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HomeMy WebLinkAboutC-5265 - Encroachment Agreement, EPN N2012-0225 for Irvine Terrace Tract Lots 93 and 181RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder II IIIIIII 11111111\111111111111111111 36.00 I*III$IIIR 0 0 0 5 3 7 1 8 7 4$* 2012000732502 12:56 pm 11128112 47 405 Al2 11 0.00 0.00 0.00 0.00 30.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN N2012-0225) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this L3 day of boiebe-r' , 2012, by and between the Irvine Terrace Community Association, a California nonprofit corporation ("HOA"), and the City of Newport Beach, California, a California municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California ("City"). WITNESSETH: WHEREAS, City is the owner of certain real property in the City of Newport Beach located in the Irvine Terrace Tract at Irvine Terrace Park and legally described as Lots 93, 181 and a portion of Lot A of Tract 2813, as shown on a map recorded in Book 94, Pages 45 through 47 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 050-360-02 and 050- 293-28 ("Property"). WHEREAS, HOA desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the 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 the Property; and WHEREAS, the parties hereto desire to enter this Agreement providing for fulfillment of the conditions required by City to permit HOA to construct and maintain said Permitted Improvements. 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 10-foot wide by 20-foot long by-10 foot tall Community Emergency Preparedness Supply (CEPS) container to store emergency response equipment and supplies within the Property. All equipment and supplies shall be approved by City's Public Works and the Fire Departments; B. A 12-foot wide by 30-foot long concrete slab and curb wall within the Property as shown on EXHIBIT "A" attached hereto and as approved by the Public Works Department. The CEPS container will be placed on top of the concrete slab. C. 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 HOA to construct, reconstruct, install, maintain, use, operate, repair and replace said Permitted Improvements and appurtenances incidental thereto, within a portion of the Property, if in substantial conformance with the plans and specifications on file in the City and attached hereto as Exhibit "A." City will further allow HOA to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 3. Rights granted under this Agreement may be terminated by City with or without cause and at any time without notice. The City shall make good faith efforts to provide notice sixty (60) days 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 the Permitted Improvements by City. 4. HOA and City further agree as follows: A. HOA 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. HOA 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 HOA 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 construction, installation or presence of Permitted Improvements, HOA shall be responsible for any and all cost of repairs. D. That should City be required to enter onto said Permitted Improvements to exercise its primary rights associated with the Property, including but not limited to, the maintenance, removal, repair, renewal, replacement or enlargement of existing or future Encroachment Agreement public facilities or improvements, City may remove portions of the Permitted Improvements, as required, and in such event: i) City shall notify HOA in advance of its intention to accomplish such work, provided that an emergency situation does not exist. ii) HOA shall be responsible for arranging for any renewal, replacement, or restoration of the Permitted Improvements affected by such work by City. iii) City agrees to bear only the cost of any removal of the Permitted Improvements affected by such work by City. iv) HOA 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 HOA, City may enter and said Permitted Improvements and remove all or part of the improvements installed by HOA. 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 not be entitled to reasonable attorneys fees and costs incurred. 6. HOA 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, 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. HOA agrees that this Agreement shall remain in full force and effect from execution thereof; shall be binding upon the heirs, successors, and assigns of HOA. 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 Encroachment Agreement Page 13 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. HOA shall at HOA'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 and specifically included, but not limited to provisions of the Newport Beach Municipal Code relating to hours when no persons shall enter the Property. 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. 14. HOA shall obtain, provide and maintain, at its sole cost and expense, policies of liability insurance of the type and amounts described below and in a form satisfactory to City, and shall require in all of its contracts with any contractors that perform any design, installation, maintenance or other work in connection with City Property that such contractors also provide the same insurance coverages as outlined herein. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverages on its behalf and shall be filed with City prior to performance of any work on or within City Property. Except for workers compensation and any errors and omissions coverage, all insurance policies shall, to the extent coverages is provided under such policies, add City, its elected officials, officer, agents, representatives and employees as additional insured for all liability arising from such work related to City Property. Insurance policies for the following coverages, with original endorsements related to the Improvements, shall be issued by companies approved or licensed to do business in California and assigned Best's A-VII or other rating acceptable to City: A. Coverage Requirements Worker's Compensation Coverage. HOA shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for its employees in accordance with the laws of the State of California. In addition, HOA shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance to laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non -renewal of all Worker's Compensation Insurance policies must be