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HomeMy WebLinkAboutC-6112 - Encroachment Agreement EPN N2015-0144 for 428 Rivera Terrace / 459-141-21- P CGv r \4u I OFR i V 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 Cfftiid Records, Orange County Hugh Nguyen, Glorlf- Recorder 11111111 IIgill III��II 111:1111111111111111 �() 0 II ,, 2015000240665 12:09 pnr 05108/15 47 41'1 A 12 F13 8 0.00 0.00 0100 0.00 21.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT } (Encroachment Permit Number N2015 -0144) THIS ENCROACHMENT AGREEMENT ( "Agreement') is made and entered into this 14th day of April, 2015, by and between John G. West and Virginia Anne West as Trustees of The West Inter Vivos Trust dated June 23, 1981 and amended and restated on March 23, 2011 ( "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 "). • { WHEREAS, Owner is the vested owner of property located at 428 Rivera Terrace, Newport Beach, California 92625 and legally described as Lot 150 of Tract 1237, as shown on a map recorded in Book 70, Pages 19 through 20 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 459 - 141 -21 ( "Property "); WHEREAS, Owner desires to construct certain non - standard improvements as further described herein ( "Permitted Improvements ") within the Rivera Terrace 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: City and Owner acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. John G. West and Virginia Anne West Encroachment Agreement 'I'. It is mutually atlruud that Pormitk -d Irnproverrionts shall be dofinod .a:: ;: a. Decorativo drive: approach constructed of grouted -in gr.;iy skate and ow roaching up to 1 -ft 9'/2 inches into Right -of -Way; b. An 8 -ft and a 6 -ft wide decorative walkway constructed of grouted -in gray slate and encroaching up to 1 -ft 9 '/2 inches into Right -of -Way, as approved by the Public Works Department and as shown on Exhibit A, attached hereto and incorporated herein by reference. C. 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. 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: John G. West and Virginia Anne West Encroachment Agreement 2 (i) C;ity :,,hail notify Owner in advance of its intention to a c(a o mpl` €sh stwh work, provided that an r,rnergenr y situation door not exist. (ii) Owner shall be responsible for arranging for any renewal, replacoment, 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 attomeys' 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. 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. John G, West and Virginia Anne West Encroachment Agreement 3 13. A waiw,.r by either party of Zany [.,)reach, of any tcirm, covenant or condition contahned herein shall not he deenled to bo a waiver of piny subsequent Neach of thr: same or any other term, c.,ovonant or condition contained herein, whether of tho 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. John G. West and Virginia Anne West Encroachment Agreement 4 IN WITNESS WHEREOF, the pailieti hereto have this Agroornent to be oxt.wuted on the clotes written buluw. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE 11� , Date: , Q ­ ............ By:_ Aaron C. Harp h City Attorney ATTEST: 1 111 !� I 11 � "7 Date: CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Dave }jiff City Manager OWNER(S): John G. West and Virginia Anne West Date: 4" [END OF SIGNATURES] Owners must sign in the presence of notary public Exhibit A— Permitted Improvements Plan as Approved by Public Works John G, West and Virginia Anne West Encroachment Agreement ACKNOWLEDGML N'T A notary public or other officer cdmpleting this cerrtificato 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 ss. ri711 on the basis of satisfactory evidence to be the person(s) whose name(s) sVare ,subset instrument and acknowledged to me that helshc�/they' executed the same in - his /h( capacity(ies), and that byhisWhe� heir signatures(s) on the instrument the person(s), or the of which the person(s) acted, executed the instrument. Notary proved to me to the within upon behalf I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct, auexis att�v�ttN WITNESS my hand and official seal. commission rsaaacm - y y°" } , NoFa�y Fubilc • 6atitorflia Signal re (seal) ACKNOWLEDGMENT 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 } ss. On 20 before me, Notary Public, personally appeared 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) John G. West and Virginia Anne West Encroachment Agreement 6 PERMITTED IMPROVEMENTs IMPROVEMENT PLAN John G. West and Virginia Anne West Encroachment Agreement A -1 1;1 WAI T 10 RI,1&H, I Ili: Q./ I , . r 14W H t:I IN F'LA1:1 • c 1 J r> Il :2% 5.30 . :Ml 11 �y�po ,I h 1185 FS �11�57IW \ b Jt 114DO TV 5MG •� 6p '( 5 G .-- -EXIST WALL TO REMAIN. 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