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HomeMy WebLinkAboutC-3711 - Encroachment Agreement EPN N2013-0064 for 4603 Seashore Drive, Unit A3GANNED RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Recorded in Official Records, Orange County Hugh Nguyen Clerk -Recorder III I I I 1 I III I 111 1 *$ R 0 0 0 5 9 2 3 2 5 9$ 2013000341224 11:24 am 06/05113 47 422 Al2 F13 11 0.00 0.00 0.00 0.00 30.00 0.00 0.00 0.00 Space above this line for Recorder's use only. 1 ENCROACHMENT AGREEMENT (EPN 2013-0064) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this (1-F . day of 4/j , 2013, by and between Joseph E. Weisz and Gary Abraham, Trustees of The Edward A. Abraham Trust dated October 28, 1992 ("Abraham Trust") and S.A. Katz Construction Company ("Katz"), (Abraham Trust and Katz are collectively referred to herein as "Owners"), and the City of Newport Beach, California, a California municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California ("City"). WITNESSETH: WHEREAS, the Abraham Trust is the vested owner of property located at 4603 Seashore Drive, Unit A, Newport Beach, California 92663 and legally described as Lot 2, Block 46 of Third Addition to Newport Beach as shown on a map recorded in Book 3, Page 31, inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 930-61-442 ("Unit A"). WHEREAS, Katz is the vested owner of property located at 4603 Seashore Drive, Unit B, Newport Beach, California 92663 and legally described as Lot 2, Block 46 of Third Addition to Newport Beach as shown on a map recorded in Book 3, Page 31, inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 930-61-443 ("Unit B"). WHEREAS, Unit A and Unit B are collectively referred to herein as the "Property." WHEREAS, Owners desire to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Seashore Drive right-of- way (hereinafter "Right -of -Way") that is located adjacent to the 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 this Agreement providing for fulfillment of the conditions required by City to permit Owners to construct and maintain said Permitted Improvements. NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1. It is mutually agreed that Permitted Improvements shall be defined as: a. A 24-foot wide driveway encroaching up to 3 feet into Right -of -Way, constructed of grouted brick pavers; b. Two (2) 3-foot wide entry walkways encroaching up to 3 feet into Right -of - Way, constructed of grouted brick pavers; as shown on EXHIBIT "A" attached hereto and as approved by the Public Works Department. c. In addition, if any of the Permitted Improvements actually built or installed during the time of construction vary from the 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. 2. City will permit Owners 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 the City. City will further allow Owners to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 3. Rights granted under this Agreement may be terminated by City with or without cause and at any time without notice. The City shall make good faith efforts to provide notice sixty (60) days 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. 4. Owners and City further agree as follows: a. Owners may construct and install Permitted Improvements and appurtenances incidental thereto, in substantial conformance with the plans and specifications on file in the City's Public Works Department, and as described on Exhibit "A" attached hereto. b. Owners shall maintain the 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 Owners to maintain, replace or repair any City -owned pipeline, conduit or cable located in or under said Permitted Improvements, except as otherwise provided herein. Page 12 c. If City or other public facilities or improvements are damaged by the installation or presence of Permitted Improvements, Owners shall be responsible for the cost of repairs. d. That 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 the Permitted Improvements, as required, and in such event: i) City shall notify Owners in advance of its intention to accomplish such work, provided that an emergency situation does not exist. ii) Owners shall be responsible for arranging for any renewal, replacement, or restoration of the Permitted Improvements affected by such work by City. iii) City agrees to bear only the cost of any removal of the Permitted Improvements affected by such work by City. iv) Owners agree to pay all costs for the renewal, replacement, or restoration of the Permitted Improvements. 5. 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 Owners, City may enter upon the Right -of -Way and remove all or part of the improvements installed by Owners. Termination because of breach shall be upon a minimum of ten (10) day notice, with the notice specifying the date of termination. In the event of litigation commenced with respect to any term or condition of this Agreement, the prevailing party shall not be entitled to reasonable attorneys' fees and costs incurred. 6. Owners shall defend, indemnify and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all Toss, damage, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees, 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 the Permitted Improvements. 7. Owners agree 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 Owners' interest in the land, whether fee or otherwise, and shall be recorded in the Office of the County Recorder of Orange County, California. 8. 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. Page 13 9. 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. 10. 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. 11. 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. 12. Owners shall at Owners' 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. 13. 