HomeMy WebLinkAboutC-6941 - Encroachment Agreement EPN N2008-0106 for 605 Begonia Avenueti�
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
1
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in Official Records, Orange County
Tam Daly, Clerk -Recorder
i Illlll 1P IP 1111 illll lull dill lllli !Ill! hill 11111 !lilt 1111 ll!1!11130.00
i�
900800016889512:50pm 04111/08
103 181 Al2 9
0.00 0.00 OM 0.00 24.00 0.00 O.OU 0.00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2008-0106)
THIS AGREEMENT is made and entered into this 201h day of March, 2008, by and
between Robert N. Fabricant, authorized signature for Begonia Investments LLC (hereinafter
O
WNER ), 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 605
Begonia
Avenue, Newport Beach, California 92625 and legally described as Lot 5, Block 629 of Corona
Del Mar, as shown on a map recorded in Book 3, Pages 41 through 42 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, California
Assessor Parcel Number 459-085-14.
8ITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Begonia Avenue right-of-way
(hereinafter RIGHT-OF-WAY) that is located adjacent to the parcel legally described as Lot
5, Block 629 of Corona Del Mar, as shown on a map recorded in Book 3, Pages 41 through 42
inclusively of Miscellaneous Maps in the office of the County Recorder of Orange Count,
California; also known as 605 Begonia Avenue Newport Beach, California 92625; and y
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
1
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,
(1) A 4-foot, 5-inch wide and a 3-foot, 5-inch wide flagstone entry walkways
encroaching 1-foot into the public right-of-way;
(2) Various private landscaping not to exceed 30 inches in height and various
private irrigation improvements encroaching up to 1-foot into the public
right-of-way;
and appurtenances in the Begonia Avenue 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
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.
i%
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.
9
(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 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
In
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.
5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
CITY OF NEWPORT BEACH,
APPROVED AS TO FORM: a Municipal corporation
By.- , C - By.
Aaron Harp, Asst. City Attorney Homer Bludau, y Manager
ATTEST:
B y:&bV41)h
LaVonne Harkless, City Clerk
OWNER:
By:
"JRobert N. Fabricant
Authorized Signature for
Begonia Investments LLC
f:\users\pbw\shared\encroach\row agreements\2008\n2008-0106-605 begonia avenue (begonia investments Ilc).doc
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
CO U N TY O F &RAHiSrE ) 5�41J $ E (a vi A ► -D 1 n3 o
On Vy\-Ar c,% 2 �, wog before me, 1�-P.►^5� U GZ (���
Notary Public,
personally appeared iZ.O�—� PJ . �akjr 1Ca.-� 1Y\ 7 who
proved to me on the basis of satisfactory evidence to be the person(s) whose name( is 0e,
subscribed to the within instrument and acknowledged to me tha(he/s`xg/tf,r executed the
same in hi WWth,6r authorized capacity(ipt), and that bY,�/his/t*ir signatures K) on the
instrument the personN, or the entity upon behalf of which the person(,u) 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.
- 44�� — (� (SEAL)
Notary,,�Public in and for sai ta,te
OPTIONAL INFORMATION
Title or Type of Document:
Date of Document:
DENISE VALLEJ0
a COMM. #1478106 R;
N s Notary Public CatHornla to
W SAN BERNARDINO COUNTY -+
My Comm. Exp, April 14, 2008 [
�./ _ SS3lV4UVH: M 130 OICIRS-MOH IIVHS
130 V NC ALNVd ONIHl 3H1 WIS d0 IN3SNO3 ONV..NOISSIWN3d O 6
V INO938 NMUW 3HL ONINIVI80 1SNId I(IOHIIM UWd ...08IHi V Ol O
�/\
;SV 38 Ol A3HI 38V NON' 'N3A3OSrMM N3NN Vi- NO WNOJ t�
}^.� }^.� J3IdO3 NO '030NVHO '030f100N08 AOl ION 3NV SNVId O
tJ U O SM/ld 3S3H1 NI SIHJIS A1.213dONd 213HL0 ONV S.LHOI&WOO \
• MVl NOWWOO SIH S3AH3S3U A ISS3NdX3 m4 ma onniS z
0 d
X�1dna M3N 11MOd a
J N
I II111 a�� oc) :� w I
aaaaaa �aa a
w
J J J J J J J J J z z J N J w N
z
aaaaaa aaa 'a a
000000 coo o I
000000 coo In W zc�
Hxwmm wmx
aaaaaa aaa Oo d 0� WU�
r o (if
U z�z
w z w
Nn �� a� re is.. aro
ww o a3
� w Z z m Z W
f ¢N z U a O �ulwN a 3 �V)
O NN ZW 0 J� OJ Q Z 0 W� W c�
.w z z� 2i ~a ¢ x �w 3 �� 3 �� ) Q .uJ
o S CD
V) 0zUW= Q z �SZ�� o.: �o ¢ O3w °��r'
�ira� z J x }}}}�+���111>�� Q� �� zza �Wri� I ()
;o Z 3 W�°zzcYi� JJJ¢¢�=Wm IJiFw aK—N3 a�w 7N UUp Hof 1
Q WU!G�jpa�wp3 OOKz 4] Zgg �/j O
—� �3WaU gmxpz LLW �w m�o�a Q-°daQc�? ¢zo�?zo � �aZ ul �Q
CL ccw : d: oM:Uwz oo �ixa OO mM a x ¢ � oz SC �n v�vlW ram— � C�
;a ! g-�o�oari o0¢5�0��? �°d� a=��a>9� Ego :w�z�� i N tmad ��� i rzU UUosw : 0 a-mn //��\
j ♦; .�\ O (V 17 LLl Id 1� Oi O ' (`! M d''f1 61� 41 66 ' fV M 4 In Id f� [d Oi O ` N M 1f1 'd h 0] Oi O C)— �•
`J icy t�jd Ned lh cO Oi .-� .-------.-�-N NNNNNNNNNM MMMMMMMM Md� d•Y st d'd'd'�d'h
ZZ
9.
rsVA
/per
I
i - u
S£
4Z
AVM d0 IHOIN 011ald Ni NI
SIN3WHOVONON3 ONVONVIS-NON llV 3AOW38
VIN00118 sr*Pos
OI
�I
CITY CLERK'S ACKNOWLEDGEMENT
State of California )
County of Orange )
On April 3 2008, before me, LAVONNE M.
HARKLESS, CITY CLERK OF THE CITY OF NEWPORT BEACH, personally
appeared Homer Bludau , who 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 he executed the same in his authorized
capacity, and that by his 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.
Dated this 3rd day of April 2008.
WITNESS my hand and official seal.
o&� a?, /s��
LAVONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
CAPACITY OF SIGNER DESCRIPTION OF ATTACHED
DOCUMENT:
Municipal Corporation Officer
Encroachment Agreement
City Manager
EPN2008-0106
SIGNER IS REPRESENTING:
# of pages 9
City of Newport Beach
Document Date: March 20, 2008
Signer(s) other than named:
Robert N. Fabricant
Aaron C. Harp