HomeMy WebLinkAboutC-6112 - Encroachment Agreement EPN N2015-0144 for 428 Rivera Terrace / 459-141-21- P
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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
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2015000240665 12:09 pnr 05108/15
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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
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