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HomeMy WebLinkAboutC-6824 - Encroachment Agreement EPN N2012-0011 for 221 East Bay FrontT N CID 9 t C 1 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 SCANNED Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder 30.00 *$ R 0 0 0 4 9 8 1 6 8 7 201200040679310:53 am 07118112 62 417 Al2 9 0.00 0.00 0=00 0.00 24.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN 2012-0011) THIS ENCROACHM NT AGREEMENT ("Agreement") is made and entered into this 1 day of MA ' , 2012, by and between Barry P. O'Neil and Ann H. O'Neil, Trustees of thi Barry P. and Ann H. O'Neil Family Trust established December 15, 1994 ("Owner"), and the City of Newport Beach, California, a California municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California ("City"). WITNESSETH: WHEREAS, Owner is the vested owner of property located at 221 E. Bay Front, Newport Beach, California 92662 and legally described as Lot 20, Block 5 of the Map of Section Five of Balboa Island, as shown on a map recorded in Book 8, Page 9 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 050-193-30 ("Property"). WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the East Bay Front right-of- way (hereinafter "Right -of -Way") that is located adjacent to the 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 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. It is mutually agreed that Permitted Improvements shall be defined as: a. A 12-inch high planter constructed of "Red Mountain" stone pavers located at the back of the existing bay front sidewalk encroaching up to 6 feet into the East Bay Front right-of-way; b. A 30-inch high planter wall constructed of "Red Mountain" stone pavers located 2-feet, 6-inches back from the existing bay front sidewalk encroaching up to 3 feet, 6 inches into the East Bay Front right-of-way; C. A 5-foot wide entry walkway constructed of "Red Mountain" stone pavers encroaching up to 6 feet into the East Bay Front right-of-way; d. A raised "Red Mountain" stone paver patio located between the 30-inch high planter wall and the property line within the East Bay Front right-of-way; e. Various private landscaping not to exceed 2 feet in height measured from the sidewalk elevation and various private irrigation improvements in said planters located within 2-feet, 6-inches of the back of the existing bay front sidewalk in the East Bay Front right-of-way and appurtenances as shown on EXHIBIT "A" attached hereto and as approved by the Public Works Department. f. 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 with or without cause and at any time without notice. The City shall make good faith efforts to provide notice (60) days 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. 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. 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, Encroachment Agreement Page 12 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 not be entitled to reasonable attorneys fees and costs incurred. 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 Encroachment Agreement Page 13 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 14 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: I / I Ls By: Aaron C. Harp, City Attorney J�A ATTEST: Date: 'GLo__� /, c By: Leilani Brown, City Clerk CITY OF NEWPORT BEACH, a California Municipal corporation Date: J 131 .-,2-- By: Dav`0 Kiff, City Manager OWNER ): Date: g ZaIV By:��� Barry O'Neil, Trustee Barry P. and Ann H. O'Neil Family Trust Date: `I -Z3 0 Z 'LiBy: �q �vs Ann H. O'Neil, Trustee Barry P. and Ann H. O'Neil Family Trust Owners must sign in the presence of notary public ATTACHMENTS: EXHIBIT A —Plans as approved by Public Works Ilcnb-20051userslpbwlsharedl1-encroach Vow agreements 120121n2012-0011 221 e. bay front (obeil family trust).docx Encroachment Agreement i=` <_ g e 15 State ACKNOWLEDGMENT of County of �IaQ. } ss. California On Avc,) 73,, 2oa before me, Seo,,� Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) JA81are subscribed to the within instrument and acknowledged to me that hey&# /they executed the same in h+s et/their authorized capacity(ies), and that by Ns�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 my hand and official seal. Signature JLA- SEAN ANGIER — W U COMM. #1875700 0NOTARY PUBLIC • CALIFORNIA �.