HomeMy WebLinkAboutC-3445 - Encroachment Agreement EPN N2014-0266 for 2316 Pacific DriveCOPY
CCO NOT OFR
INC; REQ(JESTF D BY AND
F;CORDE[) RI 'f0RN TO
Public Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Recorded in Off vial Records, Orange County
Hugh Nguyen Clerk Recorder
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ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2014-0266)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this 28th day of July, 2014, by and between Andrew P. Goetz, Debra D. Walden,
husband and wife, as joint tenants ("Owner"), 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").
RECITALS
WHEREAS, Owner is the vested owner of property located at 2316 Pacific Drive,
Newport Beach, California 92625 and legally described as Lot 4, Block 329 of the
Corona del Mar Tract, as shown on a map recorded in Book 3, Pages 41 through 42
inclusively of Miscellaneous Maps in the office of the County Recorder of Orange
County, County Assessor's Parcel Number 459-102-10 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Pacific Drive 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 Owner to construct and maintain
said Permitted Improvements.
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto
agree as follows:
1. City and Owner acknowledge that the above Recitals are true and correct and
are hereby incorporated by reference into this Agreement.
It is mutually agreed ttrr.d Permitted Improvements shall he defined as:
a. A 6-foot 7-inch wide carriage walk constructed of White Shell laithocr to
concrete encroaching up to 1 foot into the Pacific Drive public right-of-way.
b. A stainless steel handrail no more than 3 feet in height encroaching up to
3.5-inches into the Pacific Drive public 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 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 City. City will further allow Owner 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. Owner and City further agree as follows:
a. Owner 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. Owner 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 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.
Andrew Goetz and Debra Walden Encroachment Agreement
d. Should City be require d to enter onto said Right -of -Way to exercise its
primary rights associated with said Right -of -Way, including hut not thrilled
to, the maintenance, removal, repair, renewal, replacement or
enlargement of existing or future public facilities or improvements, City
may remove portions of 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 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) Owner agrees 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 the breaching party is Owner, City
may enter upon 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) 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. 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
Permitted Improvements.
9. 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 Owner's interest in the land, whether fee or
otherwise; and shall be recorded in the Office of the County Recorder of Orange
County, California.
10. 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.
mstra
Andrew Goetz and Debra Walden Encroachment Agreement
11, The ter ns of this Agreernorit shall he eon sztr red in accordance with the moaning
of the language used and shall not be crrued for or against either party by
reason of the authorship of the Agreement or any other rule of construction whir.h
might otherwise apply.
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. 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.
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.
16. Owner shall obtain and maintain during the term of this Agreement the insurance
provided in Exhibit B, which is attached hereto and incorporated herein by
reference.
[SIGNATURES ON NEXT PAGE]
Andrew Goetz and Debra Walden Encroachment Agreemen
IN WI'I'NrS WHt Itl t?F, tfie uarhes hereto have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY',S OFFICE
Date: '
By:
Aaron C. Harp
City Attomey
ATTEST:
Date:
By:
Leiiani I. 'Brown
City Clerk
ATTACHMENTS:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
.M.
Dave Ki
City Manager
OWNER(S): Andrew P. Goetz
Debra D. Walden
Date: 1; 2 3
By:
Andrew P. Goetz
Joint Tenant
t11.2
Date: t t`
Debra D. Walden
Joint Tenant
[END OF SIGNATURES]
Owners must sign in the presence of notary public
Exhibit A — Permitted Improvements Plan as Approved by
Public Works
Exhibit B — Insurance Requirements
Andrew Goetz and Debra Walden Encroachment Agreement
ACKNOWLEDGM}:;NT
State of Californi
County of 1:i q ss.
before me,
, Notary Public, personally appeared
who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) Aare
subscribed to the within instrument and acknowledged to me that he/she/they executed the
same in hie/her/their authorized capacity(ies), and that by Wis{taer/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
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
under the laws of the State of California that the
ACKNOWLEDGMENT
State of California
County of } ss.
On
PHILLIP PAI,AZUEL OS
Commission 1982306
Notary Public California
Orange County
Comm. Expires Jun 17, 2016
(seal)
20 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
Andrew Goetz and Debra Walden Encroachment Agreement
(seal)
EXHIBIT A
PERMITTED IMPROVEMENTS PLAN
Andrew Goetz and Debra Walden Encroachment Agreement A-1
E iS11NG WALL
(ENCROACF
PER1Y UNE
(RIGHT OF WAY)
UHOCRETE
RE SHELL CONCRETE
EXLSDNG SIDEWALK
PLAN VIEW
1/2"-1'
£I I
2316 PACIE C DR.
ENCROACHMENT
AGREEMENT N2014-G266
FACE OF CURB EX'
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72.03 NG AVG.
RETURN
ON PUBLIC ROW)
STAINLESS S1EEL
HANDRAIL
TOP OF
SOMALI<
EXISTING WALL
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2316
71.172
2316 PACIFIC DR.
ENCROACHMENT
AGEEVENT N2014-0266
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EXHIB
INSURANCE, REQUIREMENTS
REAL PROPERTY ENCROACHMENT AGREEMENT
1. Provision of Insurance. Without limiting Owner's indemnification of City, and
prior to disbursement of City Grant funds, Owner shall obtain, provide and
maintain at its own expense during the term of this Agreement, policies of
insurance of the type and amounts described below and in a form satisfactory to
City. Owner agrees to provide insurance in accordance with requirements set
forth here. If 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. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance 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 VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. General Liability Insurance. Owner shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence. The policy shall cover liability arising from premises,
operations, personal and advertising injury, and liability assumed under an
insured contract (including the tort liability of another assumed in a
business contract).
4. Insurance Requirements. The policies are to contain, or be endorsed to contain,
the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation
against City, its elected or appointed officers, agents, officials, employees
and volunteers or shall specifically 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 Insured Status. All liability policy shall provide or be endorsed
to provide that City and its officers, officials, employees, agents and
volunteers shall be included as insureds under such policy.
Andrew Goetz and Debra Walden Encroachment Agreemen
t1. primary anrlNeu, (nrrtnhptory. All liabiliiy coverage shall apply on a
piimary basis and shall not require contribution frorn any insurance or self-
insurance maintained by City.
D. Notice of Cancellation. The policy shall provide City with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten
(10) calendar days notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Owner shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement and other endorsements as specified
herein for liability coverage. Insurance certificate and endorsement must
be approved by City's Risk Manager prior to commencement of
performance. Current certification of insurance shall be kept on file with
City at all times during the term of this Agreement. City reserves the right
to require complete, certified copies of all required insurance policies, at
any time.
Andrew Goetz and Debra Walden Encroachment Agreement