HomeMy WebLinkAboutC-9329-1 - Encroachment Agreement EPN N2023-0226 for 1113 Kings Road5/25/23, 3:11 PM
Batch 15782962 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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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2023-0226)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
23rd day of May, 2023, by and between Gregory Ira Reed and Carolyn Marie Reed, as
Trustees of the CMGI Trust dated July 21, 2015 and any amendments thereto ("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 1113 Kings Road,
Newport Beach, California, 92663, Orange County Accessor's Parcel Number 049-212-03
and legally described on Exhibit A, attached hereto and incorporated herein by reference
("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as further
described herein ("Permitted Improvements") within the Kings Road, Sewer Easement 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.
2. It is mutually agreed that Permitted Improvements shall be defined as:
Gregory Ira Reed and Carolyn Marie Reed, as Trustees of the CMGI Trust dated July 21, 2015 Encroachment Agreement 1
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Batch 15782962 Confirmation
a. A six (6) foot and six (6) inch by eleven (11) foot carriage constructed with
thermory white ash wood attached to a four (4) inch thick concrete slab
encroaching eleven (11) feet in the Right -of -Way,
b. A twenty-four (24) inch by twenty-four (24) inch decorative mail box
encroaching up to eleven (11) feet into the Right -of -Way,
C. Decorative paving constructed with sixteen (16) inch by thirty-six (36) inch
limestone tile encroaching up to eight (8) feet into the ten (10) foot wide sewer
easement,
Cl. A twenty-four (24) inch by twenty-four (24) inch concrete grade beam
encroaching two (2) feet six (6) inches into the ten (10) foot wide sewer
easement; and
e. A ten (10) foot long by ten (10) inch wide by nine (9) foot tall concrete retaining
wall encroaching one (1) foot six (6) inches into the ten (10) foot wide sewer
easement, as approved by the Public Works Department and as shown on
Exhibit B, attached hereto and incorporated herein by reference.
f. 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.
Gregory Ira Reed and Carolyn Marie Reed, as Trustees of the CMGI Trust dated July 21, 2015 Encroachment Agreement 2
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a. A six (6) foot and six (6) inch by eleven (11) foot carriage constructed with
thermory white ash wood attached to a four (4) inch thick concrete slab
encroaching eleven (11) feet in the Right -of -Way,
b. A twenty-four (24) inch by twenty-four (24) inch decorative mail box
encroaching up to eleven (11) feet into the Right -of -Way,
C. Decorative paving constructed with sixteen (16) inch by thirty-six (36) inch
limestone tile encroaching up to eight (8) feet into the ten (10) foot wide sewer
easement,
d. A twenty-four (24) inch by twenty-four (24) inch concrete grade beam
encroaching two (2) feet six (6) inches into the ten (10) foot wide sewer
easement; and
e. A ten (10) foot long by ten (10) inch wide by nine (9) foot tall concrete retaining
wall encroaching one (1) foot six (6) inches into the ten (10) foot wide sewer
easement, as approved by the Public Works Department and as shown on
Exhibit B, attached hereto and incorporated herein by reference.
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.
Gregory Ira Reed and Carolyn Marie Reed, as Trustees of the CMGI Trust dated July 21, 2015 Encroachment Agreement 2
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.
Cl. 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.
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.
Gregory Ira Reed and Carolyn Marie Reed, as Trustees of the CMGI Trust dated July 21, 2015 Encroachment Agreement 3
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]
Gregory Ira Reed and Carolyn Marie Reed, as Trustees of the CMGI Trust dated July 21, 2015 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:
By:
a p
Attorney
ATTEST:
Date:.
1 �
1.!.i,/. �rl l/Illi
City Clerk
R
CITY OF NEWPORT BEACH,
a California munici al corporation
Date:/ 1�3 %23
By: _:�L L--�
Gr e . Leung
ity anager
OWNER(S): Gregory Ira Reed and
Carolyn Marie Reed, as Trustees of the
CMGI Trust dated July 21, 2015 and any
amendments thereto
Date: S / 177 I ---dM3
By:
_4c7z��—
Gregory Ira Reed
Trustee
Date: S //I /�2
Loti
By:
Carolyn Marie Reed
Trustee
[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
Gregory Ira Reed and Carolyn Marie Reed, as Trustees of the CMGI Trust dated July 21, 2015 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&A } ss.
