HomeMy WebLinkAboutC-9665-1 - Encroachment Agreement EPN N2024-0163 for 3015 Cliff Drive7/10/24, 4:03 PM
Batch 17690790 Confirmation
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Attn: City Clerk's Office
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
34.00
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2024000173179 3:59 pm 071,0/24
376 410A Al2 10
0.00 0.00 0.00 0.00 27.00 0.00 0.000.000.00 0.00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2024-0163)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
20th day of June, 2024, by and between Patricia Coleen Smith, Trustee of The Smith
Family 2009 Trust dated February 11, 2009 ("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 3015 Cliff Drive,
Newport Beach, California, 92663 and legally described as Lot 40 of Tract 444, in the City
of Newport Beach, County of Orange, State of California, as shown on a map recorded in
Book 19, Page 29 through 24 inclusively, of Miscellaneous Maps in the office of the County
Recorder of Orange County, County Assessor's Parcel Number 425-383-09 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the La Jolla Drive right-of-way
and the Cliff Drive right-of-way (collectively 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:
City and Owner acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference into this Agreement.
The Smith Family 2009 Trust dated February 11, 2009 Encroachment Agreement
https://gs.secure-erds.com/Batch/Confirmation/l7690790 3/4
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Attn: City Clerk's Office
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2024-0163)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
20th day of June, 2024, by and between Patricia Coleen Smith, Trustee of The Smith
Family 2009 Trust dated February 11, 2009 ("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 3015 Cliff Drive,
Newport Beach, California, 92663 and legally described as Lot 40 of Tract 444, in the City
of Newport Beach, County of Orange, State of California, as shown on a map recorded in
Book 19, Page 29 through 24 inclusively, of Miscellaneous Maps in the office of the County
Recorder of Orange County, County Assessor's Parcel Number 425-383-09 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the La Jolla Drive right-of-way
and the Cliff Drive right-of-way (collectively 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.
The Smith Family 2009 Trust dated February 11, 2009 Encroachment Agreement 1
2. It is mutually agreed that Permitted Improvements shall be defined as the following,
and subject to the terms and conditions set forth in Planning Commission Resolution
PC2024-010 dated May 23, 2024:
a. An existing retaining wall with a thirty three inch (33") guardrail on top varying
from two feet nine inches (2'9") to six feet two inches (6'2") tall and thirty eight
feet six inches (38'6") long with smooth stucco finish encroaching up to one
foot (1) into the La Jolla Drive Right -of -Way;
b. An existing retaining wall varying from one foot four inches (1'4") to two feet
five inches (2'5") tall and fifteen feet eleven inches (15'11") long with smooth
stucco and stone finish encroaching up to four feet six inches (4'6") into the
La Jolla Drive Right -of -Way;
C. An existing retaining wall varying from two feet five inches (2'5") to three feet
(T) tall and twelve feet three inches (12'3") long with smooth stucco and
stone finish encroaching up to four feet six inches (4'6") into the La Jolla Drive
Right -of -Way;
d. An existing retaining wall varying from three feet nine inches (3'9") to four feet
five inches (4'5") tall and twelve feet five inches (12'5") long with smooth
stucco and stone finish encroaching up to four feet six inches (4'6") into the
La Jolla Drive Right -of -Way;
e. An existing retaining wall varying from two foot two inch (2'2") to four feet four
inch (4'4") tall and thirty six foot one inch (36"") long within smooth stucco
and stone finish encroaching up to four feet six inches (4'6") into the La Jolla
Drive Right -of -Way and ten feet eight inches (10'8") into the Cliff Drive Right -
of -Way;
f. An existing wall varying from nine inches (9") to one foot eight inches (1'8")
tall and twelve feet five inches (12'-5") long with stone finish encroaching up
to twelve feet five inch (12'5") into the Cliff Drive Right -of -Way;
g. An existing wall varying from four feet two inches (4'2") to six feet four inches
(6'4") tall and twenty eight feet eleven inches (28'11 ") long with stone finish
encroaching up to one foot (1') into the La Jolla Drive Right -of -Way and three
feet six inches (3'6") into the Cliff Drive Right -of -Way;
h. An existing wall varying from eight inches (8") to one feet nine inches (1'9")
tall and twenty three feet (23') long with stone finish encroaching up to eight
feet (8') into the Cliff Drive Right -of -Way;
An eighteen foot (18') long by five feet six inch (5'6") wide exposed aggregate
concrete walkway encroaching up to thirteen feet (13') into the Cliff Drive
Right -of -Way;
The Smith Family 2009 Trust dated February 11, 2009 Encroachment Agreement 2
An existing ten feet (10') long by four feet nine inch (4'9") wide stone tile
walkway and steps encroaching up to ten feet (10') into the Cliff Drive Right -
of -Way;
k. Two (2) existing twenty four inch (24") by twenty four (24") square pilasters
and walls up to nine feet three inches (9'3") long with a maximum height of
three feet six inches (3'6") tall with stone finish encroaching up to nine feet
three inches (9'3") into the Cliff Drive Right -of -Way;
With the foregoing, as approved by the Public Works Department and as
shown on Exhibit A, attached hereto and incorporated herein by reference.
