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HomeMy WebLinkAboutC-6002 - Encroachment Agreement EPN N2014-0481 for 2333 Pacific DriveCOPY CCO NOT OFR 1 Recorded inlul O ficial rterord�, Orange � xr�nty RECORDING tit ti uL-s rr.L) BY AND B���I►lork- ec rdor I C2,00 WHEN REC OROEl) RF TURN `YO: *$ it 0:0 0 1 7 7 1 H 9 7 Public Works Department 2OU0005511M 0:11 am 12122114 City of Newport Beach 47 414 A112 F13 12 P.O. Box 1768 0.00 0,00 0.00 0.00 33.00 0.00 OM 0.00 Newport Beach, CA 92658 -8915 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT. (Encroachment Permit Number N2014 -0481) THIS ENCROACHMENT AGREEMENT ( "Agreement ") is made and entered into this 20th day of November, 2014, by and between Kim I. Megonigal and Carolyn S, Megonigal as Husband and Wife as community property ( "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 2333 Pacific Drive, Newport Beach, California 92625, commonly referred to as County Assessors Parcel Number 052 - 011 -01 ( "Property ") and legally described as set forth in Exhibit "A ". WHEREAS, Owner desires to construct certain non - standard improvements as further described herein ( "Permitted Improvements ") within the Pacific Drive and Begonia Park Slope Area, 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: Megonigal Encroachment Agreement 1 a, A 17.5 foot wide docorc�ytiv€, driveway constructed of Mesa Beige colored cuncr<;te encroaching up to 6,1; feet into the Pacific Drive right -of -way; t>_ A 13 foot wide decorative walkway constructed of beige marble stone pavers, installed at grade and grouted, encroaching up to 8.5 feet into the (pacific Drive right -of -way; C, Landscaping and irrigation within the portion of Pacific Drive right -of -way and Begonia Park slope area as approved by the General Services Department and maintained by the property owner, as approved by the Public Works Department and as shown on Exhibit B, attached hereto and incorporated herein by reference. d. 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. 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. Megonigal Encroachment Agreement 2 G1. If City or other public facilities or irnprvvernents are damaged by the inst<allaation or presence of fern iited Improvements, Owner ,hall be responsible: for the cost of repairs. Should City be required to enter primary rights associated with saic to, the maintenance, removal enlargement of existing or future may remove portions of Permitted event: onto said Right -of -Way to exercise its I Right -of -Way, including but not limited repair, renewal, replacement or public facilities or improvements, City Improvements, as required, and in such (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. Megonigal Encroachment Agreement 3 10. `fho laws of tho State of C. alifornia shall govern this Agreement and €:all matters rolating to it and any action brought is ±latinjr to this Agreement shall bo adjudicated in a court of competent furisdi.tion in the Bounty of Orange, C✓dlifornia. 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 ail 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] Megonigal Encroachment Agreement 4 IN WITNF:S S WHEREOF'', the parties hereto have causod thi s Agruwrlumt to b oxecuted on th€,, datr,s written ha glow. APPROVED AS TO FORM: CITY ATT RNIEY'S OFFICE Date: � �t City Attorney ATTEST: Date: " By Leilani 1. Brown; City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: Dave Kiff City Manager OWNER(S): Kim 1. Megonigal and Carolyn S. Megonigal Date: By: Carolyn S. Megonigal Owner [END OF