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HomeMy WebLinkAboutC-3874 - Encroachment Agreement EPN N2012-0301 for 518 San Bernardino AvenueSCANNED RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder I Ili 11\\\1111111111111111111111111111111'111118.°° 1'''Ih,8.00 *$R0005 2 5 0 6 6$ 2013000266048 2:56 pm 05/02113 193 409 Al2 8 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2012-0301) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 15th day of February, 2013, by and between Stephen K. Thorp and Stephanie N. Thorp, Trustees of the S. and S. Thorp Revocable Trust dated July 13, 2006, ("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 518 San Bernardino Avenue, Newport Beach, California 92663 and legally described as Lot 5, Block 33 of the First Addition to Newport Heights, as shown on a map recorded in Book 4, Page 94 of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 049-024-04 ("Property"). WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the San Bernardino Avenue 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 stone paver entry walkway and appurtenances with varying widths from 4-feet to 14-foot encroaching 12-feet into the public right-of-way as shown on EXHIBIT "A" attached hereto and as approved by the Public Works Department. b. Various private landscaping and irrigation improvements encroaching 12- feet into the public right-of-way as shown on EXHIBIT "A" attached hereto and as approved by the Public Works Department. c. 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, 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 S. and S. Thorp Revocable Trust y 1 2 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 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 S. and S. Thorp Revocable Trust Page 13 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. [SIGNATURES ON NEXT PAGE] S. and S. Thorp Revocable Trust P < g c 1 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: 3/�//3 By: AaC. Harp City Attorney ATTEST: Date: It • ib • 19 . r By: DC 11/1M, 01�/ Q. Leilani I. Brown City Clerk ATTACHMENTS: document2 CITY OF NEWPORT BEACH, A California municipal corporation Date: 411.3 h3 By: DaveKiff City Manager OWNER(S): S. and S. Thorp Revocable Trust Date: G¢,, Z7I 2013 By: SteThorp, Trustee S. and S. Thorp Revocable Trust Date: hw.,y. 2=1 212% 3 By: Steph nie N. Thorp, Tru S. and S. Thorp Revoca [END OF SIGNATURES] tee le Trust Owners must sign in the presence of notary public EXHIBIT A —Plans as approved by Public Works S. and S. Thorp Revocable Trust ACKNOWLEDGMENT State of California County of ©/209A6� } ss. On - gip, 2:2 , 20 12> before me, Jouar�izrcH , Notary Publice� , personally appeared 5-,a k. -T ,zp Ar\m , ,/i,via n/. —Ti-ly eP ,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. JANET FRIEDRICH 3 V COMM. # 1895084 A 0 ` � ' tti NOTARY PUBLIC - CALIFORNIA *-4.071 ORANGE COUNTY n �iivona`' COMM. EXPIRES JULY 10, 2014 ) ACKNOWLEDGMENT State of California County of } ss. On before me, (seal) 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) S. and S. Thorp Revocable Trust P age 16 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of Or-C4vyt5 On tprc ( 3( .)O(3 Date personally appeared before me, VIM. leq, j 04,4- i ?obt i� , ere Insert Name and Title of the Offi 1f t Name(s) of Signer(s) KIM RIEFF Commission # 1967536 Notary Public - California Orange County My Comm. Expires Jan 26, 2016 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person) whose nameA is/a4.1 subscribed to the within instrument and acknowledged to me that he/s4.r67tAscri executed the same in his/b heir' authorized capacity(Laer and that by his/herlthair signature(eron the instrument the person(,s or the entity upon behalf of which the person 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 an official seal. Signature of Notary Signature: OPTIONAL P 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 Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: L 1 Corporate Officer — Title(s): ❑ Individual Li Partner — PI Limited 'i. l General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator • Other: Signer Is Representing: RIGHT THUI OF SIG PRINT R Top of thumb here Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact [11 Trustee ❑ Guardian or Conservator 1 Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here © 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 SAN BERNARDINO AVE -1=1- 7:1 CD (J) cs) rn • 23 rn cr) n cDr - rrl • r- (r) 23 A 51‘1, San Bey hore1'9TIO Ave,du' C.. ‘111111111111111k I 1 N tri Crl Si•one. PcweAr 3 VJoIlcwoy Exhibit "A" Sheet 1 of 1 SC/ JNED rt RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Newport Beach Attn: Public Works Department 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92658 Exempt from recording fees pursuant to Govt. Code section 27383 Recorded in Official Records, Orange County Renee Ram rez, Assistant Clerk -Recorder 1111111111111111111111111111$R55 7* 2013000074934 12:46 pm 02/05/13 47 405 Al2 10 0.00 0.00 0.00 0.00 27.00 0.00 0.00 0.00 NO FEE Space Above This Line For Recorder's Use Only ENCROACHMENT AGREEMENT (EPN N2012-0057) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this //f� day of December, 2012, by and between Balboa Peninsula Point Association, a California non-profit IRS 501(c)(7) corporation, ("Association"), and the City of Newport Beach, 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, on December 11, 2012, the City Council waived City Council Policies L-6 (Private Encroachments in the Public Rights -of -Way) and B-17 (Parks, Facilities, and Recreation Program Donations) and authorized the City to enter into an Encroachment Agreement with Association. WHEREAS, City is the owner of certain real property in the City of Newport Beach located on the southeast corner of East Balboa Boulevard and Miramar Drive and legally described as the East Balboa Boulevard and Miramar Drive public rights -of - way of Tract 518, as shown on a map recorded in Book 17, Pages 33 through 36 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County ("Property"). The Property is depicted on Exhibit "A" attached hereto and incorporated by reference. WHEREAS, Association desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") on the Property. The Permitted Improvements are described and depicted on Exhibit "B" attached hereto and incorporated by reference. n to WHEREAS, there is an existing landscaped area that functions as a neighborhood park ("Park") on the southeast corner of East Balboa Boulevard and Miramar Drive. WHEREAS, Association desires to create a tot lot for public use at the Park by constructing and installing the Permitted Improvements. WHEREAS, City desires to accept the constructed Permitted Improvements as a donation from Association. 