HomeMy WebLinkAboutC-6156 - Encroachment Agreement EPN N2015-0179 for 800 South Bay Front CF'Y
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City of Newport Beach 201500031115010:43 am 05116115
P.O. Box 1768 66414Al2F13 10
Newport Beach, CA 92658-8915 0.00 0.06 0.00 0.00 27.00 0.00 0.00 0.00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2015-0179)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
21th day of May, 2015, by and between David, Sharman and Mary Demler as Community
Property ("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 800 South Bay Front,
Newport Beach, California 92662, and legally described as Lot 1, Block 3, Section 2 of
Balboa Island, as shown on a map recorded in Book 6, Page 31 of Miscellaneous Maps in
the office of the County Recorder of Orange County, County Assessor's Parcel Number
050-103-11 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the South Bay Front and
Diamond Avenue 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.
Demler Encroachment Agreement 1
I,. It is mutually ogreed tlwt Permitind Imptovemonts Mvil1 be str,fined ars:
:s. A planter 1-foot above existing South Bay Front sidewalk f;leva@ion wiihin 3,
feet of the back of existing sidewalk within the South 13ay Front right-ot•way;
b. A stone wall 3-foot high above existing South Bay f=ront sidewalk elevation
setback 3-feet from the existing sidewalk within the South Bay Front right-of-
way;
C. A 3-foot high stone wall encroaching 1-foot into the Diamond Avenue right-of-
way; and
d. A stone paver entry walkway with varying widths of 6-foot, 8-inches to 13-feet,
8-inches encroaching 2 feet into the Diamond Avenue right-of-way, as
approved by the Public Works Department and as shown on Exhibit A,
attached hereto and incorporated herein by reference.
e. 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.
Demler Encroachment Agreement 2
C. If City or othor public facilities or in ptovoinents are daniaqed by the
or ptesorwO of Pormitted Irript oven its, Ownot n4ia[l be
rosporr,;ilflo for the coM 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:
(i) City shall notify Owner in advance of its intention to accomplish such
work, provided that an emergency situation does not exist.
(if) Owner shall be responsible for arranging for any renewal, replacement,
or restoration of Permitted Improvements affected by such work by
City,
(M) 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.
Demler Encroachment Agreement 3
10. flue laws of the ,;trate of California shall govern this Agreument and all matters
minting to it and any aution brought relating to this Agreement shall bo adjudluatud in
n court of compotenf.jurisdiction in the County of Onange, 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.
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.
[SIGNATURES ON NEXT PAGE]
Demler Encroachment Agreement 4
IN WITNESS WHE".REOF, the pmrtios hetolo havo causod this Agroornent k') be
ext,,cuted ot i the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT REACH,
CITY ATTOARNEY'S OFFICE a California municipal corporation
Date:—' Date:
By:, By:
A4on C. Harp Dave Kiff'
City Attorney City Manager
ATTEs-r. OWNER(S): David and Mary Sharman
Date: q 2 Demlor
Date:
By: By:—
Lellani 1. Brown David QeKe�r "---
City Clerk Owft6r
Date: �;27 Z 1'
By:
Sharman Deli
er
Owner
Date:
By: 44,64
Mary ary IYe
Owner
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENTS: Exhibit A— Permitted Improvements Plan as Approved by
Public Works
Demler Encroachment Agreement 5
ACKN0VVLF;DGMF.NT
A notary puhlla ttr other office( completing this
cortificate verifies only the identity of the individual
who signod the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of CalifQ/rnia
County of tmm }ss.
Public, personally
20 " .. before me, , �tv� ��{ ( Notary
On
personally appeared 1 . _ who proved to
me on the basis of satisfactory 'evidence to be the person(s) whose name((' 'isla e subscribed to tpe
within instrument and acknowledged to me that he/ 00/they executed th6'same in �is4pferi(Nfeir
authorized capacityyes), and that byis/ ?(/thpfr sig ures ) on the instrument the persofti�) or the
entity upon behalf o which the persons" 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.
AURA il FXi: WX
WITNESS y h d and official seal, f commissi n 1916496
` pti�',"iaz3 Notary Public C.diiamia
Kern County �m
My Comm.Expires 'lug ( 2015.g,
I na ure (seal)
ACKNOWLEDGMENT
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 Call ornia
County of it } Ss.
On,",< ' tsl' 20„' b creme, ` "� � ', ` �' Notary
Public, personally appeared proved to me
on the basis of satisfactory evidence to be the person(s) whose name(s),islaree subscribed to the within
instrument and acknowledged to me that he/she/th6y executed the same in hip),her/their authorized
capacity(ies), and that by,bis/Ver/,their signatures(s)£on the instrument the person(s);or the entity upon
behalf of which the persor(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. ° nmk'
LAURA ALEXIS FOX
Commission# 1946406
WITNESS my hand and official seal. Notary Public-California
Kern County
of My Comm Expires Ana 1 2015
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authorized capacity(ies), and that by his/her/heir signatule(f) on the instrument the person(s), or thr-entity
upon behalf of which i 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. e xits.
r LAURA ALX )CY �t>
T1 I Notary PniNic .California t
WITNESS my hand and official seal. ft f 1, Item County n
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Although the informer,Pion in this section is not required by law,it could prevent fraudulent removal and reattachment of this
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Description of Attached Document
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PERMITTED D 81VfPROVEME:NTS PLAN
Demler Encroachment Agreement A-1
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