HomeMy WebLinkAboutC-8936-1 - Encroachment Agreement Epn N2022-0079 for 312 Fullerton Avenue8/22/22, 8:37 AM
Batch 14543787 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 Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2022-0079)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
4th day of August, 2022, by and between Richard Phillips and Sheree L. Phillips, Trustees
of the Richard Phillips and Sheree L. Phillips Revocable Inter Vivos Trust dated July
11,1996 ("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 312 Fullerton Avenue,
Newport Beach, California, 92663 and legally described as Lot 8 and the Southwesterly 40-
feet of Lot 9 in Block 19 of First Addition to Newport Heights, as per map recorded in Book
4 Page 94 of Miscellaneous Maps, in the Office of the County Recorder of said County,
County Assessor's Parcel Number 049-053-18 ("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.
Richard Phillips and Sheree L. Phillips. Revocable`Fpter Vivos Trust dated July 11,1996
Encroachment Agreement
https://gs.secure-recording.com/Batch/Confirmation/14543787 3/6
_CORDING 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 N2022-0079)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
4th day of August, 2022, by and between Richard Phillips and Sheree L. Phillips, Trustees
of the Richard Phillips and Sheree L. Phillips Revocable Inter Vivos Trust dated July
11,1996 ("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 312 Fullerton Avenue,
Newport Beach, California, 92663 and legally described as Lot 8 and the Southwesterly 40-
feet of Lot 9 in Block 19 of First Addition to Newport Heights, as per map recorded in Book
4 Page 94 of Miscellaneous Maps, in the Office of the County Recorder of said County,
County Assessor's Parcel Number 049-053-18 ("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.
Richard Phillips and Sheree L. Phillips Revocable ter Vivos Trust dated July 11,1996
\
Encroachment Agreement \
It is mutually agreed that Permitted Improvements shall be defined as:
a. Four (4) 6-inch high steps constructed with gray concrete encroaching 3-feet
into the Fullerton Avenue right-of-way, Two (2) 3-foot, 6-inch high metal
handrails encroaching 3-feet into the Fullerton Avenue right-of-way and, A 1-
foot high block wall encroaching 8-foot, 6-inches into the Fullerton Avenue
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.
Richard Phillips and Sheree L. Phillips Revocable Inter Vivos Trust dated July 11,1996
Encroachment Agreement 2
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:
(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.
Richard Phillips and Sheree L. Phillips Revocable Inter Vivos Trust dated July 11,1996
Encroachment Agreement 3
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.
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]
Richard Phillips and Sheree L. Phillips Revocable Inter Vivos Trust dated July 11,1996
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: $l11.2as2
By:
Aaron C. Harp
City Attorney
ATTEST:
Date: o2Z
By: 2 �'�
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California mS10
ipal corporation
2 Z
Date: f}II
By:
Grq61K. Leung
Ci anager
OWNER(S): Richard Phillips and Sheree
L. Phillips, Trustees of the Richard Phillips
and Sheree L. Phillips Revocable Inter
Vivos Trust dat d Ju y 11,1996
Date: 1
By.-
Richard Phillips
Trustee
DatAlv'-)
z
F cgt�FoaN�r By.
Shill
Trustee
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by
Public Works
Richard Phillips and Sheree L. Phillips Revocable Inter Vivos Trust dated July 11,1996
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 California
County of OCLIA } ss.
On ' �� 2� b�f e m�, - �!�.� , Notary
Public, personally appeared _ ! who proved to
me on the basis of satisfactory evidence to be the p rs n(s) whose name(s)/r�ik� isore subsced to the
within instrument and, acknowledged- to me that 1e�he/they executes( the same in his4her/their
authorized capacity(i�), and that by hls/�er/their signatures(s) on the instrument the person(s)'; or the
entity upon behalf Wwhich the person(s'yacted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
par.1graph is true and correct.
WIT N and; d icial se I. ALLISON M. SIMPSON
Notary Public - California Y
Orange County
+` Commission # 2368522
My Comm. Expires Aug 11, 2025
Sign"2iture� ! (seal)
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 )SS.
On 20
Public, personally appeared
on the basis of satisfactory evidence to be th
instrument and acknowledged- to me that h
capacity(ies), and that by his/her�heir signatt
behalf of which the person(s) acted, executed
before, me, Rz.,�, Notary
pelson(s) whose name(s) "is�ore subs rit?ed to the within
/sh'� they executed the same In his/err,/}heir authorized
res�) on the instrument the person(s), or the entity upon
the Instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
n
WITN i S rn
hAnd and offi
ALLISON M. SIMPSON
Notary Public - California
W = Orange County a
Commission # 2368522
My Comm. Expires Aug 11, 2025
(seal)
Richard Phillips and Sheree L. Phillips Revocable Inter Vivos Trust dated July 11,1996
Encroachment Agreement 6
EXHIBIT A
PERMITTED IMPROVEMENTS PLAN
Richard Phillips and Sheree L. Phillips Revocable Inter Vivos Trust dated July 11,1996
Encroachment Agreement A-1