HomeMy WebLinkAboutC-5946 - Encroachment Agreement EPN N2014-0362 for Water Line Easement within the Bayside Cove Community0
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E3Y AND
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Public Works Depaitment
City of Newport Beach
P0. Box 1768
Newport Beach, CA 92658-8915
Hecorded in Officil Records, Ornqe Coi!nty
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ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2014-0362)
THIS ENCROACFIMENT AGREEMENT ('Agreement") is made and eritered into
this 8th day of September, 2014, by and between Bayside Cove CommuriityAssociation
as A Galitornia noriprofit corporation ("Owner"), and the City of Newport Beach, a
California municipat 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 ("Gity").
RECITALS
WHEREAS, owner is the vested owner of property Iocated at Water Line
Easement withln the Bayside Cove Community Association as shown on Official
Records Book 11452, Page 1974, Newport Beach, Califorriia 92660, and legaily
described as Tract 8073, as shown on a map recorded in Book 327, Pages 8 through 9
inclusively of Miscellaneous Maps in the office of the County Recorder of Orange
County ('Property');
WHEREAS, 0wner desires to construct certain non-standard improvements as
further described herein ("Permitted lmprovements") within the Water Line Easement
right-of-way (hereinafter "Right -of -Way") that is located adjacent to Froperty;
WHEREAS, said Permitted Irnprovements may interfere in the future with Citys
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 0wner to construct arid maintain
said Fermitted Improvements.
NOW, THEREFORE, in consideraflon of the mutual promises, the parties hereto
agree as foliows:
1. City and Owner acknowledge that the above Recitals are true and correct and
are hereby incorporated by reference into this Agreement.
Bayside Cove Community Association Enoroachmerit Agreement 1
2, It is mutually greod that Permitted Irrrprovernonts shafl bo detined as:
a. Decorativo driveway constructed uf 80 mm interloc:kinq conereio pavers
encroachirig irito the lO-foot wide Wator Liric Easemont,
b. Black wrought iran gate with 3-foot wide acid washed charcoal colored
conorete slab on each side of the gate track eneroaching into the lO-foot
wide Water Line Easernent.
c. Decorative driveway constructed of red stamped concrete encroaching
into the lO-foot wide Water Line Easement, as approved by the Public
Works Department and as shown on Exhibit A attached hereto and
incorporated herein by reference.
d. 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 Bulit" plans.
3. City will permit Owner to construct, reconstruct, install, maintain, use, operate,
repair and replace said Permitted mprovernents 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
reasonab!e measures necessary or convenient in accornplishing 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. Gity shaFl incur no IiabiIiIy whatsaever in the
event of the termination of this Agreement or subsequent removal of
improvements by City.
5, Owner and City further agree as foliows:
a. Owner may construct and nstall Permitted mprovements and
appurtenances incidental thereto in substantial conformance with the
plans and specificationa on file in Gity's Public Works Department, and as
described an Exhibit A.
b. Owner shall maintaln Permitted Improvements in accordance with
generaily 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 Iocated in or under said Permitted
Improvements, except as otherwise provided herein.
Bayside Cove Community Association Encroachment Agreement
e. If Gity or other puhlic facilities or iniprovenients ate daniaged by tlie
iitstallation or prosenco of Perri iitted In iproveineits, (3wne, sFiafl be
respoiisible lor tPu cost of repairs.
d. Should Gity he required to enter onto said Right -of -Way to exercise ts
primary rights associated with said Right -of -Way, inc!uding but not Iimited
to, the maintenance, removal, repair, renewal, replacement or
enlargement of existing or future public facilities or improvements, City
may remove portions ot 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.
(U) Owner shati be responsible for arranging for any renewal,
replacement, or restoration of Permitted Improvements affected by
such work by City.
(iH) City agrees to bear orfly the cost of any removal of Permitted
lrnprovements affected by such work by City.
(iv) Owner agrees to pay alt costs for the renewal, replacement, or
restoration of Permitted lmprovements.
6. In the event either party breaches any material provision of this Agreement, the
other party, at Fts option may, in addltiori to the other tegal remedies available to
it, terminate this Agreernent and, in the event the breaching party is Owner, City
may enter upon Right -of -Way and remove ati or part of the irnprovements
instalted by Owner. Termination because of breach shalt 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 legat action arising under this Agreerrient, the
prevailing party shall not be entitted to attorneys' fees.
8. Owner shall defend, indemnify and hold harmless City, its City Councit, boards
and commissions, officers and employees from and against any and alt Ioss,
damage, tiability, claims, suits, costs and expenses whatsoever, including
reasonabte 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 shatt remain in full force and effect from
execution thereof; shall run with the tand; shalt be binding upon the heirs,
successors, and assigns of Owner's interest in the tand, whether fee or
otherwise; and shall be recorded in the Office of the County Recorder of Orange
County, California.
Bayside Cove Community Association Encroachment Agreement
10, The laws 0! the Stniu af CalUorniashaU govcrn [his Agreeincnt and all rnatlors
reCatirig to it aict any action brought rel9ting to this Agreoment shall be
adjudicated in coUrt of corripetent jurisdiction the County ot ()range,
Califorriia.
11. The terms af this Agreement shall be construed in accordance with the meaning
of the Ianguage 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
rnight otherwise apply.
12. This Agreement represents the full arid complete understanding of every kind or
nature whatsoever between the parties hereto, and all prelirninary 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 shafl 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. Owner shall, at Owner's own cost and expense, comply with all statutes,
ordinances, regulations and requirements af all governmental entities, including
federal, state, county or municipa, whether now in force or hereinafter enacted.
15. If any term or portiori of this Agreement is held to be invalid, lilegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shaU continue in full force and effect.
