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HomeMy WebLinkAboutC-7417-2 - First Amended and Restated Encroachment Agreement EPN N2008-0197 for 3812 River AvenueBatch 3408080 Confirmation Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder 11 1111111111111 III 111111111111130.00 RECORDING REQUESTED BY AND $ R o a a o 9 a 3 9 e s WHEN RECORDED RETURN''. TO: 2018000179870 9:57 am 05117118 90 SC5 Al2 8 Attn: City Clerk's Office 0.00 0.00 0.00 0.00 21.00 0.00 0.000.000.00 3.00 City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Space above this line for Recorders use only. FIRST AMENDED AND RESTATED ENCROACHMENT AGREEMENT (ENCROACHMENT PERMIT NUMBER N2008-0197) THIS FIRST AMENDED AND RESTATED ENCROACHMENT AGREEMENT ("First Amended Agreement") is made and entered into as of this 11 day of May, 2018 ("Effective Date"), by and between THOMAS E. MILLER AND ROBYN D. MILLER, AS TRUSTEES OF THE MILLER FAMILY TRUST, DATED APRIL 24, 2002 ("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 A. On August 7, 2008, City and RICHARD L. COOLEY (hereinafter "Former Owner') entered into an Encroachment Agreement ("Agreement") regarding the property located at 3812 River Avenue, Newport Beach, California 92663 and legally described as Lot 7, Block 238 of the Canal Section Tract, as shown on a map recorded in Book 4, Page 98, inclusively, of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 423- 304-01 ("Property") and certain non-standard improvements within the 39th Street Bayfront street end right-of-way (hereinafter "Right -of -Way") that is located adjacent to Property. B. On November 16, 2011, Owner became the vested owner of the Property pursuant to the transfer of ownership memorialized by that certain Grant Deed between Former Owner and Owner, recorded on December 20, 2011, in the office of the County Recorder of Orange County as Document Number 2011000665541 ("Grant Deed"). C. Pursuant to Section 7 of the Agreement, the Agreement shall run with the land of the Property and be binding upon the Owner's interest in the land as transferred to Owner by virtue of the Grant Deed. D. The parties desire to enter into this First Amended Agreement to supersede and update the certain non-standard improvements Owner is permitted to construct within the Right -of -Way as further described herein and subject to the terms and conditions herein ("Amended Permitted Improvements"). Miller Family Trust First Amended Agreement Page 1 Page 1 of 4 https:Hgs.secure-recording.com/Batch/Confirmation/3408080 05/17/2018 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Attn: City Clerk's Office City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Space above this line for Recorder's use only. FIRST AMENDED AND RESTATED ENCROACHMENT AGREEMENT (ENCROACHMENT PERMIT NUMBER N2008-0197) THIS FIRST AMENDED AND RESTATED ENCROACHMENT AGREEMENT ("First Amended Agreement") is made and entered into as of this V, day of May, 2018 ("Effective Date"), by and between THOMAS E. MILLER AND ROBYN D. MILLER, AS TRUSTEES OF THE MILLER FAMILY TRUST, DATED APRIL 24, 2002 ("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 A. On August 7, 2008, City and RICHARD L. COOLEY (hereinafter "Former Owner") entered into an Encroachment Agreement ("Agreement") regarding the property located at 3812 River Avenue, Newport Beach, California 92663 and legally described as Lot 7, Block 238 of the Canal Section Tract, as shown on a map recorded in Book 4, Page 98, inclusively, of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 423- 304-01 ("Property") and certain non-standard improvements within the 39th Street Bayfront street end right-of-way (hereinafter "Right -of -Way") that is located adjacent to Property. B. On November 16, 2011, Owner became the vested owner of the Property pursuant to the transfer of ownership memorialized by that certain Grant Deed between Former Owner and Owner, recorded on December 20, 2011, in the office of the County Recorder of Orange County as Document Number 2011000665541 ("Grant Deed"). C. Pursuant to Section 7 of the Agreement, the Agreement shall run with the land of the Property and be binding upon the Owner's interest in the land as transferred to Owner by virtue of the Grant Deed. D. The parties desire to enter into this First Amended Agreement to supersede and update the certain non-standard improvements Owner is permitted to construct within the Right -of -Way as further described herein and subject to the terms and conditions herein ("Amended Permitted Improvements"). Miller Family Trust First Amended Agreement Page 1 NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. City and Owner acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this First Amended Agreement. 