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Home My WebLink AboutC-6162 - Encroachment Agreement EPN N2015-0191 for 122 Via Palermo COPY CCO NOT OFR RECORDING RL.d;kU TE0 BY AND WHFN RECORDED RETURN TO: Recafded irr official ter*c(.rtds,Orange Courify �u h Ngu csn,pfsrt<rottdr:ryrcE�*r Public Works Department �i i I) � 30.00 City of Newport Beach * $ R 0 0 0 t 6 0 7 z 9 4 $ * P.O. Box 1768 201500031114910:49 am 06116/15 Newport Beach, CA 92658-8915 ss . 0 0 F13 s p 0.000 0 0.00 0.00 0.00 x1.00 0.00 0.00 0.00 .._.._., Spacew above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2015-0191) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 14th day of May, 2015, by and between Terrance S. Martin and Melissa M. Martin as co- trustees of The Martin Family "frust dated February 15, 2016 ("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 122 Via Palermo, Newport Beach, California 92663 and legally described as Lot Portion of Lots 105 and 106 of Lot Line Adjustment 95-07 (OR_19950395860), Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 423-242-09 ("Property'); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements') within the Public Utilities 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 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. Terrance S. Martin and Melissa M. Martin Encroachment Agreement 1 It is njimvilly ,igroed that ["ermitted shall be rk4rood ws: a. A 24-ft 3.84-inch wide deconotive driveway cowihuctr d of brirh pavor,,, installed at grade, and encroaching up to 4-foot into the public utilities easement; b. A 4-foot 9-inch wide decorative walkway constructed of brick pavers, installed at grade, and encroaching 4-feet into the public utilities easement; and c. A 3-foot wide decorative walkway constructed of hand seeded concrete, installed at grade, and encroaching 4-ft into the public utilities easement, as approved by the Public Works Department and as shown on Exhibit A, 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. 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 Clty. 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. Terrance S. Martin and Melissa M. Martin Encroachment Agreement 2 d. 'Should (;ity he foquirrod to enteronto said I iclht-of Way to RX01 .iSe itt, plum sry ughts associated with snid flight-of-W:sy, inc=luding but not lirr(ited to, the maintenanco, removal, reprair, renewal ioplacernent or onlargernont of existing or future public facilitir;s; or improvements, (,ity may n:move 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. Terrance S. Martin and Melissa M. Martin Encroachment Agreement 3 11. Tho trans of this Agreement shall be construed in accordance with the rneraning of the Iarntluage usc*rl and sfrall not he. i,un trrred for of ii(,Fainst either party by rorasun of the ;authorship of th€r 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 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] Terrance S. Martin and Melissa M. Martin Encroachment Agreement 4 Its tfVl"S"ttESS yta`HE[ZEOF, dw pai ioi; heretn have, c t u:;sw,d this, Agroerwint to he oxoc.i it of,I t,-)n the(J,o,iI : writ om below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATTORNEY'S OFFICE a California municipal corporation Date:_ Date: t By. a _ BY _.r. , Aa n . Harp Dave KIS CityAttorneys City Manager ATTEST: f OWNER(S): Terrance S. Martin and Date: ^` � ' �'� Melissa M. M7in Date: a _..., 7 > r �..w Ve By: t �r s By C .. . .e Leilani I. Brown Terrance S. Martin City Clerk Co-Trustee Date: C.� " J O By:f r O Melissa M Martin < korcra�P Co-Trustee [END OF SIGNATURES] Owners must sign in the presence of notary public ATTACHMENTS: Exhibit A— permitted Improvements Pian as Approved by Public Works Terrance S. Martin and Melissa M. Martin Encroachment Agreement 5 AC KNOW1 [A)GIVIEN(. A notary public or other officer compk ung this cert€fir:ate verifies only tho 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. w. On + sem 020-J— 20-J.� before me � �� 1 /�r=� . Notary Public, personally appeared �r °_ L49fe:1'z— MA 1.. / w """ ' , who proved to me on the basis of satisfactory evidence to be the person(y} whose name(`} is/0 subscribed to the within instrument and acknowledged to me that he/JeElti y executed the same in his/1 `r/their authorized capaclty(iip�), and that by his/f}dr/tt4ir signatures(;y 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 hand and off ciaYsea `% TOMLAam COt�A977iNOT�eut ° w69yTemiF.�gr, 8,2818 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 .. } ss. On ) 20/ before me, C tit t (C F'iS Notary Pub!€c, personally appeared R 4 t L r r ft d/ m ; proved to me on the basis of satisfactory evidence to be the person(}whose name($) is/0subscribed to the within instrument and acknowledged to me that Olshe/t"y executed the same in I is/her/tVir authorized capacity(€q�), and that by fA/her/toir signatures(;) on the instrument the person(o, or the entity upon behalf of which the person) acted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and ot#Icial,seal.,,.. ` O 0=0 2086771 6,2018 Signature (seal) Terrance S. Martin and Melissa M. Martin Encroachment Agreement 6 t X$,,ff�t'T A PS.,.t"tMf.t,..,t'ED IMPROVEMENTS PLAN Terrance S. Martin and Melissa M. Martin Encroachment Agreement A-1 oada Decorative \ ` e Decorative Walkway �1 eu I ( 24'-3.84„ ' g,rdR GAC2dGP. <C ! Decorative ( - Driveway rare. r I SIR �... 4'-9"wide � _ _. u-- - _ — _ - - _ _ — Decorative Walkway Used Brictc Pavers L��! Hand Seeded Concrete N.T.S. 1.22 Via Palenno Newport Beach, CA 92663 Owner: The Martin Family Trust N2015-0191 (Exhibit A) Address: 122-Via Palermo Page 1 of 1