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Home My WebLink AboutC-3707 - Encroachment Agreement EPN N2013-0147 for 310 Marguerite AvenueSCANNED a RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: c Public Works Department City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder *II 11 1111 IIlililiEl 57111111 II $I 2013000289322 9:12 am 05114113 47 422 Al2 F13 7 0.00 0.00 0.00 0.00 18.00 0.00 0.00 0.00 1 27,00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2013-0147) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 16th day of April, 2013, by and between Nello C. Di Corpo and Emilia G. Di Corpo, trustees of the Nello C. and Emilia G. Di Corpo Revocable Estate Trust under agreement dated January 16, 1991, ("Owner"), and the City of Newport Beach, California, a California municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California ("City"). WITNESSETH: WHEREAS, Owner is the vested owner of property located at 310 Marguerite Avenue Newport Beach, California 92625 and legally described as Lot 12, Block 239 of Corona Del Mar, as shown on a map recorded in Book 3, Pages 41 through 42 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 052-103-23 ("Property"). WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Marguerite Avenue right- of-way (hereinafter "Right -of -Way") that is located adjacent to the 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 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. It is mutually agreed that Permitted Improvements shall be defined as: a. A 36-inch high block wall with stucco face and rolled stucco cap encroaching 1-foot into the Marguerite Avenue right-of-way as shown on EXHIBIT "A" attached hereto and as approved by the Public Works Department. b. Brick pavers within the 10-foot wide parkway area between the existing sidewalk and back of existing curb encroaching up to 15-feet into the Marguerite Avenue right-of-way as shown on EXHIBIT "A" attached hereto and as approved by the Public Works Department. c. In addition, if any of the Permitted Improvements actually built or installed during the time of construction vary from the 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. 2. 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 the City. City will further allow Owner to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 3. Rights granted under this Agreement may be terminated by City with or without cause and at any time without notice. The City shall make good faith efforts to provide notice (60) days 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. 4. 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 the City's Public Works Department, and as described on Exhibit "A" attached hereto. b. Owner shall maintain the 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. Nello C. and Emilia G. Di Corpo Page 12 d. That 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 the Permitted Improvements, as required, and in such event: i) City shall notify Owner in advance of its intention to accomplish such work, provided that an emergency situation does not exist. ii) Owner shall be responsible for arranging for any renewal, replacement, or restoration of the Permitted Improvements affected by such work by City. iii) City agrees to bear only the cost of any removal of the Permitted Improvements affected by such work by City. iv) Owner agrees to pay all costs for the renewal, replacement, or restoration of the Permitted Improvements. 5. 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 the 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) day notice, with the notice specifying the date of termination. In the event of litigation, commenced with respect to any term of condition of this Agreement, the prevailing party shall not be entitled to reasonable attorneys fees and costs incurred. 6. 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 the Permitted Improvements. 7 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. 8. 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. Nello C. and Emilia G. Di Corpo Page 13 9. 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. 10. 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. 11. 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. 12. 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. 13. 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] Nello C. and Emilia G. Di Corpo Page 14 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: S/V/3 By: .� Aar . Harp City Attorney ATTEST: Date: 46•13 By: Leilani I. Brown City Clerk ATTACHMENTS: Sit CITY OF NEWPORT BEACH, A California munici aI corporation Date: 5/7 3 By: Dave City Manager OWNER(S): Nello C. and Emelia G. Di Corpo Revocable Estate Trust Date: //� N,4r. g o C. Di Corpo Trustee, Nello C. and Emelia Corpo Revocable Estate Trust Date: )1- (o- )3 G. Di By: c 1),, Emelia G. Di Corpo Trustee, Nello C. and Emelia G. Di Corpo Revocable Estate Trust [END OF SIGNATURES] Owners must sign in the presence of notary public EXHIBIT A —Plans as approved by Public Works Nello C. and Emilia G. Di Corpo Page 15 ACKNOWLEDGMENT State of California County of ( ITS je-k } ss. On ''1� ' (94,9t i° before me, Notary Public, personally appeared c C. ,who proved to me on the basis of satisfactory evidence to be the persons) whose name) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ics), and that by his/heat-he-if signatures(s) on the instrument the persona'), or the entity upon behalf of which the persons) 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 a d official seal. BRITTNEY MYRICK Commission 0 1904215 Notary Public -California z Los Angeles County My Comm. Expires Sep 26, 2014 I State of California County of t-t, } ss. (seal) On ( n r 20; before me, P.$(+ Notary Public, personally appeared trvti list pt JJ(p,-• ,who proved to me on the basis of satisfactory evidence to be the persons) whose name() is/a-Fe subscribed to the within instrument and acknowledged to me that he/she/they executed the same in #his/her/the•ir- authorized capacity(ica), and that by his/her/their signaturesca) on the instrument the person(A, or the entity upon behalf of which the person() 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 han S official seal. BRITTNEY MYRICK Commission # 1904215 Notary Public ;California Los Angeles County C My Comm. Expires Sep 26, 2014 (seal) Nello C. and Emilia G. Di Corpo Page 16 Exhibit "A" Sheet 1 of 1 71- / Tam-4,4i ,4A-Ta /// . • , . . 'h*k.:A4a6,tAvp--rr f5tocv, ti-A 0 F. / 6t --31-occa tr-tALL- 0"(II.C7' To .$)