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HomeMy WebLinkAboutC-7861-1 - Encroachment Agreement EPN N2020-0190 for 227 Grand Canal0 r V RECORDING REQUESTED BY ANI WHEN RECORDED RETURN TO: Attn: City Clerk's Office City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder 1111:'81!11 IIIIIIBIiiIIIIIII IIIiIIIIIIIIIIIIII IIID II III 37.00 *$ R 0 0 1 1 7 1 0 9 4 4$ 2020000240511 10:16 am 05/28/20 9 503A Al2 10 0.00 0.00 0.00 0.00 27.00 0.00 0.000.000.00 3.00 Space above this line for Recorder's use ENCROACHMENT AGREEMENT (Encroachment Permit Number N2020-0190) THIS ENCROACHMENT AGREEMENT ("Agreement) is made and entered into this 22nd day of April, 2020, by and William E. Thomas and Terre Thomas, Trustees of the Thomas Family Trust dated September 25, 1995 ("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 227 Grand Canal, Newport Beach, California, 92662 and legally described as Lot 15 of Block 11, Section 4, Balboa Island in the City of Newport Beach, County of Orange, State of California, as per map recorded in Book 7, Page 37 of Miscellaneous Maps, in the office of the County Recorder of said Orange County, County Assessor's Parcel Number 050-163-25 ("Property's; WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Grand Canal 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. Thomas Family Trust dated September 25, 1995 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 N2020-0190) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 22nd day of April, 2020, by and William E. Thomas and Terre Thomas, Trustees of the Thomas Family Trust dated September 25, 1995 ("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 227 Grand Canal, Newport Beach, California, 92662 and legally described as Lot 15 of Block 11, Section 4, Balboa Island in the City of Newport Beach, County of Orange, State of California, as per map recorded in Book 7, Page 37 of Miscellaneous Maps, in the office of the County Recorder of said Orange County, County Assessor's Parcel Number 050-163-25 ("Property"); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Grand Canal 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. Thomas Family Trust dated September 25, 1995 Encroachment Agreement 1 2. It is mutually agreed that Permitted Improvements shall be defined as: a. A twenty-six (26) foot and six (6) inch long by one (1) foot tall gray concrete planter encroaching up to three (3) feet, six (6) inches into the Right -of -Way; and b. A twenty-four (24) foot and six (6) inch wide by two (2) feet, six (6) inch tall patio encroaching up to one (1) foot 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. C. 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 and restoration of these public facilities or improvements to their condition at the time of entry into this 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 Thomas Family Trust dated September 25, 1995 Encroachment Agreement 2 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 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 Thomas Family Trust dated September 25, 1995 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] Thomas Family Trust dated September 25, 1995 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 ATTOR EY'S OFFICE Date: -zp z a B : /1 "'C Aaron C. Harp City Attorney ATTEST: Date: �7.�p C Leilani I. Brown City Clerk '.••.` CITY OF NEWPORT BEACH, a California municipal corporation Date:5- Ili - 202-D By: Grr Leung Citager OWNER(S): William E. Thomas and Terre Thomas, Trustees of the Thomas Family Trust dated September 25, 1995 Date: t}11'/1( L o23) ),0 2Z William E. Th6m- as Trustee Date: By: Terre Thomas Trustee [END OF SIGNATURES] Owners must sign in the presence of notary public ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by Public Works Thomas Family Trust dated September 25, 1995 Encroachment Agreement 5 CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 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 l' i'li1t' t 1 On —�ri 1 23, .20 LO before me, ;Q0 M d mQ O O6 D+✓vi 001)l Il , Date I c Here Insert a� ffi Title of the cer personally appeared -Te,,,-Ye- T7io YV1Gt-s Nome(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(gwhose name(sf is/are subscribed to the within instrument and acknowledged to me that-4e/she/they executed the same in h+s/her/#heir authorized capacity(iwe j, and that by4-4is/her/4heir signature(sp on the instrument the person(), or the entity upon behalf of which the person(* acted, executed the instrument. I certify under PENALTY OF PERJURY under the `-r+oru of c.)APo laws of the State of California that the foregoing otary Public - California RiverSiae county _ paragraph is true and correct. :Con nn,,mn p 22981 57 0'. Comm. Expires Jul 21. 2023 WITNESS my hand and official seal. Signature Place Notary Seal and/or Stamp Above Signature of Notary Public Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer - Title(s): ❑ Partner - ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: ©2018 National Notary Association Number of Pages: Signer's Name: ❑ Corporate Officer - Title(s): ❑ Partner - ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 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 R'yew-SIGL On .,& 1 21s. 2,0 before me, Nl2E4 (C 9 (�im�'J•� , ��t—nt7�-f�i�( a 11 �, Date 1 ' Here Insert Name and Title of the Offi e 1 personally appeared ► I �°/yn E— (� Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person whose name isLape subscribed to the within instrument and acknowledged to me that he/&4eA4ey executed the same in his/her-Abeir authorized capacityU.G� , and that by his/4ef4heir signatureA on the instrument the person(, or the entity upon behalf of which the person.W acted, executed the instrument. I certify under PENALTY OF PERJURY under the IlNOR A DUCAMPO laws of the State of California that the foregoing Notary Public -California Riverside County _ paragraph is true and correct. Commission M 2293157 My Comm. Expires Jul 21, 2023 WITNESS my hand and official seal. Signature Place Notary Seal and/or Stamp Above Signature of Notary Public Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: ©2018 National Notary Association Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: EXHIBIT A PERMITTED IMPROVEMENTS PLAN Thomas Family Trust dated September 25, 1995 Encroachment Agreement A-1 ZZ, ki)