HomeMy WebLinkAboutC-5915 - Encroachment Agreement EPN N2013-0390 for 4009 Seashore DriveCOPY
CCO NOT OFR
RECORDING nEQu y'rEu BY AND
WIWN RFCORDLI) RIIJRN TO:
Public Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
R,�corded in C fticial Reco'cI , Qninye County
Nuyh Ng aye n, Clerk-Hecold€f
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Space above this tine for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2013-0390)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this 6th day of August 2014, by and between Charles P. Cusumano as Trustee of the
Charles P. Cusumano 1992 Trust ("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
4009
WHEREAS, Owner is the vested owner of property located at-4609 Seashore
Drive, Newport Beach, California 92663 and legally described as Lot 5, Block 40 of third
addition to Newport Beach, as shown on a map recorded in Book 3, Page 31 inclusively
of Miscellaneous Maps in the office of the County Recorder of Orange County, County
Assessor's Parcel Number 423-313-05 ("Property');
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Seashore Drive 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 164001 wide driveway constructed with cobblestone paving aeneroacliing
3 -feet into the Seashore Drive right-of-way, as approved by trio 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
variatlons 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 Gity. 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.
Charle
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 Ilmited
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:
P. Cusumano 1992 Trust Encroachment Agreemen
(1) Gity shall notify Owner in advance of its intention to accomplish
such work, provided tliat 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.
(ili) 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 attorneysfees.
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 helrs,
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.
Charles P. Cusumano 1992 Trust Encroachment Agreement
This Agreement reprosents the full and complefe understanding of every kind or
nature whatsoever between the parties kereto, and all proliminary 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 Owrier'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]
Charles P. Cusumano 1992 Trust Encroachment Agreement
4
IN WITWESS WHEREOF, the; partios hereto have causec.1 this Aqreernont to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY Ai. PI4FY'S OFFICE
Date: j\jti2lkj
By:
Pat�n C. Harp
City Attorney
ATTEST:
Date:
By: (7
Lailani 1. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
av
ity Y ager
OWNER(S): Charles P. Cusumano,
Trustee, Chrles P Cuumano 1992 Trust
Date: '//2 //
By:
Charles P. Cusumano
Trustee
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENT: Exhibit A —Permitted Improvements Plan as Approved by
Public Works
—.....—..—.........1. . ....
Charles P. Cusumano 1992 Trust Encroachment Agreement
ACKNOWLEDGMENT
State of California
County of. z 3....' Pss.
I
On (`'�{ 1 1 �.r�ai`_j 20 before me,
i_f rh t c t a z:�l Notary Public, personally appeared
�1(age)es; . C•''; who
proved to me on the basis of satisfactory evidence to be thew,person(s) whose rtafSLe subscribed to to the within instrument and acknowledged to me that he/she/they executed the
same in his�F1er/tbeir authorized capac ty(iss), and that by,mhis/her/their signatures(&) `on the
instrument the person(sa; or the entity upon behalf of which the persons) acfed, executed the
instrument.
1 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.
BROWN
01987993
ary Publlc.Qllrmnla
Los Angeles County
Comm. &plrel Sep 10 016
(seal)
ACKNOWLEDGMENT
State of California
County of } as.
On
20 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) en the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
1 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
Charles P. Cusumano 1992 Trust Encroachment Agreement
(seal)
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RECORDING ORDING REQUESTI
WIJLN RECORDED RE"I'UR.
Public Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
kecorded bi Official Records, Orrur
Hu h Nguyen, Clerk•Recordcr
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2014-0307)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this 27th day of August, 2014, by and between Aaron G. Cook and Katherine E. Cook,
trustees of the Aaron and Katie Cook Revocable Family Trust, dated April 19, 2010 as
Trust ("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 222 La Jolla Drive,
Newport Beach, California 92663 and legally described as Lot Lot 44, Tract 444, as
shown on a map recorded in Book 425, Pages 38 through Click here to enter text.
inclusively of Miscellaneous Maps in the office of the County Recorder of Orange
County, County Assessor's Parcel Number 425-383-06 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the La Jolla Drive 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.
Cook Family Trust Encroachment Agreement
2. It is mutually agreed that Permitted Improvenieni: :half be defuied as:
a. A 46 feet wide by 2 Meet tall crib retaining wall encroaching up to 6 feet into
the La Jolla Drive right of way, 4 feet wide concrete and wood steps and
handrail encroaching up to 3 feet 8 inches into the La Jolla Drive right of
way, and a private tree encroaching up to 3 feet into the La Jolla Drive
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.
Cook Family Trust Encroachment Agreement
d. Stwuld City be required to enter onlo „aid Right-oI Way to exercise its
primary ugfrts 29 ;Uc,ciated witli said F ight�otnWny, irioluding but not limited
to, the rrraintenance, rornoval, repair, renewal, replacoment or
enlargenient of existing or future public facilities or improverents, 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.
(U) 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 provislon 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 ail 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.
N
Cook Family Trust Encroachment Agreement
11. the tutmo of this Agreement sholl be construed in accordance with the rrteanintii
of the language used and shall not be construed for or against oitfror party by
reason of the authorship of the Agreement or any other rule: of construction which
rnight 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]
Cook Family Trust Encroachment Agreemen
IN WP°l
executed on tt
S WHEREOF, tbn taurtias Iicaoto have crujFsed this Agreement to ho
dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY' $ OFFICE
o,.
Date: �' .a 1 t l•,'
Aaron C. Harp
City Attorney
ATTEST: J
Date: ciM,
By:
Lefani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By. z
Dave Kiff
City Manager
OWNER(S): Aaron G. Cook and
Katherine E. Cook, trustees of the
Aaron and Katie Cook Revocable
Family Trust, dated April 19, 2010
Date:
Aaron G. Cook
Trustee, Aaron and Katie Cook
Revocable Family Trust
Date:
By: _
Katherine E. Cook
Trustee, Aaron and Katie Cook
Revocable Family Trust
(END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENTS: ExhibitA— Permitted Improvements Plan as Approved by
Public Works
Cook Family Trust Encroachment Agreement
AGKNOWLE DGMEN'T
State of Califor,�'a�,
County ofli.- } ss.
O
.%
n
20 /9' before me,
2i / .Sc4zvei/z cr , Notary Public, personallyappeared
,4cvan c , Coo C who
proved to me on the basis of satisfactory evidence to be the persog�e whose nam3t9are
subscribed to the within instrument and acknowledged to m that (ie he/they executed the
same ind,iherttheir authorized capacityJieand that by hi her/their signatures on the
instrument the persoj(s)7 or the entity upon behalf of which the person�s� acted, executed the
instrument.
1 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.
State of California
County of
ACKNOWLEDGMENT
} ss.
On �
t✓G> zL-cr—
/tq�YtarlE '£1oeh
proved to me on the basis of satisfactory evidence to be the persorl(sfi w ose name . 1 are
subscribed to he within instrument and acknowledged to me th t he he they executed the
sam'4e in hi their authorized capacityjiesj and that by his their signaturesjej on the
instrument the persons% or the entity upon behalf of which the personJ$ acted, executed the
instrument.
20 iy before me,
Notary Public, personally appeared
who
1 certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WIT ESS my hand and official seal.
al)
Cook Family Trust Encroachment Agreemen
I'XMIBIT A
PERMITTED IMPROVEMENTS PLAN
Cook Family Trust Encroachment Agreement A-1