HomeMy WebLinkAboutC-6161 - Encroachment Agreement EPN N2015-0147 for 2727 Shell Street COPY
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City of Newport Beach 201500031114710:49 am 06116115
P.O. Box 1768 66 414 Al2 13 s
Newport Beach, CA 92658-8915 0.00 0.00 0.00 0.00 21.00 0.00 0.00 0.00
..—e Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2015-0147)
THIS ENCROACHMENT AGREEMENT("Agreement") is made and entered into this
14th day of April, 2015, by and between Michael H. Mugel as Trustee of the Michael H.
Mugel Trust dated April 2, 2004 and amended and restated on May 2, 2006 ("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 2727 Shell Street,
Newport Beach, California 92625 and legally described as Lot Parcel 1, Block C33, as
shown on a map recorded in Book 65, Page 6 of Miscellaneous Maps in the office of the
County Recorder of Orange County, County Assessor's Parcel Number 052-050-31
("Property');
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Shell 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:
1. City and Owner acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference into this Agreement.
Michael H. MugeI Trust Encroachment Agreement 1
It is mutually agreed that Permitted lrnprovernentf-.,� Miall be defined w;:
a. Decorative drive approach constructed of gray lithocrote en(;roachinq 5 feet
into the Right-of-Way, as approved by the Public Works Department and as
shown on Exhibit A, attached hereto and incorporated herein by reference.
b. 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
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.
Michael H. Mugel Trust Encroachment Agreement 2
(ii) Owncr .shall ho respowilblo for arnoiging for any mi ewrai, wpka(m aromt,
or restoration of f'ermittod irnprovernonls aff(,r,ted 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, sults, 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.
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.
Michael H. Mugel Trust Encroachment Agreement 3
13, A waiver by either party of uny broach, of any iotin, wvorrant or condition contaim-fl
herein shfll not bo doomod to be ,..I waiver of arty subsr!(,.lrient bre3ach of tire sarne or
any other term, covenant or condition contained Ir(,rein, 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.
[SIGNATURES ON NEXT PAGE]
Michael H. Mugel Trust Encroachment Agreement 4
IIS tlYtlTPlESS i#UHEiREOF, the pmtins herc,,to have cau;Wd this Agtootnont to be
exoc,utod on 1ho diites, written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a California municipal corporation
Dater °'.,_ i _ Dater
,
a ¢
By
Aaron C. Harp _.n Dave Kiff
City Attorney N,41 11 City Manager
ATTEST: v ; ,.. OWNER(S): Michael H. Mugel Trust
Date:---- w_ a a
Date:
By tti Bt_ �A �
Leilani 1. Brown Michael
City Cler Trustee
C
fir»
cy<ExQBN�� (END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENTS: Exhibit A— Permitted Improvements Plan as Approved by
Public Works
Michael H. Mugel Trust Encroachment Agreement 5
ACKNOWL..f;:D Mf N1
A notary publicor other officer completing this
certificate verifies only the identity of the individwal
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 _
who proved tome 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 (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 , o #; ) ss.
On ��ria y-• 't 20 before me,
Notary Public,=personally appeared
proved to me on the basis of satisfactory evidence to be the pe`son(s) whose name(p) is/aft:
subscribed to the within instrument and acknowledged to me that he/shb/they executed the same in
his/hkt*r authorized capacity(iep), and that by his/hOr/their signatures($) on the instrument the
person(p), 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.
LINDA HENORICH
WITNESS my hand and official seal. Commission#i955a5r
Notary Public-California
Orange County
. r M Comm.Expires Oot g,20i5«.
Signature (seal)
Michael H. Mugei Trust Encroachment Agreement 6
EXHIBIT A
PERMITTED IMPROVE MENI'S PLAN
Michael H. Mugel Trust Encroachment Agreement A-1
FLII'-'(,TO 81,R(MQV0
REPLACE D W11 H CMU BLOCK
WALL TO MATCH EXISTING 77' EXISTING PLANTEf
BE REMOVED
HIGH BLOCK WALL,INFILL 9'-2"9'� GATE JNQTTO EXCEED TO 8
To
UP TO Pl� -
ONLY.NO NEW FOU,!,4pAJION 12"HIGH IN SETBACK)
/_
WORK ALIGNED WPl_Pft_9OLlzA DS
LIMITS OF EXISTING WOOD
FENCE 24*-U' rz
XESTING WOOD FENCE
< al PArva�r
GSTINSPA�E i 1 !
:�Jl
REMODELED AREA EXISTING DRIVE AY
(UNCONDITIONED) TO BE RECON TRU TED
LORD
II 1 14
If 0i 1-
i
'EXISTING
GARAGE 51.41
j ol
777"i
EXISTING ROAD EDGE
444
jc_......
NEW ENTRY LOGGIA NEW SITE ENTRY
POST(S)&BEAM TO BE 1-HR RATED WALL,
I-HR RATED I ADHERED STONE VENEEW
NON-COMBUSTIBLE,TUBE OVER BROWNCOAT,NC
STEEL WITH INTUMESCENT OPENINGS
PAINT FINISH