HomeMy WebLinkAboutC-7264-2 - Supplemental Encroachment Agreement EPN N2017-0387 for 4515 Wayne RoadBatch 3147022 - Print Confirmations
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Page 5 of 6
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
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Space above this line for Recorders use only.
SUPPLEMENTAL ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2017-0387)
THIS SUPPLEMENTAL ENCROACHMENT AGREEMENT ("Supplemental
Agreement") is made and entered into this 25th day of January, 2018, by and between Barry
F. Porter and Aimee Porter, as Co -Trustees of the Porter Family Trust established January
23, 2014, by Barry F. Porter and Aimee Porter, as Trustors ("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 4515 Wayne Road,
Newport Beach, California, 92625 Orange County, County Assessor's Parcel Number 475-
032-07, and as legally described on Exhibit A, attached hereto and incorporated herein by
reference ("Property");
WHEREAS, Owner and City previously entered into an Encroachment Agreement
(Encroachment Permit Number N2017-0387), which was recorded as Instrument Number
2017000536419 on December 13, 2017. This Supplemental Agreement shall supplement
the previously mentioned Encroachment Agreement, and the parties hereto intend for both
Agreements to be valid;
WHEREAS, Owner desires to construct certain non-standard improvements as further
described herein ("Permitted Improvements") within the Wayne Road right-of-way
(hereinafter "Right -of -Way") that is located adjacent to Property in addition to those identified
in Instrument No. 2017000536419;
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 Supplemental Agreement
providing for fulfillment of the conditions required by City to permit Owner to construct and
maintain said Permitted Improvements.
The Porter Family Trust Established January 23, 2014 Supplemental Encroachment Agreement 1
https:Hgs.secure-recording.com/Batch/`PrintConfirmations 02/23/2018
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Space above this line for Recorder's use only.
SUPPLEMENTAL ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2017-0387)
THIS SUPPLEMENTAL ENCROACHMENT AGREEMENT ("Supplemental
Agreement") is made and entered into this 25th day of January, 2018, by and between Barry
F. Porter and Aimee Porter, as Co -Trustees of the Porter Family Trust established January
23, 2014, by Barry F. Porter and Aimee Porter, as Trustors ("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 4515 Wayne Road,
Newport Beach, California, 92625 Orange County, County Assessor's Parcel Number 475-
032-07, and as legally described on Exhibit A, attached hereto and incorporated herein by
reference ("Property");
WHEREAS, Owner and City previously entered into an Encroachment Agreement
(Encroachment Permit Number N2017-0387), which was recorded as Instrument Number
2017000536419 on December 13, 2017. This Supplemental Agreement shall supplement
the previously mentioned Encroachment Agreement, and the parties hereto intend for both
Agreements to be valid;
WHEREAS, Owner desires to construct certain non-standard improvements as further
described herein ("Permitted Improvements") within the Wayne Road right-of-way
(hereinafter "Right -of -Way") that is located adjacent to Property in addition to those identified
in Instrument No. 2017000536419;
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 Supplemental Agreement
providing for fulfillment of the conditions required by City to permit Owner to construct and
maintain said Permitted Improvements.
The Porter Family Trust Established January 23, 2014 Supplemental Encroachment Agreement 1
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 Supplemental Agreement.
2. It is mutually agreed that the Permitted Improvements for this Supplemental
Agreement shall be defined as:
a. (1) one varying width (up to 7 feet) carriage walk constructed with irregular
flagstone pavers, installed at grade, encroaching 10 -feet into the Wayne Road
right- of -way, as approved by the Public Works Department and as shown on
Exhibit B, 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 Supplemental 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 Supplemental 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 B.
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 Supplemental Agreement.
The Porter Family Trust Established January 23, 2014 Supplemental Encroachment Agreement 2
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 Supplemental
Agreement, the other party, at its option may, in addition to the other legal remedies
available to it, terminate this Supplemental 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 Supplemental 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 Supplemental 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 Supplemental Agreement and all
matters relating to it and any action brought relating to this Supplemental Agreement
shall be adjudicated in a court of competent jurisdiction in the County of Orange,
California.
