HomeMy WebLinkAboutC-6070(A) - Encroachment Agreement EPN N2013-0188 for 310 East Ocean FrontRECORDING REQUESTED BY AND
1 WHEN RECORDED RETURN TO:
V Public Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
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Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
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Exempt from recording fees pursuant to Govt. Code section 27383
pace above this line for Recorder's use only
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2013-0188)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this 12th day of June, 2013, by and between James John Cefalia, II and Sarah Marie
Cefalia, husband and wife as joint tenants, as to an undivided 50% interest and James
John Cefalia and Cathy Lynn Cefalia, Trustees of the Cefalia Family Trust, established
on May 20, 1986, as to an undivided 50% interest, as Tenants in common ("Owner"),
and the City of Newport Beach, California, 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 310 E. Ocean
Front, Newport Beach, California 92661 and legally described as Lot 6, Block 2 of
Newport Bay Tract, as shown on a map recorded in Book 4, Page 16 of Miscellaneous
Maps in the office of the County Recorder of Orange County, County Assessor's Parcel
Number 048-082-06 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the East Ocean Front 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.
2. It is mutually agreed that Permitted Improvements shall be defined as:
a. A 36-inch high block wall with a tan colored stucco located at the back of
the existing boardwalk within the East Ocean Front right-of-way;
b. A 4-foot wide wooden gate with an inwards swing located at the back of
the existing boardwalk within the East Ocean Front right-of-way;
C. A 4-foot wide entry walkway constructed of beige colored stamped
concrete located at the back of the existing boardwalk within the East
Ocean Front right-of-way to the property line;
d. A patio constructed of beige colored stamped concrete located between
the entry walkway and the property line;
e. Various private low -growing groundcover and landscaping not to exceed
36 inches in height located from the back of the block wall to the property
line, as approved by the Public Works Department and as shown on
Exhibit A, attached hereto and incorporated herein by reference.
f. 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.
Cefalia Family Trust Encroachment Agreement 2
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.
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.
Cefalia Family Trust Encroachment Agreement 3
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.
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]
Cefalia Family Trust 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 ATTQ NEY'S OFFICE
Date: -, �} 3
By:
Aaron .Harp 1f��
City Attorney
ATTEST: 114-P)
Date:
`qc.r Fo
c
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: II-13.13
�tav iff
City Map6ger
OWNER(S): James John Cefalia, 11 and
Sarah Marie Cefalia, husband and wife
as joint tenants, as to an undivided 50%
interest and James John Cefalia and
Cathy Lynn Cefalia, Trustees of the
Cefalia Family Trust, established on
May 20, 1986, as to an undivided 50%
interest, as tenan s in common
Date: i
By o-L ---
Ja es,John dfal,ra, II
Husband
Date: 10 � 2 1 r
By: t
Sarah Marie Cefali
Wife
Date: ��� Date: I ti
By: By:
a ohn Cefali , rus ee /✓ Cathy Lynn C falia rustee
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENT: Exhibit A —Permitted Improvements Plan as Approved by
Public Works
Cefalia Family Trust Encroachment Agreement 5
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ACKNOWLEDGMENT
State of California
County of } ss.
On C)/9 /i 20 before me,
/JIS i� c Notary Public, personally appeared
�Tr4rn s \libd Ce-M , 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.
certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing para raph is true and correct.
PHYLLIS 0. BECK
WITNESS my/ and and official seal. Commission # 1954378
Notary Public - California
Orange County
My Comm. Expires Oct 27 2015
Sigq ture (seal)
ACKNOWLEDGMENT
State of Californi
County of �' l�L "o } ss.
20 before me,
Notary Public, personally appeared
14v--,4 h M y.-., e— CX- t-19- c 1 1 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 m" y hand and official seal. P L.!s o. BECK
Commission # 1954378
\ lip Notary Public - California z
�- orange County
MyCnmc! Expo M27,2015+
S i grA ture sea
Cefalia Family Trust Encroachment Agreement 6
ACKNOWLEDGMENT
State of California
County of ) SS.
On v 1�2 20 before me,
16 -e c Notary Public, personally appeared
1 F=i IC)A Cc.F/�L,')� 1�r5 --_. 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 par Nraph is true and correct.
-` PHYLLIS D. BECK
WITNESS my hand and official seal. 7 """T` Commission # 1954378
two
Notary Public - California
_ .P� Orange County
My Comm. Expire Oct 27, 2015
Sig atur� ' r (seal)
ACKNOWLEDGMENT
State of Californi
County of dlze, ,c- S42e . } ss.
On _� / _ 9 1 20 before me,
00 >°(- , Notary Public, personally appeared
�AcLtiu �nl,v FALr� '7-,,C=iiS e' who
proved tef me 6n 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 ppragraph is true and correct.
WITN S my hand and official seal. " "" PHYLLIS 0. BECK
commission #E 1954378
Notary Public - California
_ /J z
Ore" County
GG ?_] /� My cc rnm. es Oct 27. 201
gnat (seal)
Cefalia Family Trust Encroachment Agreement 7