AUGUST 2, 2005 CASE NO. ZON2004-00409 (Revision to Height Variation No. 884 and Amendment No. 2 to Tract No. 31617) Applicant/Property Owner: Sal Ahamed; Subject Property: 6270 Ocean Terrace Drive Lot 20, Tract 31617 (Thomas Guide Page 822, J-3) AUGUST 2, 2005 CASE NO. ZON2004-00409 (Revision to Height Variation No. 884 and Amendment No. 2 to Tract No. 31617) Applicant/Property Owner: Sal Ahamed; Subject Property: 6270 Ocean Terrace Drive Lot 20, Tract 31617 (Thomas Guide Page 822, J-3)

TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL

FROM: DIRECTOR OF PLANNING, BUILDING AND CODE ENFORCEMENT

DATE: AUGUST 2, 2005

SUBJECT: CASE NO. ZON2004-00409 (Revision to Height Variation No. 884 and Amendment No. 2 to Tract No. 31617) Applicant/Property Owner: Sal Ahamed; Subject Property: 6270 Ocean Terrace Drive Lot 20, Tract 31617 (Thomas Guide Page 822, J-3).

Staff Coordinator: Eduardo Schonborn, aicp, Associate Planner

RECOMMENDATION

That the City Council review and adopt Resolution No. 2005-__, conditionally approving Case No. ZON2004-00409 for Amendment No. 2 to Tract 31617 and a revision to Height Variation No. 884, and the revised trail agreement.

DISCUSSION

On July 19, 2005, the City Council considered the above referenced case. After discussion of the item, the City Council directed staff to return with a revised resolution and trail agreement that requires that 10-feet of the second story balcony along the rear façade be removed; requires the property owner to provide and maintain additional foliage along the side property line to screen the house and balcony from the adjacent property owner to the east; and requires the owner to enter into an agreement with the City requires the applicant to relocate the trail easement and trail, or acquire a portion of the adjacent Upper Filiorum Property so that the existing trail can be maintained in its current location. The agreement stipulates a one-year time frame for either alternative solution to be implemented.  However, Mr. Ahamed would be required to advise the City within six months of the date of the Agreement of the option he has chosen.

To formalize the action taken on July 19, 2005, attached is a revised resolution and revised agreement for the City Council’s consideration.

ADDITIONAL INFORMATION

According to the subject property owner, Mr. Ahamed, he has been in contact with Mr. York concerning the purchase of a portion of the Upper Filiorum property, which has resulted in an agreement between the two owners that is "in principal". Due to this, Mr. Ahamed is requesting that the public hearing be re-opened and continued to a future date. Mr. Ahamed’s request is attached for the City Council’s review and consideration. Lastly, Mr. Ahamed indicates that the public hearing should be reopened because rebuttal time was not granted.  However, the City Attorney believes that since neither Mr. Ahamed nor his representative raised this issue at the meeting, and since they both had been provided with an ample opportunity to address the City Council at the public hearing, due process was not denied to the applicant.

 

Respectfully submitted:

Joel Rojas, aicp,

Director of Planning,

Building and Code Enforcement

Reviewed:

Les Evans

City Manager

Attachments

RESOLUTION NO. 2005-

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES APPROVING CASE NO. ZON2004-00409, FOR AMENDMENT NO. 2 TO TRACT 31617, ALLOWING LOT 20 TO HAVE TWO BALCONY SUPPORT COLUMNS THAT MEASURE GREATER THAN 30-INCHES IN HEIGHT TO ENCROACH BEYOND THE BGR LINE, AND GRADING ON A SLOPE GREATER THAN 10-PERCENT, AND A REVISION TO HEIGHT VARIATION NO. 884 TO APPROVE THE NEW LOCATION OF THE TWO-STORY RESIDENCE AND REQUIRE THE REMOVAL OF A PORTION OF THE SECOND STORY BALCONY TO ENSURE COMPLIANCE WITH THE TRACT SETBACK REQUIREMENT, FOR PROPERTY LOCATED AT 6270 OCEAN TERRACE DRIVE (LOT 20/TRACT 31617).

