HomeMy WebLinkAboutC-6087 - Encroachment Agreement EPN N2014-0328 for 1111 Dolphin Terrace / 050-263-28COPY
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Public Works Department 2016000194666 9 :37 am 04(16!15
City of Newport Beach 47 411 Al2 F13 0
P.O. Box 1768 0.00 0.00 0100 0.00 24.00 0.00 0.00 0.00
Newport Beach, CA 92658 -8915
Space above this line for Recorder's use only
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2014 -0328)
THIS ENCROACHMENT AGREEMENT ( "Agreement ") is made and entered into
this 15th day of August, 2014, by and between Amen Wardy and Traci Tolman 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 1111 Dolphin
Terrace, Newport Beach, California 92625 and legally described as Lot 10, Tract 5130,
as shown on a map recorded in Book 190, Pages 43 through 44 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, County
Assessor's Parcel Number 050 - 263 -28 ( "Property');
WHEREAS, Owner desires to construct certain non- standard improvements as
further described herein ( "Permitted Improvements ") within the Dolphin 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:
1. 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:
Amen Wardy and Traci Tolman Encroachment Agreement 1
�. A E ttaot nndta entry walkwtay cor4stlootod with 2d-hwh ,;tii ,tr(a tuitillol e =turro
pavoft� oncroaching two (2) feel: into the Dolphin I "(.trace tight- o[ -wey, .�
approved by the Public Works Department and as shown on I- xhibit A,
attached hereto and incorporated herein by reference;
b. A 17 -foot wide and a 10 -foot wide driveway constructed with cobblestone
pavers encroaching two (2) feet into the Dolphin Terrace right -of -way, as
approved by the Public Works Department and as shown on Exhibit A,
attached hereto and incorporated herein by reference; and
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.
Amen Wardy and Traci Tolman Encroachment Agreement 2
(1, Should Gity ho 161(luif0d to f,,, N e i kie ii!,�,
u(fl() to OX G
primary righil; "I's"Oulated with *,oid Right-of•WOY, i1K,111dilIq but not haiiind
to, the maintenance, ro.11noval, IOPWI, renewal, roplacerolent 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.
(!I) 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 Rec6rder 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.
Amen Wardy and Traci Tolman Encroachment Agreement 3
11, "1 he, tomis of this Aqrcolnorlt Ili dl ho t,ow troc.,d in accomanot,., with tho monninq
of thc,,, language used ati(i jjifll not be c.owitruod for oi oith(,ir paily. fly
reason of the authorship of the Agreemont or any other rule of construction 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.
[SIGNATURES ON NEXT PAGE]
Amen Wardy and Traci Tolman Encroachment Agreement 4
IN WITNESS WHEREOF, the partk,)s horoto have c.aur >od this Agr(,x,,mont to be
oxocuted on the dates written bclow.
APPROVED AS TO FORM:
CITY ATTORN5Y'S OFFICE
Date:
By:
Aa4n 'Harp'
city Attorney
ATTEST- 2
Date:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:_ 11 1"
BY'
Dave IfF
City Manager
OWNER(S)- Amen Wardy and Traci
Tolman, Joint Tenants
Date:
'7
By:
Amen Wardy
Joint Tenant
Date:
By:
Traci Tolman
Joint Tenant
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENTS: Exhibit A— Permitted Improvements Plan as Approved by
Public Works
Amen Wardy and Traci Tolman Encroachment Agreement 5
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.
1 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
ACKNOWLEDGMENT
State of California
County of } ss.
1901
(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
(seal)
Amen Wardy and Traci Tolman Encroachment Agreement 6
CALIFORNIA ... • i
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of Caliform
County of
On >(( �1'%(�t/t (<� tip l 5 before me,
personally appeared
Name(s) of
and
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) W /are
subscribed to the within instrument and acknowledged to me that - he/she /they executed the same in
his/her /their authorized capacity(es), and that by hisMer /their signature(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.
06. WITNESS my hand and official seal
PHILLIP PALANLU)6 „
. = Commission # 1962306
Notary Public - California
Si
' """ �^'.„. «,�., _�.•..
F gnature/
r, CranOe county C Ana ure of Notary Public
My Comm tixidros Jun 17, 201 - -» -
. ^i'm 1111 11 * tTM ._.._
Place Notary Seat Above
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@2014 National Notary Association - www.NationalNotary.org - 1-800-US NOTARY (1-800-876-6827) Item#5907
EXHIBIT A
PERMITTED IMPROVEMENTS PLAN
Amen Wardy and Traci Tolman Encroachment Agreement A -1
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