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HomeMy WebLinkAboutC-9012-1 - Encroachment Agreement EPN N2022-0427 for 1437 Dolphin TerraceWROWMINFATINTA Batch 14963881 Confirmation 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 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder 34.00 *$ R 0 0 1 4 0 5 3 8 0 9$ 2022000358589 8:46 am 11/09/22 90 CR-SC06 Al2 10 0.00 0.00 0.00 0.00 27.00 0.00 0.000.000.00 0.00 Space above this line for Recorders use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2022-0427) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 19th day of October, 2022, by and between Randall C. Long and Mary F. Long as Trustees of the Long Family Trust dated December 31, 1990 ("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 1437 Dolphin Terrace, Corona del Mar, California, 92625 and legally described in Grant Deed Instrument No. 2019000043211 as Parcel 1 of Lot Line Adjustment, LA-2002 013, in the City of Newport Beach, County of Orange, State of California, as shown on a map attached to that certain instrument recorded December 2, 2002 as Instrument No. 02-001085074, Official Records, in the Office of the County Recorder of Said County, County Assessor's Parcel Number 050- 281-10 ("Property"); WHEREAS, there are two existing encroachment agreements recorded against the property:. the Agreement for Non -Standard Improvements, dated May 3, 2002, which was recorded as Instrument No. 20020428863 in the Recorder's Office for the County of Orange on May 21, 2002, and the Agreement for Non -Standard Improvements, dated April 17, 2002, which was recorded as Instrument No. 20020528879 in the Recorder's Office for the County of Orange on June 25, 2002 (collectively "Former Agreements"); WHEREAS, the Former Agreements permitted the construction of certain improvements ("Existing Encroachments") within the City's 5-foot wide sewer easement (hereinafter "Easement Area") and within the Dolphin Terrace right-of-way (hereinafter "Right -of -Way") that is located adjacent to Property; WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Easement Area and Right -of -Way; Randall C. Long and Mary F. Long as Trustees of the Long Family Trust dated December 31, 1990 Encroachment Agreement 1 https://gs.secure-recording.com/Batch/Confirmation/14963881 112 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 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2022-0427) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 19th day of October, 2022, by and between Randall C. Long and Mary F. Long as Trustees of the Long Family Trust dated December 31, 1990 ("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 1437 Dolphin Terrace, Corona del Mar, California, 92625 and legally described in Grant Deed Instrument No. 2019000043211 as Parcel 1 of Lot Line Adjustment, LA-2002 013, in the City of Newport Beach, County of Orange, State of California, as shown on a map attached to that certain instrument recorded December 2, 2002 as Instrument No. 02-001085074, Official Records, in the Office of the County Recorder of Said County, County Assessor's Parcel Number 050- 281-10 ("Property"); WHEREAS, there are two existing encroachment agreements recorded against the property: the Agreement for Non -Standard Improvements, dated May 3, 2002, which was recorded as Instrument No. 20020428863 in the Recorder's Office for the County of Orange on May 21, 2002, and the Agreement for Non -Standard Improvements, dated April 17, 2002, which was recorded as Instrument No. 20020528879 in the Recorder's Office for the County of Orange on June 25, 2002 (collectively "Former Agreements"); WHEREAS, the Former Agreements permitted the construction of certain improvements ("Existing Encroachments") within the City's 5-foot wide sewer easement (hereinafter "Easement Area") and within the Dolphin Terrace right-of-way (hereinafter "Right -of -Way") that is located adjacent to Property; WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Easement Area and Right -of -Way; Randall C. Long and Mary F. Long as Trustees of the Long Family Trust dated December 31, 1990 Encroachment Agreement 1 WHEREAS, the Permitted Improvements will replace, modify, or generally take the place of the Existing Encroachments; 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 the Easement Area and 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: 1. City and Owner acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 2. This Agreement supersedes the Former Agreements and renders them null and void. 3. It is mutually agreed that Permitted Improvements shall be defined as: a. Three 6-inch NDS Spee-D Basins with 6-inch green atrium grates, one 6-inch NDS Spee-D Basin with 6-inch brass square grate and a 4-inch diameter SDR- 35 PVC storm drain pipe encroaching into the 5-foot wide Easement Area; b. A 6-foot high iron fence encroaching into the 5-foot wide Easement Area; C. A 6-foot high wood side yard gate with block wing walls encroaching into the 5- foot wide Easement Area; d. Belgard paver stepping pads with concrete base encroaching into the 5-foot wide Easement Area; e. A 28.5-foot wide driveway approach constructed with Belgard Chambord S005ST pavers with 6-inch concrete base and synthetic turf strip encroaching 2.5-feet into the Right -of -Way; and f. A 5.5-foot walkway constructed with Belgard Chambord S005ST pavers with 4-inch concrete base encroaching 2.5-feet into the Right -of -Way, as approved by the Public Works Department and as shown on Exhibit A, attached hereto and incorporated herein by reference. g. 