WHEREAS, on April 5, 1977, the City Council adopted Resolution No. 77-22, thereby approving Tract No. 31617 and establishing a BGR line in the rear yards of the eighty (80) single-family residential lots. The purpose of the BGR line was for "grading and visual" purposes to articulate the view of the development as seen from below and to prevent grading and construction from encroaching into the slope and the trail easement located at the rear of the properties; and,

WHEREAS, on October 5, 1993, the City Council adopted Resolution No. 93-86, Amendment No. 1 to Tract No. 31617 to allow at-grade accessory uses outside the BGR line; and,

WHEREAS, on August 24, 1999, the Planning Commission approved Height Variation No. 884, allowing the construction of a new two-story, single-family residence with attached garage measuring a total of 6,696 square feet, on a vacant parcel located at the end of the Ocean Terrace Drive cul-de-sac. The proposed height was 22’-3" as measured from the highest pre-construction (existing) pad elevation on the rear of the lot to be covered by the structure to the ridge line of the structure, and 25-feet high as measured from the point where the lowest foundation meets finished grade to the ridge line of the structure for the property located at 6270 Ocean Terrace Drive (Tract 31617/Lot 20); and,

WHEREAS, consistent with the Tract’s requirement for development of the subject property, the residence was conditioned to maintain a 15-foot setback from the 15-foot wide trail easement along the south (rear) property line; and,

WHEREAS, on October 20, 1999, the City issued a building permit for construction of the new residence; and,

WHEREAS, as the site was prepared for construction of the new residence and the foundation was being prepared, the applicant’s Registered Engineer of record, submitted certified documentation attesting that he had measured features of the new residence and certified that the building location was consistent with the approved plans. Further evidence, in the form of an inspection report from the Engineer’s firm conducted on December 21, 1999, confirmed that "set backs are per approved plans and construction staging by this firm". Since the documentation, which was prepared and certified by the applicant’s Engineer, stated that the improvements to this property were per the approved plans bearing the stamp of the City of Rancho Palos Verdes, the Building and Safety Division conducted the required inspections related to plumbing, mechanical, electrical and structural work throughout calendar year 2000; and,

WHEREAS, on January 27, 2000, Grading Permit No. 2154 was approved by the Planning Commission during construction of the residence for a total of 1,616 cubic yards of remedial grading under the building footprint, which included 856 cubic yards of removal, 760 cubic yards of re-compaction and 96 cubic yards of export; and,

WHEREAS, during final inspection, it was noticed that the building pad was not in compliance with the approved plans. Staff then requested that the owner, Mr. Ahamed, prepare and submit an as-built plan; and,

WHEREAS, on March 2, 2001, Mr. Ahamed submitted an as-built plan prepared by his Engineer, and it was discovered that the extent of the grading went beyond the approved boundaries on the property into the City’s trail easement and onto an adjacent property that was not encompassed within the approval. It was also discovered that the house encroached into the setback from the trail easement, and a rear balcony extended beyond the tract’s building/grading restriction (BGR) line; and,

WHEREAS, it was also determined that the existing trail (i.e., McBride trail) was not located entirely within the established trail easement on the subject property, so that a portion of the trail traverses the adjacent, separately owned, Upper Filiorum property; and,

WHEREAS, the subject property owner submitted the necessary applications and fees on July 28, 2004; and,

WHEREAS, the City deemed the applications complete on August 12, 2004; and,

WHEREAS, pursuant to the provisions of the California Environmental Quality Act, Public Resources Code Sections 21000 et. seq. ("CEQA"), the State's CEQA Guidelines, California Code of Regulations, Title 14, Section 15000 et. seq., the City's Local CEQA Guidelines, and Government Code Section 65962.5(f) (Hazardous Waste and Substances Statement), Staff found no evidence that Case No. ZON2004-00409 would have a significant effect on the environment and, therefore, the proposed project has been found to be categorically exempt under Class 1 (Section 15301), since the project does not intensify the use of the lot because the property currently is developed with a single-family residence; and,

WHEREAS, on September 14, 2004, after notice issued pursuant to the requirements of the Rancho Palos Verdes Development Code, the Planning Commission continued the item to October 26, 2004; and,

WHEREAS, on October 26, 2004, the Planning Commission continued the item to the November 23, 2004; and,

WHEREAS, on November 23, 2004, the Planning Commission held a duly noticed public hearing, at which time all interested parties were given an opportunity to be heard and present evidence; and,