On L9 - %r'i , 200-0-6 before me," Notary
Public, personally appeared who proved to
me on the basis of satisfactory evide ce toibe 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.
w�sew°yr,�RN DAMIAN E. DELGADO
Comm. # 2443509
NOTARY PUBLIC-CALIFORNIA Ul
ORANGE COUNTY
IL
°gt40aµ`° MY Comm. EXP. APR. 7, 2027
State of California
County of )Ss. :�' e,
On 20 � � s before m 1�� tb 0A 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
o�5owrysd.DAMIAN E, DELGADO
s COMM, # 2443509 ''nn
r gyp, NOTARY PUBLIC-CALIFORNIA U7
ORANGE COUNTY
CALIFO MY Comm, EXP. APR, 7, 2027
(seal)
Gregory Ira Reed and Carolyn Marie Reed, as Trustees of the CMGI Trust dated July 21, 2015 Encroachment Agreement
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Gregory Ira Reed and Carolyn Marie Reed, as Trustees of the CMGI Trust dated July 21, 2015 Encroachment Agreement A-1
LEGAL DESCRIPTION
EXHIBIT "A"
LOT 31 IN BLOCK E, TRACT NO. 1219, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE,
STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 38, PAGES 26 AND
27 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS, AND OTHER
HYDROCARBONS BY WHATSOEVER NAME KNOWN THAT MAY BE WITHIN OR UNDER THE PARCEL
OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE PER PETUAL RIGHT OF DRILLING,
MINING, EXPLORING, AND OPERATING THEREFROM AND STORING IN AND REMOVING THE SAME
FROM SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR
DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN SAID LAND HEREINABOVE
DESCRIBED, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE
SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED, AND TO BOTTOM SUCH WHIPSTOCKED
OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND
THE EXTERIOR LIMITS THEREOF, AN D TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR,
DEEPEN AND OPERATE ANY 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 HEREINABOVE DESCRIBED, AS RESERVED IN DEED FROM THE
IRVINE COMPANY, A WEST VIRGINIA CORPORATION, RECORDED SEPTEMBER 29, 1972 IN BOOK
10350, PAGE 94 AND RECORDED OCTOBER 14, 1977 IN BOOK 12415, PAGE 997, BOTH OF OFFICIAL
RECORDS.
ALSO EXCEPT ANY AND ALL WATER RIGHTS OR INTERES TS IN WATER RIGHTS AND ANY, AND
ALL GEOTHERMAL RIGHTS OR INTERESTS IN GEOTHERMAL RIGHTS, WHETHER SUCH WATER
RIGHTS SHALL BE RIPARIAN, OVERLYING, APPROPRIATIVE, PERCOLATING, PRESCRIPTIVE OR
CONTRACTUAL, TOGETHER WITH FULL RIGHT AND POWER, AMONG OTHERS, TO T RANSFER OR
ASSIGN TO OTHERS OR TO USE OR UTILIZE ON ANY OTHER PROPERTY OWNED OR LEASED BY
THE GRANTOR; PROVIDED HOWEVER, THAT THE EXCEPTION AND RESERVATION SHALL NOT
RESERVE ANY RIGHT TO ENTER UPON THE SURFACE OF THE PROPERTY IN THE EXERCISE OF
SUCH RIGHTS AS RESERVED IN THE DEED RECORDED FEBRUARY 3, 1978 IN BOOK 12553, PAGE
1303 OF OFFICIAL RECORDS.
APN: 049-212-03
***END OF LEGAL DESCRIPTION***
EXHIBIT B
PERMITTED IMPROVEMENTS PLAN
Gregory Ira Reed and Carolyn Marie Reed, as Trustees of the CMGI Trust dated July 21, 2015 Encroachment Agreement B-1
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