HomeMy WebLinkAboutC-9093-1 - Encroachment Agreement EPN N2000-308 for 6707 and 6709 Seashore DriveRECORDING REQUESTE,...,4D
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WHEN RECORDED RETURN TO:
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Public Works Department
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in Official Records, County of Orange
Gary Granville, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(EPN2000-308)
THIS AGREEMENT is made and entered into this day of
2000, by and between Patricia Giddings (see attached "Special Power Of Attorney') on behalf
of Mark Paul Giddings (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 6707 and 6709 Seashore Drive, Newport Beach, California and
legally described as portion of Lot 7, Block "G", Seashore Colony Tract, Addition To Newport
Beach, as shown on a map recorded in Book 7, Page 25 inclusively of Miscellaneous Maps in
the office of the County Recorder of Orange County, California;
ITNESSETH:
WHEREAS, OWNER desires to construct and maintain certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within Seashore Drive right-of-
way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 6707 and 6709 Seashore
Drive, Newport Beach, California and legally described as portion of Lot 7, Block "G",
Seashore Colony Tract, Addition To Newport Beach, as shown on a map recorded in Book 7,
Page 25 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange
County, California;
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 reconstruct and maintain said
PERMITTED IMPROVEMENTS;
1
NOW, THEREFORE, o consideration of the mutual promises, the parties hereto agree
as follows:
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as a
raised concrete patio (encroach 6-inches) with a 3-feet high wrought railing (encroach fl-
inches), concrete steps, concrete ramps, landscaping (ground cover), and appurtenances in
Seashore Drive right-of-way as shown on EXHIBIT "A" attached hereto and as approved by
the City Engineer. In addition, the proposed PERMITTED IMPROVEMENTS may vary at the
time of construction. Hence, any changes must be approved by the City Engineer and shall
be on 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, all in substantial conformance with 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 days' 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 plans and specifications
therefor on file in the CITY's Public Works Department, and as described on Exhibit "A" hereto
attached.
b. OWNER shall maintain the PERMITTED IMPROVEMENTS in accordance
with general prevailing standards of maintenance, and pay all costs and expenses incurred in
doing so. In addition, the OWNER shall maintain (i.e. water, fertilize, trim, etc.) the private
landscaping in the RIGHT-OF-WAY. However, nothing herein shall be construed to require
OWNER to maintain, replace or repair any private -owned or CITY -owned pipeline, conduit or
cable located in or under said PERMITTED IMPROVEMENT S, except as otherwise provided
herein.
c. If private -owned, 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.
2
d. That should the 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 of its intention to accomplish such work,
if any emergency situation does not exist.
(ii) OWNER shall be responsible for arranging for any renewal 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 renewal or restoration of the
PERMITTED IMPROVEMENTS.
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) days' 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.
3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first -above written.
APPROVED AS TO FORM:
By: il'__
City Attorney
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
City Ma ger
OWNER: Mark Paul Giddings
By:
Patricia Giddings (Attorn - -Fact)
0
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On -5e,O i ear, 5 ef -
personally appeared
me Lc3 JZ 4
, personally
known to me erq-e rderrce to be the person(s)
whose name(s) is/a-re subscribed to the within instrument and acknowledged to me that
he/she/they has executed the same in his/her/theif- authorized capacity(ie4 -, and that by
his/her/their signatures) on the instrument the person(s) or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal. LESLIE M. JOKI
Commission # 1162315 Z
Notary Public -California >
�p Orange County
m
c_a�-c12.� �� �My C.xnm. Expires Nov 21, 200 i
Notary Public in and for said State
(This area for official notarial seal)
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
2000, before
On I l 1 1 2000, before., me, r Yv���
personally appeared k lJ 0 ,tiv-Q V . \ q- L & personally
known to me rouio_me__on--the basis of-satisfactory--evidence)-to be the pers (s
whose nam (s is/ re subscribed to the within ' trument and acknowledged to me that
he/she th has executed the same in his/her thei authorized capacity 'es and that by
his/her/ heir ignature&on the instrument the persons or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Commissic. fF 1 _1 74329
z
Notary Public - Califamia
Orange County
MY Comm. Ew,*es Feb 21, =
Notary Public in d or said State
(This area for official notarial seal)
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SPECIAL POWER OF ATTORNEY
I, MARK PAUL GIDDINGS, of Newport Beach, Orange County, California appoint
PATRICIA GIDDINGS of 250 Newport Center Drive, Suite 206, Newport Beach, Orange
County, California, as my attorney -in -fact for a period of one year effective May 1, 2000 to act in
my place for t+uoses
p -
he mpof
1. To ask, demand, sue for, collect, and receive all sums of money, debts, or other
obligations of whatever kind that are now or may later become due, owing, or payable, or
otherwise belong to me, to settle and compromise any such debts or obligations that may be due
n:e and to endorse in my name any check or note payable to me or my order given in payment of
any debt or obligation and to take such other steps in connection with any such debt or obligation
that he may deem necessary and proper and in my name to execute and deliver any receipts,
releases, or discharges of any debt or obligation with the same effect as if those receipts, releases,
or discharges were executed by me personally.