WHEREAS, on November 23, 2004, the Planning Commission found that since the balcony encroaches into the required setback, the location results in an unreasonable privacy infringement upon the residence at 6264 Ocean Terrace Drive, that the two southernmost windows along the eastern façade of the second story must contain translucent material, and that the balcony support columns and grading beyond the BGR line were appropriate. As such, conditions were incorporated to remove that portion of the balcony that encroaches into the required 15-foot setback and require that other than up to two support columns, all portions of the balcony maintain the required 15-foot setback, and require the two most southerly windows along the eastern façade of the second floor to be modified to contain translucent glazing; and,

WHEREAS, on December 14, 2004, the Planning Commission adopted P.C. Resolution No. 2004-51 and 2004-52, recommending that the City Council approved Case No. ZON2004-00409 for a revision to Height Variation No. 884 and Amendment No. 2 to Tract No. 31617, provided that the balcony be modified to ensure compliance with the required setback from the trail easement, provided that the two southernmost windows along the eastern façade of the second story contain translucent material, and provided the applicant enter into an agreement with the City; and,

WHEREAS, after notice was issued pursuant to the requirements of the Rancho Palos Verdes Development Code, the City Council held a duly noticed public hearing on March 15, 2005, at which time all interested parties were given an opportunity to be heard and present evidence, and the City Council gave direction to Staff regarding the content of a proposed resolution and agreement to be considered by the City Council in conjunction with the adoption of the resolution; and,

WHEREAS, after notice was issued pursuant to the requirements of the Rancho Palos Verdes Development Code, the continued public hearing was conducted by the City Council on July 19, 2005, at which time all interested parties were given an opportunity to be heard and present additional evidence;

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS:

Section 1: The Revision to Height Variation No. 884 approves the "as-built" location of the new residence, which was constructed 15-feet farther towards the rear, as modified by the City Council to remove a portion of the balcony. The residential structure continues to be compatible with the immediate neighborhood. Further, the new location of the residential structure does not result in significant view impairment from the viewing area of another parcel.

Section 2: Since the residence was constructed 15-feet farther south and a portion of the balcony encroaches into the required setback, the location results in an unreasonable privacy infringement upon the residence at 6264 Ocean Terrace Drive. As such, approval of the Revision to Height Variation No. 884 incorporates conditions to require removal of a portion of the balcony and that the two most southerly windows along the eastern façade of the second floor to be modified to contain translucent glazing. In addition, another condition has been added to require the planting of foliage along the east side property line to ensure privacy between the residence on the subject property and the residence on the adjacent property to the east.

Section 3: The Tract Amendment request will not alter any right, title or interest in real property reflected on the recorded map. The amendment to the tract would be specific to Lot 20 only, and would allow the construction and encroachment of up to two balcony support columns and grading to remain outside the BGR line.

Section 4: The proposed Tract Amendment to allow up to two balcony support columns and the grading on the slope greater than 10-percent will not create a geotechnical hazard to the property or to adjacent property, as determined by the City’s Geotechnical Consultant, because the balcony support columns are required to be underpinned and the fill is required to be compacted, pursuant to Condition no. 5 in the attached Exhibit "A".

Section 5: An Agreement has been drafted to address the responsibilities of the property owner regarding the trail easement. The applicant is required to acquire a portion of the adjacent Upper Filiorum property so that the trail can remain in its existing general location with some necessary modifications to address erosion control issues or to relocate the trail entirely upon the subject Property within a modified easement, to the satisfaction of the Director.

Section 6: Notice of the continued public hearing was issued by the City pursuant to the requirements of the Rancho Palos Verdes Development Code.  The continued public hearing was conducted by the City Council on July 19, 2005, at which time all interested parties were given an opportunity to be heard and present additional evidence.  Although the applicant's representative initially requested rebuttal time, which was inadvertently omitted following his client's remarks and after everyone else had spoken, the applicant's representative did not advise the City Council that he still wanted additional time for rebuttal.  Because both the applicant and his representative were given an ample opportunity to address the City Council regarding this matter, the absence of an additional opportunity to present rebuttal testimony did not result in a denial of due process.

Section 7: For the foregoing reasons and based on the information and findings included in the Staff Report, Minutes and other records of these proceedings, the City Council of the City of Rancho Palos Verdes hereby approves Case No. ZON2004-00409, thereby allowing up to two balcony support columns that measure greater than 30-inches in height to encroach beyond the BGR line and grading on a slope that is greater than 10-percent on Lot 20, and a revision to Height Variation No. 884 to acknowledge the new location of the two-story residence, subject to the conditions contained in Exhibit "A", attached hereto and made a part hereof, which are necessary to protect the public health, safety, and welfare.