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. Randall C. Long and Mary F. Long as Trustees of the Long Family Trust dated December 31, 1990 Encroachment Agreement 2 4. 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 the Easement Area and 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. 5. 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. 6. 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 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 Easement Area or Right -of -Way to exercise its primary rights associated with said Easement Area or 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. Randall C. Long and Mary F. Long as Trustees of the Long Family Trust dated December 31, 1990 Encroachment Agreement 3 7. 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 Easement Area and 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. 8. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. Randall C. Long and Mary F. Long as Trustees of the Long Family Trust dated December 31, 1990 Encroachment Agreement 4 16. 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] Randall C. Long and Mary F. Long as Trustees of the Long Family Trust dated December 31, 1990 Encroachment Agreement 5 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: /o1fq f� CITY OF NEWPORT BEACH, a California municipal corporation Date.— X;?' 1L By: By: Aa n . p jo`%a1aa 4At. Gr . Leung ity Attorney anager ATTEST: OWNER(S): Randall C. Long and Mary F. Date: I�� �%�/ Long as Trustees of the Long Family Trust dated December 31, 1990 Date: 1 O - Z � � By: dAioc4' By: Pi Leilani I. Brown Randall C. Long City Clerk Trustee U \F 0RNi ATTACHMENTS: Date: /U . Z By: Mary F. L ng Trustee [END OF SIGNATURES] Owners must sign in the presence of notary public Exhibit A — Permitted Improvements Plan as Approved by Public Works Randall C. Long and Mary F. Long as Trustees of the Long Family Trust dated December 31, 1990 Encroachment Agreement 6 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 Calif rnia Count x�r of C } ss. On UG-ty her 20 Z Z before me, cC(;k �M i Notary Public, personally appeared llir 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. % Aa Z VYA Q' Signature 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. (seal ZACK CRAIG smrrH Notary Public • California Z W Orange County f 1 % Commission M 2358985 i State of California County of by—M c } ss. On C�bW 7 20-L Z, before me, Zli cli Notary Public, personally appeared f l rM�A Leh, proved to me on the basis of satisfactory evidence td be the persons) 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. fth *my UCK CRAIG SMfTHNotary Public • CaliforniaWITNESS m hand and official seal. = Orange County y W Notary F-c,ic • CaliforCommission p 2358985x .;Orange Cc;.nty Comm. Expires May 26, 2026 x ' Commisslo� • 2358985 ,es May 26, 2025 Signature (seal) Randall C. Long and Mary F. Long as Trustees of the Long Family Trust dated December 31, 1990 Encroachment Agreement 7 EXHIBIT A PERMITTED IMPROVEMENTS PLAN Randall C. Long and Mary F. Long, Trustees of the Long Family Trust dated December 31, 1990 Encroachment Agreement A-1 © FURNISH & INSTALL 4-INCH SDR-35 PVC STORM DRAIN (OR APPROVED EQUAL) PER CPC. INCLUDE REQUIRED JOINTS AND FITTINGS PER CPC. CONSTRUCT TRENCH, BEDDING, AND BACKFILL PER ASTM D 2321 AND SOILS REPORT. O FURNISH & INSTALL 3-INCH SDR-35 PVC STORM DRAIN (OR APPROVED EQUAL) PER CPC. INCLUDE REQUIRED JOINTS AND FITTINGS PER CPC. CONSTRUCT TRENCH, BEDDING, AND BACKFILL PER ASTM D 2321 AND SOILS REPORT. �8 FURNISH & INSTALL 6" NDS SPEE-D BASIN W/6" GREEN ATRIUM GRATE PER DETAIL HEREON. �9 ;:FURNISH & INSTALL 6" NDS SPEE-D BASIN W/6" BRASS SQUARE GRATE PER DETAIL HEREON. 5-FT WIDE CNB SEWER EASEMENT ENCROACHMENT PERMIT AND ENCROACHMENT AGREEMENT IS REQUIRED FOR ANY DRAINAGE OR IMPROVEMENTS WITHIN EASEMENT EXHIBIT A 0 8 16 SCALE IN FEET 1 INCH =8 FEET W BELGARD PAVER STEPPING PADS WITH CONCRETE BASE 6-FOOT HIGH IRON 5-FT CNB SEWER FENCE EASEMENT I '4 1 (F-) TOP OF BLUFF —I 7 ( 1 '✓J f I f ( L__ i I >IW �J Wow _ I wfot 3fa a I A EXHIBIT A \r'JRG.\v GIf S�A3 _OGA- 7 ATJ = \' _R ✓F K E W4_ ?-\ c55.0~-+ERW 2ET.�J Nei\C WALL a 2 \. ORc 1.5 . N C2 3C� S-, iJWE�S�\ �1- 2'f�;SER-� _ _ 3- 7L, WN— 1 PANTIRI COLORED CONCRETE w 6-FOOT HIGH WOOD y SIDE YARD GATE WITH _ L BLOCK WING WALLS w 8eeee O SYNTHETIC TURF STRIP a Dr 1437 DOLPHIN TERRACE BELGARD'CHAMBROD' u S005ST PAVERS WITH [Etj A 6" THICK CONCRETE BASE BELGARD 'CHAMBROD' S005ST PAVERS WITH 4" THICK CONCRETE II -II BASE) m 1 2.5' 1 00 L6 w V w z x a J O 0