HomeMy WebLinkAboutC-6400 - Encroachment Agreement EPN2015-0562 for 603 Poppy AvenueMR
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Public Works Department
City of Newport Beach
P,O. Box 1768
Newport Beach, CA 92658-8915
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Recorded in of Records, Orange County
Hugh Nguyen, Clerk -Recorder
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ENCROACHMENT AGREEMENT
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
30th day of November, 2015, by and between GCL III, LLC, a California limited liability
company ("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").
WHEREAS, Owner is the vested owner of property located at 603 Poppy Avenue,
Newport Beach, California, 92625 and legally described as Lot,3, Block 643 of Corona del
Mar, as shown on a map recorded in Book 3, Pages 41 through 42 Inclusively, of
Miscellaneous Maps in the office of the County Recorder of Orange County, County
Assessor's Parcel Number 459-231-26 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Poppy 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:
GCL 111, LLC Encroachment Agreement Page 1
a. A five-foot (5') wide entry walkway constructed of dark brown pavers and gray
concrete band installed at grade, encroaching up to one (1) foot into the
Poppy Avenue right-of-way;
b. Two -foot (2') square pavers constructed of gray concrete installed at, grade,
encroaching up to ten (10) feet into the Poppy Avenue right-of-way, 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
existing or future public facilities or improvements, City may remove portions
of Permitted Improvements, as required, and in such event:
GCL III, LLC Encroachment Agreement Page 2
(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.
S. 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.
12. This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations and
GCL 111, LLC Encroachment Agreement Page 3
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.
GCL 111, LLC Encroachment Agreement Page 4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the dates written below.
By:
Aaron C. Harp uvm '01ffir
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Cle[L.,
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:A2 N -il v 4!�--
-1 -
B
Dave
City Manager
OWNER(S): GCL III, LLC, a California
limited 11f ility or-qpany,.
Date -'j'), 11
By -�:-"V
Ge 146e Leeper
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by
Public Works
GCL III, LLC Encroachment Agreement Page 5
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 11t it" ss.
On jV20 1,,,, before me, i u j Notary
Public, personally appeared ()ic t I c" i -C I 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.
LAURIE J. OARD
iWITNESS my hand and official seal. COMMISSION #'1986067
Notaw Public - California
ORANGE CQIJNiY
Mycommission t: Wool
AUGUST if,
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 Iss.
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)
GCL III, LLC Encroachment Agreement Page 6
GCL III, LLC Encroachment Agreement Page A-1
MMH
Owner; GCL III, LLC
Address; 603 Poppy Avenue
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— - ------ ------- -
POPPY AVE
2 -ft by 2 -ft
Gray concrete pavers
N2015-0562 (Exhibit A)
Page 1 of I
Entry walkway
Dark brown pavers
. . .......
Entry walkway
Gray concrete band
1-ftright-of-way
4-ftsidewalk
5 -ft parkway
POPPY AVE
2 -ft by 2 -ft
Gray concrete pavers
N2015-0562 (Exhibit A)
Page 1 of I