HomeMy WebLinkAboutC-6725 - Encroachment Agreement EPN N2009-0167 for 108 Via WaziersLn
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RECORDING REQUESTED AND
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WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2009-0167)
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THIS AGREEMENT is made and entered into this 25th day of June, 2009, by and
between Roger P. Tomalas and C. Lynn Tomalas (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 108 Via Waziers, Newport Beach, California 92663
and legally described as Lot 361 and northeasterly'Y2 of Lot 362 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 Assessor Parcel Number 423-277-10.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Via Waziers right-of-way (hereinafter
"RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot 361 and
northeasterly Y2 of Lot 362 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 108 Via Waziers, Newport Beach, California 92663; 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
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.
1
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,
a. A 7-foot wide and a 4-foot wide entry walkway constructed of standard
concrete encroaching 2.5-feet into the public right-of-way;
b. A total length of 32'/z-feet of an 18-inch high CMU block wall encroaching
2.5-feet into the public right-of-way;
C. Various private landscaping not to exceed 36-inches in height and various
private irrigation improvements encroaching up to 2.5-feet into the public
right-of-way; and appurtenances in the Via Waziers 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.
4. OWNER and CITY further agree as follows:
2
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.
(ii) OWNER shall be responsible for arranging for
any renewal, replacement, or restoration of the PERMITTED
IMPROVEMENTS affected by such work by CITY.
3
(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
otherwise, and shall be recorded in the Office of the County Recorder of Orange
County, California.
4
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.
'61
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
By:
ynett D. t4au p,
Assistant City At oty
ATTEST:
By: D4i� 9,
Leilani Brown, City Jerk
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ON
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CITY OF NEWPORT BEACH,
a Municipal corporation
By:
Homer Bludau,
City Manager
OWNER:
By: 0 .
C. Lynn Tomalas
F: \users\cat\shared\ContractTemplatesPublishedon Intranet\FORMEA.doc
Revised: 03.05.09
f:\users\pbw\shared\encroach\row agreements\2009\n2009-0167-108 via waziers ave (tomalas).doc
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On Q before me, W— , Notary Public,
personally appeared �. L utnn Tcwtc,tc&5 who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/Ae
subscribed to the within instrument and acknowledged to me that t�/she/thy executed the
same in +er/lir authorized capacity(ies), and that by h-"/her/tNir signature(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.
ry Public in and for sa
OPTIONAL INFORMATION
Title or Type of Document:
Date of Document:
(SEAL) i. -
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On
personally appeared
proved to me on the basis of
before me,
tN)C4I.dr1Lj��Notary
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Public,
who
evidence to be the person( whose name isA
subscribed to the within instrument and acknowledged to me that he/slw/tloy executed the
same in his/'-rh*ir authorized capacity(hA), and that by his/#A/ it signature(( on the
instrument the person Q, or the entity upon behalf of which the person(A 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.
Notary Public in and for
OPTIONAL INFORMATION
Title or Type of Document:
Date of Document:
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California}�'
County of NlArV\cJ p
�r C o before me, L) L L,'A N1 U)A6 k / N(C-wlT0r\,�
ate I n Here Insert Name and Title of the Officer
personally appeared
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who proved to me on the basi f satisfactory evidence to
be the person( whose name is/arsubscribed to the
within instrument and acknowledged to me that
he/sk/thh* executed the same in his/h UtWv authorized
capacity(io�9), and that by his/XT/tl iir slgnatureK on the
instrument the personK or the entity upon behalf of
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which the personkacted, executed the instrument.
Notary ►ulMc -- California i
orange County
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I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS h d ffici seal.
Signatur
Place Notary Seal Above
Signature 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
❑ Guardian or Conservator
❑ Other:
Signer Is Representing
RIGHTTHUMBPRINT
OF SIGNER
Top of thumb here
Number of Pages:
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact •
❑ Trustee Top of thumb here
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
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NO. 907
WPORT
BEACH CA
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N2009-0167
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