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Home My WebLink AboutC-6086 - Encroachment Agreement EPN N2014-0347 for 444 De Sola Terrace / 459-131-28Public Works Department City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 Rocorded in Official Records, Orange, county Huytr Nguyen Clerk -Roc order [[ 015000,194667 9:37 ant 04116115 47 411 Al2 F13 8 0.00 0.00 0.00 0.00 21.00 0.00 0.00 080 Space above this line foi' Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2014 «0347) THIS ENCROACHMENT AGREEMENT ( "Agreement ") is made and entered into this 31st day of October, 2014, by and between Robert W. Hughes, as a Single 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 444 De Sola Terrace, Newport Beach, California 92625 and legally described as Lot 115, 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- 131 -28 ( "Property "); WHEREAS, Owner desires to construct certain non - standard improvements as further described herein ( "Permitted Improvements ") within the De Sofa Terrace 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: Robert W. Hughes Encroachment Agreement 1 s, Z1. An & foot wide �arid 15 -foot wide driveway approach bottom constructed of sandstone colored concrete encroachinq 1.8 -f .ot into the fie Sola i'errace right -of -way; and b. A stepping stone walkway encroaching 1.8 -feet into the De Sole Terrace 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. 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 Robert W. Hughes Encroachment Agreement 2 enlargemont of existing or future public facilitios or irnprovenlcnts, City may remove portions of Permitted Improvornonts, 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. 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 Robert W. Hughes Encroachment Agreement 3 reason of the authomhip of the Agicomr nt or any other rude of ronstruc.tion which 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. Robert W. Hughes Encroachment Agreement 4 IN WITNESS WHEREOF, the partia s> horoto haavo mused this. Agroornont to bc:> exe,outed on the dates written betow. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATT RNEY'S OFFICE a California municipal corporation Date: ( 4 _ Date: By' CA Y , gy Aaron C. Harp Dave Kiff' City Attorney vjv City Manager ATTEST:`r, OWNER(S): Robert W. Hughes Date: Owners must sign in the presence of notary public ATTACHMENTS: Exhibit Permitted Improvements Plan as Approved by Public Works Robert W. Hughes Encroachment Agreement 5 ACKNOWLEDGMENT State of California County of On / 1, i 1 2011L before me, _ "' Notary Public, personally appeared r ®'�,d> �.._. who proved to me on the basis f 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 he laws of the State of California that the foregoing paragraph is true and correct. ; SY4PAgi cacnrata�tan 4i35R22� WETNESS my hand and official seal. aataPY PubSa • Ciifarnin Or�iti Canty i� Camm, @ Iraa qua d 2�t5 Signature (seal) ACKNOWLEDGMENT 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) Robert W. Hughes Encroachment Agreement 6 PERMITTED IMPROVEMENTS PLAN Robert W. Hughes Encroachment Agreement A -1 Rw P, X . �® i® k \ \. `( {/ }} &a } } /ƒ ^ \/ \ � . \ Exhibit "N' Sheet I of