HomeMy WebLinkAboutC-8911-1 - Encroachment Agreement EPN N2022-0226 for 431 Fullerton Avenue7/27/22, 10:09 AKI
Batch 14400441 Confirmation
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
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
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Space above this line for Recorders use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2022-0226)
THIS ENCROACHMENT AGREEMENT ("Agreements) is made and entered into this
23rd day of June, 2022, by and between Robert J. Bell and Karen A. Bell, Trustees of the
Bell Family Trust, dated April 5, 2001 ("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 431 Fullerton Avenue,
Newport Beach, California, 92663 and legally described as Lot 17, Block 28 First Addition to
Newport Heights, in the City of Newport Beach, County of Orange, California as per map
recorded in Book 4, Pages 94, of Miscellaneous Maps in the Office of the County Recorder
of said County, County Assessor's Parcel Number 049-052-15 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as further
described herein ("Permitted Improvementsl within the Fullerton Avenue 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.
Robert J. Bell and Karen A. Bell, Trustees Encroachment Agreement
https://gs.secure-recording.com/Batch/Confirmation/14400441 7/8
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 N2022-0226)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
23rd day of June, 2022, by and between Robert J. Bell and Karen A. Bell, Trustees of the
Bell Family Trust, dated April 5, 2001 ("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 431 Fullerton Avenue,
Newport Beach, California, 92663 and legally described as Lot 17, Block 28 First Addition to
Newport Heights, in the City of Newport Beach, County of Orange, California as per map
recorded in Book 4, Pages 94, of Miscellaneous Maps in the Office of the County Recorder
of said County, County Assessor's Parcel Number 049-052-15 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as further
described herein ("Permitted Improvements") within the Fullerton Avenue 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.
Robert J. Bell and Karen A. Bell, Trustees Encroachment Agreement
2. It is mutually agreed that Permitted Improvements shall be defined as:
a. A 5' wide by 10' long flagstone entry carriage walk encroaching up to 10' into
the Fullerton Avenue public right of way; a 2- wide by 30' long flagstone
walkway encroaching up to 12' into the Fullerton Avenue public right of way, -
and landscaping not to exceed 36-inches in height within the Fullerton Avenue
public 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. 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
or future public facilities or improvements, City may remove portions of
Permitted Improvements, as required, and in such event:
Robert J. Bell and Karen A. Bell, Trustees Encroachment Agreement Page 2
(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
agreements of whatsoever kind or nature are merged herein. No verbal agreement
or implied covenant shall be held to vary the provisions herein.
Robert J. Bell and Karen A. Bell, Trustees Encroachment Agreement Page 3
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]
Robert J. Bell and Karen A. Bell, Trustees Encroachment Agreement Page 4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY A TORNEY'S OFFICE
Date. d3
By. -
Aaron C. Harp�ti�r
City Attorney
ATTEST: ,iJ /)
Date:
By: Otw
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date. ,ZZ
,112K
By: l \ ,Ll� .
Grace K. Leung
City Manager
OWNERS): Robert J. Bell and Karen A.
Bell, Trustees of the Bell Family Trust,
dated April, 5, 2001
Date: (-c.6& 12.
Wo- :-
Date:
—
Karen A. Bell
Trustee
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by
Public Works
Robert J. Bell and Karen A. Bell, Trustees Encroachment 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-6
County of
SS.
On 20 j�efore me,;;�i/, TV/�tr��r �1 Notary
Publi , pers nally appeared �2� : /J - [ , who proved to
person(s) whose name(b) is/are subscribed me on the basis of satisfactory evidence to be the ed to the within
instrument and acknowledged to me that here/thgy executed the same in his/her/their authorized
capacity(las), and that by his/tterltheir signatures(s). on the instrument the persons), or the entity upon
behalf of which the personN) acted, executed the instrument_
I certify under PENALTY OF PERJURY
paragraph is true and correct.
WITNESS my hand and
t� o ial seal,
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Sign re
under fte, laves of the State of -Gakfomia
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Doc Date:
Notary Name: s
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ACKNOWL06MENT
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.
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the basis of satisfactory evidence to be the person(s) whose name(&) is/are subscribed to the within
instrument and acknowledged to me that hZlshe/tNy executed the same in hips/herlth@ir authorized
capacity(ib,$), and that by Its/herlthelr signaturesl*) on the instrument the person`(&), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJUR
paragraph is true and correct.
WITNESS my hand and
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under the laws of the
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EXHIBIT A
PERMITTED IMPROVEMENTS PLAN
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