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HomeMy WebLinkAboutC-6174 - Encroachment Agreement EPN N2015-0618 for 287 Evening Canyon Roadf Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2015-0168) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 27th day of May, 2015, by and between Michael Carabini as Trustee of the Victoria Investment Trust dated July 26, 1993 and Vincent Colarossi ("Owners"), 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"). WHEREAS, Owners are the vested owners of property located at 287 Evening Canyon Road, Newport Beach, California 92625 and legally described as a portion of Lot 139 of Tract 1116, as shown on a map recorded in Book 36, Pages 19 through 20 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 052-191-20 ("Property'); WHEREAS, Owners desire to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Evening Canyon Road 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 Owners to construct and maintain said Permitted Improvements. NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: I City and Owners acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. Victoria Investment Trust and Colarossi Encroachment Agreement 1 2. It is mutually agreed that Permitted Improvements shall be defined as: a. A decorative entry walk constructed of 24-inch by 26-inch gray concrete pads with grass strips encroaching up to 10-feet into the Right-of-Way; b. A 3-foot tall, 24-inch square decorative mailbox pilaster constructed of brick pavers with gray limestone precast cap encroaching up to 10 feet into the Right-of-Way, as approved by the Public Works Department and as shown on Exhibit A, attached hereto and incorporated herein by reference. C. 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 Owners 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 Owners 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. , Owners and City further agree as follows: a. Owners 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. Owners 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 Owners 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, Owners 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 Victoria Investment Trust and Colarossi Encroachment Agreement 2 existing or future public facilities or improvements, City may remove portions of Permitted Improvements, as required, and in such event: (i) City shall notify Owners in advance of its intention to accomplish such work, provided that an emergency situation does not exist. (ii) Owners shall be responsible for arranging for any renewal, replacement, or restoration of Permitted Improvements 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) Owners agree 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 Owners are the breaching party, City may enter upon Right-of-Way and remove all or part of the improvements installed by Owners. 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. 8. Owners 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. Owners agree 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. % 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. Victoria Investment Trust and Colarossi Encroachment Agreement 3 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. 13. 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. 14. Owners shall, at Owners' 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. I'M [CRUM11 N :M01011 I Victoria Investment Trust and Colarossi Encroachment Agreement 4 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates written below. By: Aaron C. Harp orney City Aft CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Dave Ki City Manager 1; !QFOV'kr� • Owners must sign in the presence of notary public ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by Public Works Victoria Investment Trust and Colarossi Encroachment Agreement 5 Victoria Investment Trust and Colarossi Encroachment Agreement A-1 Owner: Victoria Investments Trust Address: 287 Evening Canyon Road {` i u r ' ill'+ K�07- "f'4 -AL 4'r 01 247 M-mlla ('Vup FAif, 6-V TCS 556 PAD r- mom 6) ON N20'15 -0158 -- Exhibit Page I of I CO uj poi 4( DAtE I',- D .RW R. 0 7-OXOT h7l 1444ARK, vhw r-ull 0C ncrete with Bras I BASIS of- Be" r Ts 24 3-ft-tajl brick mailb 10 IJilaster with gray 1 01 pu Ilmestone pre-caslicap PRECIS.E GRAbING PLAN POAS0115 A 1 4. r. SrAlm 5LUMITI W WIL T, REE 5a LZO 0 ;uIC_ CO uj poi 4( DAtE I',- D .RW R. 0 7-OXOT h7l 1444ARK, vhw r-ull 0C ncrete with Bras I BASIS of- Be" r Ts 24 3-ft-tajl brick mailb 10 IJilaster with gray 1 01 pu Ilmestone pre-caslicap PRECIS.E GRAbING PLAN POAS0115 A 1 4. r. SrAlm 5LUMITI W ACKNOWLEDGMENT State of California I County of 0 (LAg (—, t-- j SS. On mAM -2,V 1 20j5_ before me, k—b Notary Pdblic, personally appeared M � <, kA Pye L, N (L - A 62 10 1 who proved to me on the basis of satisfactory evidence to be the person(g) whose name(g) is/are subscribed to the within instrument and acknowledged to me that he/shg/twy executed the same in his/har/tWir authorized capacity(jes), and that by his/her/tktir signatures(e) 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. am Signature ACKNOWLEDGMENT A notary public or other officer completing tWjs- 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 z7' a+, Iss. On 20 before me Notary Public, personally appeared L -Ij j 2 z' f t- Uj t -,� I , (' proved to me on the basis of satisfactory evidence to be the whose name�stjs' s b6 'b d to the within instrument d acknowledg to me th eW;/th4y executed the same in p, cr gn on the instrument the s '96�tures# j I /thBir authorized capacity(i94), and that b6i MS/ t eftl#lr F6n '-�ersin' , or the entity upon behalf of which the person�s) acted, executed the instrument. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNES= 0 Al 1'- h " /8 " g ature (seal) DEBBIE K, MAXWELL Commission # 1968108 Notary Public: - California Z Orange County My Comm, Expires Feb 28, 2016 Victoria Investment Trust and Colarossi Encroachment Agreement 6