HomeMy WebLinkAboutC-5967 - Encroachment Agreement EPN N2014-0450 for 2233 Heather Lane0
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RECORDINGREQUESTED BYAND
WHEN RECCRDrD RITIURN 10
Puhlic Works DoparLrnent
Gity of Newport Beach
P.O.Box1768
Newport Beach, CA 92658-8915
Recnrded in �tticial Ftecords, )range County
flucjli Nquyen CIerk-Rcorder
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Spaco above this ine for Recordor% use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2014-0450)
TH!S ENCROACHMENT AGREEMENT ("Agreement") 15 made and entered into
this 28th day of October, 2014, by and b&ween Jeffrey Luke I3eck and Nancy Lynn
Beck as Trustees ofthe Beck FamilyTrust established February 1, 1999 ('Owner), and
the City of Newport Beach, a California municipal corporatiori and charter city,
organized and existing under and by virtue of its Charter and the Cortstitution, and the
laws af the State af California (°Gity").
REC ITALS
WHEREAS, Owner 15 the vested owner of property Iocated at 2233 Heather
Lane, Newport Beach, California 92660 and legaily described as Lot 30 of Tract 3138,
as shown on a map recorded in Book 103, Pages 31 through 33 inclusively of
Miscellaneous Maps iri the office of the County Recorder of Orange County, County
Assessor's Parcel Nuniber 119-321-16 ("Propert');
WHEREAS, Owner desires to construct certain non-staridard improvements as
further described herein ("Permitted lrnprovements") within the Heather Lane right-of-
way (hereinafter "Right -of -Way") that is Iocated 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
WF1EREAS, the parties hereto desire to enter into this Agreement providing for
fulfillnient of the conditions required by City to perrnit Owner to construct and maintain
said Permitted Improvements.
NOW, THEREFORE, in consideratlon of the mutual promises, the parties hereto
agree as foliows:
1. City and Owner acknowledge that the above Recitals are true and correct and
are hereby incorporated by reference into this Agreement.
Beck Family Trus
Encroachnient Agreement
It is nt ituatly uqreed that Permitted 1 rnprovemerits shall IDe defined as.
a. Two 4' wide by 5 1/ wide decorative walkways constructed of "used' brick
pavers, rislalled at grade and grouted, encroachliig up to 10 feet nto the
Heather Lane public right-of-way.
b, An entry walkway of varying widths up to 10 feet wide constructed of
grouted beige gravel, installed at grade, encroaching up to 10 feet into the
Heather Lane public right-of-way.
c. A 17 Y2-inch wide by 22 1/2-irich wide mailbox pilaster constructed of
grouted "used" brick pavers encroaching up to 10 feet into the Heather
Lane public right-of-way, as approved by the Public Works Department
and as shown on Exhibit A, attached hereto and incorporated herein by
reference.
d. In addition, if any improvoments actually built or installed during the time
of construction vary from Permitted lmprovements approved herein, such
variations or changes must be approved in advance by the Public Works
Department and shall be shown on the °As Bulit plans,
3. City will permit Owner to oonstruct, reconstruct, install, rnaintain, 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 ar 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 hability whatsoever iri the
event of the termination of this Agreement or subsequent removal of
improvements by City.
5. Owner and City further agree as foliows:
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 Publio Works Departmerit, and as
described on Exhibit A.
b. Owner shall maintain Permitted Improvements in accordance with
generalty prevailing standards of maintenance and pay alt costs and
expenses incurred in doing so. However, nothing herein shall be
construed to require Owner to maintain, replace or repair any City-owried
pipeline, conduit or cable Iocated in or under said Permitted
lmprovements, except as otherwise provided herein.
Encroachment Agreement
If Gity or uther pubUc [acilitios or inpiovements are ciatiiaged by tho
ristal latiori 0 r pWS€JUCe Of Permitted Im provements, Owrier shall
rsponsibIe for the cost of ropairs.
d. Should City be required fo enter onto saki Right -of -Way to exercise its
primary rights associated witti said Right -of -Way, including but not Iimited
to, the maintenance, removal, repair, renewat, replacemerit or
enlargement of existing or future public facilities or improvenients, City
may remove portions of Permitted Improvements, as required, and in such
event:
(1) City shall notify Owner in advanoe of its intention to accomplish
such work, provided that an emergency situation does not exist.
(U) Owner shall be responsible for arranging for any reriewaP,
rep!acement, or restoration of Permitted tmprovements affected by
auch work by City.
(iU) 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 availab$e to
It, termirtate this Agreement and, in the event the breaching party 18 Owner, City
may enter upon Right -of -Way and remove all or part of the improvements
instalied by Owner, Termination because of breach shall be upon a minimum af
ten (10) calendar days' notice, with the notice speclfying the date of terminatlon.
