HomeMy WebLinkAboutC-9101-1 - Encroachment Agreement EPN N2022-0230 for 1611 Kings Road1/4/23, 2:46 PM
Batch 15191875 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
11II III J 1�111 JJ11 1111111111111111111146.00
*$ R 0 0 1 4 1 3 9 7 0 7 $ *
2023000001820 2:41 pm 01/04/23
227 NC-5 Al 14
0.00 0.00 0.00 0.00 39.00 0.00 0.000.000.00 0.00
Space above this line for Recorders use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2022-0230)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
6th day of December, 2022, by and between Mathieu B. Streiff and Kimberlee R. Streiff,
Trustees of the Streiff Family Trust, dated March 26, 2013 (as amended on February 14,
2017) ("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 1611 Kings Road,
Newport Beach, California, 92663, Orange County Assessor's Parcel Number 049-222-58
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 Kings Road right-of-way (hereinafter,
"Kings Road Area"), and within a City Sewer Easement right-of-way (hereinafter "Sewer
Easement Area"), that are located adjacent to Property (collectively referred to herein as
"Right -of -Way");
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:
1. City and Owner acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference into this Agreement.
Mathieu B. Streiff and Kimberlee R. Streiff, Trustees of the Streiff Family Trust, dated
March 26, 2013 (as amended on February 14, 2017) Encroachment Agreement 1
https://gs.secure-recording.com/Batch/Confirmation/l 5191875 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 N2022-0230)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
6th day of December, 2022, by and between Mathieu B. Streiff and Kimberlee R. Streiff,
Trustees of the Streiff Family Trust, dated March 26, 2013 (as amended on February 14,
2017) ("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 1611 Kings Road,
Newport Beach, California, 92663, Orange County Assessor's Parcel Number 049-222-58
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 Kings Road right-of-way (hereinafter,
"Kings Road Area"), and within a City Sewer Easement right-of-way (hereinafter "Sewer
Easement Area"), that are located adjacent to Property (collectively referred to herein as
"Right -of -Way"), -
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.
Mathieu B. Streiff and Kimberlee R. Streiff, Trustees of the Streiff Family Trust, dated
March 26, 2013 (as amended on February 14, 2017) Encroachment Agreement 1
2. It is mutually agreed that the following Permitted Improvements shall be defined as
set forth below and as approved by the Public Works Department as shown on Exhibit
B, attached hereto and incorporated herein by reference.
a. A twenty six foot (26') wide driveway constructed of grey colored cobblestone
pavers encroaching up to eleven feet (11') into the Kings Road Area;
b. An eighteen inch (18") square by forty two inch (42") tall decorative mailbox
constructed with CMU block with smooth white plaster and limestone cap
encroaching up to eleven feet (11') into the Kings Road Area;
C. A twelve foot (12') long by six foot (6) tall wall constructed of natural colored
retaining blocks encroaching ten feet (10') into the Sewer Easement Area;
d. A four foot (4') wide by nine foot (9') long stair case encroaching up to six feet
(6) into the Sewer Easement Area;
e. A nine foot (9') wide planter wall encroaching up to one and one half feet (1.5')
into the Sewer Easement Area;
f. A twelve foot (12') by ten inch (10") wide step pathway encroaching up to one
and one half feet (15) into the Sewer Easement Area.
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.
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
Mathieu B. Streiff and Kimberlee R. Streiff, Trustees of the Streiff Family Trust, dated
March 26, 2013 (as amended on February 14, 2017) Encroachment Agreement 2
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:
(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.
Mathieu B. Streiff and Kimberlee R. Streiff, Trustees of the Streiff Family Trust, dated
March 26, 2013 (as amended on February 14, 2017) Encroachment Agreement 3
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.
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]
Mathieu B. Streiff and Kimberlee R. Streiff, Trustees of the Streiff Family Trust, dated
March 26, 2013 (as amended on February 14, 2017) 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: IL/2-/2L
By:
A ron C. Harp
ty Attorney
ATTEST: I. 1
Date:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date. Z
By:
Grace K. Leung
City Manager
OWNER(S): Mathie
Kimberlee R. Streiff
Streiff Family Trust,
2013 (as amended c
2017)
Date: Q&c- I
i B. Streiff and
Trustees of the
dated March 26,
i-Fepruary 14,
By: By:
Leilani I. Brown Mathieu B. S eiff, Trustee
City Clerk 1
ATTACHMENTS:
Date: 1)cG . I S', �i?
Kimberlee R. Streiff, Truste
�p_
[END OF SIGNATURES]
Owners must sign in the presence of notary public
Exhibit A — Legal Description of Property
Exhibit B — Permitted Improvements Plan as Approved by
Public Works
Mathieu B. Streiff and Kimberlee R. Streiff, Trustees of the Streiff Family Trust, dated
March 26, 2013 (as amended on February 14, 2017) 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 thefulness, accuracy, or
validitv of that do( ment. )
State of California
County of
511. ,before me,
(insert namefand tAi e, of4he officer)
personally appeared V n (&- JIJU ` r jhj tL4rhatj2�J�/they
who proved to me on he basis of satisfactory evlden to berson(s) w se names aresubscribed to the within instrume and acknowledged to me executed the same in
E*&r/their authorized capaci les), and that by h 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 corro .�
WITNESS my hand official s . .
�,�,,,,� .,� NAOMI ROSE
Notary Public • California
Los Angeles County 3:
Commission N 2356177
a " My Comm. Expires May 26, 2025
Signature (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 of } ss.
On 20 before me, 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.
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)
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 } 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)
Mathieu B. Streiff and Kimberlee R. Streiff, Trustees of the Streiff Family Trust, dated
March 26, 2013 (as amended on February 14, 2017) Encroachment Agreement 6
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Mathieu B. Streiff and Kimberlee R. Streiff, Trustees of the Streiff Family Trust, dated
March 26, 2013 (as amended on February 14, 2017) 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:
LOT44, BLOCK E, OF 1219, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE
OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 38, PAGES 26 AND 27, OF
MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL
GAS RIGHTS AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOW, GEOTHERMAL
STEAM AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE
WITHIN OR UNDER THE LAND, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING,
MINING, EXPLORING AND OPERATING ANY OTHER LAND, INCLUDING THE RIGHT TO
WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THE LAND,
OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO THROUGH OR ACROSS THE SUBSURFACE
OF THE LAND, AND TOP BOTTOM SUCH WHIPSTOCKED OF OFFICIAL RECORDS
DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR
BEYOND THE EXTERIOR LIMITS THEREOF AND TO REDRILL, RETUNNELL, EQUIP, MAINAIN,
REPAIR, DEEPEN AND OPERATE AY SUCH WELLS OR MINES, WITHOUT, HOWEVER, THE
RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE
UPPER 500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED IN THE DEED
RECORDED JUNE 7, 1977 IN BOOK 12229 PAGE 655 OFFICIAL RECORDS.
APN: 049-222-58
EXHIBIT B
PERMITTED IMPROVEMENTS PLAN
Mathieu B. Streiff and Kimberlee R. Streiff, Trustees of the Streiff Family Trust, dated
March 26, 2013 (as amended on February 14, 2017) Encroachment Agreement B-1
PUBLIC WWWS ENCROACHMENT PERMIT
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