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Home My WebLink AboutC-9019-1 - Encroachment Agreement EPN N2022-0498 for 4607 Dorchester Road11 /17/22, 9:45 AM Batch 14999828 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, Grange County Hugh Nguyen, Clerk -Recorder 37.00 *$ R 0 0 1 4 0 6 6 4 3 0$ 2022000382124 9:40 am 11 / 17122 227 NC-5 Al2 11 0.00 0.00 0.00 0.00 30.00 0.00 0.000.000.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2022-0498) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 16th day of November, 2022, by and between Michael H Leifer and Diane M Leifer, Trustees of the Michael and Diane Leifer Trust Established July 15, 1999 as Trust ("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 4607 Dorchester Road, Newport Beach, California, 92625 described as Lot 89 of Tract 3519, as shown on a map recorded in Book 128, Pages 18 through 21 Inclusively,.of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 475-063-07 and as legally described on Exhibit A, attached hereto and incorporated by reference ("Property"); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Dorchester Road 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: City and Owner acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. Michael H Leifer and Diane M Leifer, Trustees of the Michael and Diane Leifer Trust Established July 15, 1909 Encroachment Agreement 1 https://gs.secure-recording.com/Batch/Confirmation/14999828 1 /2 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 N2022-0498) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 16th day of November, 2022, by and between Michael H Leifer and Diane M Leifer, Trustees of the Michael and Diane Leifer Trust Established July 15, 1999 as Trust ("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 4607 Dorchester Road, Newport Beach, California, 92625 described as Lot 89 of Tract 3519, as shown on a map recorded in Book 128, Pages 18 through 21 Inclusively, of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 475-063-07 and as legally described on Exhibit A, attached hereto and incorporated by reference ("Property"), WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Dorchester Road 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: City and Owner acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. Michael H Leifer and Diane M Leifer, Trustees of the Michael and Diane Leifer Trust Established July 15, 1999 Encroachment Agreement 1 2. It is mutually agreed that Permitted Improvements shall be defined as: a. A 5.5' long by 8.0' wide limestone mocha creme paver carriage walk encroaching up to 9'-6" into the Dorchester Road public right of way, as approved by the Public Works Department and as shown on Exhibit B, attached hereto and incorporated herein by reference. b. 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 B. 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 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: Michael H Leifer and Diane M Leifer, Trustees of the Michael and Diane Leifer Trust Established July 15, 1999 Encroachment Agreement 2 (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. 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. Michael H Leifer and Diane M Leifer, Trustees of the Michael and Diane Leifer Trust Established July 15, 1999 Encroachment Agreement 3 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] Michael H Leifer and Diane M Leifer, Trustees of the Michael and Diane Leifer Trust Established July 15, 1999 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: 1111p/lOy2 CITY OF NEWPORT BEACH, a California municipal corporation Date.—_ BY: 6e —�Z- Fes' By: Aaron C. Harp 1t11n12z Gra . Leung City Attorney tq,� Cit anager Dat EST: h. ' J 4SAU City Clerk OWNER(S): Michael H Leifer and Diane M Leifer, Trustees of the Michael and Diane Leife Trust Established July 15, 1999 Date/ -, NM chae>KL er \ Trustee, The hael and i ne Leifer Trust Date: By: X"..' � ?0. lane M. Leifer Trustee, The Michael and Di e Leifer Trust [END OF SIGNATURES] Owners must sign in the presence of notary public ATTACHMENTS: Exhibit A — Legal Description of Property Exhibit B — Permitted Improvements Plan as Approved by Public Works Michael H Leifer and Diane M Leifer, Trustees of the Michael and Diane Leifer Trust Established July 15, 1999 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 OY'Q,hC>e- } ss. On I�IavCMb? 