( COUNTY OF ORANGE p ACKNOWLEDGMENT MY COMM Expires January 3, 2014 State of California County of } ss. On before me, Notary Public, personally appeared 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. WITNESS my hand and official seal. Signature (seal) Encroachment Agreement 16 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of Or6Lhq On CA-U 31 t dbl �- before me, �� t _ fC l e t,t4 -J Date Here Insert Name and Title of the Officer personally appeared Dick-o C_ L Name(s) of Signer(s) KIM RIEFF rA______Cor_rffl_V3_8l0_n # 1967536 Notary Public - California IQ Orange County MY Comm• = Jan 26, 2016 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the personJs whose name(• is/ave subscribed to the within instrument and acknowledged to me that he/sl6/t i5y executed the same in his/hSr/flleri- authorized capacity(!K, and that by his/hpdtlle°r signatureK on the instrument the person(,?); or the entity upon behalf of which the person(oacted, 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 an officiaall seal. Signature: Signature of Nota ubl' OPTIONAL 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 L Title or Type of Document: 1- Yl C�-Oan r v ckt A-G rcry.�L CAP N -2pia -noa Document Date: 511 � / / .;�- Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing RIGHT THUMBPRINT OF SIGNER Signer's Name: F 1 Corporate Officer — Title(s): ❑ Individual 0 Partner — Ci Limited ❑ General Top of thumb here ❑ Attorney in Fact Trustee LJ Guardian or Conservator Other: Signer Is Representing zu iu Nationai Notary Association • NationaiNotary.org • 1-800-US NOTARY (1-600-676-6827) Item #5907 ETBACK 3'-6" E�MrINU gAj- fYONT S! DEYYA W- 6 y .... Q G I � o I I J6 PA -DO, � I o o ' o ' o B� UP !�► 'K@7 _ 12"T 2.5% � -3 Y O rib [n b' 0� ts) 8 6 TYP 2-0" ALL WORK IN PUBLIC RIGHT-OF-WAY SHALL COMPLY WITH CITY COUNCIL POLICY L-6 I I W1 H 16 I4 PdW'TF. 'NER: Barry P. and Ann H. O'Neil Family Trust ADDRESS: 221 E. Bay Front Newport Beach, CA 92662 NOTICE ISSUANCE OF A BUILDING PERMIT BY TH CITY OF NEWPORT BEACH DOES NOT RFLIEV APPLICANTS OF THE LEGAL REQUIREtvIL.NT TO OBSERVE COVENANTS, CONDITIONS AN RESTRICTIONS WHICH MAY BE RLCORDE AGAINST THE PROPERTY OR TO OUTAI COMMUNITY ASSOCIATION APPROVAL ( PLANS YOU SIIOULD CONTACT YOL PRIOR COMMUNITY ASSOCIATION COMMENCEMENT OF ANY CONSTRUCTI AUTHORIZED BY THIS PERWT- V I C he copy'fg These chon to t exf CRY OF NEWPORT BEACH BUILDING DEFARTM APPROVAL OF THESE PLANS DOES NOT CONSTITUTE AUTHORIZATIONCONSTRUCT YING IN VIOLATION RESS OR IE WITHS OF THE CITYY 0 THE ORDINANCES, PLANS,ANDPOLIC NEWPO IN ALL APPROVAL DOES NOT GUARANTEE THAT THESE PLANS ARE, COMPLIANCE WITH CITY, BUILDING AND ZONING ORDINANCES, PLANS THE CITY OF NEWPORT BEACH RESERVES THE RIGHT TO REO RE ANY REVISE THE BUILDING STRUCTURE. OR IMPROVEMENT AUTHO D BY BEFORE, DURING OR AFTER CONSTRUCTION, IF NECESSARY 0 C0h ORDINANCES, PLANS AND POLICIES QFPEPD(eF NEWPORT PERMITTEE'S ACIQ DEPARTMENT Exhibit "A" PUBLIC WORKS GENERALSERVICE Sheet 1 Of 2 FIRE GRADING N2012-0011 UOU5 DRAIN, CONNECT TO A55, 5DR 35 DRAINLINE v11N. 5LOPE. ELEVATION5 PER y6 PLAN <,TED 5AND BA5E PER REPORT 1-1/2" =1'-O" 5 51TEo3 LDRAINAGE SWALE 30" 1 5URFAGE, 5LOPE TO DRAIN 6" �RADIN6 PLAN STONE/BRICK VE14EER W/ MASONRY AN HORS HARD5GAPE 1 PER EACH 2.61 5F MAX 24" HIGH PLANTS 5GAPE AREA ABOVE 51DEWALk E @ 2% MIN, TYP. FIN15H GRADE — X CURB — 12" HIGH m MAX N PIPE PER PLAN 6RADIN6 PLAN F-45TIN6 BOARDWALK 10MLE55 CATCH BA51N 5/4" CRUSHED ROCK 6" GONG. BLOCK FULLY GROUTED FIN15H GRADE 4" THICK GONG. SLAB W/ #4 @ 24" EACH WAY D O� o. . . DRAINLINE PER PLAN #4 REBAR @ 24" O.G. VERT. AND HORIZ. WEEP HOLES @ 24" D.G. a #4 REBAR GONTINUOU5 v TOP AND BOTTOM z 15" MIN. in 51 _ 1 _0 6 51TE11B STEM WALL AT PATIO 40RETE OR 6" TOP501L CLOTH " AT TOP 3/4" = 1-O' r f - sr W IRON GRATE ' 4= Exhibit "A" Sheet 2 of 2 N2012-0011