HomeMy WebLinkAboutC-5974 - Encroachment Agreement EPN N2014-0453 for 233 Milford Driver
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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
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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
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EXHIBI'T A
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