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Home My WebLink AboutC-6096 - Encroachment Agreement EPN N2015-0131 for 135 Via Yella / 423-275-02OPY CCO NOT OFR 4 V RECORDING C, RDING REQUE ED BY AND WHI(7,N Rf,' t ODE' D RETURN N TO: Public Works Department City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 rztecorded in Official Records, Orange C:onntiy I°titclh Nynyr!n, Clerk- Recorder I I!�� l� 11111 {�� 1 l �� 111 ��.�0 20150002057801:19 pm 04122115 47 411 Al2 X13 10 0.00 0.00 0.®o 0.00 27.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Kermit Number N2015 -0131) THIS ENCROACHMENT AGREEMENT ( "Agreement ") is made and entered into this 6th day of April, 2015, by and between Ryan W. Decker and Elizabeth M. Decker as husband and wife as joint tenants ( "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 135 Via Yella, Newport Beach, California 92663 and legally described as Lot 380 and the southwesterly half of Lot 379 of Tract 907, as shown on a map recorded in Book 28, Pages 25 through 36 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 423- 275 -02 ( "Property"); WHEREAS, Owner desires to construct certain non- standard improvements as further described herein ( "Permitted Improvements ") within the Strada Xanthe and a 4 -foot wide Utility Easement 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 fulfillment of the conditions required by City to Permitted Improvements. to enter into this Agreement providing for permit Owner to construct and maintain said 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. Ryan W. Decker and Elizabeth M. Decker Encroachment Agreement 1 2. It is rnutrrally o).greod that Pornritted lrnprovenror is shall be (lefino d as: A '1 -foot wide by 4 -foot long step stone constructed of flat, grey slate stank) pavers installed at grade encroaching up to 1.5 feet Into the Strada Xanthe public right of way; and b. A 4 -foot wide by 52.5 -feet long decorative driveway constructed of flat, grey slate stone pavers installed at grade encroaching up to 4 -feet into the public utility easement, 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 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. 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. 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 Ryan W. Decker and Elizabeth M. Decker Encroachment Agreement 2 existing or luture publk. ftrcilitiosti or improvements, City may ion-iovc: portions of Porroltod Improvements, as required, and in sr.reh 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. & 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. 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. Ryan W. Decker and Elizabeth M. Decker Encroachment Agreement 3 V, This Agr Fc -.rrrr nt repro; errt�; the full and complete understanding of ev „ry kind or n ature what cover betwoon the partiets hereto, and all pwlimin jry ncrgot ations and agreements of whatsoever kind or naturo 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 Owners 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. [SIGNATURES ON NEXT PAGE] Ryan W. Decker and Elizabeth M. Decker Encroachment Agreement 4 IN WITNFSS WHERE017, tho partios horeto have caused this Agmornent to be execkdod on tho dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: � ATTORNEY'S By I V v I V Aaron C.Harp City Attorney CITY OF NEWPORT BEACH, a California municipal corporation Date: B Dave f0ff- City Manager ATTEST- s r OWNER(S): Ryan W. Decker and Date: EI!Xabeth Decker, Husband and Wife o T as'Joln � � nts Date: Z By- By: '2 Leilan! I. Brown RyaQ'M Deck City Clerk Joint Tenant , I ATTACHMENTS: B Elizabeth M. Decker I/ Jointlenant S [END OF SIGNATURES] Owners must sign in the presence of notary public Exhibit A —Permitted Improvements Plan as Approved by Public Works Ryan W. Decker and Elizabeth M. Decker Encroachment Agreement 5 CALIFORNIA ALL-PURPOINE ALL-PURPOSE ACKNOWLEDOMENT civil.. cooe § 1189 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 r ; I i' ) on t „ before mel = =%° h- Date Here Insert Name and Title of the Officer personally appeared _f...'' f ` t Name(s) of Signer {s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he/she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. m s l ANN MBLVEy 74_"'�*JENNIf`ER Commission w 2045022 Notary Public - California Orange County M Comm Ex ;County t2.2tl9 Place Notary Seat Above I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hapd and official seal. Signature of Notary OPTIONAL _ Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capecity(ies) Claimed by Signer(s) Signer's Name: G Corporate Officer — Title(s): l' Partner — L Limited ❑ General ❑ Individual Attorney in Fact ❑ Trustee Guardian or Conservator 1.,_i Other Signer Is Representing: Signer's Name; L Corporate Officer — Title(s): U Partner — ❑ Limited IJ General Fl Individual C7 Attorney in Fact ❑ Trustee ❑ Guardian or Conservator U Other: Signer Is Representing: ' F. �v' rv.' Y�X3Y- NY��..K:"�.�X24a,{...h,+� F .,4i�:�wV.Y v„r�� ✓ii.w�:'fo�t..'i'=:.Y9, �,:Y'CiY.^ESY.ror� x:Sy:G.s'J'SL�*;iL,�" m'+3�+fiJ{a`W.'J�GC^ V'£�+R,;G r*��`�.Fay.yk {,t._x5Y 4'M11CKx.Y'4`:�Q'r4�i? 02014 National Notary Association • www.Nationa]Notary.org - 1- 800 -US NOTARY (1 -800- 876 -6827) Item #5907 ACKNOWt IEDGMENT 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 _ 20 before me, Notary Publ—lo, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signatures(s) on the instrument the person(s), 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 (seat) 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 } ss. On 20 before me, Notary Public, personally appeared proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /shelthey executed the same in his/her /their authorized capacity(ies), and that by his /her /their signatures(s) on the instrument the person(s), 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 (seal) Ryan W. Decker and Elizabeth M. Decker Encroachment Agreement 6 EXHIBIT A PERMITTED IMPROVEMENTS PLAN Ryan W. Decker and Elizabeth M. Decker Encroachment Agreement A -1 LN, I �1, I, � 1 1? 1;. mi -f At 41, I OF 2- 15ATCH BASIN 4 1 62 If lk� STONE PAVERS L GATE �m 2m STONE si PAVERS rop G2 TRENCH DRAN PUNT Ca, LAR Moo CONTINLO(IS TRENCH DFINN !q I i --- ------ - - 6ATE <-2*fo 4 G2 ;2 rop G2 TRENCH DRAN PUNT Ca, LAR Moo CONTINLO(IS TRENCH DFINN !q I i --- ------ - - 6ATE <-2*fo 0 ii it T f Lt_ if - - - - - - - - - - - - - - - - - - - -- - ve II it II I GARAGE CWU "WHr MW HAIID ab 11 I it I II If I 4'4- 11 I II II I 7-71 WATION 4 T7 T'M I vmwr ., Rop. me C.2 SMM 12% 5 U' �O COMW rATCH BASIN N E BL(XK KALL IH 4*(PM$5vK35rmroRATwDRm&m 02 55' -0'MM. LENGTH, 7 %MVI. SLOPE LEGEND =%E , r pg fv4m yo of UO �pqjd k , ,p,,&jngIoQ Mo. cEG 212 J.X I Ie 20F2 (f fLAWN 8 nT 116 TI %J =%E , r pg fv4m yo of UO �pqjd k , ,p,,&jngIoQ Mo. cEG 212 J.X I Ie 20F2 (f fLAWN 8 nT 116 TI