2. To grant, bargain, sell and convey my real property or any part of it, located in the
County of Orange, California, for a price and on terms and conditions that she deems proper, with
or without the taking back of a purchase money mortgage or deed of trust, and to collect and
receive the proceeds from any sale.
To enter into any contract or contracts for the sale of the premises, or any part of them,
with the persons and on the terms she in her discretion elects, and to execute, acknowledge, and
deliver in my name any deeds or conveyances, with any covenants or conditions that she may
deem proper, that may be required for the transfer of said property or any part thereof or of any
interest therein.
3. To execute a mortgage or deed of trust on any real property located in the State of
California, in an amount and on the terms and conditions that she may deem necessary and proper,
and to sign, execute and deliver, in my name or otherwise, the instruments that may be required in
connection with obtaining the mortgage or deed of trust, and to do the other acts that I might or
could do in obtaining the mortgage or deed of trust on the property.
4. To exchange any real property located in the State of California, in whole or in part,
for any other property, encumbered or unencumbered, as she in her discretion, chooses, and on
the terms and conditions that she deems fit and proper, and to sign, execute and deliver any
contracts for the purchase of the other property so exchanged or for the sale and conveyance of
my property or any part of it, and to execute, acknowledge and deliver any deeds or othul
instruments of conveyance that may be required to consummate the exchange, and to make any
adjustments and any other acts or things that I myself might do in making the exchange and
effecting the sale of my property and purchase of the other property.
5. To demand, sue for, collect, and receive all rents now due or that may later become
due to me from past, present, or future tenants or occupants of the lands, buildings or other
structures, or any parts thereof, and on payment, to give receipts in my name and discharges in
full satisfaction of those rents.
6. To sell and enter into a contract or contracts for the sale of all or any part of my
personal property, effects and belongings of every kind and nature wherever situated, with full
power to deliver possession of the personal property and to execute in my name any documents
necessary to transfer title to the personal property and to execute in my name any documents
necessary to transfer title to the personal property, including bills of sale or ;,thee docu rents of
title, and to take any security interest for any unpaid balance that my attorney -in -fact, in her
discretion, deems necessary and proper.
7. To borrow money from the sources and on the terms that my attorney deems fit and
proper, and to execute in conjunction with any loan of money a security agreement covering any
of my real or personal property and to execute, sign, acknowledge, and deliver in a form that may
be required any promissory note or any other instrument that may be required in conjunction with
the transaction.
8. To manage, control, and take charge of business in Orange County, California, and to
do everything necessary to carry on and continue the affairs of the business, including the
purchase of materials and supplies, the hiring and firing of personnel, the acceptance of orders for
and delivery of merchandise and goods produced, either in cash or for credit, the acceptance of
checks, notes, or documents of title in connection with the operation of the business and the
making, signing, issuance, and endorsing of any checks, notes, or documents of title that may be
necessary in the judgment of the attorney -in -fact.
9. To pay all personal bills and child support payments in a timely manner.
10. To show in exhibits any art objects belonging to me.
11. (a) To endorse and deliver for deposit with, or collection by the bank any and all
checks, drafts, promissory notes, certificates of deposit, or other orders or instruments for the
payment of money.
(b) To sign and deliver checks or drafts on any bank, whether against funds actually
standing in my credit at the time or against or in anticipation of deposits to be made or funds to be
placed to my credit thereafter, and to settle and adjust my accounts with those banks.
(c) To accept any and all drafts or bills of exchange or other orders for payment of
money at any time drawn on my account or otherwise directing payment of them by the hank.
(d) To sell to the bank for my account, any and all promissory notes, drafts or other
orders for the payment of money at any time drawn and endorsed payable to my order or
generally, and to endorse them for the purpose of sale.
(e) To borrow in my name whatever sum or sums of money my attorney -in -fact
deems proper, and as security for repayment of any loan or loans, to make and deliver one or
more promissory note or notes, drafts, or other order or orders for the payment of money, and to
pledge or hypothecate as collateral security therefor any and all negotiable instruments, bonds,
stocks, certificates of deposit, or securities held by me or by that attorney -in -fact, and to execute
and deliver any and all endorsements or instruments of assignment or transfer that may be
necessary, expedient, or customary in similar cases to effectively transfer the securities pledged to
the lender.
I further grant to my attorney -in -fact full authority to act in any manner both proper and
necessary to the exercise of the foregoing powers.
The follooving ' a specimen of the handwriting and signature to be used by the attorney-
in-f ct apth e t ment.
MARK PAUL GIDDNGS
a tci4 d1
Attorney -in -Fact
ACKNOWLEDGEMENT )
STATE CO CALIFORNIA ) ss
COUNTY OF ORANGE — . _ _ )
n
On March �`l , 2000, before me, a Notary Public in and for said
County and State, personally appeared MARK PAUL GIDDINGS
personally known to me or proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed
to the within instrument and acknowledged that he executed the
same in his authorized capacity, and that by his signature on
the instrument the person, or tl-,.e entity upon, behalf of which
the person acted, executed the instrument.
WITNESS my hand and official Seal.
LESUEjorj
.;_ Commissionn # 1162375
/.cam Z Notary Public - Califomia
Orange Courily
1VCYt ary riilviilC 4- can d for said County ;.'y��Xr1m.tX�jre5NOV21,2�1 r
and State