M. 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 and restoration of these public facilities or
improvements to their condition at the time of entry into this Agreement.
The Smith Family 2009 Trust dated February 11, 2009 Encroachment Agreement 3
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.
(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.
The Smith Family 2009 Trust dated February 11, 2009 Encroachment Agreement 4
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.
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]
The Smith Family 2009 Trust dated February 11, 2009 Encroachment Agreement 5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORN Y'S OFFICE
Date:
By:
Aaron C.1F arp
City Atto hey
ATTEST:
Date: - A-1
In
Brown-
City
CITY OF NEWPORT BEACH,
a California rpuniqipal corporation
Date: (a Iy;1 06Z�j
By: ^-- Z--���
Gace eungCnager
OWNER(S): Patricia Coleen Smith,
Trustee of the Smith Family 2009 Trust
dated F xuary 11, 2009
Date: � 1 u.rt-o _ 21, 10
B
Y
Patricia Coleen Smith
Trustee
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by
Public Works
The Smith Family 2009 Trust dated February 11, 2009 Encroachment Agreement 6
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 ORANGE
On /'-Z-)Z before me, JACOB TANAKA TOLENTINO IV fl�Zu D ► �,
l / (insert name and title of the officer)
personally appeared 17c, I �ir► C► A 16'L I sm 4
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.
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. r 6�,�,FryF JACOB TANAKA TOLENTNQ
•r �� Comm. # 2483303
-b NOTARY PUBLIC•CAUF0iil0A
COUNTY OF ORANGE
C'�L(pOR�� MY Comm. Exp. FEB. 27, 2428
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 Oft M #-I-- SS.
On �lZTop 20 7,1 before me, ucA t a/t4k4 ' BjP_iliV Notary
Public, personally appeared P kr Zolem SMt}�,� 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 fficial seal. yF JACOB TANAKA TOLENTINO .• cs�"`.w°pryo9� JAC96 T1''�NAJµ�I42 6 ;pa;Qj4$e��p�
�� Pr ��il�l�!17 C��OJI�
Comm. # 2483303 1010 pywI :C I 0
- o NOTARY PUBLIC -CALIFORNIA
r ORANGE COUNTY �MY C&m. EXP FEB. 27� 2028 woo ..
Signature ol(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, 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)
The Smith Family 2009 Trust dated February 11, 2009 Encroachment Agreement 7
EXHIBIT A
PERMITTED IMPROVEMENTS PLAN
The Smith Family 2009 Trust dated February 11, 2009 Encroachment Agreement A-1
- EXHIBIT A
Y�Po•• 199,69mm;g9,)*pvs{roduaN : 1 OF 1
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•aul 'saa!nuas u;l!saQ ldepd aauapp-d g1!ws
(9) 18' long by 5'-6" wide
exposed aggregate walkway
encroaching up to 13' into
the public right of way.
I
(6) Wall, height varies from
9" to 1'-8" and 18' long
encroaching up to 12'-5" into
the public right of way.
(5) Retaining Wall, height
varies from 2'-2" to 4'-4" and
36'-1" long encroaching up to
I
4'-6" into the La Jolla Drive
Right of way and 10'-8" into
the Cliff Drive right of way.
;
(4) Retaining Wall, height
varies from 3'-9" to 4'-5" and
12'-5" long encroaching up to
4'-6" into the public right of
m
way
I
(3) Retaining Wall, height
m
r
varies from 2'-5" to 3' and
12'-3" long encroaching up to
4'-6" into the right of way.
r
I
�
G
(10) 10' long by 4'-9" wide (8) Wall, height varies from
A
a
stone tile walkway and steps 8" to 1'-9" and 23' long
encroaching up to 10' into encroaching up to 8' into the
2
the public right of way. public right of way.
+
Z'
+ +
Lid
encroachin
(11) Two 24"x 24" square
I
pilasters and walls up to 9'-3"
t
long with a maximum height of
3'-6" encroaching up to 9'-3" into
the public right of way.
(7) Wall, height varies from 4'-2"
to 6'-4" and 28'-11" long
encroaching up to 1' into the La
Jolla Drive right of way and 3'-6"
2
into the Cliff Drive right of way.
(2)Retaining Wall, height
R
varies from T-4" to 2'-5"
83
and 16-11" long
u to 4'-6" into
9 P
the right of way.
LU
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O
QI
a
I a
�e .92i
I
�I
� .11 (1)Retaining Wall with 33"
b� 8, guardrail on top, height varies
+ L — from 2'-9" to 6'-2" and 38'-6"
long encroaching up to 1 foot
I into right of way.
•9-,9 .9 .*k 9-,S
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