HomeMy WebLinkAboutC-8983-1 - Encroachment Agreement EPN N2007-0519 for 2443 Bamboo StreetRECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
V
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
II 1II II III II 111.1E111!i!11111!Ili1111111111111111110 27.00
200800001507012,26pm 01110I06
106 207 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
(EPN2007-0519)
THIS AGREEMENT is made and entered into this 21s' day of December, 2007, by and between
Daniel B. and Lauren L. Mc Nerney (hereinafter "OWNER"), 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 2443 Bamboo Street, Newport Beach, California 92660 and legally described as Lot 53 of Tract
4893 in the City of Newport Beach, County of Orange, State of California as shown on a map recorded
in Book 180, Pages 20 through 23 inclusively of Miscellaneous Maps in the office of the County
Recorder of Orange County, California.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements (hereinafter
"PERMITTED IMPROVEMENTS") within the Bamboo Street right-of-way (hereinafter "RIGHT-OF-
WAY") that is located adjacent to the parcel legally described as Lot 53 of Tract 4893 in the City of
Newport Beach, County of Orange, State of California as shown on a map recorded in Book 180,
Pages 20 through 23 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange
County, California; also known as 2443 Bamboo Street, Newport Beach, California 92660; and
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 execute an agreement providing for fulfillment of the
conditions required by CITY to permit OWNER to construct and maintain said PERMITTED
IMPROVEMENTS.
1
follows:
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as, (1) a 6-
foot wide carriage walk constructed with terracotta colored concrete encroaching 10 feet
into the public right-of-way, (2) two 32-inch square by 11-inch high planter box
constructed with brick pavers surrounded with terracotta colored concrete with varying
widths up to 7 feet in the 6-foot wide parkway, (3) one sago palm plant inside each of
the planter box not to exceed 3-feet in height, measured from the existing ground
elevation, and leaves not to impact the sidewalk or street sight distance, (4) private
irrigation improvements encroaching 10 feet into the public right-of-way and
appurtenances in the Bamboo Street 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.
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
2
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.
(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.
3
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 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
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on
the day and year first above written.
APPROV D AS TO FORM:
By:
Aaron Harp, Asst. City Attorney
ATTEST:
By:
LaVonne Harkless, City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
Homer Bludau, ity Manager
OWNER:
L.
A
Daniel B. McNerney
By: '� A —
Lauren L. Mc Vrney
f:\users\pbw\shared\encroach\row agreements\2007\n2007-0519-2443 bamboo street (mc nerney).doc
5
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
s.•,�.,a�c Z,�S,��,s,:;.�5���.',.c����;-c�.A'?.v.�•�.S;s��S .•�.s�-'S;s��S� �!ay.'��t�s�.C.�S;����..-�.`:�S�:;s�:,s�.�.--�.'Z R;'U;:�S�<�-`a\�.s�-'S;c�: S,g�S�Ch�v
State of Califor
Count of V J
Obefore me,Ub
Dat t3l
da�"
Insert Na e N6,11ebftleoOff er
personally a ared4L
toz•szuK t> Ic 1•u 0Aw
A< o eBuo1Q
L nc% * U01111111111l
NIY ON '1114"31
LERM I. BROWN
CORIrnU01) # 1633477
Nosy PublIc - Coufornia
Orange County
fNy Comm. Expkw Jon 25, 201
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person(.s4-whose name4) is/are-subscribed to the
within instrument and acknowledged to me that
he/sl,t�executed the same in his/baat#ek authorized
capacity4o&s , and that by his/he+:+he4r signature(aj 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-hanfikpnd offici eal
Signature
Signature of N ary Public
OPTIONAL
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
Title or Type of Document:
Document Date:
Signer(s) Other Than Nanied Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing
2"(Dol�l
RIGHTTHUMBPRINT
OF SIGNER
Top of • here
Number of Pages:
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact •
Milk
El Trustee Top of thumb here
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
O 11 • MOUSTUM1•• ••1 �1 •. •1 C11:
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On 1Gq
before me,
,( L oc��
Notary Public,
personally appeared -QxKi
tl T3.-r (Cyj
VCK L_ 1A C14evk�/
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 signature(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.
M. IOCEY
Commiaalon AE 1611 564,
61MyConwn.ExpNwOct7,
Notary PLOIc - CaWornlo
Orange county 20
Vjx_ L*�� , - (SEAL)
Notary Public in and for s tate
OPTIONAL INFORMATION
Title or Type of Document: 0 A )'�4
Date of Document: I ZI Zrl 107
a