7. tri the event of any dispute or legat action arising under this Agreement, the
prevailing party shall not be entitled to attorneys' fees.
8. Owner shall defend, indemnify and hold harmless City, ils Gity Council, boards
and commissions, officers and emptoyees from and against any and alt Ioss,
damage, Ilability, claims, suits, oosts and expenses whatsoever, including
reasonable attorneys' fees (when outside attorneys are so utilized), regardless of
the rnerit or outcome of any suoh claim or sult arising from or iri any manner
connected with the design, construction, maintenance, or continued existence of
Fermitted Improvements.
9, Owner agrees that this Agreement shaU remain in full force and effect from
execution thereof; shall run with the tand; shafl be binding upon the heirs,
successors, and assigns of Owner's interest in the land, whether fee or
otherwise; and shati be recorded in the Office of the County Recorder of Orange
County, CaUfornia.
Beck Famity Trust Encroachment Agreemen
10. The laws ol tho Stale of Galifornin shall govern this Agroemerit and all matiers
relaUr ig to it and any action brought relating tri this Agreernent shall is
adjudicatod in a court of cornpetent jurlsdiction in the Cotirity af Orange,
California.
11. The terms of this Agreement shall be construed in accordance with the meaning
of the Ianguage used and shall not be construed for or agakist 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 alt 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 af any subsequent breach
of the same ar any other term, covenant or condition contained herein, whether
af the same or a different character.
14. Owner shall, at Owner's own cost and expense, comply with alt statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enaoted.
15. If any term or portion of this Agreement is held to be invalid, iliegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
16. Owner shall obtain and maintain during the term of this Agreement the insurance
provided in Exhibit 6, which is attached hereto and incorporated hereln by
reference.
[SIONATURES 0t4 NEXT PAGE]
Beck Family Trust Encroachment Agreement
IW WITNESS NHEREOF, the pnrties Fiuretn have ::LlLISed this Agreement to be
executecl on the c1itos written below.
APPROVED AS TO FORM:
CITY ATTORNLW'S OFFICE
Date: tV t4
By:
Aar&i C. Harp
City Attorney
ATTEST:
Date:
By:
Leilani 1. Brown
City Clerk
CITY OF NEWPORT I3EACH,
a California municipal corporation
Date 1
By:
Dave Ki
City Manager
OWNER(S): Jeffrey Luke Beck arid
Nancy Lynn Beck, as trustees of the Beck
Family Trus
Date: (
1
YJeffr�y Lk6 ck
Trustee
Date:
By: ... fiv(Jt/ \:\.,:y:
Nancy Lynn
Trustee
[END OF SIONATURES]
Owners must .sign in the presence ofnotary public
ATTACHIVIENTS: Exhibft A — Permitted Improvements Plan as Approved by
Pubflc Works
Beck Family Trust Encroachment Agreemen
ACKNOWLEPGMENT
State. of California
County of (J j } ss
1 • 0 41
On ) 1 -J 20 before me
ts . ( (' t t\ '_______ Notary Public, personaily appeared
Li ___ who
proved to me on the ibasis of satisfactory evidence to be tlie person() whose name($ isf&e
subscribed to the within instrument and acknowledged to metha(h/heLthey executed the
same r(!lis/herftfrrcrr authorized capacity(ies), and that by( hls/herftheir signatures) on the
nstrument the person(5, or the entity upon behalf of which the person() acted, executed the
instrument.
1 certify under FENALTY OF PERJURY under the laws of the State of California that the
foregohig paragraph Is true and correct.
WITNESS my hand and officiat seal,
.) ?cu€c
SgntCiM
State of California,
Countyof C' VL»J1[(t }ss
On
ng CmI4
My COInijI, pirt Jffl 1. 'U
ACKNOWLEDGMENT
(seal)
20 before me,
Notary Public, personaily appeared
ki\ &( /t h V'(( (2 who
proved to me on the basis of satisfactory evidence to be the person(s1whose name(fsare
subscribed tothe within nstrument and acknowledged to me that hishe7(hey executed the
same ji, hih?tAheir authorized oapacityes), and that by his&!their signatures( on the
instrument the person$), or the entity upon behalf of which the person(� acted, executed the
iristrument.
1 certify under PENALTY OF PERJURY under the laws of the State of California that the
foregong paragraph is true and correct.
WITNESS my hand and off!ciat seat.
Si na ure
7 Tl
Beck Farnity Trust Encroachment Agreernent
MflE MAN;0L4fl
1.9401373
Notary Pubile - CaItfornh
Orangc Cuunty /
ornrn, Expires Jui 1i, 5 ksea
EXHBIT A
PERMITTEI) IMPROVEMLNTS PLAN
Beck FamUy Trust Encroachment Agreemerit
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