HomeMy WebLinkAboutC-5707 - Encroachment Agreement EPN N2013-0466 for 3400 Ocean BoulevardRECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
33.00
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2013-0466)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this 19th day of February, 2014, by and between Jon L. Prun and Linda L. Prun as Co -
Trustees of The Prun Family Trust, dated May 31, 2003 ("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 3400 Ocean
Boulevard, Newport Beach, California 92625 and legally described as Lot Lot 8 and
westerly 18 feet of Lot 7, Block 140 of Tract 648, as shown on a map recorded in Book
4, Page 67 of Miscellaneous Maps in the office of the County Recorder of Orange
County, County Assessor's Parcel Number 052-141-16 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Marigold Avenue 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:
1. 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:
a. A 6-foot 7-inch tall by 12-foot 4-inch wide block wall with railing
encroaching 8-inches into the Marigold Avenue right-of-way; and a 2-foot
8-inch tall by 6-foot 5-inch wide block wall encroaching up to 8 inches into
the Marigold Avenue right-of-way; a 2-foot 11-inch tall by 8-foot wide
planter wall encroaching up to 8 inches into the Marigold Avenue right-of-
way; a 3-foot tall by 25-foot 3-inch wide planter wall encroaching up to 8
inches into the Marigold Avenue right-of-way; a 3-foot tall by 5-foot wide
wrought iron gate encroaching up to 5 inches into the Marigold Avenue
right of way; and a 5-foot wide slate tile walkway encroaching up to 1-foot
into the Marigold Avenue 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.
Jon L. Prun and Linda L. Prun 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.
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.
Jon L. Prun and Linda L. Prun 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]
Jon L. Prun and Linda L. Prun 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: A - 13 1
By: MAiJA(Vl LA �l
Aaron C. arp
City Attorney
ATTEST:
Date:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 2 � "Z to - lam(
By:
Dave i
City Manager
OWNER(S): Jon L. Prun and Linda L.
Prun, Co -Trustees of The Prun Family
Trust, dated May 31, 2003
Date: z -Z-e' I'r
By: (NIM By:
Leilani I. Brown Jon L
City Clerk Co-T
ATTACHMENT:
run
tee, The Prun Family Trust
Date: -;? --? Z; &
Co -Trustee, The Prun Family Trust
[END OF SIGNATURES]
Owners must sign in the presence of notary public
Exhibit A —Permitted Improvements Plan as Approved by
Public Works
SEE ATTACHED
ACKNOWLEDGMENT
Jon L. Prun and Linda L. Prun Encroachment Agreement 5
ACKNOWLEDGMENT
State of California
County of _U&w ) ss.
On re,9AtA-,,e Y a O 20 before me,
C P e 4akzvF-Jas Notary Public, personally appeared
�zro'-'-) L 'O'evlril who
proved to me on the basis of satisfactory evidence to be the person(e) whose names) is/ar4
subscribed to the within instrument and acknowledged to me that he/sW/tl6y executed the
same in his/her/thdir authorized capacity(ie� and that by his/her/tKeir signatures(al on the
instrument the person(,$'), or the entity upon behalf of which the person(s�' cted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
C.P. PALAZUELOS
WITNESS my hand and official seal commission # 1943046 Z
a'f-ear i Notary Public California z
z nF Orange County r
My Comm. Expires Jul 30, 2015
Signature_ (seal)
ACKNOWLEDGMENT
State of California
County of 040MG F-1 )ss.
On F�6 ,G41 d ,
20 A before me,
Notary Public, personally appeared
who
proved to me on the basis of satisfactory evidence to be the person(o whose name(6) is/ara-
subscribed to the within instrument and acknowledged to me that h4she/thyexecuted the
same in hid/her/therr authorized capacity(ies' l and that by krs/her/t�Wr signatures() on the
instrument the person(s�, or the entity upon behalf of which the person(4 acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
St t t
C. P. PALAZUELOS
`\` - Commission # 1943046
a -%� Notary Public - California z
z :>,._ a
z� • Orange County
My Comm Expires Jul 30, 2015
(seal)
Jon L. Prun and Linda L. Prun Encroachment Agreement 6
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
CIVIL CODE § 1189
State of California
County of
On Z 2`4 1 y before me, J CNN I E C" i' nQi,-Al El , N0I-A (Z-1 PC) 5c-1 C
ate Here Insert Name and Title of the Officer
personally appeared
o
AN1,JF.P ANN MULVEY
Commission it 2045022 li
Notary Public - California z
Orange County
My Comm. Expires Oct 12, 2017
Name(s) of Signer(s)
who proved to me on the basis of satisfactory
evidence to be the person(pf whose name(,$) is/W,6
subscribed to the within instrument and acknowledged
to me that he/sye/toey executed the same in
his/her'/ter authorized capacitySjji�s), and that by
his/tyer/tXeir signature(4 on the instrument the
person(O, or the entity upon behalf of which the
persono) 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 m hand and official seal.
Place Notary Seal Above Signature:
Sign t e of Not ry Public
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document:
Document Date:
Number of Pages: Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer — Title(s):
[:]Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Signer's Name:
Corporate Officer — Title(s):
Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
11 Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
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Prun Residence Mod. Permit
3400 Ocean Blvd No. MD2013-015