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Home My WebLink AboutC-6053 - Encroachment Agreement EPN N2015-0024 for 3335 Ocean Blvd. / 052-120-20Public Works Department City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 Reacor'sled In Official R cords, Oiange Cotinty N ugh Nguyen, Clerk-Recorder I li I(I'lll llllf[(�II 11Illl11t Ill 911 11W Ill 11 ;,W,00 2015000194664 9:37 am 04116115 47 411 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 N2015 -0024) THIS ENCROACHMENT AGREEMENT ( "Agreement ") is made and entered into this 17th day of March, 2015, by and between The Richard J. Livoni Second Family Limited Partnership as A Nevada Limited Partnership ( "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 3335 Ocean Boulevard, Newport Beach, California 92625 and legally described as Lot 4, of Tract 1257, as shown on a map recorded in Book 38, Pages 25 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 052 - 120 -20 ( "Property "); WHEREAS, Owner desires to construct certain non - standard improvements as further described herein ( "Permitted Improvements ") within the Ocean Boulevard 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 fulfillment of the conditions required by City to Permitted improvements. to enter into this Agreement providing for permit Owner to construct and maintain said NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: City and Owner acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 2. it is mutually agreed that Permitted Improvements shall be defined as: The Richard J. Livoni Second Family Limited Partnership Encroachment Agreement 1 a. A 60 -foot long retaining wall with ra maxirnrnn height of 233 fe�:t tall oncroaching up to 16 feet into the Ocean Boulevard public right of-way, as approved by the ["riblic Works Department and as shown on f »�xhibit A, attached hereto and incorporated herein by reference. b. 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 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 existing or future public facilities or improvements, City may remove portions of Permitted Improvements, as required, and in such event: (1) City shall notify Owner in advance of its intention to accomplish such work, provided that an emergency situation does not exist. The Richard J. Livoni Second Family Limited Partnership Encroachment Agreement 2 (ii) Owner shall bo tc, —; aonwsiblo foi arranging for any ro new.,ri, repipcoment, or restoration of Permitted Irnprovemorits affected by such work by City. (iii) 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. 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. 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. 12, 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. The Richard J. Livoni Second Family Limited Partnership Encroachment Agreement 3 1:3. A waiwm by oithor party of :rny breach, of any to nn, covenant or condition c;ontainod herein shall not be deemod to be a waiver of any subsequent breach of the same or any other terra, covenant or condition contained herein, whether of the :game 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) The Richard J. Livoni Second Family Limited Partnership Encroachment Agreement 4 IN WITNESS WHEREOF, [lie parties hetoto have caused this Agreement to be execut d on the dalos written below. APPROVED AS TO FORM: CITY AT "a RNEY'S OFFICE Date: — �...._— A 1 Sy. Aaron C. Harp P,\ City Attorney ATTEST: _. Date:�t < <` CITY OF NEWPORT BEACH, a California municipal corporation Date; k I° Diu By MW .. tµ.+ — Dave Kiff City Manager OWNER(S): The Richard J. Livoni Second Family Limited Partnershi, By:_ ' Richard J. Livon,` "' General Partner and Limited Partner of the Richard J. Livoni Second Family Limited Partnership, Daphhe A Live a „„ Limited�of the Richard J. Livoni Second Family Limited Partnership [END OF SIGNATURES] Owners must sign in the presence of notary public ATTACHMENTS: ExhibitA — Permitted Improvements Plan as Approved by Public Works The Richard J. Livoni Second Family Limited Partnership Encroachment Agreement 5 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. State of California County of ) f, f:, } ss. on < tJir' 20! before me, t..c ^r, •' Notary Public, personally appeared 4 K who proved to me on the basis of satisfactory evidence to be the person( whose nameislare subscribed to the within instrument and acknowledged to me that he /they executed the same in (Fts7her/their authorized capacity 904 and that by (IJOherttheir signatures on the instrument the personas), or the entity upon behalf of which the persoV 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. w! �r ignat0re 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. State of California C7,9 •as9ti, County of LAJe ,•,•R,:, <�t�,_ } ss. v 1 On f - t� 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 hetshefthey 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. w � ktl6rt " c r+eas4a4 NOTARY PUFILIC • CAUF RNIA S Hato (seal) C g MY COMM. EXP. JULY 19,20/8 The Richard J. Livoni Second Family Limited Partnership Encroachment Agreement 6 X141 IT A PERMITTED IMPROVEMENTS PLAN The Richard J. Livoni Second Family Limited Partnership Encroachment Agreement A -1 oI I 1 EXISTING I DRIVEWAY 1'J EXISTING PL I PREPARED BY: FUSCOE 16' " if—,. a,lmta0 Irvin,, Odi(,r,i, 9060E 1e949.4]4.19811' fox 939A149015 w�rvlvfro,.<om EXISTING EDGE EXISTING OF AC PAVEMENT STONE PAVERS H =t2' T J (' Fr�-, r\ 1 \1 B V D EXISTING PL DRAWN: JC CHECKED: CW DATE: 0210312015 SCALE: 1 ° =10' JOB NO.: 842.01 SHEET