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Home My WebLink AboutC-6704 - Encroachment Agreement EPN N2009-0274 for 1224 West Ocean front�-- RECORDING REQUESTED AND Recorded in Official Records, Orange County WHEN RECORDED RETURN TO: Torn Daly, clerk -Recorder 9 � �Ilii!I�iii ��Ii! ��!!► �I�I1!!�'! ��►i� �ii�� ili 1!!�� !' �►�! i�� 21.00 U Public Works Department 2010000055603 4 01 pm 02/03/10 City of Newport Beach 42 411 Al2 8 Post Office Box 1768 0-00 0.00 0 00 0.00 21.00 0.00 0.00 0.00 Newport Beach, CA 92659-1768 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2009-0274) THIS AGREEMENT is made and entered into this 1St day of October, 2009, by and between James John Cefalia and Cathy Lynn Cefalia, Trustees of the Cefalia Family Trust established May 20, 1986 (hereinafter "OWNER"), and the City of Newport Beach, California, a municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California, (hereinafter "CITY"). OWNER is the owner of property located at 1224 W. Ocean Front, Newport Beach, California 92661 and legally described as Lot 7, Block 12 of Tract 234, as shown on a map recorded in Book 13, Pages 36 through 37 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California Assessor Parcel Number 047-241-19. WITNESSETH: WHEREAS, OWNER desires to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the West Ocean Front right-of- way (hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot 7, Block 12 of Tract 234, as shown on a map recorded in Book 13, Pages 36 through 37 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; also known as 1224 W. Ocean Front, Newport Beach, California; and 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 execute an 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. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as: a. A 4 -foot wide by 36 -inch high wooden gate with an inwards swing path encroaching up to seven feet into the public right-of-way; b. A 36 -inch high wall constructed with CMU blocks encroaching up to eight feet, two inches into the public right-of-way; C. A 36.44 -foot wide patio with two rise -in -steps constructed with standard concrete encroaching up to eight feet, two inches into the public right-of-way; d. Various private landscaping not to exceed 36 inches in height in an 18 -inch wide by 31 -foot long planting area encroaching eight feet, two inches into the public right-of-way; e. A 12 -inch wide strip constructed with standard concrete between the boardwalk and 36 -inch high wall encroaching up to nine feet, two inches into the public right-of-way and appurtenances in the West Ocean Front Street right-of-way as shown on EXHIBIT "A" attached hereto and as approved by the Public Works Department. In addition, if any of the PERMITTED IMPROVEMENTS actually built or installed during the time of construction vary from the 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. 2. 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 the CITY. CITY will further allow OWNER to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 3. Rights granted under this Agreement may be terminated by CITY at any time by giving 60 -day notice, 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. 4. 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 the CITY's Public Works Department, and as described on Exhibit "A" attached hereto. Encroachment Agreement Page 12 b. OWNER shall maintain the 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. d. That 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 the 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 the PERMITTED IMPROVEMENTS affected by such work by CITY. (iii) CITY agrees to bear only the cost of any removal of the PERMITTED IMPROVEMENTS affected by such work by CITY. (iv) OWNER agrees to pay all costs for the renewal, replacement, or restoration of the PERMITTED IMPROVEMENTS. 5. 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 the 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) day notice, with the notice specifying the date of termination. In the event of litigation, commenced with respect to any term of condition of this Agreement, the prevailing party shall be entitled to reasonable attorneys fees and costs incurred. Encroachment Agreement Page 13 6. 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 the PERMITTED IMPROVEMENTS. 7. 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 OWNERS' interest in the land, whether fee or otherwise, and shall be recorded in the Office of the County Recorder of Orange County, California. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. Encroachment Agreement Page 4 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: By: /-X-� yn 15 -re uc amp, Assistant City A orney ATTEST: By: 0 ; PM4� Qkw'v� Y Leilani Brown, City_,' , 014 1 FOR. ATTACHMENTS: EXHIBIT A—Plans as approved by Public Works CITY OF NEWPORT BEACH, a Municipal corporation By: Da A. Kiff, City Manager OWNER: By: > Ja John Cef , Trustee Cr` 4Cefalia Family Trust OWNER: By: emC . Cathy Lyn falia, TruJte be-falia Family Trust F:\users\cat\shared\Co ntractTemplatesPubIishedon I ntranet\FORM EA. doc Revised: 03.05.09 f:\users\pbw\shared\encroach\row agreements\2009\n2009-0274- 1224 w. ocean front (cefalia family trust).doc Ce CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA) COUNTY OF ORANGE ) On /811 before me, V&)q�f. Notary Public, personally appeared rim as /,9 1>r9 , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)s°/are subscribed to the within instrument and acknowledged to me that be e~hey executed the same in kW-b&f/their authorized capacity(ies), and that by Ws4iw/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. WITWS my hand and official seal. ry Public in and fo(Xaid State OPTIONAL INFORMATION Title or Type of Document: Date of Document: (SEAL) . DAVID E. REGULA C. ' COMM, 4172366 0 3 W NOTARY PUBLIC CALIFORNIA ORANGE COUNTY a p My Comm. 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QQ O p ya`DQM z Qw ��-- _Z Q CL co N_ LL LL i vQ0-i O cri 07 U- CODNI I i112I3dOUdvpo Z n wcncn o U- 2 Q W m 0 Z Q 1NMAJNV300 91 F- 0 IL U) Z 0 oto LL 0000- �Ua W QwmZ Q az=z �o�� 0 r� � � J J LLL p Z iM Q Z LU H X O o w (� 00 z T= N Y JQ f - c Q LL zD =Y U z OO O U O =m UF- —0 3= zaW�0 Z co U 2 Q W m 0 Z Q 1NMAJNV300 91 F- 0 IL U) Z 0 oto LL 0000- �Ua W QwmZ Q az=z �o�� 0 r� � � J J LLL p Z iM Q Z LU H X O o w (� 00 z T= CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Dr wu On l before me, JV\D� C�1 G(V1I NJ�(,lk`'� �wbllCi Date re Insert Name a d Title of the Officet personally appeared JJo, A, who proved to me on the basis of satisfactory evidence to be the person() whose name(e) islare subscribed to the within instrument and acknowledged to me that he/,Rhefittfq executed the same in his/l;t,, le4r authorized capacity0ea), and that by his/4e4it signature(-&) on the instrument the person(-sj, or the entity upon behalf of which the person(&) acted, executed the instrument. SHANA ELISE STANLEY"0101 I certify under PENALTY OF PERJURY under the Commission # 1861499 laws of the State of California that the foregoing -a Notary Public - California paragraph is true and correct. Orange County 1omm.E�gres Avo 16, 2013 tWITNESS my hand and official seal. Signature: Place Notary Seal and/or Stamp Above OPTIONAL V Signatur4lof Notary Public 1 1 Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document y Title or Type of Document: ri io"MzAt rQ (,y►�Y�y�i Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here I 1 Attorney in Fact EJ Trustee I_ -II Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Corporate Officer— Title(s): ❑ Individual ❑ Partner — ❑ Limited Li General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 02008 National Notary Association- 9350 De Soto Ave., P.O. Box 2402 -Chatsworth, CA 91313-2402- www.NationalNotary.org Item #5907 Reorder: Call Toll -Free 1-800-876-6827