HomeMy WebLinkAboutC-6174 - Encroachment Agreement EPN N2015-0618 for 287 Evening Canyon Roadf
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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
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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
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ACKNOWLEDGMENT
State of California
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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.
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Notary Public, personally appeared L -Ij j 2 z'
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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
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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.
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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