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Home My WebLink AboutC-8029-1 - Encroachment Agreement EPN N2016-0208 for 307 Poinsettia AvenueCOPY o CCO NOT OFR RECORDING REQUESTED BY AND Recorded in official Records, orange County WHEN RECORDED RETURN TO: Hugh Nguyen, Clerk -Recorder IIIA VIIIIIIIIIIVIIIJill 111IIIIJill IIIIHIIIVIIIIIIIIIIIIJill 30.00 Public Works Department * E R o o a a 3 a z 9 s 4$* City of Newport Beach 2016000221099 8:25 am 05/18116 P.O. Box 1768 9 410 Al2 1713 8 Newport Beach, CA 92658-8915 0.00 0.00 0.00 0.00 21.00 0.00 0.00 0.00 ^r� Space above this line for Recorder's use ti ENCROACHMENT AGREEMENT roe° (Encroachment Permit Number N2016-0208) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 5th day of May, 2016, by and between Richard E. Stinehart and Sherry N. Stinehart, Trustees of the Stinehart Revocable Trust, dated November 8, 2013 ("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 307 Poinsettia Avenue, Newport Beach, California, 92625 and legally described as Lot 7 in Block 242 of Corona Del Mar, County of Orange, as per map recorded in Book 3, Pages 41 and 42 of Miscellaneous Maps, in the office of the County Recorder of Said County, Assessor's Parcel Number 052-133-14 ("Property'); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Poinsettia 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. Stinehart Revocable Trust Encroachment Agreement 1 1 2C1fu Received 1 1 1- 2. It is mutually agreed that Permitted Improvements shall be defined as: a. A 4.5 feet by 7.5 feet carriage walk constructed of blue stone pavers encroaching up to 10 feet into the Poinsettia Avenue public 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: Stinehart Revocable Trust 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. 12. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and Stinehart Revocable Trust Encroachment Agreement 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. [SIGNATURES ON NEXT PAGE] Stinehart Revocable Trust Encroachment Agreement 4 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATT{} EY OFFICE Date:�— By: Aaron . arp dkj . w City Attorney )& ATTEST: t Date: �J By; & 4, Awl-- Leilani i. Brown City Clerk ATTACHMENTS: CITY OF NEWPORT BEACH, a California municipal corporation Date: Sl u1 t�, Bi-, Ct tE — David Kiff City Manager OWNER(S): Stinehart Revocable Trust, Trustee, Stinehart Revocable Trust, dated November 8, 2013 By:`� zu7 , Sherry N. Stinehart Trustee, Stinehart Revocable Trust, dated November 8, 2013 [END OF SIGNATURES] Owners must sign in the presence of notary public Exhibit A— Permitted Improvements Plan as Approved by Public Works Stinehart Revocable Trust Encroachment Agreement 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 count of ss. On _ , 20 before me, Notary Public, per onal y appeared , who proved to me on the basis of satisfactory evidence to be the person(s) Ohose name(s) Ware subscribed to the within instrument and acknowledged to me that +ePihe/they executed the same in bL%A 4their authorized capacity(ies), and that by 14W*w/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 paragraph is true and correct. WITNESS my hand and official seal. au", a- i Signat 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 that the foregoing PEOOYA,1U108 C "I" # 2102070 NCKVY Pubk - CW&*v z Comm C0WRYt 2019 (seal) 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) Stinehart Revocable Trust Encroachment Agreement 6 EXHIBIT A Stinehart Revocable Trust Encroachment Agreement A-1 105.50'TW 04.78 FS V mwmft*�z M.B. CANTED PLANTER 2V-34 F,6.F, 105.69 TW 102.55' TW (E-, 105.19FS )OR DINING --U z P UP 20'.V F Y.Sa. PLANTED .56'TW )9.5i NG A 0 A 101.56' TW PER GUARD b nor SIDEWALK • f241 ICI Br Now B -0 105 50'TW 2 1241 103.8 TWA 0(E.) :.105.50' 10539 ITS 102.70'FS 42"GUARDRA 20, 2'-0" 41 103.6a, TW (E.) 10328 FS PLANTED F.D.F. 20-03(4" 105,50, TW L (E.) 104.19 NG io. TW 0 1'311 C .i9 NGTnow ;AO) EXHIBIT A 1 OF 1 (30j J3 ENCROACHIV, FOR ANY WO THE PUBLIC F