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] Page 14 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: `3 By: Aar'sa-C. Harp City Attorney ATTEST: Date: CITY OF NEWPORT BEACH, A California municipal corporation Date: SI I`1 «, By: Dave City Manager UNIT A, ABRAHAM TRUST: Joseph E. Weisz and Gary Abraham, Trustees of The Edward A. Abraham Trust dated October 28, 1992 Date: 1// 7/z o 13 By: wYwJ By: Leilani I. Brown eph E. Weisz City Clerk Trustee / Date: q I17 l 20 3 Owners must sign in the presence of notary public By: Gary Abraham Trustee UNIT B, KATZ: S.A. Katz Construction Company Date: By: Sanford A. Katz President Date: By: Carolyn Katz Secretary/Treasurer [END OF SIGNATURES] ATTACHMENTS: EXHIBIT A —Plans as approved by Public Works Page 15 " MOEN IVO NINSINANK21111111111M1111111 111111111!? 111111 . .• - • : • Iminpm• aliiIIIMAIMBUNIMMEN EINUNDEMINOMMINI riaiNEUEMIgmg CARAGE --22);••'•-• • 1111149-11119111114111 INEMS111211 1111"11111-0:111111111111:1111111111"—MBI 15112111111311111111 aliggitilliM111111116111111 MEM! r• ffitifs.vgiggArgqi,wimmo immunt 1117! tiaNt Nterit ar"1 er A 11 ; ligavaistilsom ggi OWNERS: The Edward A. Abraham Trust and S.A. Katz Construction Company, Inc. ADDRESS: 4603 Seashore Drive Units A and B '8RICK ifif31VOi,YA,y (0100A01-M.617 'MKENIENT" • Exhibit "A" Page 1 of 1 (N2013-0064) - CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 : •r- r-v-•/-v-• •/-•• • •/-v-- P^ r- ; v--• . •/-. , • , • , • ,-v: • , i--• :•/; •/-`• ,v-v r-' » ' r '/ './ 'v- •/-s r-v-• -�b�o�o�-• Oldie VI lidlli1llllcl County of OE'Gtri.9 On 17/ao13 Date personally appeared } before me, )h,t nit Rt No -i j Po Here Insert Na rand Title of the Officer Dec i ccc Name(s) of Signer(s) KIM RIEFF Commission # 1967536 Notary Public - California Orange County Comm. Tres Jan 26, 2016 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the persolnwhose name(s'j is/are subscribed to the within instrument and acknowledged to me that he/s tl* executed the same in his/hfe/th, authorized capacity(' and that by his/f the3( signature(s(on the instrument the person or the entity upon behalf of which the person (,s jacted, 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 an official seal, G� Signature of Noter Signature: OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer — ❑ Individual ❑ Partner — Ci Limited Li General Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Title(s): RIGHT THUMBPRINT OF SIGNER Top of thumb here ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHT THUI OF SIG PRINT R Top of thumb here © 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 ACKNOWLEDGMENT State of California County of o rer nl.C.- } ss. On 4p,-; 1 before me, (___caih N �/`A Notary Public, personally appeared Jp�,ph U)e%sz 4- 6-qr, /1-Thal hard ,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 -h etstie/they executed the same in #is/#eiltheir authorized capacity(ies), and that by i er/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. SARAH NAGEL Commission # 1873724 i �� '. Notary Public - California z Orange County b My Comm. Expires c 19, 20 De13 �.-vim (seal) ACKNOWLEDGMENT State of California County of (j (a n� } ss. On iel-pri'l 171 04, /s before me, Notary Public, personally appeared Jo,Se h e i z Nt rr., ha to ,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 #e/s-he/they executed the same in hisIher/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. £7l21 Signature 1`th SARAH NAGEL Commission # 1873724 t !!,.010 Notary Public - California i \."13, Orange County A ern' M Comm. Expires Dec 19, 2013 (seal) IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 3 By: Aa. Harp City Attorney ATTEST: Date: 6 ' 413 By: Leilani I. Brown City Clerk Owners must sign in the presence of notary public CITY OF NEWPORT BEACH, A California municipal corporation Date: Mil 13 By: �\ Dave _ v City Manager UNIT A, ABRAHAM TRUST: Joseph E. Weisz and Gary Abraham, Trustees of The Edward A. Abraham Trust dated October 28, 1992 Date: By: Joseph E. Weisz Trustee Date: By: Gary Abraham Trustee UNIT B, KATZ: S.A. Katz Construction Company Date: 4' I 1 / I By: Sanford A. Katz President Date: Jfi1f7 By: Carolyn Katz S -etary/Treasurer [END OF SIGNATURES] ATTACHMENTS: EXHIBIT A —Plans as approved by Public Works Page 15 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of Or On f 7l X(3 before Date personally appeared me, lei i rvt Ri e-Yc No Ley 130 b (( Here Insert Namp and Title of the Officer Name(s) of Signer(s) KIM RIEFF Commission # 1967536 Notary Public - California Orange County M Comm. Ex ires Jan 26, 2016 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(erwhose name(eris/arm subscribed to the within instrument and acknowledged to me that he/OE/they executed the same in his/hoitheir authorized capacity(iesl, and that by his/tjefithef signatureK on the instrument the person(,$)! or the entity upon behalf of which the personfs)'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: OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: z Signature of Notary Pu''c Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — Eli Limited General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Number of Pages: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer's Name: Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited 7 General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHT THUI OF SIG PRINT R Top of thumb here • • • © 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 ACKNOWLEDGMENT State of California County of 14 } ss. On ,////&/_? Notary Public, personally appeared before me, ,z e/ ,4 /fi¢n/O, , ,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 official seal. Signature ACKNOWLEDGMENT State of California County of /11 } ss. FARIBA KOHAN F Comngsdon 1926006 Notary Public • California Los Angeles County Comm. Ex ' lres Mar 18, 2015 On L1//// /? before me, /21,4,4�D%j},�D/ , Notary Public, personally appeared K,�a6Z / f 164 ,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 official seal. Signature (seal) FARIBA KOHANOF Commission at 1928006 Notary Public - California Los Angeles County M Comm. Ex , lres Mar 18 2015