received by City at least thirty (30) calendar days (10 Encroachment Agreement Page 14 calendar days written notice of non-payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by HOA or its subcontractors for City. ii. General Liability Coverage: HOA shall maintain for the duration of this License, a general liability insurance policy in the amount of not Tess than One Million Dollars ($1,000,000) per occurance for injuries to persons or damages to property, that may arise from or in connection with the work performed under this Agreement by HOA, its agents, representatives, employees or subcontractors, or which may arise from or in connection with the design, construction, operation, maintenance or continued existence of the New or Existing Improvements. If commercial general liability insurance or other form with a general aggregate limit is used, wither the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage: HOA shall maintain for the duration of this License, automobile insurance covering bodily injury and property damage for all activities of HOA, its agents, representatives, employees, or subcontractors that may arise from or in connection with the work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than One Million Dollars ($1,000,000) combined single limit for each occurrence. B. For any contractors providing design services, professional errors and omissions insurance shall be required, which covers the services to be performed in connection with the Approved Plans or landscaping to be installed on or within City Property, in the minimum amount of One Million Dollars ($1,000,000). C. Endorsements: Each general liability and automobile liability insurance policy shall be endorsed with the following language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insured with respect to liability arising out of work performed be or on behalf of the HOA. ii. This policy shall be considered primary insurance as respect to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from HOA's operation or services provided to City. Any insurance maintained by City, including any self -insured Encroachment Agreement Page 15 retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with the respect to the limits of liability of the insuring company. iv. Insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. v. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents and volunteers. vi. The insurance provider by this policy shall not be suspended, voided, cancelled, or reduced in coverage or in limits, by any party except after thirty (30) calendar days written notice has been delivered to the City (10 calendar days written notice of non- payment of premium). D. Timely Notice of Claims: HOA shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from HOA's performance under this Agreement. E. Additional Insurance: HOA shall also procure and maintain, at it's own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. Encroachment Agreement Page 16 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S/OFFICE Date: 10-9/I - By: Aaro L1. Harp, M b 10-2A City Attorney ATTEST: Date: 11' b' I o� By: Leilani Brown, City Clerk CITY OF NEWPORT BEACH, a California Municipal corporation Date: 11/i /(2- By:' 7C Nancy Gat:er, Mayor IRVINE TERRACE COMMUNITY ASSOCIATION: Date: /(1,/.12-- Bv: Date: `e-c. (Re,:i'f'ic)w Leanne •man Secretary Owners must sign in the presence of notary public ATTACHMENTS: EXHIBIT A —Plans as approved by Public Works f.luserslpbwlsharedll-encroachlrow agreements\2012\n2012-0225 irvine terrance community assoication.docx Encroachment Agreement Page 17 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT r f CIVIL CODE § 1189 State of California County of Dr__.. / On NII)V er It�l2- before me, 1/ ry l`�lz` -f' ( N t-4 To h� Date Here Insert Name and Title of the Officer personally appeared ct vQ 6arzE l.e Name(s) of Signer(s) KIM RIEFF �!!r�`►.- Commission • 1967536 Notary Public - California Orange County .. M Comm. E ires Jan 26, 2016 Place Notary Seal Above } who proved to me on the basis of satisfactory evidence to be the person.(61 whose name,Fefi is/04,6 subscribed to the within instrument and acknowledged to me that !/she/trey executed the same in j /her/tl e authorized capacitykies` , and that by bit7her/their signature on the instrument the person(e)'-or the entity upon behalf of which the persons- 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 a official sea 6 Signature: OPTIONAL Signature of Notary i Title or Type of Doc V\C� u ent: Z&LINUv\-v� /.9 r-� v evt& (50Nc200 -05 Number of Pages: 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 m Document Date: (O b 3 //- Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ C1 Corporate Officer — Title(s): C1 Corporate Officer — Title(s): Individual Partner — ❑ Limited ❑ General Attorney in Fact Trustee E Guardian or Conservator ❑ Other: Signer Is Representing: RIGHT THUI OF SIG PRINT R Top of thumb here Individual r1 Partner — 11 Limited ❑ General Attorney in Fact ❑ Trustee Guardian or Conservator ❑ Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here © 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 ACKNOWLEDGMENT of California County of 02; 1 ei } ss. On /O. /, 12 bef95e me, , L_fitit(1!-i-cid No y Public, pers nally appeared A�-I ) '> Vivid i 1 Cti/ (2 �2 f .f a ow_ - T ,0,9? -K) ,who proved to me on the basis of satisfactory evidence to be the person(d) whose name(J is/0 subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her/ ei authorized capacity(, and that by his/her/ r signatures(+a� on the instrument t e person(J, or the entity upon behalf of which the person(C) acted, executed the instrument. State C,j -Cir-V(. 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. Signat ACKNOWLEDGMENT State of County of } ss. K. L. SUTTERFIEL COMM. #1945303 g Notary Public - California Riverside County Comm. E • res Jul 24, 2015 (seal) California On 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 he/she/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. 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 (seal) Encroachment Agreement Page 1 8 aoiRFqa9w9op,v.J.9 9BLO • LfL (6t6) (i) 5910- at (6t6) (0) SZ9Z6 '°Ji°W 1� ounaJ ael,a ioggeW 019 uo[laaodaop lsuotssajoad 1/ 'DN JNRIEaNIDM I'ITVGNIZ uwrooye(®IDw�lupuna5�w9. 9R0-La (6Y6)(4) 6910-ZR(616)(o) 5Z9i6 +J'nW Ip4 sua0�a�pq au7%uf40(9 uopii�odio� leuoissaJoid y N co