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HomeMy WebLinkAboutC-6964 - Encroachment Agreement EPN N2006-0432 for 111 Via Lido NordS RECORDING REQUESTED AND WHEN RECORDED RETURN TO: U Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92659-1768 Orange County in Official Records, Re-arded Tom Daly Clerk-Recorder '!►►'!I'���.li III!:'',IIIIIIII!!IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII!Ili 36.00 2006000715233 08..11am 10124106 212 50 p12 00 11 0.00 30.00 0.00 0.00 0.00 Q.00` 0.00 0. Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2006-0432) THIS AGREEMENT is made and entered into this day of 200�1 by and between Albert Gene Pizzo and Joan Elnora Pizzo, trustees of the Pizzo Family Trust, Yvonne M. Pizzo (hereinafter "OWNER"), and the City of Newport Beach, California, a municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California, (hereinafter "CITY"). OWNER is the owner of property located at 111 Via Lido Nord, Newport Beach, California 92663 and legally described as Lot 1089 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, California. WITNESSETH: WHEREAS, OWNER desires to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Via Lido Nord right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot 1089 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, California; also known as 111 Via Lido Nord, Newport Beach, California; and 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 1#0 1 WHEREAS, the parties hereto desire to execute an 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: (1) a 1'11" x 25'9" flower bed that is built flushed to the existing sidewalk elevation, which encroaches 1'6" into the public right of way, landscaped with shrubs with a maximum height of 36"; (2) a 111" x 197' flower bed that is built flushed to the existing sidewalk elevation, which encroaches 1'6" into the public right of way, landscaped with shrubs with a maximum height of 36"; and (3) appurtenances in the Via Lido Nord right-of-way 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 at any time by giving 60-day notice, 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. 2 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. 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. 3 (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 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 4 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. 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. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. APPR VV D AS TO FORM: By: �--- C c �--- Aaron Harp, Asst. City Attorney ATTEST: By i�)�/ / &�� - LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, a Municipal corporation By: Homer Bludau, tity Manager OWNER: Albert Gene Pizzo By: Joan Elnora Pizz ' Yvonne M. 'Pizzo f:\users\pbw\shared\encroach\row agreements\2006\n2006-0432 111 via lido nord (pizzo).doc 0 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California -��.�/ } County off Z,,,v ss. On /� o before me, ti f/u�ici Date Name a itle of Officer (e.g., " ne D ,Notary Public" personally appeared Name(s) of Signer(s) �09 @ 0440�* 4tA«�• 0 b 40®40MA0� BARBARA JUNE COCHRAN COMM. #1413469 m moo) NOTARY PUBLIC - CALIFORNIA CD " \ LOS ANGELES COUNTY My Comm. Exp. May 9, 2007 iso444444aa�asos4eea 4oso4400sAs.*** Ll personally known to me proved to me on the basis of satisfactory evidence to be the person(s) whose nameN) is/subscribed to the within instrument and acknowledged to me that 1N/she/rMty_ executed the same in hi3/her/the+f� authorized capacity(, and that by -1%s/her/tYt4r, signatures) on the instrument the personX or the entity upon behalf of which the person acted, executed the instrument. WITNESS omy/hand and official seal. Place Notary Seal AboveL.�" ature 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 Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): _ ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee L I Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer— Title(s): _ ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee 1-1 Guardian or Conservator ❑ Other: Signer Is Representing: � st Top of thumb here 0 2004 National Notary Association • 9350 De Soto Ave., P.O. Bqx 2402 • Chatsworth, CA 91313-2402 Item No. 5907 Reorder: Call Toll -Free 1-800.876-6827 STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) On t' t to 200, before me, personally appeared A C (?�'� / Z L o personally known o me (or proved to me on the basis of satisfactory evidence) to be the person(6) whose name(!;) is/arm subscribed to the within instrument and acknowledged to me that he/she/they has executed the same in his/herder authorized capacity((-�), and that by his/heir signature(s) on the instrument the person(d) or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. EVA DE LA TORRE 4my Commission # 1514523 Notary Public - California ;�ZOrange County Nota Public in and for said State Comm. ExpiresOct14,2o08 (This area for official notarial seal) STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) On'SY�Vr 200S, before me, �ti ( �7 N 0 personally appeared G Ca V\- �1 1'� -2:2-0 personally known to me (or 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 has executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State EVA DE LA TORRE Commission # 1514523 ZOmyComm.Explres Notary Public - California Orange County Oct 14, 2008 (This area for official notarial seal) 7 ~' D N RIGHT OF WAY ENCROACHMENT EXHIBIT Al 111 VIA LIDO NORD NEWPORT BEACH, CA. 92663 A c Dy xz- o ■ fair � A� Nam. o ~ ■■ i `• En 0� �., CITY CLERK'S ACKNOWLEDGMENT State of California ) County of Orange ) On October 11 , 2006, before me, LAVONNE M. HARKLESS, CITY CLERK OF THE CITY OF NEWPORT BEACH, personally appeared Homer L. Bludau , personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which person acted, executed the instrument. Dated this 11th day of October N WITNESS my hand and official seal. LAVONNE M. HARKLESS, CITY CLERK CITY OF NEWPORT BEACH, CALIFORNIA CAPACITY OF SIGNER DESCRIPTION OF ATTACHED DOCUMENT: Municipal Corporation Officer Encroachment Agreement Citv Manaaer EPN2006-0432 SIGNER IS REPRESENTING: # of Pages 10 City of Newport Beach Document Date: September 19, 2006 Signer(s) other than named: Albert Gene Pizzo, Joan Elnora Pizzo, Yvonne M. Pizzo, Aaron Harp