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HomeMy WebLinkAboutC-5918 - Encroachment Agreement EPN N2014-0333 for 641 Via Lido SoudCOPY CCO NOT OFR REC()I '/ AND RN Tr,t; Public Works Department City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Recordtd in )ttic il Records, Ora 0e County Hu jjh i'4puyei , Cterk Recorder II 1111110 01111_ HIII!II ft30.00 $ R 0 0 0 6/ 1 0 1 7$ 201400035633812:05 prn 09103/14 65 406 Al2 F13 8 0.00 0.00 0.00 0.00 21.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2014-0333) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 14th day of August, 2014, by and between James Edward Declusin and Maria Lucaccini Declusin as Trustees of the Declusin Family Trust established December 3, 1997 ("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 641 Vla Lido Soud, Newport Beach, California 92663 and legally described as the Northwesterly 30 feet of Lot 13, 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 Number423-247-11 ("Property'; WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the four (4)-foot wide Public Utility Easement adjacent to Via Lido Soud 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 thls Agreement. Declusin Encroachment Agreement 2. It is mutually agreed that Permitted Irnprovomunts shall be defined as: a. Twa decorativo walkways varying in width up to 510" constrn,acted of "New England blue stone" pavers encroaching up to four (4) feet; b. A 211" wide decorative driveway constructed of "New England blue stone" pavers encroaching up to four (4) feet; c. Two (2) 42" square by 3'9" deep concrete footing encroaching 1'6" and located below the driveway and walkway finished surface, as approved by the Public Works Department and as shown on Exhlbit A, attached hereto and incorporated herein by reference; and d. 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 shalt 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. Declusin Encroachment Agreement c. If %ity or oUu.w p!.dblic incilitio . or improvr mere are damagecJ by the installation or prosence of Perritted Irnprovoments, Owner all 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 existing or future public facilities or improvements, City may remove portions of Permitted Improvements, as required, and in such event: City shall notify Owner in advance of its intention to accomplish such work, provided that an emergency situatlon does not exist. (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. Owner shall assume full liability for any damage to the Property in the event that the City needs to replace the water line within the Right -of -Way, or if the water line were to leak and cause damage to the home or foundation on the Property. 7. 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. 8. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 9. 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. 10. 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, (i) Declusin Encroachment Agreement successors, ,]nd rissigns of Owner's interest in ttro land, whether ree or otherwise rand shall be recorded in the Office of the "County Recorder of Orange (;ounty, California. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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] Qeclusin Encroachment Agreement IN WITNESS NESS Executed on the dates wrtten below. OF, they parties hereto have caused this Agreement to beo APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATTQRN,FY'S OFFICE a California myni}pal corporation Date: i.,,r„ Date: Aafopf C. Harp City Attorney r ATTEST: Date: Leilani I. Brown City Clerk By: anager • OWNER(S): James Edward Declusin and Maria Lucaccini Declusin as Trustees of the Declusin Family Trust establishe December 3, 1997 Date: ��.2U�/'/ By:J4nsQt mes Edward Declusin rustee Date: ! 2J t-` By: Maria Lucaccini Declusin Trustee [END OF SIGNATURES] Owners must sign in the presence of notary public ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by Public Works Declusin Encroachment Agreement ACKNOWLEOGMt; NT„ State of California County of rU.hc�d _ 189. On 4V.:; ,.._,.., 20 /9 before me, Notary Public, personally appeared c, _t__Sl� 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 lye/ske/they executed the same in hi&fief/their authorized capacily(ies), and that by b4s/het/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 KIM RIEFF Commissloo a 1967636 Notuy Publlc - Calltornla Orange County Gaetm, Expires Jan 26, 201 (seal) ACKNOWLEDGMENT State of California County of } ss. On 20 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 helshe/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 Declusin Encroachment Agreemen (seal) Exulsrr A PERMITTED IMF'RC)VEIVIEI\tfs FLAN Declusin Encroachment Agreement tt A-1 AIRWAY PAD FTG PORTION of BUILDING REMOVED < < �— BACK of CUPS BUILDING LOCATION e i I "NEW ENGIANO BLUE STONE" PAVERS WITHIN 4-FOOT PUBLIC UTILITY EASEMENT ' CENTER of WATER LINE 3.' 6WATER LINE 9.2T TOP OF WATER LINE ' I ER TOP WATER COV m WALKWAY V PAD FTG WATER LINE LOCATION 641 VI LIDO SOUD 5/30/14 EASEMENT PLAN V4'=1'4 E) l n 1 sOITO M w 2) Pro FTG EDCEEG �— (E)@2LDr' TOPofW4N 9rA cz TCPO (EI Pro PT9 rvo EU23 nLwE 0.)\VATER LNE 9?l TOPOP WAR lNE WATER LINE LOCATION DETAIL 1 VINCENC DU4)AS! ARCHETECT OEETA DESCNIVI'ION EASEMENT m ss�:swva si3On4 EXHIOIT"A" N2014.0333 PAGE I OF erns ,. As L,e.roe 1/2'