2. It is mutually agreed that Amended Permitted Improvements shall be defined as.- a. s: a. A four (4) foot wide standard concrete sidewalk encroaching up to six (6) feet into the Right -of -Way; a three (3) foot wide decomposed granite path along the existing bulkhead encroaching up to thirty (30) feet into the Right - of -Way; two Arbutus street trees with a maximum maintained size of fifteen (15) feet tall by ten (10) feet wide; various landscaping with hedges no more than two (2) feet in height and irrigation encroaching up to thirty (30) feet into the Right -of -Way, as approved by the Public Works Department and Municipal Operations Department and as shown and identified 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 Amended 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 Amended 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 the Agreement and this First Amended 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 Amended 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 Amended 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. Miller Family Trust First Amended Agreement Page 2 C. If City or other public facilities or improvements are damaged by the installation or presence of Amended 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 First Amended Agreement. 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 Amended 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 First Amended Agreement, the other party, at its option may, in addition to the other legal remedies available to it, terminate this First Amended 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 First Amended 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 Amended 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. Miller Family Trust First Amended Agreement Page 3 10. The laws of the State of California shall govern this First Amended Agreement and all matters relating to it and any action brought relating to this First Amended Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, California. 11. The terms of this First Amended 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 First Amended Agreement or any other rule of construction which might otherwise apply. 12. This First Amended 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 First Amended Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this First Amended Agreement shall continue in full force and effect. 16. To the extent there are any inconsistent terms between this First Amended Agreement and the Agreement, the terms of this First Amended Agreement shall control. [SIGNATURES ON NEXT PAGE] Miller Family Trust First Amended Agreement Page 4 IN WITNESS WHEREOF, the parties have caused this First Amended Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATT RNEY'S OFFICE a California municipal corporation Date-._�f p�/g Date.- By: ate: By: By: Aaron C. Harp (Am 044110lirr Da-v-04iff City Attorney City Manager ATTEST: .�J (� OWNER(S): THOMAS E. MILLER AND Date: � !, I b ROBYN D. MILLER, AS TRUSTEES OF THE MILLER FAMILY TRUST, DATED APRIL 24, 2002 Date: Z/,' - Z % l c By: 4"vnjv Leilani I. -Brown ThomasMiller ATTACHMENTS Trustee Date: L-11,-;2%� By:' Robyn D. ( -/Miller Trustee [END OF SIGNATURES] Owners must sign in the presence of notary public Exhibit A — Amended Permitted Improvements Plan as Approved by Public Works Miller Family Trust First Amended Agreement Page 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 f Iss. On 20 before mem Notary Public, personally appeared 1 ol'MC< 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. CHRISTINE CORONA WITNESS my -hated and offici l--%�1 COMM. #2067673 W Notary Public - California m SAN BERNARDINO COUNTY -4 My Comm. Exp. May 10, 2018 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 c n ` <rn,c� ss. � On ( 20 before me Notary blic, personally appeared n U 4; 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 m -land and o I seal. Signature CHRISTINE CORONA o0 14 COMM. #2067673 V Notary Public - California m SAN BERNARDINO COUNTYA My Comm. Exp, May 10, 2018 (seal) Miller Family Trust First Amended Agreement Page 6 EXHIBIT A AMENDED PERMITTED IMPROVEMENTS PLAN Miller Family Trust First Amended Agreement Page A-1 Z ............... .......... ......... FD L EXHIBIT A 1 OF 1