HomeMy WebLinkAboutC-5929 - Encroachment Agreement EPN N2014-0346 for 1330 Galaxy DriveNNC, REC
EN RECORDE
COPY
CCO NOT OFR
Et) BY AND
ETURN TO:
Pubile Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
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ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2014-0346)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this 7th day of October, 2014, by and between Danny E. Miller as Trustee of the Danny
E. Miller Revocable Living Trust established January 16, 2008 ("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 Iocated at 1330 Galaxy Drive,
Newport Beach, California 92660 and tegally described as Lot 90 of Tract 4224, as
shown on a map recorded in Book 157, Pages 1 through 14 inclusively of Miscellaneous
Maps in the office of the County Recorder of Orange County, County Assessor's Parcel
Number 117-682-03 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Galaxy Drive 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.
Danny E. Miller Encroachment Agreemen
2. It is mutually agreed that Permitted Improvemerts shrill he defined as:
a. A 13' wide by 5'/' wide decorative walkway constructed of grey concrete
with saw cuts and a "Yosemite" colored hand"ercroaching up to 10 feet
into the Galaxy Drive public right-of-way, as approved by the Public Works
Department and as shown on Exhibit A, attached hereto and incorporated
herein by reference.
b. Permeable artificial turf manufactured by Progeny in the 6wide parkway
area encroaching up to ten (10) feet into the Galaxy Drive public right -of-
way, as approved by the Public Works Department and as shown on
Exhibit A, attached hereto and incorporated herein by reference.
c. 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 the 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.
Danny E. Milier Encroachment Agreement
c. If City car other public t icilities or irnproveinonfs ,arc; damaged by the
installation or presence of Permitted Improverrrents, 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.
(ti) 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.
i. 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.
Danny E. Miller Encroachment Agreement
10. The taws af the Stato af California shall qovcrn This Agreernerit and alt matiers
ing to 1 and any action hrought relating to this Agreernenl shall be
adjudicatodin a court of competent jurisdiction n the County ef Orange,
California.
11. The terms af 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 rute of construction which
might otherwise apply.
12. This Agreement represents the full arid 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. N10 verbal
agreement or implied Qovenant shall be held to vary the provisons herein.
13. A waiver b'j elther party of any breach, of any term, coverant or condition
contaned herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, Govenant or conditiori contained herein, whether
of the same or a dlfferent character.
14. Owner shall, at Owner's own cost and expense, comply with all statutes,
ordinances, regulations and requirements of all governmental eritities, including
federal, state, county or municipal, whether now iri force or hereinafter enacted.
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 provlsions of
this Agreement shall continue in full force and effect.
(SIGNATURES ON NEXT PAGE]
Dariny E. Milier Encroachment Agreement
IN WFI"NESS WHEREOF, [he parties herelo ftivo caused fhs Agrc.ernnnt to he
executed r.»i Ihe dates written below,
APPROVED AS TO FORM:
GITY ATIQRF EY'S OFFICE
¶I29 (9
Aaron C. Harp CAM 'iJ2Mj
City Attorney
ATTEST:
Date:
Leilani!. Brown
Gity Clerk
CITY OF NEWPORT BEACH,
a california municipal corporation
Date
By: c41r-
Dave Kiff
City Manager
OWNER(S): Danny E. Milier Revocable
Living Trust established January 16,
2008
Date: 17. 2P / j
By)'Y (\&t
Da .y E. MUler
Trustee
(END OF SIGNATURES]
Owners musi s!gn in the presence of notary pub/ic
ATTACHMENTS: Exhibit A — Permitted Improvements Ptan as Approved by
Public Works
Danny E. Milier Encroachment Agreement
State cf C
County of
ornip -
ACKNOWLEDGMENT
20 before me,
)- u Niotary Pubib, personaily appeared
.who
proved to me on e basis of salisfaotory evidence 10 be the persop( whose name(!sIke
subscdbe,J p the within instrument and acknowledged to me tht'bW4he#they executed the
same inffiijp/her/4.heir authorized capacityQes) and that b{fti/h9Wthefr signatures(s) on the
instrume}Tfthe person(s), or the entity upon behalf of which'Theperson(s) acted, executed the
instrument.
1 certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragfph is true and correct,
Vl7NESS1my ta,I7d 3n5
offlcial seal.
-__.t Q't '
big nature
ENDY 1,. BLATNEY
Commls$IOfl # 2065614
Notary Pubile calilQrflia
oiaTtge county
Mvcornm,!.xplres May22,2013
(seal)
ACKNOWLEDGMENT
State of California
County of 58.
On
20 before me,
Notary public, personally appeared
who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islare
subscribed to the within instrument and acknowledged to me that he/she/they executed the
sarne in his/her/their authorized capacity(ies), and that by his/herltheir signatures(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
1 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 seat.
Signature
Danny E. Milier Encroachment Agreemerit
(seal)
EXHIBT A
PERMITTED MPROVEMFN1S PLAN
$fTMiIler Encroachment Agreement A-1
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1. Propertytnes
2. Distance from property 11 ne to ati encroachments ADDRESS 'i3'o CiAtAZ\J4)R
inthePROW NCWPORT 8CAC4&CA
3. Dimensions �f proposed improvements
4. Any excavation requires underground utllities be s rr q
hown on ptan (Le. sewer, gas, water)
5. Street names Permit No. Nzot4-cm