16. Owner shall obtain and maintain during the term of this Agreement the insurance
provided in Exhibit 8, which is attached hereto and incorporated hereiri by
reference.
[SIGNATURES ON NEXT PAGE]
Bayside Cove Community Association Encroachmen
Agreement
N flTNESS WHEREOF, the partie a iejeto tave ca.uad this Agreeriiurit to be
executcd an the dates written below,
APPROVED AS TO FORM:
GITY ATTORNEY'S OFFICE
Date
By:
Aaron'CHrp
City Attorney
ATTEST:
ljate:
By:
Leltani 1. Brown
City Cterk
CITY OF NEWPORT BEACH,
a california municipal corporation
Date
By:
Dav� Ki
Gity Manager
OWNER(S): Bayside Cove Community
Association
Date:
BYV//d//( e'/(?rf J%)
Midhele Ottirig-Mann./
President
Date:
JotiMtref
/ TrS'surer
[END OF SIGNATURES]
/
Owriers must sign in the pre.sence of notary public
ATTACHMENTS: ExhbitA— Permitted Improvements Plan as Approved by
Public Works
Exhibit B — Insurance Requirements
Bayside Cove Community Association Encroachment Agreement
ACKNOWLLEDGMENT
State of Catifornia
County ot } ss.
On 20 / / before me,
Notary Pubhc, persorially appeared
jAcLele Q4)— /1n. »pj(e\) , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to Ibe within instrument and acknowledged to rne (hat he/she/they executed the
same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the
nstrument the person(s), or the entity upon behalf of which the person(s) aoted, executed the
instrument.
1 certify under PENALTY OF PERJURY under the laws af the State of Caflfornia that the
foregoing paragraph is true and correct.
WITNESS my hand and offlcial seal.
SignfUr
SCAN ANGIEFI
Cornrnlaslorj # 2051070
Nolary Public - calirornia
oranoe Gounly
Cammgje Jan 3.2018
(sea)
ACKNOWLEDGMENT
State of California
County of ) ss.
on
20 before me,
Notary Public, personaily 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 [he entity upon behalf of which the person(s) acted, executed the
instrument.
1 certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is twa and correct.
WITNESS my hand and official seal.
Signature
Bayside Cove Community Association Encroachment Agreemen
(seal)
EXIHF3 IT
PERIVIITTED IMPRC)VEIVIENTS PLAN
____________
Bayside Cove Community Association Encroachment Agreement
A-1
EXI-IIBIT "A"
N2014-0362
PAGE3 OF3
EXHIBIT F3
INSURANCE REQLJIREMIENTS
REAL PROIER1Y ENCROACHMENI AGREEMEN1
Provision of Insurance. Withoul limiting Owner's indernnification of City, and
prior to disbursement of City Grant funds, Owner shall obtairi, provide and
maintain at its own expense during the terni of this Agreement, policies of
insurance of the type and amounts described betow and in a form satisfactory to
Gity. Owner agrees to provide insurance in accordarice with requirements set
forth here. Jf Owner uses existing coverage to comply and that coverage does
not meet these requirements, Owner agrees to amend, supplement or endorse
the existing coverage.
2. Accetable lnsurers. Alt insurance policies shall be issued by an insurance
company currently authorized by the lnsurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class Vil (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coveraqe Requlrements.
A. General Liabilitv Insurance. Owner shall maintain commercial general
liability insurance, and if necessary umbrella IiabiIity nsurance, with
coverage at least as broad as provided by tnsurance Services Office form
CG 00 01, in an amount not less than one mijlion dollars ($1,000,000) per
occurrence. The policy shalt cover liability arising from premises,
operations, personal and advertising injury, and liability assumed under an
insured contract (including the tort Ilability of another assumed in a
business contraot),
4. tnsurance Requirements. The policies are to contain, or be endorsed to contain,
the fotiowing provisions:
A. Waiver af Subroqatlon. Alt insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation
against City, its etected or appointed officers, agents, officials, emptoyees
and votunteers or shall speciflcatly allow Owner or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Owner hereby waives its own right of
recovery against City.
B. Additional lnsured Status. Alt Iiabi!ity policy shall provide or be endorsed
to provide that City and its officers, officials, employees, agents and
volunteers shalt be inctuded as insureds under suoh policy.
.. w. .
Bayside Cove Cornmunity Association Encroachment Agreement B-1
Al! liability coverage shall apply on
pnmary hasis and shall not require contributiori from any nsuranco or so!f
insiirance maintainod hy Gity.
[). Notice of Cancellation, The policy sv1l provide City wfth thirty (30)
calendar days notice of canreflation (except for nonpayment for which ten
(10) calendar days riotice 3 requrred) or nonrenewal of coverage for each
required coverage
5. Additional Aqreements Between the ,, Sies, The parUes hereby agree to the
foliowing
A Evidence of Insurance Owner haiJ provde certificates of irisurance to
City as evidence of the insurance c�verage required hereiri, along with a
waiver of subrogation endorsement and other endorsements as specifled
hereln for Ilability coverage. lnsurance certificate and endorsement must
be approved by Citys Risk Manager prior to commencement of
performance. Current certification of insurance shall be kept on file with
City at alt times during the term of this Agreement. City reserves the right
to require complete, certified copies of all required insurance policies, at
any time.
B. Owner shall require and verity that all contractors maintain insurance
meeting the requirements stated herein, and Owner shall ensure that City
is an additional insured on insurance required from contractors. For CGL
coverage contractors shall provide coverage with a format at Ieast as
broad as CG 203804 13.
.. .. . .. .
Baysde Cove Community Association Encroachment Agreement