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HomeMy WebLinkAboutC-8962-1 - Encroachment Agreement EPN N2022-0237 for 815 Via Lido Soud10/11/22, 10:57 AM Batch 14812791 Confirmation Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder 111111111111I[II11 IfIIIIII1I If1]111111131.00 RECORDING REQUESTED BY AND *$ R 0 0 1 4 0 0 1 4 0 6$ WHEN RECORDED RETURN TO: 2022000330193 10:45 am 10/11/22 Attn: City Clerk's Office City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 9 RW9A Al2 9 0.00 0.00 0.00 0.00 24.00 0.00 0.000.000.00 0.00 Space above this line for Recorder's use ENCROACHMENT AGREEMENT (Encroachment Permit Number N2022-0237) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 31 st day of August, 2022, by and between Brooke Rogers Coldren, Trustee of the Brooke R. Coldem Personal Residence Trust Dated April 5, 2005, Robert Sawyer Coldren, Trustee of the Robert S. Coldren Personal Residence Trust Dated April 5, 2005, Robert Sawyer Coldren and Brooke Rogers Coldren, Trustees of the Coldren Family Trust Dated March 21, 2003, and Brooke Rogers Coldren, Trustee of the Rogers Exemption Trust U/A Dated May 15, 1997 ("Owner"), and the City of Newport Beach, a California municipal corporation and charter city, organized and existing under and by virtue of its Charter and the Constitution, and the laws of the State of California ("City"). RECITALS WHEREAS, Owner is the vested owner of property located at 815 Via Lido Soud, Newport Beach, California, 92663 and legally described as Lot 303 of Tract No. 907 in the City of Newport Beach, County of Orange, State of California, as per map recorded in Book 28 Page(s) 25 to 36 of Miscellaneous Maps, in the Office of the County Recorder of Orange County, California, County Assessor's Parcel Number 423-278-07 ("Property"); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Public Utility Easement right-of-way (hereinafter "Right -of -Way") that is located adjacent to 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 into 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: Encroachment Agreement 1 https://gs.secure-recording.com/Batch/Confirmation/14812791 5/10 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Attn: City Clerk's Office City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2022-0237) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 31 st day of August, 2022, by and between Brooke Rogers Coldren, Trustee of the Brooke R. Coldern Personal Residence Trust Dated April 5, 2005, Robert Sawyer Coldren, Trustee of the Robert S. Coldren Personal Residence Trust Dated April 5, 2005, Robert Sawyer Coldren and Brooke Rogers Coldren, Trustees of the Coldren Family Trust Dated March 21, 2003, and Brooke Rogers Coldren, Trustee of the Rogers Exemption Trust U/A Dated May 15, 1997 ("Owner"), and the City of Newport Beach, a California municipal corporation and charter city, organized and existing under and by virtue of its Charter and the Constitution, and the laws of the State of California ("City"). RECITALS WHEREAS, Owner is the vested owner of property located at 815 Via Lido Soud, Newport Beach, California, 92663 and legally described as Lot 303 of Tract No. 907 in the City of Newport Beach, County of Orange, State of California, as per map recorded in Book 28 Page(s) 25 to 36 of Miscellaneous Maps, in the Office of the County Recorder of Orange County, California, County Assessor's Parcel Number 423-278-07 ("Property"), WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Public Utility Easement right-of-way (hereinafter "Right -of -Way") that is located adjacent to 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 into 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: Encroachment Agreement 1 City and Owner acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 2. It is mutually agreed that Permitted Improvements shall be defined as: a. A new roof overhang encroaching twelve inches (12") into the four foot (4) wide public utilities easement; b. A brick wall encroaching five inches (F) into the four foot (4) wide public utilities easement; and, C. An eighteen foot (18') wide driveway constructed with Pennsylvania True Blue stone pavers encroaching four feet (4) into the four foot (4) wide public utilities easement, as approved by the Public Works Department and as shown in Exhibit A, attached hereto and incorporated herein by reference. d. In addition, if any improvements actually built or installed during the time of construction vary from 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. 3. 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 City. City will further allow Owner to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 4. Rights granted under this Agreement may be terminated by City with or without cause and at any time without notice. City shall make good faith efforts to provide sixty (60) calendar days' notice 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. 5. 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 City's Public Works Department, and as described on Exhibit A. b. Owner shall maintain 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 Encroachment Agreement 2 cost of repairs and restoration of these public facilities or improvements to their condition at the time of entry into this Agreement. d. 