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HomeMy WebLinkAboutC-3251 - Encroachment Agreement EPN N2013-0437 for 6400 W. Ocean FrontANN 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 1II 1 111111111111 IIIIiI I III 1111 30.00 *$ R 0 0 0 6 3 9 6 5 1 3$* 2013000699596 2:16 pm 12/19/13 47 422 Al2 F13 8 0.00 0.00 0.00 0.00 21.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2013-0437) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 27th day of November, 2013, by and between Beachfront Investments, 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"). RECITALS WHEREAS, Owner is the vested owner of property located at 6400 W. Ocean Front, Newport Beach, California 92663 and legally described as Lot 1, Block D, including portion of adjacent abandoned street except the northeasterly 15 feet of Seashore Colony Tract, as shown on a map recorded in Book 7, Page 25 of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 045-093-11 ("Property"); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Cedar Street 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: a. A 36-inch high wall constructed of beige stucco with a limestone cap, encroaching up to 1 foot into the right-of-way, as approved by the Public Works Department and as shown on Exhibit A, attached hereto and incorporated herein by reference. b. 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: Beachfront Investments, LLC Encroachment Agreement 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. 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. 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. Beachfront Investments, LLC Encroachment Agreement 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] Beachfront Investments, LLC Encroachment Agreement 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: j l - I - 3 By: IJ,a1t1,1Z i �t(AA Aaron C. I1arp City Attorney ATTEST: Date: (.(/ By: L=ilani . Brown City Clerk CITY OF NEWPORT BEACH, a California munigiFl porp�ration Date: By: Dave iff City Manager OWNER(S): Beachfront Investments, LLC Date: 1Z\'3�1'3 By; Robert Fatranga Trustee l of the Robert and Elaine Matranga Family Trust dated October 24, 1989 as Managing Member/President of Beachfront Investments, LLC [END OF SIGNATURES] Owners must sign in the presence of notary public ATTACHMENT: Exhibit A —Permitted Improvements Plan as Approved by Public Works Beachfront Investments, LLC Encroachment Agreement 5 ACKNOWLEDGMENT State of California County of ()CCL14lg.) } ss. On bye, 3 20 J before me, 1,iri YVi f -h,C ' 64-0-„ , Notary Public, personally appeared OD bei-- VL' as C.-c - , who proved to me on the basis' f satisfactory evidence to be the personA7) whose name(4) is/ass subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/I4er/th€4 authorized capacity( , and that by his/fir/their signatures(x) on the instrument the person(,, 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 official seal. Signature14)11-- TERI M. HUFFMAN Commission # 1921879 Notary Public - California Z Orange County M Comm. Expires Jan 15, 2015 (seal) ACKNOWLEDGMENT State of California County of } ss. On 20 before me, , Notary Public, personally appeared , 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) Beachfront Investments, LLC Encroachment Agreement 6 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of \c\tom.) (- t On DC-- Date } before me, �1.\:)1\-‘q NA '1, N.) t7. (\:,=1f\R'`i rt_,'�SC.' Here Insert Name and Title of the Officer personally appeared 1- WEI V 1 F C Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person/0) whose name() is/are subscribed to the within instrument and acknowledged to me that he/sae/thy executed the same in his/her/their authorized capacity(), and that by his/her/tj2reir signature(s) on the instrument the person(Sr), 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 hanand official Real. Place Notaty Seal Above Signature: OPTIONAL JENNIFER ANN MULVEY Commission # 2045022 Notary Public - California I Orange County M Comm. Ex'ires Oct 12, 2017 Though this section is optional, completing this information can deter alteration orthe-document or fraudulent reattachment of this form to an unintended 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: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited 0 General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General [1 Individual ❑ Attorney in Fact ❑ Trustee Lil Guardian or Conservator ❑ Other: Signer Is Representing: © 2013 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 \Y'- )Wi''' N FD. 1 " LP RCE 31720. , r r --.... k..). O's .. I; .. • 't /k 6' • v. EXIST. in 0 . :.,rt • *•.. -• . 9" WALL (15.0 TW `1,c) ('\.1.. ..., 11111111.ffilffillifillffilliffillffil ninni ramittxmliammwmalualmillmmmmmmmmEAmmmmmmEA, m E (gErJARJVCC -,'.' , 77 w z tJJ 0 cr 2,FS EPS- © • °' _1_ Beachfront Investments, LLC 6400 W. Ocean Front Newport Beach, CA F.F.=14.69 4 < .1 .. 1 ---1 1 1-.••2 ,..•?..., I i.. i I ..• ) • • • 5 r iPEWAL -\(.• t 2 EXIST 8" PALM TREE ( 0- 7;169'.00 30.00'2 ; L&T tt. •-• RtEs- .3 1 720 $ • CONCRETE :D. . - • OCZOWiVAPNI74.r.- . ,\O'• 1 ) EX SONG RET. WALL 9s24,04. IT -1 r•-.. ( BE REMOVED) NEW WALL (SEE ARCHAPLANS) 31:;" t-1-161+ VALI- coNca 1506 e smcw too ow .c,C3