HomeMy WebLinkAboutC-6911 - Encroachment Agreement EPN N2012-0037 for 1951 Port Locksleigh PlaceSCANNED
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RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
1 1] � IPIEIP 11111111 EII' 111 [Ili 27,00
*$ R 0 0 0 4 8 9 8 0 8 2 $ *
2012000342953 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 2012-0037)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this V `� day of fyrt I , 2012, by and between Dean J. Zipser and
Esther Zipser, Trustees of the Zipser Living Trust dated December 30, 2008 ("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 1951 Port
Locksleigh Place, Newport Beach, California 92660 and legally described as Lot 73 of
Tract 7028, as shown on a map recorded in Book 266, Pages 43 through 47 inclusively
of Miscellaneous Maps in the office of the County Recorder of Orange County, County
Assessor's Parcel Number 458-274-06 ("Property").
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Port Locksleigh Place
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 5 foot by 5 foot concrete carriage walk constructed of dark grey colored
concrete ribbon with standard grey concrete center which encroaches up to 10 feet into
the Port Locksleigh Place public right-of-way and appurtenances as shown on EXHIBIT
"A" attached hereto and as approved by the Public Works Department.
b. 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
public facilities or improvements, City may remove portions of the Permitted
Improvements, as required, and in such event:
Encroachment Agreement Page 12
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
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
Encroachment Agreement Page 13
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: 'S-I 1 Z-
By:
Aaron C. Harp,
City Attorney
ATTEST:
6
Date:
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Brown,Leilani
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ATTACHMENTS:
`U FOR%
CITY OF NEWPORT BEACH,
a California` Municipal corporation
Date: 5131 �/Y
By:
Davi ,
City Manager
OWNER s � /
�tl Date: / 2--
D an J. Zipser, Trustee
Zipser Living Trust
Date:
1
By: -
Esthe i ' s r, Trustee
Zipser Living Trust
Owners must sign in the presence of notary public
EXHIBIT A —Plans as approved by Public Works
f.-Itempltemplateslcontractslencroachment agreement. dotx
Encroachment Agreement Page 15
ACKNOWLEDGMENT
State of California
County of Or&-vn$4:� } ss.
On Apr�.k ► It, 2, 1 Z. before me, -BvJ6 . ,v, �JA5,� ,
Notary Public, personally appeared��, 2-►P5e� �; Y,3 -s,� Z�as�rr
,who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) J97are subscribed to the within instrument and acknowledged to me that
e/they executed the same in hWl:ver/their authorized capacity(ies), and that by
h+sAf:+er/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 e ttjf� ' that the
foregoing paragraph is true and correct. pITTANYNORTON
Camn��stan • 1610614
N"ryt PubIIC - Cilgomll
WITNESS my hand and official seal. i"14 V isorrot4,?000,-..A'.R
Sig ure
ACKNOWLEDGMENT
State of
County of } ss.
On before me,
Notary Public, personally appeared
,who proved to me on the basis of satisfactory evidence
name(s) is/are subscribed to the within instrument and
he/she/they executed the same in his/her/their authorized
his/her/their signatures(s) on the instrument the person(s),
which the person(s) acted, executed the instrument.
(seal)
California
to be the person(s) whose
acknowledged to me that
capacity(ies), and that by
or the entity upon behalf of
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 D►'ct�G �.
On .20 I :- before me,
Date .� �-, _ Here Insert Name and Title of the OfficerJ
personally appeared YC U It—,
Name(s)
who proved to me on the basis of satisfactory
evidence to be the persoriW whose name(s) is/arm
subscribed to the within instrument and acknowledged
to me that he/sip/they executed the same in
his/hePthdir authorized capacity(iei�), and that by
his/Wth�rr signature(a'j on the instrument the
personal, or the entity upon behalf of which the
person(.$)'acted, executed the instrument.
KIM RIEFF I certify under PENALTY OF PERJURY under the
Commission # 1967536 laws of the State of California that the foregoing
Notary Public - California z Orange County paragraphis true and correct.
'
Comm. ires Jan 26, 2016
WITNESS my hand and official weal.
Signature. %Z
/2,��/ -
Place Notary Seal Above OPTIONAL Signature of Notary P is
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 _ ,, ( // n"'
Title or Type of Document: �/r\ !1_V-C) a C .W-Z� t t ter f Prfrk_V . (E PN o20l� — 6D37
Document Date: 4/` ( V GIZ Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
El Corporate Officer — Title(s):
Individual
❑ Partner — 'i i Limited ❑ General Top of thumb here
❑ Attorney in Fact
] Trustee
❑ Guardian or Conservator
Other:
Signer Is Representing:
Signer's Name:
❑ Corporate Officer — Title(s):
-1 Individual
Partner — ❑ Limited ❑ General Top of thumb here
r i Attorney in Fact
1 Trustee
Guardian or Conservator
1 Other:
Signer Is Representing:
210110 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907
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EXHIBIT A
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