HomeMy WebLinkAboutC-3782 - Encroachment Agreement EPN N2012-0418 for 418 Carnation AvenueRECORDING 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 Ofi ic'al Records, Oral 8e County
Renee Ramirek,, Assistant Clerk -Recorder
ill JE1 III 1111111I III 1 _ III 1127,00
k$ R 0 0 0 5 6 3 7 5 1 6$*
2013000124705 9:56 am 02/28113
276422Al2r;'13 7
0.00 0.00 0.00 0.00 18.00 0.00 0.00 0.00
mul
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2012-041 8)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this 14th day of December, 2012, by and between Roy A. Whitfield and Carol A.
Whitfield, Trustees of the Whitfield 1993 Revocable Trust dated 6/3/1993 ("Owner"),
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, Owner is the vested owner of property located at 418 Carnation
Avenue, Newport Beach, California 92625 and legally described as Lot 20, Block 331 of
Corona Del Mar including a portion of an abandoned street adjacent to the property, 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 459-114-02 ("Property").
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Carnation Avenue 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 Owner 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 2-foot wide sidewalk located behind existing curb and gutter on First
Avenue constructed with 2-foot square pads with a cobble and corten
steel header and appurtenances encroaching 10-feet into the First Avenue
right-of-way as shown on EXHIBIT "A" attached hereto and as approved
by the Public Works Department.
b. A 4-foot wide entry walkway encroaching up to 10-feet into the First
Avenue right-of-way as shown on EXIHIBIT ''A" attached hereto and as
approved by the Public Works Department.
o. Various private landscaping and irrigation improvements including
privately maintained street trees encroaching up to 10-feet into the First
Avenue and Carnation Avenue right-of-way as shown on EXHIBIT "A"
attached hereto and as approved by the Public Works Department.
d. 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 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 the City. City will further allow Owner 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 (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. 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 the City's Public Works Department, and
as described on Exhibit "A" attached hereto.
b. Owner 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 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.
{Owner Narne(s)] !i g I 2
c. If City or other public facilities or improvements aro damaged by the
installation or presence of Permitted Improvements, Owner 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 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 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) Owner agrees to pay all costs for the renewal, replacement, or restoration of
the Permitted Improvements.
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 the 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) day notice, with the notice specifying the date of termination. In the
event of litigation, commenced with respect to any term of condition of this
Agreement, the prevailing party shall not be entitled to reasonable attorneys fees
and costs incurred.
6. 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
the Permitted Improvements.
7. 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 Owners' interest in the land, whether fee or
otherwise, and shall be recorded in the Office of the County Recorder of Orange
County, California.
[Owner Nanie(s)] Page 13
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.
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. 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.
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]
[Owner Narne(s)] P a g 4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTOR ErS OFFICE
Date:
By: /,,/
Aaron C. Rrp
City Attorney
ATTEST: `(1, II 1, 13
Date: cs,f,1 L
By:
Leilani I. Brown
City Clerk'
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
By:
Dave- ff
City Manager
OWNER(S): [Oivnor Name(;)]
Date:
By:
Roy A. Whitfield. Tru
Whitfield 1993 Revo I Trust
Date: Li,/ 2-42
By;
Carol A. Whitfield, Trustee
Whitfield 1993 Revocable Trust
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENTS: EXHIBIT A —Plans as approved by Public Works
document2
lOwrief Name(s)l P ;,1 I 5
ACKNOWLEDMENT
State of Califolsnia _
County of oon whtto } ss.
On
Not ry POlic personally appeared y A
before me,
,who roved to me on the basis of satisfactory evidence to be the personswhose
nam subscribed to the within jjastament and acknowled ed to me that
executed the same in ' their authorized capacit 'es) and that by
t el signature on the instrument the persor or the entity upon behalf of
which the persorytacted, 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.
MONICA B. LEAL
comm.# 1981880
NOTARY PUBLIC • CALIFORNIA
SAN MATEO COUNTY 0
C EXPIRES JUNE 14, 2016
ACKNOWLEDGMENT
State of California
County of ss.
On 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.
1 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)
[Owner Narne(s)] Page 16
CAL,NIF("RINIRA. ALL-PURPOSE ACKNOVTLEDGENENT CIVIL CODE § 1180
State of California
1
County of
On (,,,r ,L;1612; before me, N L.
Data t(VI- Here Insert N'aCinle dnd Title of the Officer .
personally appeared C
Name(s) of Signet(s)
111„,t
KW fit E'F'F
Commission # 1967536
[Votary Public California
Orange County
Com . fres Jan 26. 201
Place Notary Seal Above
OPTIONAL
who proved to me on the basis of satisfactory
evidence to be the person(s) whose names) is/are
subscribed to the within instrument and acknowledged
to me that he/sheithey executed ,the same in
hisTharitheir authorized capacity(ies), and that by
his/her/their signature(e) on the instrument the
person(, or the entity upon behalf of which the
person(s) acted, executed the instrument.
1 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:
Signature of Notary Publyi
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:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
Number of Pages:
ri Corporate Officer — Title(s):
0 Individual
LI Partner — 0 Limited LI General
LI Attorney in Fact
Trustee
ri Guardian or Conservator
LI Other:
Signer Is Representing:
or siorEn
Top of thumb here
LJ Corporate Officer — Title(s):
LJ individual
Partner — El Limited 'General
11 Attorney in Fact
0 Trustee
U Guardian or Conservator
Li Other:
Signer Is Representing:
Top of thumb here
CO 2010 National Notary Association NationalNotary.org • 1-800-US NOTARY (1-800-B76,6827) Item #5907
g
r
LI
Exhibit "A"
Sheet 1 of 1
`,- -4-
1 , q
$ AVIV
,'.;..._. A--
ir c,
I/0
t t.st