HomeMy WebLinkAboutC-7453-1 - Encroachment Agreement EPN N2018-0292 for 1374 Galaxy DriveRECORDING REQUESTED'BY AND
WHEN RECORDED RETURN TO:
Attn: City Clerk's Office
City of Newport Beach
P..O:8ox1788 .
Newport Beach, CA 92658=8915
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
IIIII jjf�l 11111111 111f 1111 111f J11 11111 111f III 11111111 11111133.00
*$ R 0 0 1 0 1 6 6 8 5 2$*
2018000224820 4:07 pm 06/19118
227 Sec2 Al 9
0.00 0.00 0.00 0.00 24.00 0.00 0.000.000.00 3.00
Space above this.line:for Recorder's use only.
ENCROACHMENT AGREEMENT,
(Encroachment Permit Number.N2018-0292)
THIS ENCROACHMENT AGREEMENT ("Agreement") :is made and entered..into this.
6th day of June, 2018, by and between Julie Warmington White, as Trustee of the Julie.
Warm ington: White S.P.T #1. established January 29,1998 ("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 1374 Galaxy Drive;:
Newport Beach, California,. 92626 and legally described as Lot 83 of Tract.4224,'in the. City
of Newport Beach; County of Orange, State of California, as per, map recorded in Book 157,
Pages 1. to '14 inclusive of Miscellaneous Maps, in the office•of the County Recorder of
Orange: County, having County Assessor's Parcel Number 117-682-10 .("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as further
described. herein ("Permitted Improvements") within the Galaxy Drive . right-of-way
(hereinafter "Right -of -Way") that is located adjacent to Property;
WHEREAS, said Permitted Improvements may interfere in the futurewith. 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 .arid correct and are
hereby incorporated by reference into this Agreement.
2. It is mutually agreed .that Permitted. Improvements. shall .be defined as:
Julie: rmington White S. #1 ;Encroachment Agreement 1
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.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2018-0292)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
6th day of June, 2018, by and between Julie Warmington White, as Trustee of the Julie
Warmington White S.P.T #1 established January 29,1998 ("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 1374 Galaxy Drive,
Newport Beach, California, 92626 and legally described as Lot 83 of Tract 4224, in the City
of Newport Beach, County of Orange, State of California, as per map recorded in Book 157,
Pages 1 to 14 inclusive of Miscellaneous Maps, in the office of the County Recorder of
Orange County, having County Assessor's Parcel Number 117-682-10 ("Property"),
WHEREAS, Owner desires to construct certain non-standard improvements as further
described herein ("Permitted Improvements") within the Galaxy Drive 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:
City and Owner acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference into this Agreement.
2. It is mutually agreed that Permitted Improvements shall be defined as:
Julie Warmington White S.P.T #1 Encroachment Agreement 1
a. A decorative carriage walk constructed of eighteen -inch (18") by thirty six-inch
(36") grey limestone pavers encroaching up to ten -feet (10) into the 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. Upon termination of this Agreement, Owner hereby agrees and
convenants to forthwith remove, or cause to be removed, from the Right -of -Way any
and all Permitted Improvements and to restore the Right -of -Way to at least as good a
condition as such Right -of -Way was in prior to the execution of this Agreement. City
shall incur no liability whatsoever in the event of the termination of this Agreement or
subsequent removal of improvements by City after first giving Owner a reasonable
period of time to remove, or cause to be removed, the Permitted Improvements from
the Right -of -Way.
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 and restoration of these public facilities or improvements to their
condition at the time of entry into this Agreement.
d. That Owner will not permit any dangerous condition to be created on the Right -
of -Way or any portion thereof.
Julie Warmington White S.P.T #1 Encroachment Agreement 2
e. That all acts and things done by Owner on, in or within the Right -of -Way will be
done in a careful and reasonable manner, in accordance with all federal, state
and local laws.
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 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 Permitted 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 hereby agrees to and 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. This indemnity shall survive the termination or expiration of this
Agreement.
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.
Julie Warmington White S.P.T #1 Encroachment Agreement 3
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
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, applicable to
Owner's activities granted by this Agreement.
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]
Julie Warmington White S.P.T #1 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 ATTORNEY'S OFFICE
Date: J�'GIfo.'20/Sd
By:
1�_�!Aaron C. p •(.•� 8
City Attorn
ATTEST: / /4 r
0
Date: �7 1(`
By: {
bft---
Leilani I. rown
City Clerk
�r <<llPO _ �O
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: terto r -, q It
By:
Dave Kiff
City Manager
OWNER(S): Julie Warmington White as
Trustee of the Julie Warmington White
S.P.T #1 established January 29,1998
Date:
By:(Vk Vv OAAL"
Juli Warmington hite
Tru t e
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by
Public Works
Julie Warmington White S.P.T #1 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 Californid
County of
On
Public, personally alp
me on the basis of sa
instrument and ackn�
capacity(ies), and that
behalf of which the per
_} ss.
20
ared
before me,
ictory evidence to be the person(s) whose n
edged to me that he/she/they executed I
y his/her/their signatures(s) on the instrV
kn(s) acted, executed the instrument.
I certify under PENALTY
paragraph is true and corr
WITNESS my hand and
Signature
F PERJURY under the
I seal.
A notary public or othei
certificate verifies only the id
signed the document to
attached, and not the truthfu
of that document. /
State of California
County of
On
Notary
who proved to
ae(s) is/are subscribed to the within
e same in his/her/their authorized
ent the person(s), or the entity upon
the State of California that the foregoing
KNOWLEDGMENT
Ffiter completing this
y of the individual who
ich this certificate is
3s, accuracy, or validity
ss.
Public, personally appeare
the basis of satisfactory vidence to b
instrument and ackno edged to me th
capacity(ies), and thcXby his/her/their sic
behalf of which the erson(s) acted, exec
(seal)
before me, , Notary
proved to me on
the person(s) whose name(s) is/are subscribed to the within
t he/she/they executed the same in his/her/their authorized
1 atures(s) on the instrument the person(s), or the entity upon
j ed the instrument.
I certify under PENALTY OF PERJURY uipder the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Julie Warmington White S.P.T #1 Encroachment Agreement 6
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 Orange
On 06/13/2018
before me, Rose Alvarez, Notary Public
(insert name and title of the officer)
personally appeared Julie Warmington White
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 signature(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. De 110SE ALVAREZ
Notary Public = California
Orange County =
Commission # 2155222
My Comm. Ex ires May 29, 2020
Signature (Seal)
Description of Attached Document:
Date:
�.�J����Mi✓t�' �� _ Oto �13 � 20 tS
EXHIBIT A
PERMITTED IMPROVEMENTS PLAN
Julie Warmington White S.P.T #1 Encroachment Agreement A-1
A - TI
1 -;�'7 + CALAk'j -PF-.
N .0f.s ,