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
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EXHIBIT A
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