HomeMy WebLinkAboutC-6063 - Encroachment Agreement EPN N2015-0074 for 2042 Miramar DriveG ecmded In Official Records, Ora ilgo CCurdy
Hugh Nguyen, Cleric r o ,ardor
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ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2015-0074)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
1st day of April, 2015, by and between J. Keith Yonkers, Jr. and Jennie Thompson Yonkers
as husband and wife ("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 2042 Miramar Drive,
Newport Beach, California 92661 and legally described as Lot 27 of Tract 948, as shown
on a map recorded in Book 30, Pages 6 through 7 inclusively of Miscellaneous Maps in the
office of the County Recorder of Orange County, County Assessor's Parcel Number 048-
272-13 ("Property');
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Miramar Drive and M Street
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:
Yonkers Encroachment Agreement 1
ttt g,.ORI[ NNG Rt QUES t ED BY AND
WHEN RECORt rt"t) RETURN TO:
Public Works Department
City of Newport Beach
P.O. Box 1768
C�
Newport Beach, CA 92658-8915
G ecmded In Official Records, Ora ilgo CCurdy
Hugh Nguyen, Cleric r o ,ardor
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0 0 0 7 4+ 4 0 5 4
2015000194665 9:57 am 04116115
47 411 Al2 F13 8
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.'_...�,,....w. Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2015-0074)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
1st day of April, 2015, by and between J. Keith Yonkers, Jr. and Jennie Thompson Yonkers
as husband and wife ("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 2042 Miramar Drive,
Newport Beach, California 92661 and legally described as Lot 27 of Tract 948, as shown
on a map recorded in Book 30, Pages 6 through 7 inclusively of Miscellaneous Maps in the
office of the County Recorder of Orange County, County Assessor's Parcel Number 048-
272-13 ("Property');
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Miramar Drive and M Street
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:
Yonkers Encroachment Agreement 1
Ono tall pil:a+;ter with (,,cap, coir ;truc;tod of prick and erwroeaching 1 -foot
into the Miramar i)nv% right-of-way;
b. two 3'-1" fall pilasters at entry walk, constructed of brick and encroaching 1 -
foot into the Miramar Drive right-of-way;
C. A 4"-0" wide entry landing constructed of blue stone and encroaching into the
Miramar Drive right-of-way;
d. A 6'-2" tall wall with pilasters constructed of brick and encroaching up to 6 -
inches into the M Street right-of-way, as approved by the Public Works
Department and as shown on Exhibit A, attached hereto and incorporated
herein by reference.
e. 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 fife 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.
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.
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.
Yonkers Encroachment Agreement 2
d. `,3horjld i;<ity bo mquired to enter onto ,,.-fld Right of,Way to exor< i .tz its
prim=ary rights as„ocirited with said F,7ight-nf-Way, including but not limited to,
the maintenance, removal, repair, ronewai, replacement or onlargemr'ant of
existing or future public facilities or imparovemonts, 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.
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.
Yonkers Encroachment Agreement 3
11. The terrn4 of this Agreement shall be construed in ;.rrcoidanGe with the meaning of
the language us(-)cl and shrill riot be construed for or agr ainsf oither party by re.aso a of
the authorship of the Agreemont or any other rule of construction which aright
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.
Yonkers Encroachment Agreement 4
IN WITNESS WtII; t2f-OF, the parties hcsrodo Niwew caused aed thins Airc.omo nt to bo
ex(,a%utod on the, dates written below.
APPROVED AS TO FORM:
CITY ATTPRNEY'S OFFICE
Date:
--4441 ! '
Aaron C. Harp`,,t
City Attorney
ATTEST:
Date: _
Leilani I. Brown
City Clerk
b4 �
�<lFOftN1P
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: a w r",
,
w
By
15ave'Kiff
City Manager `I
OWNER(S): J. Keith Yonkers, Jr. and
Jennie Thompson Yonkers
Date: #°t22
�
By_ -TAA I
J.DIV lbnkers, Jr.
Date. . % 'j..,...
By ' .� htk, ,M k vS ` I
Jennie'`Tho on Yonke L
Owner'.- .
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by
Public Works
Yonkers Encroachment Agreement 5
JkCKNt iyVt..E-T)GIVIEN't
A notary public or other officer completing this,
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of}ss.
On &![..'�t>:� 20__ before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence the person(p) whose name(O is/grb
subscribed to the within instrument and acknowledged to me that he/solthpy executed the same in
his/hdr/tt}dir authorized capacity(i9t), and that by his/'44,0}6ir signatures(g) on the instrument the
person(s), 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 Mand and official seal. J �Nl
TQM0COMM
1
MU TARYN
@TN2
018
Signature (seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of cll�?A'-ft }ss
Pu blicpersona"��cL 20 before me,
Nota,3ri✓ i s1'11' .1
y , lly appeared°.:a`,enrr '".� �S� s
proved to me on the basis of satisfactory evidence to be the person(, whose name(o is/V6
subscribed to the within instrument and acknowledged to me that pte/sheltl 6y executed the same in
ols/her/thbir authorized capacity(i ), and that by Vs/her/t"ir signaturesO on the instrument the
person(), 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..
R
WITNESS my hand and 9fftcia(,�eal 771
Y W
�Vm7yunra on,a
Signature (seat)
Yonkers Encroachment Agreement 6
PERMITTED IMPROVEMENTS PLAN
Yonkers Encroachment Agreement A-1
Pmposetl .- EnuoaGNnenls
MIPAMAR DR,
Owner: J. Keith Yonkers, Jr, and Jennie Thompson Yonkers N2015-0074 - Exhibit A
Address: 2042 Miramar Drive, Newport Beach, CA 92661 Page 1 of 1