HomeMy WebLinkAboutC-6109 - Encroachment Agreement EPN N2014-0566 for 535 DeAnza Drive / 459-132-13copy
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Public; Works Department 47 441 All F13 4
City of Newport Beach 0.00 0,00 8.60 0.80 24.00 0.00 0.00 0.00
P.O. Box 1768
Newport Beach, CA 92658 -8915
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2014 -4566)
THIS ENCROACHMENT AGREEMENT ( "Agreement ") is made and entered into
this 22nd day of January, 2015, by and between Paul W. Rockiey as an unmarried man
( "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 535 De Anza
Drive, Newport Beach, California 92625 and legally described as Lot 86 of Tract 1237,
as shown on a map recorded in Book 40, Pages 19 through 20 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, County
Assessor's Parcel Number 459 - 132 -13 ( "Property");
WHEREAS, Owner desires to construct certain non - standard improvements as
further described herein ( "Permitted Improvements ") within the De Anza 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:
City and Owner acknowledge that the above Recitals are true and correct and
are hereby incorporated by reference into this Agreement.
2. It is mutually agreed that Permitted Improvements shall be defined as:
Rockley Encroachment Agreement 1
I
. A 21 -toot wide docorativo driveway constructed of beige flagstone: pavers
encroaching up in 6 -feel into thr: Cho Anza thrive public right,ot -way, as
approved by the Public Works Departmout and as shown on Exhibit A,
attached hereto and incorporated herein by reference.
b. 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 (66) 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.
G. 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. 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 Permitted Improvements, as required, and in such
event:
Rockiey Encroachment Agreement 2
(i) tiny shall notify fawner in advance of its Intention to accomplish
suctr work, provided that are ornorgrrncy 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.
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.
Rockley Encroachment Agreement 3
1,2 This Agte(, -imont represents the frill and uompk to unc.k,,i stand irag of e very kind or
nature wh'Asoever betweem the parties hero -lo, and all prolirninary ncgealiaatio ns
and agrr�emaents 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.
[SIGNATURES ON NEXT PAGE]
Rockley Encroachment Agreement 4
IN W11 NES ± WHEREOF, thcsz partiws heat -to h, wo caused thi ; Agrocoment to b
executed on the dates writton bolow.
APPROVED AS TO FORM:
CITY ATTORNEYS OFFICE
r
t
Aaron C. Harp
City Attorney
ATTEST:
Date:
ss,
sty tf e.i
t r 4 , _.
Leilani L Brown
City Clerk
ATTACHMENTS:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: ° t'2 16
By-
Dave R1 }
City Manager
OWNER(): Paul W. Rockley
Date:
[END OF SIGNATURES]
Owners must sign in the presence of notary public
Exhibit A — Permitted Improvements Plan as Approved by
Public Works
Rockley Encroachment Agreement 5
ACKNOWLEDGMENT
DGMENT
State of California
County of ss.
20 before me,
Notary Public, personally appeared
who
proved to me on the basis of satisfactory evidence to be the person(—.) whose name(s) Ware
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 /tFieir signatures(,&), on the
instrument the person(sj 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 I3
[MIIIt t JAY kill Ull u,
o C;,�M01.� ron ar 1n13106 '
WITNESS my hand and official seal. . "` i� }� Notai� rt��,n� - 4 �narn�a 4
t�rar�gc rnue6y -
Jui 1 101-5 1..
Signature (seal)
001122V DIM4 preflil i ty, fi t
State of California
County of } ss.
On 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 (seal)
Rockley Encroachment Agreement 6
CALIFORNIA ALL PURPOSE AC'KN0Wt,U'X')GMENT
notary public or other officer completing this certificate verifies only the identity of the individual who signed
e document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that
OF CALIFORNIA
LINTY OF
t before me, �r '' Notary
Date
appeared
(here insert name and title of the officer)
who proved to me on the basis of satisfactory evidence to be the person'(s) whose nameN is/are
subscribed to the within instrument and acknowledged to me that he/she /tl-My executed the same
in his,Awr /tbtear authorized capacity(ies), and that by hisAw/their signature(s) on the instrument
the person(s� or the entity upon behalf of which the person(&j,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.
my hand and official seal. " 'k NI " MILLER
' .a- MIEL JAY MII I [fi
Commi ion �k 1943106
t.} Notary Public - California
q,�,i . ".l;{ Orange County
r�ayComm. E olfes Jul3 015
Signature: j._ C,i a T:iSx -, . �' (1{ <..�,. (seal)
OPTIONAL
Description of Attached Document
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Title or Type of Document: Y rc 1 C Y s s 1. w v i v�. 1 lumber of Pages: i
Document Date: _), r f s. ° °'( '�' Other:
` . , , �H.lS__ nlilsrnia Nuhilc Lr, _ y5, oi i yi1
EXHIBIT
PERMITTED IMPROVEMENTS
Rockley Encroachment Agreement A -1
UNII kl'R3dOUd
EXHIBITA
1O I
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