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Home My WebLink AboutC-6157 - Encroachment Agreement EPN N2015-0167 for 523 Santa Ana Avenue COPY CCQ NOT ®FR RECORDING i htJtNt RN Of t STt:f AW) Rm,ordod In O iclal Rexords, t;qn e rarity WHEN Rf f ORLA,',0 RETURN TO: ttit tr uyon,Caoprk-Recorder Public Work Department � ii7riiiiiii 3 0 7 $ 1O,0C) City of Newport Beach 201500031115110:49 am 06110115 P.O. Box 1768 06 414 Al2 F10 8 Newport Beach, CA 92658-8915 0.00 0.00 0,00 0.00 21.00 0.00 0.00 0.00 Space above this line for Recorders use only, ENCROACHMENT AGREEMENT (Encroachment Permit Number N2015-0167) THIS ENCROACHMENT AGREEMENT("Agreement") is made and entered into this 11th day of May, 2015, by and between Thomas A. Anderson as a single man ("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 523 Santa Ana Avenue, Newport Beach, California 92663 and legally described as Lot 19, Block 31 of the First Addition to Newport Heights, as shown on a map recorded in Book 4, Page 94 of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 425-094-19 ("Property"); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Santa Ana Avenue 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. 2. It is mutually agreed that Permitted Improvements shall be defined as: Thomas A. Anderson Encroachment Agreement 1 "I Se.,vert :`S foot I fit( 4out sqtj;�w stollo vericof pike s �stw , located more than A- , foot bohind tho (,,xistinq ftX'(-,1 Of the GLIFI), 011d 0MA(VIChinf) 14-feet ijito the 'Santa Ana Montle right-of-way; b. A 3-foot high ironwood gate, located more than 8-toet behind the existing face of the curb, and encroaching 14-feet into the Santa Ana Avenue right-of-way; G. A limestone paving entry walkway with widths varying from 5-7 feet encroaching 22-feet into the Santa Ana Avenue right-of-way; and d. Private landscaping and irrigation improvements encroaching 22-feet into the Santa Ana Avenue 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 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. Thomas A. Anderson Encroachment Agreement 2 d. t Mould f-'Ity ho, required to oirte; onto said Right-of-W,,-ay to exercise its prim"ify rights, Qsso(JaLod with said FZight-ot,Way, including Wit not liwited to, the maintenance, removal, iepair, r(,,,nowal, roplocemont or enlargernont 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. (J) 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. M 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, Thomas A. Anderson Encroachment Agreement 3 11 . lfhe iornis of this Aqreomcri( *1inil hu, consbijod in ;,iccurdanco with the meaning of [tie lan(juago usod and shall tit)L bo cowstrued for or against (,:ithet ftmfy by reason of the authorship of the Agroomont or any other rule of (,,onstruction which might otherwise apply. M 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] Thomas A. Anderson Encroachment Agreement 4 IN WITNESS WHEREOF, the pprow, 1101(ek, 1MV0 caused thin, Ariawinent to h exocuted e,)ii tho datos written bt low. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATTONY'S OFFICE a California municipal corporation Date: t"`, _ Date: c I By, a By Aaron C. Harp �� „ Dave Kiff City Attorney City Manager ATTEST: _. OWNER(S): Thomas A. Anderson Date: i _ Date By..ek*a ci - Leilani I. Brown Thomas A. Anderson City Clerk Owner s [END OF SIGNATURES] 4ti 0 ti Owners must sign in the presence of notary public ATTACHMENTS: Exhibit A— Permitted Improvements Plan as Approved by Public Works Thomas A. Anderson Encroachment Agreement 5 AC KNOWLi:=DEMI!"'N'"I A� IlotHry public, or other officer completing thi 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 4 ) ss. On _A 20 z_ before me, �� __ �, Notary Public, personally appeared i > y�- °' � ` .�. 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/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. SEAN ANGIER Commission#2051070 Notary Public-California Croup County 11Q „fay Comm Expires Jan 3,2018 Signature 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/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) Thomas A. Anderson Encroachment Agreement 6 Thomas A. Anderson Encroachment Agreement _ A-1 ' u ; ta .��_ ��•� efP„;�{;Jc`14:►'. .- fit/ __ ._ ;��i .. .., .. .b � (�U ! (5 11 at _ „, . to . ❑ Im � �. LA __. _._ .,_► Ali � ff 49 r — iw_... .a 136"i RIA � w, ► � a ri 0 oil _ Pi% 44 �, i i ► ,�... � i! 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