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 on the Property. WHEREAS, the parties hereto desire to enter this Agreement providing for fulfillment of the conditions required by City to permit Association to construct said Permitted Improvements. NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1. City will permit Association to construct, install, and use said Permitted Improvements and appurtenances incidental thereto, on the Property, if in substantial conformance with the plans and specifications on file in the City. City will further allow Association to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 2. Rights granted under this Agreement may be terminated by City with or without cause and at any time without notice. Except in the case of breach, the City shall make good faith efforts to provide notice sixty (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 Permitted Improvements by City. 3. Association and City further agree as follows: a. Association 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 "B" attached hereto. b. City shall maintain the Permitted Improvements in accordance with generally prevailing standards of maintenance. Association shall reimburse the City for all non -routine maintenance performed on the Permitted Improvements. Balboa Peninsula Point Association, a California non-profit IRS 501(c)(7) corporation Page 12 c. If City or other public facilities or improvements are damaged by the installation or presence of Permitted Improvements, Association shall be responsible for the cost of repairs. d. That should City be required to enter onto the Property to exercise its primary rights associated with the Property, 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 Association in advance of its intention to accomplish such work, provided that an emergency situation does not exist. ii. City 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. Association agrees to reimburse all costs for the renewal, replacement, or restoration of the Permitted Improvements. 4. 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 Association, City may enter upon the Property and remove all or part of the Permitted Improvements installed by Association. 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 attorneys fees and costs. 5. Association shall defend, indemnify and hold harmless City, its City Council, boards, committees, and commissions, officers and employees from and against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees, 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. 6. This Agreement shall automatically terminate upon the City's acceptance of ownership of the Permitted Improvements. 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. Balboa Peninsula Point Association, a California non-profit IRS 501(c)(7) corporation Page 13 8. 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. 9. 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. 10. 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. 11. Association shall at Association'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. 12. 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] Balboa Peninsula Point Association, a California non-profit IRS 501(c)(7) corporation 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: Z By: Aaron C. Harp City Attorney ATTEST: �/� i2 Date: I• !-'I. By: Leilani I. Brown City Clerk ATTACHMENTS: CITY OF NEWPORT BEACH, A California municipal corporation Date: f ►21/7l/2-- ) ByDav Ga`^J V e City Manager ASSOCIATION: Balboa Peninsula Point Association, a California non-profit IRS 501(c)(7) corporation Date:' / 9' l) By: J Presiders Date: )/ 1 5/ I3 By: Dennis Borowsky Vice President `A+ [END OF SIGNATURES] Association must sign in the presence of notary public EXHIBIT A — Plans as approved by Public Works EXHIBIT B — Permitted Improvements JENNY I. A 0 Commission i 1997253 Notary Public - California Orange County u �s _ 4 Balboa Peninsula Point Association, a California non-profit IRS 501(c)(7) corporation Page 15 EXHIBIT "A" Property Depiction Exhibit "A" Sheet 1 of 1 N2012-0057 EXHIBIT "B" Permitted Improvements It is mutually agreed that Permitted Improvements shall be defined as: a. A 3 foot, 3 inch high rockblocks climbing tunnel, raptor rock head, and raptor rock tail playground equipment manufactured by Playworld Systems; b. A 36 inch high fence and a 6 foot wide by 36 inch high double gate constructed of white vinyl material surrounding the tot lot; c. Approximately 11 cubic yards of "washed plaster" playground sand at 18 inches thick; d. Approximately 275 square feet of ProDek pour -in -place rubber surfacing, including a 3/8" thick colored surface course; e. A 6 foot wide standard concrete entry walkway extending to Miramar Drive; f. A 24 inch by 36 inch granite donor plaque located adjacent to the entry walkway; g. A 24 inch deep Century root barrier located along the inside perimeter of the vinyl fence, entry walkway, and bender board located along the outside perimeter of the planter hedge; h. Landscaping, artificial turf, and irrigation modification improvements and appurtenances. i. 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, Municipal Operations, and Recreations & Senior Services Departments and shall be shown on the "As Built" plans. Balboa Peninsula Point Association, a California non-profit IRS 501(c)(7) corporation c a 8 NOIlVIDOSSV LNIOd Vlf1SNIN3d V081V8 410J 038Vd3ad z Q- V) a og os sa n v o e e 8 0 ECIEI El BBB 00 Exhibit "B" Sheet 2 of 2 N2012-0057 ACKNOWLEDGMENT State of California County of 0rwA9 �. } ss. On->f_2wtiDer 1.7, 020(2• before me, I.4l l'�‘SW-, Ot�u-r T k Notary Public, personally appeared )(Aga A. (�(i who proved to me on the basis of satisfactory evidence to be the person{-) whose name{ is/are subscribed to the within instrument and acknowledged to me that he/sty/thy executed the same in his/h6ltheIf authorized capacity(), and that by his/I F/th signatures(Esy on the instrument the person,(,$) or the entity upon behalf of which the person(s'jacted, 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) State of California County of ACKNOWLEDGMENT } ss. KIM RIEFF Commission # 1967536 Notary Public - California Orange County M Comm. ' fires Jan 26, 2016 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) Balboa Peninsula Point Association, a California non-profit IRS 501(c)(7) corporation