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 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 Permitted Improvements affected by such work by City. (iii) City agrees to bear only the cost of any removal of Permitted Improvements affected by such work by City. (iv) Owner agrees to pay all costs for the renewal, replacement, or restoration of Permitted Improvements. 6. 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 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) calendar days' notice, with the notice specifying the date of termination. 7. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 8. 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 Permitted Improvements. 9. 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 Owner's interest in the land, whether fee or otherwise; and shall be recorded in the Office of the County Recorder of Orange County, California. 10. 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, California. Encroachment Agreement 3 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. [SIGNATURES ON NEXT PAGE] Encroachment Agreement 4 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: X c? 2 Z By: C ron C. Harp -61:6023 0016' ity Attorney ATTEST: Date: By: Leilan City C OWNER: CITY OF NEWPORT BEACH, a California municipal corporation Date: y?,- By: Gra . Leung Ci anager Robert Sawyer Coldren and Brooke Rogers Coldren, Trustees of the Coldren Family Trust Dated March 21, 2003 Date: / /./ Brooke Rogers Coldren, Trustee of the Date Brooke R. Coldern Personal Residence Trust Dated April 5, 2005 PAr r Coldren, Trustee k-A .--� By: —>Cv -2�a � BrooQ) Rogers Co en, Trustee Brooke Rogers Coldren, Trustee of the Rogers Exemption Trust U/A Dated May ren, rustee 15, 1997 «�T Robert Sawyer Coldren, Trustee of the Date: Robert S. Coldren Personal Residence Trust Dated April 5, 2005 Date: 12 .. 2 Rogers Idren, Trustee [END OF SIGNATURES] Owners must sign in the presence of notary public ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by Public Works Encroachment Agreement 5 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of C::--) )SS. On C>r. � �� :, 20` --L befo � e, C�NI c, 1 Notary Public, personally appeared ',cY�,h,.- L1rlr-e.'-� who proved to me on the basis of satisfactory evidence to be the person(Kwhose name/are subscribed to the within instrument and acknowledged to me that WeQsh /they executed the same in hvi 6-0/.their authorized capacity), and that by (0/thfeir signatures(* on the instrument the person(i'), 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. C.M. JORDAN WITNESS my hand and official seal. '!� COMMISSION #22686283 E Notary Public - California eAul / ORANGE COUNTY �c My Comm. Expires DeC. 23, 2U22 V Signatur L (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County f CDro-�c } ss. \\ On 0 ';ET 20 LL- before me, Notary Public, personally appeared - - cr = proved to me on the basis of satisfactory evidence to be the person whose name(s) g aPe subscribed to the within instrument and acknowledged to me that(i h /try executed the same in(F3iiherafteir authorized Capacity(ieg), and that b hi er/Weir signatures( :) 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 m hand and official seal. :,:':: .• C.M.JORDAN COMMISSION # 2268628 3 / E Notary Public - calitomia 3 ORANGE COUNTY My Comm. Expires Dec. 23, 2022 Signature (seal) Encroachment Agreement 6 EXHIBIT A PERMITTED IMPROVEMENTS PLAN Encroachment Agreement A-1 f-- I 5.4 I OOLDREN RF- IODEL EXTG EXISTING GONd. ROLLED CURB 815 VIA LIDO SOUD FACE NEWPORT BEAOH, CA 02003 EXTG 5 GONG. N°' EXTG ^rod EXTG GONG GONG. UJ p(13.13FSLO 11.49FS 10.96F5NEW I 3 nj F EXTG — PAVERS } r uwi-- GONG_ —6AFS --- --� -- —� G aa> WZ N"� • �"� w w o Z I EXTG 2ND FLOOR EXISTING COLUMNS TO BE REMOVED DECK OUTLINE— >1 O _r� - O Q 5 Now I+ONJO�� p4vEps �q EXISTING 5" WALL O ENCROACHMENT `^ I INTO FRONT 4 FOOT N 0 v J p) SETBACK p Q O I (25.61) I Z 3 I EX RIDGE } Q EXTG 2ND FLOOR I Q p _ BUILDING LINE I I S 4Bp,�K o N J I REPLACE EXISTING I I NEW ROOF Q_ CONCRETE DRIVEWAY u1 p with NEW PENNSYLVANIA - Z OVERHANG 3 U > TRUE BLUE STONE (12" INTO EASEMENT) w v EXT'G 2ND FLOOR PAVERS over 4' } �� Z a DECK OUTLINE �I I CONCRETE (10.92GF) 1 I ma BASE I a O. I �----------------= JJ w.. 377. J 1°� wZ�> f—'- O4fo EXTG 11.99FS---NEttr-- -----NEW----- —1 M 0YZN GONG. PAVERS PAVERS � z O P -- G 3Wm EXISTING COLUMNS • TO BE REMOVED I 4'-0" AREA of 4 FOOT WIDE EASEMENT CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document - to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of: California County of: f mnr_.. On�"L2' G before me, C M. Jordan, Notary Public, personally appeared: r5 Co lacm , and who proved to me on the basis of satisfactory evidence to be the person(K whose name k0i /aee subscribed to the within instrument and acknowledged to me that s e th4 executed the same in hX eir authorized capacityURIT and that by he theIr signatures) on the instrument the personK or the entity upon behalf of which the persor>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 ha d and official seal. Notary Public C.M. Jordan (Cindi M. Jordan) NOTARY PUBLIC C.M. JORDAN ;i`. �.... COMMISSION # 2268628 3 E ? V Notary Public - California ORANGE COUNTY UIV My Comm. Expires Dec. 23, 2022 ADDITIONAL DOCUMENT DETAILS (Used for Document Security) Name/Title of Document: