HomeMy WebLinkAboutC-9020-1 - Encroachment Agreement EPN N2022-0465 for 1730 Bonaire Way11/17/22. 9:45 AM
Batch 14999642 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
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2022000382130 9:43 am 11/17/22
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2022-0465)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
31st day of October, 2022, by and between Neil C. Boden and Claudia Boden, as Co -
Trustees of the Boden Living Trust, dated June 20, 2020 ("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 1730 Bonaire Way,
Newport Beach, California, 92660 and legally described as Lot 4 of Tract No. 2467, in the
City of Newport Beach, County of Orange, State of California, as per map recorded in Book
110 Page(s) 15 and .16, of Miscellaneous Maps, in the Office of the County Recorder of
Orange County, California, County Assessor's Parcel Number 426-243-28 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as further
described herein ("Permitted Improvements") within the Bonaire Way 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.
Neil C. Boden and Claudia Boden, as Co -Trustees of the Boden Living Trust, dated June
20, 2020 Encroachment Agreement 1
https://gs.secure-recording.com/Batch/Confirmation/14999642 1/4
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 N2022-0465)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
31 st day of October, 2022, by and between Neil C. Boden and Claudia Boden, as Co -
Trustees of the Boden Living Trust, dated June 20, 2020 ("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 1730 Bonaire Way,
Newport Beach, California, 92660 and legally described as Lot 4 of Tract No. 2467, in the
City of Newport Beach, County of Orange, State of California, as per map recorded in Book
110 Page(s) 15 and 16, of Miscellaneous Maps, in the Office of the County Recorder of
Orange County, California, County Assessor's Parcel Number 426-243-28 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as further
described herein ("Permitted Improvements") within the Bonaire Way 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.
Neil C. Boden and Claudia Boden, as Co -Trustees of the Boden Living Trust, dated June
20, 2020 Encroachment Agreement 1
2. It is mutually agreed that Permitted Improvements shall be defined as:
a. A twenty two inch (22") square by thirty six inch (36") high mailbox with a stucco
finish encroaching twelve feet (12) 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.
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 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.
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:
Neil C. Boden and Claudia Boden, as Co -Trustees of the Boden Living Trust, dated June
20, 2020 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.
Neil C. Boden and Claudia Boden, as Co -Trustees of the Boden Living Trust, dated June
20, 2020 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]
Neil C. Boden and Claudia Boden, as Co -Trustees of the Boden Living Trust, dated June
20, 2020 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: ly/2Z
By:� 0
�:
Nroh C. Harp
)City Attorney
Date-
ll+
By:
"Amk-",
City Clerk
ATTACHMENTS:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: ti [Iu vL
By:
Gr e . Leung
Ci anager
OWNER(S): Neil C. Boden and Claudia
Boden, as Co -Trustees of the Boden
Living Trus date June 20, 2020
Date-
By -
Neil C. Boden
Trustee
Date:
audia Boden
Trustee
[END OF SIGNATURES]
Owners must sign in the presence of notary public
Exhibit A — Permitted Improvements Plan as Approved by
Public Works
Neil C. Boden and Claudia Boden, as Co -Trustees of the Boden Living Trust, dated June
20, 2020 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.L } ss.
On 2 di-befo e me, � 1tA� L'ht-%ia � Notary
Public, personally— appeared % 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.
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.
:.•.`.Y::h'.W.Y.Wh•.•lf:.•:W.LY.•.•.W.V1Rtivh'.1/L
DAMIAN E. DELGADO
COMM. N 2281646
+3: _ NOTARY PUBLIC a CALIFORNIA t-
Orange County
ti Commission Expires March 19,2023 r
'+ L
...... '.:W.Y.•.•.LVLVY.W.Yhh :::Y.W :Y::.: :Y::.
(seal)
State of California
County of } ss.
On 20 before me, Notary
Public, personally appeared 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
(seal)
Neil C. Boden and Claudia Boden, as Co -Trustees of the Boden Living Trust, dated June
20, 2020 Encroachment Agreement 6
W4:11;3111_1
PERMITTED IMPROVEMENTS PLAN
Neil C. Boden and Claudia Boden, as Co -Trustees of the Boden Living Trust, dated
June 20, 2020 Encroachment Agreement A-1
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