SIGNATURES] Owners must sign in the presence of notary public ATTACHMENTS: Exhibit A— Legal Description Exhibit B -- Permitted Improvements Plan as Approved by Public Works Megonigal Encroachment Agreement 5 ACKNOWLEDGMENT ENT State of Galifornia County of --Cl "t `� h= } ss. On � V'e' , L e + �' �5 _ 20 ! LL before me, Notary Public, personally appeared .f a &a,rM�m,�r who proved to me on the basis` of satisfactory evid" ncet e the person( *) whose name(a) is/am subscribed to the within instrument and acknowledged to me that he/she/" executed the same in " /herft authorized capacity(ie&), and that by her /thek signatures(*) on the instrument the person(,j), or the entity upon behalf of which the person(*) 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. s. 5. �AaRADT ACKNOWLEDGMENT ' ` 11 iii rt ".!`` -`u�� Signature State of California Countyof ) ss On /V 0 0,"."!' � rY.�' � � 20 I li- before me. =1 Is . 'k- 11A .1vt &..6f KID 7 Notary Public, personally appeared K. f Al ",: sv2 r> 1%ss „> who proved to me on the basis of satisfactory! ncalb be the person( whose name(a) is( subscribed to the within instrument and acknowledged to me that he/sbeA4@y executed the same in his1her0 ”- authorized capacity(4esy, and that by his /her/tkieir signatures(s,) on the instrument the person( %), 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 K SKAMRADT Comleolo2mn 2050320 Notary Public - California OrinOa county M Comm. E lraa Doc 2R 201 al) 'av�m�+,a�wvmemnwww.waaw�,�a�.r w+.wmw _.. mwax�ttrewwmeus,_w�,w�ww.. ^ N�' aww, muuwtivv :.mawww�rvmnvra.rnm�svw�a�w` au _.._.,..... Megonigal Encroachment Agreement 6 X H1 IT A LEGAL DESCRIPTION That portion of Pacific Drive, as said Pacific Drive is laid out and shown on a map of Corona Del Mar, in the City of Newport Beach, County of Orange, State of California, recorded in Book 3 Pages 41 and 42 of Miscellaneous Maps, Records of Orange County, California, as said Pacific Drive was vacated and abandoned by Resolution No. 380 of The Board of Trustees of The City of Newport Beach a certified copy of which was recorded March 1, 1927 in Book 24 Page 1 of Official Records of said Orange County, described as follows. Beginning at a point which point is at the intersection of the Southwesterly line of said Pacific Drive and Southwesterly prolongation of the Northwesterly line of Begonia Avenue, formerly 29th Avenue, as said Begonia Avenue is laid out and shown upon the said Map of Corona Del Mar; thence "forth 390 40' 30" East 20.00 feet; thence South 630 51' 30" East 103.50 feet; thence South 26° 08' 30" West 35.37 feet; thence North 79° 06' 42" West 68.12 feet; thence North 250 18'06" West 54.30 feet to the point of beginning. APN: 052 - 011 -01 Megonigal Encroachment Agreement A -1 PERMITTED IMPROVEMENTS PLAN PS"�'a� . _..,,.....+^��?R�"�mamasmxnaavx m .,..,......,.__ mwvm ww� a��,•w�anaswawune;..�mA+�,n�. g'R Megonigal Encroachment Agreement B -1 FXFIIBITB i J J Z Qr �i. a. h, N z O V C. 0 41 u Vt I V) N N i � fl� 0 m m2 m mo NV I O 4 Y e� ui N N Vl A O 2 i J J Z Qr �i. a. h, N z O V C. 0 41 u Vt I V) N N i � fl� 0 m m2 m mo NV J d w S V S 2 S A e V 1a S z �g 1 00 5 2 F � S O u3;sffi ° Erim, wPc�iwddLLg I C XHIBIT R 201 -4 �" 64 i! V' 0 N �i O z F O a �a W L5 J N } do- C E W q m �� C M O g MO , TY z zw (9 MH 0 5; 0 oil z t""XHIBIT B 1. 4 rn E 9 L blo 4-) Ln A 0� mo M� mo rqu 3 OF 4 c I Nf, 6 1. 4 rn E 9 L blo 4-) Ln A 0� mo M� mo rqu f3 e 31 .1 31 i 0M Fig LD 0 €�a - g� �� z W EXHIBI R 4 0F4 LI x 3 P MM 111 t n �v �i v 0 z 1p tll 00 iU I bq ct� t Ln (� N i 4e N U� 0 o c M O NU