11. The terms of this Supplemental Agreement shall be construed in accordance with the
meaning of the language used and shall not be construed for or against either party
The Porter Family Trust Established January 23, 2014 Supplemental Encroachment Agreement 3
by reason of the authorship of the Supplemental Agreement or any other rule of
construction which might otherwise apply.
12. This Supplemental 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 Supplemental Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions
of this Supplemental Agreement shall continue in full force and effect.
[SIGNATURES ON NEXT PAGE]
The Porter Family Trust Established January 23, 2014 Supplemental Encroachment Agreement 4
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Agreement to be executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTO NEY'S OFFICE
Date: 0�
By:
Car—
Aaron C. Harp ol• m5
City Attorney
ATTEST:
Date-.—
OWNER(S):
ate:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: -2-1 2aA 1s,
By:
Daveiff
City Manager
OWNER(S): Barry F. Porter and Aimee
Porter, as Co -Trustees of the Porter
Family Trust established January 23,
2014, by Barry F. Porter and Aimee
Porter, as Tru for
Date:
By:
Barry . Porler
Co -Trustees of the Porter Family Trust
established January 23, 2014, by Barry
F. Porter and Aimee
Porter, as Trustors
Date: 7 0
By:
Aimee Porte
Co -Trustees of the Porter Family Trust
established January 23, 2014, by Barry
F. Porter and Aimee Porter, as Trustors
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENTS: Exhibit A — Legal Description of Property
Exhibit B – Permitted Improvements Plan as Approved by Public
Works
The Porter Family Trust Established January 23, 2014 Supplemental 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
County of OjL0-n0<-- Iss./� J �
On e br 7 2 20 before me, �t ✓� a C �-1a-rl Notary
Public, personally ppeared _fru PO , who proved to
me on the basis of satisfactory evidence to be the person,(e)"whose name(*is/p.r-subscribed to the within
instrument and acknowledged to me that hem/fbe? executed the same in his/b4their authorized
capacity(iesT,, and that by his/her-/thett= signatures(sron the instrument the person(s'r 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.
KARIN LEANN JACKMAN
WITNESS my hand and official seal. Notary Public - California
I •� Orange County i
Z Commission # 2189519 D
My Co . Ex 'res Air 2, 2021.
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 0!]ss.
On )rU-a,-,-4ZOI , 20_before me, LZOL-r l n Notary
Public, personally appeared 1 toe r -f -e P— proved to me on
the basis of satisfactory evidence to be the person(a)-whose name(s) isjare'subscribed to the within
instrument and acknowledged to me that Wshe/tbae executed the same in "her/tw authorized
capacity(iesrjand that by N<her/their signatures(s) on the instrument the persop.(-e-Yor 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. KARIN LEANN JACKMANNotary Public - California
-+ Orange County i
Commission of 2189519
My Comm. Ex ire; A r 2. 2021
Signature (seal)
The Porter Family Trust Established January 23, 2014 Supplemental Encroachment Agreement 6
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
The Porter Family Trust Established January 23, 2014 Supplemental Encroachment Agreement A-1
EXHIBIT "A"
LEGAL DESCRIPTION
LOT(S) 108 OF TRACT NO. 3519, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 128, PAGE(S) 18 TO 21 INCLUSIVE OF MISCELLANEOUS MAPS,
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM ALL OIL, GAS, MINERALS AND OTHER HYDROCARBON SUBSTANCES, LYING BELOW A
DEPTH OF 500 FEET, WITHOUT THE RIGHT OF SURFACE ENTRY, AS RESERVED IN INSTRUMENTS OF RECORD.
EXHIBIT B
PERMITTED IMPROVEMENTS PLAN
The Porter Family Trust Established January 23, 2014 Supplemental Encroachment Agreement B-1
LEGEND
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The fallowing items must_ be accurately on the drawing::
1. Property lines
2. Distance from property line to all encroachments ADDRESS 4515 wo he R008
in the PROW
3. Dimensions of proposed improvements
4. Any excavation requires underground utilities be
shown on plan (i.e. sewer, gas, water)
5. Street names Permit N®.