Section 8: The time within which the judicial review of the decision reflected in this Resolution, if available, must be sought is governed by Section 1094.6 of the California Code of Civil Procedure and other applicable short periods of limitation.

 

PASSED, APPROVED, AND ADOPTED this 2nd day of August 2005.

_______________________

Mayor

ATTEST:

____________________
City Clerk

State of California )
County of Los Angeles ) ss
City of Rancho Palos Verdes )

I, __________, City Clerk of the City of Rancho Palos Verdes, hereby certify that the above Resolution No. 2005-__ was duly and regularly passed and adopted by the said City Council at a regular meeting thereof held on August 2, 2005.

 

 

_________________________________

City Clerk

Exhibit "A"

Conditions of Approval

Case No. ZON2004-00409

  1. Except as expressly amended by the following conditions, all conditions of approval associated with Tract No. 31617 (illustrated in Resolution No. 77-22) and associated with Amendment No. 1 to Tract No. 31617 (illustrated in Resolution No. 93-86) shall remain in full force and effect.
  2. A minimum of 10-feet of the second story balcony along the rear (south) elevation shall be removed so that other than two support columns, the balcony will maintain a minimum 15-foot setback from the trail easement line, which is equivalent to a 30-foot setback from the rear (south) property line, as such line existed at the time the Planning Commission approved Height Variation No. 884 (August 24, 1999), within 180 days of this approval.
  3. Lot 20 is allowed to maintain the following improvements beyond the BGR line:
    1. Two balcony support columns located at the southwest corner of the balcony, that measure greater than 30-inches in height.
    2. Grading on a slope at the southwest corner of the pad that was greater than 10-percent.

  4. The two most southerly windows along the eastern façade of the second floor shall be modified to contain frosted/translucent glazing within 90 days of the date of this approval, subject to the satisfaction of the Director of Planning, Building and Code Enforcement.
  5. Foliage shall be planted along the east side property line to ensure privacy between the residence on the subject property and the residence on the adjacent property to the east. The foliage shall be planted within 90-days of this approval and shall be planted to the satisfaction of the Director of Planning, Building and Code Enforcement. The planted foliage shall be maintained by the property owner in a manner that provides the intended degree of privacy protection to the satisfaction of the Director, which includes replacing any foliage that has died or deteriorated.
  6. The applicant shall comply with all recommendations of the project geologist and the City geologist including, without limitation, requirements concerning recompaction of the fill that is located on the site and underpinning of the balcony support columns. All permits, reports, or other documentation to conduct the underpinning and compaction shall be submitted to the City for review and approval prior to commencement of the work. Any such work shall commence within 180 days from the date of approval of the reports and plans by the City.
  7. Approval of this Revision shall be contingent upon the owner entering into an agreement with the City within ninety days of this approval that sets forth alternative solutions either to relocate the trail easement and trail entirely on the applicant’s property to the satisfaction of the Director or to require the applicant to acquire a portion of the adjacent Upper Filiorum Property so that the trail can be maintained in its current location. The Agreement shall include a one-year deadline from the date of this approval to implement one of the alternative solutions.

RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:

City of Rancho Palos Verdes
Planning Department
30940 Hawthorne Boulevard
Rancho Palos Verdes, California 90275

[Space Above Line For Recorder’s Use]

Recording Fee: Exempt pursuant to California
Government Code Section 27383

COVENANT

THIS COVENANT (this "Agreement") is made as of __________ ___, 2005, by SULTAN J. AHAMED and FARIDA S. AHAMED (collectively, "Ahamed") in favor of the CITY OF RANCHO PALOS VERDES ("City") with respect to the following:

R E C I T A L S:

