HomeMy WebLinkAboutC-6910 - Encroachment Agreement EPN N2010-0093 for 2306 Margaret DriveSCANNED
Q
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
U
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
27,00
*$ R 0 0 0 4 8 9 8 0 8 3 $ *
2012000342954 2:26 pm 06/18/12
276 412 Al2 8
0.00 0.00 0.00 0.00 21.00 0.00 0.00 0.00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN 2010-0093)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this 25th day of April, 2012, by and between Lynda K. M. Ellerbroek, ("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 2306 Margaret
Drive, Newport Beach, California 92663 and legally described as the southeasterly 60-
feet, northwesterly 270-feet and northeasterly 132.02-feet of Lot 28 of the Newport
Heights, as shown on a map recorded in Book 4, Page 83 of Miscellaneous Maps in the
office of the County Recorder of Orange County, County Assessor's Parcel Number
425-302-04 ("Property").
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Margaret Drive 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 27-foot wide driveway approach constructed with "Belgard `Mega Lafitt"'
pavers encroaching 7-feet into the Margaret Drive right-of-way as shown on EXHIBIT
"A" attached hereto and as approved by the Public Works Department.
b. A walkway with a maximum width of 7-feet constructed with "Belgard
'Mega Lafitt"' pavers encroaching up to 7-feet into the Margaret Drive right-of-way as
shown on EXHIBIT "A" attached hereto and as approved by the Public Works
Department.
C. 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.
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
Encroachment Agreement Page 12
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.
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
Encroachment Agreement Page 13
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:
CITY ATTORNEY'S OFFICE
Date: / Z
By:
Aaron C. Harp,
City Attorney
ATTEST -
Date:
Date: l,;L—
(I %� A,�
F?
► /►
CITY OF NEWPORT BEACH,
a California Municipal corporation
Date: 513t lt' -_
By:
Davi iff,
City Manager
OWNER(s)-
Date: 1
Owners must sign in the presence of notary public
ATTACHMENTS: EXHIBIT A —Plans as approved by Public Works
f.-Itempltemplateslcontractslencroachment agreement. dotx
Encroachment Agreement Page 15
ACKNOWLEDGMENT
State of California
County of On } ss. �1�
On 1 before me, M 0711 I V' G 960611
Notary Public, personally appeared LVIO CIM M. L F�Lr rack
,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. ......-
CRISTAL MCDONALD
Commission 1850148
WITNESS my hand and official seal. .
Notary Public - California
Orange County
'
M Comm. Ex fires Aug28, 2015
Signature
(seal)
ACKNOWLEDGMENT
State
County of
On
Notary Public, personally appeared
of
SS.
before me,
California
,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
CIVIL CODE § 1189
State of California
County of� rckf\CP t✓
/
On ff/Zf `t-2- before me, _��i R C,
Date r Here Insert Name and Title of the Oft '
personally appeared ICE
KIM R
I% ConaM# 1eaion #� 967536
Notary Public - California
Orange County
My Comm. Expires Jan 26, 2016
of Signer(s)
who proved to me on the basis of satisfactory
evidence to be the person)' whose name(a) is/are
subscribed to the within instrument and acknowledged
to me that he/she/tl eq executed the same in
his/hXltlir authorized capacity(ieg), and that by
his/lyel/tlir signature�4 on the instrument the
person; or the entity upon behalf of which the
person(kacted, 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 a d official seal.
Signature: OPTIONAL
Place Notary Seal Above Signature of Noj,P61c
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 1 /
Title or Type of Documen : �/ rI,CI OCLP_kp cn t
Document Date: 4 �oZ-c'S! l �- Number of Pages:
Signer(s) Other Than Named Above: _
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Individual
Partner — 'E] Limited El General Top of thumb here
El Attorney in Fact
Cl Trustee
❑ Guardian or Conservator
Other:
Signer Is Representing:
Signer's Name:
Corporate Officer — Title(s):
El Individual
❑ Partner — ❑ Limited ❑ General Top of thumb here
❑ Attorney in Fact
❑ Trustee
Guardian or Conservator
❑ Other:
Signer Is Representing:
4v iv National Notary Association • National Notary.org • 1-eU0-US NU I AHY (1-800-876-6827) Item #5907
Exhibit "A"
Sheet 1 of
mmr-ld