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Home My WebLink AboutC-5811 - Encroachment Agreement EPN N2015-0269 for 15 Half Moon Bay DriveIJ r COPY CCO NOT OFR Rh t OROING Rl FfiJES f Eft i33Y ANfl WHF4N RI( ORfth t) RI;fURN 10, Publlo Works Dopartment City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Recnrded in Officisrl Rocordr;, Or engP County Hugh Nquyr'.n, clorit F7eacorclr�r III$III!!III IIIIIIIIIIIII!II III,IEi III1 ILIA I II 201 u000390572 J:56 am t)'7128115 47 411 A'I2 F13 9 0.00 0.00 0.00 0.00 24.00 0.00 0.00 0,00 ,00 Space above this Ilne for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2015�0269) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 6th day of July, 2015, by and between Thomas C. Tustin as'I'rustee of the Tustin Survivor's Trust under the Thomas Chapin Tustin and Athanansia N. Tustin Intervivos Trust" established U/D/T dates July 29, 1981, as amended and restated in its entirety by the fifth amendment dated February 8, 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). RECITALS WHEREAS, Owner is the vested owner of property located at 15 Half Moon Bay Drive, Newport Beach, California 92625 and legally described as Lot 38, Tract 7510, as shown on a map recorded in Book 292, Pages 17 through 21 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 458-483-03 ("Property"); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Half Moon Bay Drive 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: 1. City and Owner acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. Thomas C. Tustin Encroachment Agreement If IS niutnAlly agreed tha F'errnittod lmprovoment , shall bra dtTnod as. a. A ool 3 inch wide by 15 foot: k?nrf decorative caniago walk cnnstructod of flag stone paver, installed at grade, encroaching up to 10 foot into the Half Moon Bay Drive right-of-way; and b. A 22-inch wide by 24.5-inch deep by 53.5 inch tall decorative stone veneer mailbox encroaching up to 10 feet into the Half Moon Bay Drive 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. Gity 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. d. 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 Thomas C. Tustin Encroachment Agreement 2 existing or futr.ii public facilities ur impr vemonts, City may renu>vO p� r)f l'urn,Ru d Irnlnoverruerit , as rerluid, ;.urid iri such rv�ant: (i) City shall notify C)wner in advance of its intention to accomplish such work, provided that an emergency situation does not oxist. (ii) Owner shall be responsible for arranging for any renewal, replacement, or restoration of Permitted Improvements affected by such work by City. (Hi) 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 attorneys' 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 deslgn, 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 Owners 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. Thomas C. Tustin Encroachment Agreement 2. is fgroerneiit represens full and Gun 1pktO irrulerstanclof every kind or iiaturo vvhaisoever belween the pities herto, U)C1 EIII prelirniiiiry I1rgc)tiatiurIs arid agreements of whalsoever kind ear nature arc merged hereiii. No verbal agreement or irnplied covenant ,ball 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] Thomas C. Tustin Encroachment Agreement IN VVII'NE5F WHEREOF, the parties lu,reto Nava* c:a ised this Agraaeaent to he exoni jtod on the dates writleri below. APPROVED AS TO FORM: CITY ATTO!tNEY'S OFFICE Date: By: I Aaron C. Harp City Attorney ATTEST: Date: By: V Leilani I. Bro City Clerk n CITY OF NEWPORT t3EACH, a California municipal corporation Date: By: Dave ki City Manager OWNER(S): Thomas C. Tustin Date: By: Thomas C. Tustin Trustee of the Tustin Survivor's Trust under the Thomas Chapin Tustin and Athanansia N. Tustin Intervivos Trust established U/D/T dates July 29, 1981, as amended and restated in its entirety by the fifth amendment dated February 8, 2011 [END OF SIGNATURES] Owners must sign in the presence of notary public ATTACHMENTS: ExhibitA—Permitted Improvements Plan as Approved by Public Works Thomas C. Tustin Encroachment Agreement ACKNOWLED[.'.,MEN1 A notary public or other officer col`npleting this, certificate verifies; only tho identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, o validity of that document. State of California County of _ry`.+`y.s`t4 teaa.: } Ss. On a _Q11 r.v, 20 tx`.Y before me, Notary Public, pdrsonalty appeared <Jjr4 M3. who proved to me on the basis of satisfactory evidence to be the person) whose name(p)=aare subscribed to the within instrument and acknowledged to me that he/she%they executed the same in his/trer/their authorized capacity(ies), and that byrhi&herfttreir signatures( )`on the instrument the person(s), or the entity upon behalf of which the person(s)'acted, executed the instrument. 1 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 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. (seat) J. 8. SWAN III" Commission rfi 2075057 L Notary Public - Calnornla -- orange county' omnt. Expires Aug 152018 k 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. 1 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 Thomas C. Tustin Encroachment Agreement (seal) E.X11P131T A PERM!TTEL) IMPROVEMENTS PLAN Thomas C. Tustin Encroachment Agreement A �,tm;rr/ ) C� NE f LINE ( u) f PA B Cb CY ('1 7N01F I .IC4tdl lt4& L1EGEN2 .'MESOI IJGbIT Jv4 - ‚ No. 6PJ IR p2 (TrzEE UP LICSIT)i Vk'T2DE FIN. ••.L' V !,: MR ii', BP) Wt FI OOP. 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