HomeMy WebLinkAboutC-6002 - Encroachment Agreement EPN N2014-0481 for 2333 Pacific DriveCOPY
CCO NOT OFR
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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
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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
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Megonigal Encroachment Agreement B -1
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