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HomeMy WebLinkAboutC-5974 - Encroachment Agreement EPN N2014-0453 for 233 Milford Driver 0 GOPY 000 NOT OFR HECORDIN(3 REQUESTED BY ANL) WHEN RECORDEDRETLJRN TO: Publlc Works Department City of Newport Beach P.C. Box 1768 Newport Beach, CA 92658-8915 Recorded In �fticlnl R.cord$, Qrnri Huoh 14 • u sn C �rkReCbrder 4200 2014000551199811 am 12(22114 41414AIZFIS 12 0.00 0.00 0.00 0.00 33.00 0.00 0.00 0.00 u nty Spce above thls line for Recorders use anly. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2014-0453) THIS ENCROACHMENT AGREEMENT ("Agreemenf') Is made and entered irito this lst day of December, 2014, by and between Enrico Arvieb and Patdcia L. Arvielo, Trustees of The Arvieio Family Trust, established March 18, 2008 as Trust (00wner"), and the City of Newport Beach, a Califomia munlcipal corporation and charter city, organized artd existing under arid by virtue of its Charter and the Constitutlon, and the laws of the State of California ("City"), RECITALS WHEREAS, Owner is the vested owner of pruperty Iocated at 233 Mllford Drive, Newport Beach, california 92625 and legaily described as Lot 169, af Tract 3357, as shown on a map recordecl in Book 107, Pages 1 through 7 inclusively of Misceflaneous Maps In the offlce of the Courity Recorder af Orange County, Courity Assessor's Parcel Number 475-021-04 ("Property"); WHEREAS, Owner desires to coristruct certain non-standard lmprovements further described berein. ("Perrnitted Improvements") within the future sewer force main easement right-of-way (herelriafter "Right -of -Way") that Is located adjacent to Property; WHEREAST said Permitted lniprovements may interfere in the future wlth Clty's ability to construct, operate, maintain, and replace City and other pubile facillties and improvements wfthin Right -of -Way; and WHEREAS, the parties hereto desire to enter into this Agreement providing for fuPfihiment of the conditions required by City to permlt Owner to constwct and malntain said Permitted Improvements. NOW, THEREFORE, in consideration of the mutual prornises, the parties hereto agree as foliows: 1. Gity and Owner acknowledge that the above Recitals are true and correct and are hereby lricorporated by reference into this Agreement. Arvielo Encroachment Agreement 2. It is mut:JEdIy agreod that Perrnitted Irnprovernonts shal! bo defined as: a. A patia and stairs constructed of baige colored coricrete aricroaching up to 13-feet 5-inches into the future sewerforce main easement; b. A 2-foot 1-inch tafl seat wal! constructed of Concrete Masonry Unit ("CMU") biock with Cougar Stone verieer encroaching up to 13-feet 5- inches into the future sewer force main easement; c. Three 5-foot !ong caissons and 1-foot 6-fnch thick grade bearn encroachmg up to 13-feet 5-lnches into the future sewer force main easement; d. A var!abie he!ght concrete curb with stucco finish varying from 7-Inches to 1 8-inches eneroaching up to 2-foot 6-Inches into the tuture sewer force main easement (this item is included under the existing Encroachment Agreement and wiH remain), as approved by the Pubile Works Department arid as shown on Exhlbit A, attach.ed hereto and incorporated hereln by reference. e. In addition, if any !mprovements actua!ly built or installed during the time of construct!on vary from Permitted !mprovements approved herelri, such variations or changes must be approved Iri advance by the Publlc Works Department and shal! be shown on the «As Bulit plans. 3. City will permlt Owner to construct, reconstruct, install, maintairi, use, operate, repair and replace said Permitted Improvements and appurtenances incldental thereto, within & portlon of Right -of -Way, If in substantial conformance with the plans and specifications on ffle In City. City wil! further allow Owner to take all reasonab!e measures necessary or convenient in accompushing the aforesald activities. 4. Rlghts granted under this Agreement may be term!nated by Cfty with ar without cause and at any time without notice. City shall make good faith efforts to provide sixty (60) esleridar days notice In advance of temiination, specifylng in said notice the date af termination. Clty shall iricur no liabillty whatsoever iri the event of the termination of this Agreement or subsequent removal of improvements by City. 5. Owner and Clty further agree as follows: a, Owner may construct and iristall Perniitted lrnprovements and appurtenarices incidental thereto in substantial conformance wlth the plans and specfficatioris on file in City's Publlc Works Department, and 88 descrlbed on Exhibit A. b. Owner shall rnahtain Permitted Fmprovements in accordance with generaily prevafl[ng standards of maintenance and pay aU costs and AMoCo Encroachmerit Agreement exponses inourrod in doing so. However, nothing hereiri shall bo construed lorequire Ownr to rnaintaln, replace or repair any Cityowned pipeflne, concluit or cahle Iocated in or under said Permitted Improvements, except as otherwise �rovded hercin. c. If City er other pubhc fadflities or improvements are damaged by the installatlon or presence af Permitted Improvemerits, 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, IncIudIng but not IimIted to, the maintenance, removal, repair, renewal, repiacement or enlargement of existing or future public facilities or improvenients, City may remove portions of Permftted Improvements, as required, and in such event: (1) City shall notify Owrier in advance of its interitiori to accompflsh such work, prcMded that an emergency situatlon does not exlst. (fl) Owner shall be respor,sible for arranging for any renew&, replacement, ar restoration of Permltted Improvements affected by such work by City, (ili) City agrees to bear only the cost of any removal of Pemiitted lmprovements affected bysuch work by Gity. (iv) Owner agrees to pay afl costs for the renewal, replaoement, or restoration of Perrnitted tmprovements. 