedl1-encroach lrow agreements\2011\n2011-0282 - 546 fullerton ave (adam j.
pliska).docx9.21.10
Encroachment Agreement Page 15
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
CIVIL CODE § 1189
State of Californian l,`,11
County of filAV GE
On �'�`iLkJ I_ before me, �' 46qqs � I U 1 C
Date Tkvi���Hefe Inse t Name and Title of the Officer
personally appeared � 1�//1�
L. HARRIS
commission # 1840150 =
a -nt Notary Public - California z
2 Orange County
My Comm. Expires Mar 12, 2013
or aigner(s)
who proved to me on the basis of satisfactory
evidence to be the personWwhose name* is/aim
subscribed to the within instrument and acknowledged
to me that he/ske/t* executed the same in
his/ r th it authorized . apacity(iw, and that by
his/ r/t •r 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 �(Ko,official seal.
Signature: C/
Place Notary Seal Above OPTIONAL Itl ignature of Notary Public
Though the information below is not required by law, it may prov aluable 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
❑ Partner — ❑ Limited ❑ General Top of thumb here
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Number of Pages:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Individual
❑ Partner — f-i Limited i 1 General Top of thumb here
❑ Attorney in Fact
Cl Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
u 2010 National Notary Association • National Notary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907
ACKNOWLEDGMENT
State of California
County of 0tZ P'n } ss.
On Otmbec Zb, -2y l before me, �' fi2A ,
Notary Public, personally appeared Alum �. pL�SK✓�
,who proved to me on the basis of satisfactory evidence to be the personW'whose
name(Wis/af,6' subscribed to the within instrument and acknowledged to me that
he/sW/th,ED'y executed the same in his/ham/tbaTr authorized capacity(ie8; and that by
his/h#rltlyerr signatures(pf on the instrument the person(,Sj) or the entity upon behalf of
which the person(p)r`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.
v—,—
Sidnature (seal)
ACKNOWLEDGMENT
State of California
County of
On
Notary Public, personally appeared
SS.
before me,
,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
OWNER: Pliska
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ADDRESS:
546
Fullerton Avenue_
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Newport
Beach, CA 92663�
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Exhibit "A"
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OWNER: Pliska
ADDRESS: 546 Fullerton Avenue
Newport Beach, CA 92663
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Exhibit "A"
Sheet 2 of 2
N2011-0282