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HomeMy WebLinkAboutC-6874 - Encroachment Agreement EPN N2011-0092 for 120 Via WaziersCO RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: 1 U Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92658-8915 Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder IE911Ii;.!R111 ilillilllllll'lllrNliilll27,00 201100u227180 9-58 am 05/05/11 276 -18 Al 8 0.00 0.00 0.00 0.00 21.00 0.00 o.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2011-0092) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 25th day of March, 2011, by and between Robert Marshall Hidey III and Doris Jean Hidey, Trustees of the Hidey Family Trust established March 20, 1996 ("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"). WITNESSETTH: WHEREAS, Owner is the vested owner of property located at 120 Via Waziers Newport Beach, California 92663 and legally described as Lot 358 and the southwesterly 17.5' of Lot 357 of Tract 907, as shown on a map recorded in Book 28, Pages 25 through 36 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 423-277-07 ("Property"). WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Via Waziers 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 3-foot, 10-inch wide entry walkway with one riser constructed with beige flagstone pavers encroaching up to three feet into the public right-of-way; b. An 8-foot, 4-inch wide entry walkway constructed with beige flagstone pavers encroaching up to three feet into the public right-of-way; c. An 18-inch high planter wall constructed of CMU blocks with white, smooth stucco encroaching up to three feet into the public right-of-way; d. Various private landscaping not to exceed 36-inches in height and various private irrigation improvements encroaching up to three feet into the public right-of-way and appurtenances as shown on EXHIBIT "A" attached hereto and as approved by the Public Works Department. 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. Encroachment Agreement 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. Encroachment Agreement Page_ 13 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. 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. Encroachment Agreement 14 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: OFW./,/ THE /CITY ATTORNEY Dat/ Leonie MulvThill, Assistant City Attorney V C\\,\ ATTEST: Date:22- By: fjP1 P Leilani Brown, City Clerk CITY OF NEWPORT BEACH, a California Municipal corporation Date: '-k1-L.,.1 ti By:1�� c` Da ' iff, City Manager OWNER(s): Date: �d By. 11 Robert Marshall Hidey III, Trustee Hidey Family Trust Date: c� - .3 O 1 Doris Jean dey, Trustee Hidey Fam fy rust Owners must sign in the presence of notary public ATTACHMENTS: EXHIBIT A —Plans as approved by Public Works f.•luserslpbwlsharedlencroachlrow agreements120111n2011-0092 120 via waziers (hidey trust).docx9.21.10 Encroachment Agreement P a g is 15 ACKNOWLEDGMENT State of California County of 0 r« '7<je } ss. On �> 0, -�-©// before me, �w��� v .4 A, Notary Public, personally appeared % kes -t ,who proved to me on the basis of satisfact96 evidence to be the person(s) whose name(s) is� subscribed to the within instrument and acknowledged to me that he/she/ �e executed the same in his/her/ ei authorized capacity(ies), and that by his/her/ e r ignatures(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. 11 KWAN H. 5 0 Comm. # 1905309 /�qq VI NOTARY PUBLIGCALIfORNIA UI /1 ORANGE COUNTY MY COMM. EXP OCT, 22, 2014 Signature (seal) State of California County of ACKNOWLEDGMENT SS. On before me, Notary Public, personally appeared ,who 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) Encroachment Agreement " 6 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of Californiaria,� I/ County of O `� G-C On kri L `7J1 r before me, Date f /� ' / A H re Insert Name and Title of the personally appeared I)A �� FF jaL. HARRIS Commission #E 1840150 Notary Public - California Orange County Mar 12.2013 Place Notary Seal and/or Stamp Above or aigner(s) who proved to me on the basis of satisfactory evidence to be the person; whose name] is?ed subscribed to the w'thi instrument and acknowled to me that lA/spy executed the same in his/6 'r/t authorized, capacity(i ), and that by his/$ t31r signature( on t e instrument the person( or the entity upon behalf of which the PE rson 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 and a ffcial seal. Signature: -- Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached D me t Title or Type of Document: � Moplue'/07— i Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): Ll Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact Trustee ❑ Guardian or Conservator Ll Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 02008 National Notary Association- 9350 De Soto Ave., P.O. 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