6. In the event elther party breaches any materiat provlsion af this Agreement, the other party, at its option may, in addition to the other egaI remedies available to it, terminate this Agreement and, iri the event the breaohing party is Owner, City may eriter upon Right -of -Way and remove all or part of the improvements InstaIied by Owner. Termination because of breach shall be upon a minimum of teri (10) calendar days' notice, with the notice speclfying the date oftermination. 7. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall j be entitted to attorrieys' fees. 8. Owner shall defend, indemnify and hold harmless City, its City Council, boards and commissions, officers arid employees from and against any and all Ioss, damage, Ilability, claims, sults, costs and expenses whatsoever, lricluding reasopable attorneys' fees (when outside attorneys are so utilized), regardless of the merit or outcome of any such claim or sult arising from or in any manner connected with the design, coristruction, malr,tenance, or continued existence of Perniltted Improvements. Arvielo Encroachment Agreement 9. Owner agree<s that this Agreement shall remain in full force and effect from execution thereof, shall run with the land; shall be binding upon file 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] Arvielo Encroachment Agreement 4 IN WITNESS WHEREOF, the, partios hereto have caused this Agreement to be oxecuted on the dates written below. APPROVED AS TO FORM: CITY ATTORNEYS OFFICE VVI - Aaron C. Harp City Attorney ATTEST: Ir Date: it � al CITY OF NEWPORT BEACH, a California municipal corporation Date:_ By Dave Kiff City Manager OWNER(S): Enrico Arvielo and Patricia L. Arvielo, Trustees of The Arvielo Family Trust, established March 18, 2008 Dater By: Enrico Arvielo Trustee, The Arvielo Family Trust established March 18, 2008 Trustee, The Arvielo Family Trust, established March 18, 2008 [END OF SIGNATURES) Owners must sign in the presence of notary public ATTACHMENTS: Exhibit A— Permitted Improvements Plan as Approved by Public Works Arvielo Encroachment Agreement 5 CALIFORNIAALL—PURPO Sid CERTIFICATE OF ACKNOWLEDMENT 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 e 47 On before me Marfema2e Grzel, .NotvyPubllc, personally appeared, W?e who provers to me on the basis of satisfactory evidence to be the personSV`whose name"subscribed to the within instrument and acknowledged tome that { /t executed the same in e' rr authorized capacity, and that by pr&thy signaturegon the instrument the person orthe entity upon behalf of which the personAf acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that this foregoing paragraph is true and correct. WITNES#mand and fficial seal Signature of Notary Public MAXJEROM ORAEP Commission # 2047020 k4i"Nolary 8ubilc - Cartornia Orange county (Notary Se I) M Comm. IresOct26 2017+ DESCRIPTION OF THE ATTACHED DOCUMENT (Title ordescription of attached document) NumberofPages Document Date Additional CAPACITY CLAIMED BY THE SIGNER ❑ Individual (s) ❑ Corporate Officer: Title ❑ Partner(s) ❑ Attorney -in -Fact ❑ Trustee(s) ❑ Other CALIFORNIA ALL-PURPOSE OF ACKNOWLEDIMENT 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 4 E On before me Max jerowe Gmef, NotaryArbGG, personally appeared, who proved to me on the basis of satisfactory evidence to be the persor}Kwhose name subscribed to the within instrument and acknowledged to me tha&skd7` j -executed the same i tl`"° /t authorized capacity(] , and that r/l it signature,gon the Instrument the person, or the entity upon behalf of which the persongacted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that this foregoing paragraph is true and correct, WITNESS d 7ndtial seat Signature of No ary Pu lit MA%JEROMEGRAEF Commission 0 2047029 Notary Public - California i (Nota Omar County Comm. Ex res Oct 26 2017 DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) Numberof Pages Document Date Additional Information CAPACITY CLAIMED BY THE SIGNER ❑ Individual (s) ❑ Corporate Officer: Title ❑ Partner(s) ❑ AttorneyAn-Fact ❑ Trustee(s) ❑ Other EXHIBIT° A PERMITTED IMPROVEMENTS PLAN Arvielo Encroachment Agreement A-1 AVG.al'O ANt-r EXHIBIT I OF4 EXHIBI'T A 2004 �. i 1 .r. I. : : I�',.9•, � %1 . =' ��� •,�'i+'.' f, 1 '.M1 '�}• Jti 'tn�tCy t afCfFi'ri'•���Al t'•. - ,A^b' � i2133!`R'JNB to Al `i ' � a; �1� ti1148I3ftl3Aitil• tJ 1 -/(•. !„YJ aa lolf A4 t r� 1 (-•:J (:.':.�{.�` ! I 1 i; (1 yl� f � ” i• i 1 ! t W I UY t j: U I . � �' Y �•' e • f t i p i i � i i 1 .r. I. : : I�',.9•, � %1 . =' ��� •,�'i+'.' f, 1 '.M1 '�}• Jti 'tn�tCy t afCfFi'ri'•���Al t'•. - ,A^b' � i2133!`R'JNB to Al `i ' � a; �1� ti1148I3ftl3Aitil• 1 -/(•. aa lolf i `T. I ' .° /(. i ''^et •,'ter t (:.':.�{.�` ! I 1 yl� f � ” i• i 1 ! t e • f t i p i i � i i 1 .r. I. : : I�',.9•, � %1 . =' ��� •,�'i+'.' f, 1 '.M1 '�}• Jti 'tn�tCy t afCfFi'ri'•���Al t'•. - ,A^b' � i2133!`R'JNB to Al `i ' � a; �1� ti1148I3ftl3Aitil• 1 -/(•. aa lolf i `T. I ' .° /(. i ''^et •,'ter t (:.':.�{.�` ! I 1 yl� f � ” i• i ! t 1 i Q to O th M 00 09 h•- VY 6 0 EXHIBIT A 3004 EXHIBIT A 40F4 A