10 , 2022- before me, re-4 do (c�unne� , Notary Public, personally appeared JYijChCcd H. �(4- Er 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. 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) BRENDAL. WY14NE W Notary Public • Cadfornia _ W - Orange Covnry is Commission r 2347656 Comm. Expires Feb 17. 2025 r State of California County of &CO'Y'NS' , } SS. On , 20 r - before me, Th,Q„rp sq (1'l126 e,,,,k l3 Notary Public, personally appeared �-- ►a, It ke proved to me on the basis of satisfactory evidence to be the person(s) w ose 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 oaraarar)h is true and correct. WITNESS my hand and official seal. V 4 yt��,,�� TH ERESA MONIQUE BLACK W Notary Public •California ' T Orange County +` Commission # 2365175 `'� .cr"� My Comm. Expires Aug 8, 2025 (seal) Michael H Leifer and Diane M Leifer, Trustees of the Michael and Diane Leifer Trust Established July 15, 1999 Encroachment Agreement 6 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Michael H Leifer and Diane M Leifer, Trustees of the Michael and Diane Leifer Trust Established July 15, 1999 Encroachment Agreement A-1 EXHIBIT A LEGAL DESCRIPTION The land referred to herein below is situated in the County of ORANGE, State of CALIFORNIA, and is described as follows: LOT 89 OF TRACT NO. 3519, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 128, PAGES 18 THROUGH 21, INCLUSIVE, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THEREFROM THE MINERALS, OIL, GAS, AND OTHER HYDROCARBON SUBSTANCES LYING BELOW THE SURFACE OF SAID LAND. Assessor's Parcel Number: 475-063-07 EXHIBIT B PERMITTED IMPROVEMENTS PLAN Michael H Leifer and Diane M Leifer, Trustees of the Michael and Diane Leifer Trust Established July 15, 1999 Encroachment Agreement B-1 P.A._ u �,� EXISTING WATER METER- � 6' PROTECT IN PLACE H�G .= f E' �� sr S4 v' D '.A. o PLAIN CONCRETE -SEE LANDSCAPE oz 5 Cl -SEE ENCROACHMENT PERMIT NOTE n o _ z ENCROACHMENT PERMIT �D RI V.WA z C14 0 PRIOR TO PERFORMING ANY WORK IN THE CITY RIGHT-OF-WAY AN ENCROACHMENT o PERMIT MUST BE OBTAINED FROM THE P.A. GAS METER -"ATE LO ATE PUBLIC WORKS DEPARTMENT. PER PLAN PAVING -SEE LANDSCAPE L c� LIMESTONE MOCHA CREME ENCROACHMENT AGREEMENT . ( -SEE NOTE �XqxO��cz ENCROACHMENT PERMIT / AGREEMENT \ Jo rn PAVING MATERIAL FOR DECORATIVE I I ` +' CARRIAGE WALK AND DRIVEWAY 4 APPROACH SHALL BE SUBMITTED BY THE Lu o U � GENERAL CONTRACTOR FOR AN <;,P.A.6G� CL ENCROACHMENT PERMIT/ ° �J � ENCROACHMENT AGREEMENT PRIOR TO -- --- ANY WORK IN THE PUBLIC RIGHT OF WAY. -- F-T-1 THIS WORK MUST BE COMPLETED BEFORE A BUILDING DEPARTMENT PERMIT FINAL CAN BE ISSUED. T -1 'EA D19 �y O Lo N i Dcr) N o D O) T co FOB W Q C-D W P.A. I o 0 J A Q M BOO o CD ccQ LD ------ = w Lo �{ (5 �� J `� EXIST. STREET TREE `�\ IN PLACE I ^ CDo �. -PROTECT ca Q Q S% rs� o' �A �� cm CD C'3 z 1 � iCD I J Q r ri. p EXISTING WATER METER- 6 PROTECT IN PLACE HIIGH^ fE I(, u PLAIN CONCRETE -SEE LANDSCAPE C' �J SEE ENCROACHMENT PERMIT NOTE 4 O z O ENCROACHMENT PERMIT R!'I W A z � C14 D n 0 PRIOR TO PERFORMING ANY WORK IN THE CITY RIGHT-OF-WAY AN ENCROACHMENT o PERMIT MUST BE OBTAINED FROM THE P.A. p GAS METER- R LO ATE PUBLIC WORKS DEPARTMENT. PER PLAN PAVING -SEE LANDSCAPE -- c� LIMESTONE MOCHA CREME -SEE ENCROACHMENT AGREEMENT NOTE �s ENCROACHMENT PERMIT / AGREEMENT zo 90� rn PAVING MATERIAL FOR DECORATIVE _ , �• J CARRIAGE WALK AND DRIVEWAY ^ APPROACH SHALL BE SUBMITTED BY THE P.A. Lu cr�\ v)/ �6QsGT GENERAL CONTRACTOR FOR AN ENCROACHMENT PERMIT/ ENCROACHMENT AGREEMENT PRIOR TO --- ANY WORK IN THE PUBLIC RIGHT OF WAY. THIS WORK MUST BE COMPLETED BEFORE 3Ri P5 A. _ S A BUILDING DEPARTMENT PERMIT FINAL - D �6S CAN BE ISSUED. lz T 1 EA, u o �y Lo O Cflco o � D O� J S o/oy W ~ y a P.A. o 0 Q F= cl� C.0 CD cc C? D n Q Z v� ti EXIST. STREET TREE IN PLACE I ^ o -PROTECT Q s rso o' �Q r Cfl O C.D z � Lu CI_ J Q o I