    1. Ahamed is the owner of that certain real property located in the City of Rancho Palos Verdes, County of Los Angeles, State of California, commonly known to as 6270 Ocean Terrace Drive (APN 7581-020-017) and more particularly described as Lot 20 of Tract 31617 recorded in Book 888, Page 8 of Maps in the Office of Recorder of said County (the "Property").
    2. City is the owner of the trail easement created over a portion of the Property pursuant to that certain trail easement, which was conveyed to City pursuant to Final Tract Map 31617, recorded in Book 888, Page 8 of Maps in the Office of Recorder of said County (the "Existing Trail Easement").
    3. In connection with the construction of a single family residence on the Property, and pursuant to an incorrect survey prepared by Ahamed’s contractor, grading was completed in a manner that was inconsistent with the approved plans insomuch as a portion of such grading extended into the Existing Trail Easement and was performed on the property currently owned by York Long Point Associates that is located immediately to the south of the Property and is commonly known as APN 7581-023-029 (the "Adjacent Property"), thus making a portion of the Existing Trail Easement unusable for its intended purpose.
    4. City desires to resolve the problems caused by the grading in the Existing Trail Easement area by changing the boundaries thereof to include an existing foot-path that is currently located adjacent to, but outside of, the Existing Trail Easement, or in the alternative by restoring or reconstructing the trail within a trail easement located on the Property.

A G R E E M E N T:

NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:

  1. Incorporation of Recitals: The foregoing recitals are true and correct and are herby incorporated by this reference and expressly made a part of this Agreement.
  2. Effective Date. The effective date of this Agreement shall be the date on which the Agreement is recorded in the Official Records of Los Angeles County (the "Effective Date").
  3. Purchase of New Trail Easement to Replace Existing Trail Easement. Ahamed agrees to use good faith efforts to implement the following in order to permanently resolve the existing encroachment of grading into the Existing Trail Easement:
    1. Within one (1) year from the Effective Date, Ahamed shall acquire a portion of the Adjacent Property, pursuant to a lot line adjustment or other lawful means, that is sufficient, as determined by the City in its sole and absolute discretion, to maintain the existing foot-path in its current location on the Adjacent Property, or in another location on said Adjacent Property, in order to grant City a trail easement over at least a fifteen (15) foot wide portion of the Adjacent Property along the existing foot-path (the "New Easement") as a replacement for a portion of the Existing Trail Easement. The terms and conditions of the grant of the New Easement shall be reasonably acceptable to City and shall, among other things, require Ahamed to pay for and complete any and all necessary trail improvements thereon and adjacent thereto on the Property within six (6) months of the date of purchase, in order to maintain trail connectivity and to ensure public safety and usability of the trail for its intended purpose. Within six (6) months of the Effective Date, Ahamed shall notify the City in writing of the status of the negotiations to purchase a portion Adjacent Property for the New Easement, and if the purchase contemplated in this paragraph will not be completed within one (1) year from the Effective Date, Ahamed immediately shall take such actions necessary to comply with the provisions of Section 4 of this Agreement.
    2. If Ahamed acquires the New Easement pursuant to Subsection 3.1 of this Agreement, and further provided that City’s interest in any portion of the Existing Trail Easement over the Property is no longer necessary for trail purposes, as reasonably determined by City, then City shall vacate the portion of the Existing Trail Easement that the City finds, in its sole and reasonable discretion, is no longer needed for trail purposes or to ensure connectivity to the existing trail or trail easements on adjacent properties. City shall be obligated to vacate the portion of the Existing Trail Easement only upon Ahamed’s dedication to the City of the New Easement and improvement of a replacement trail within the New Easement. The terms and conditions of the grant of the New Easement shall be reasonably acceptable to City and shall, among other things, require Ahamed to complete any and all necessary trail improvements thereon to ensure public safety and usability thereof for its intended purpose.
  4. Reconstruction of Trail in Existing Trail Easement as Alternative to Purchase Pursuant To Section 3.
    1. In the event Ahamed is unable to implement the alternate permanent solution set forth in Section 3 within one (1) year of the Effective Date, Ahamed shall within one (1) year of the Effective Date, re-establish the trail (including trail improvements) within a modified 15-foot wide trail easement across the Property, substantially in the alignment shown in the attached Exhibit "A" (the "Replacement Trail"). Ahamed shall grant to the City an easement for public trail and maintenance purposes over all portions of the Replacement Trail located on the Property that fall outside of the Existing Trail Easement (the "Replacement Trail Easement"). Further, Ahamed shall remove the grading that encroaches on the Existing Trail Easement and the Adjacent Property, and shall complete any and all other necessary improvements in the Existing Trail Easement and adjacent thereto on the Property as are necessary to ensure public safety and usability thereof for its intended purpose, as reasonably determined by City. Ahamed shall cause engineering/construction plans/designs to be prepared for the Replacement Trail as the same shall be reasonably determined/approved by City, and to promptly commence and complete such relocation work in accordance therewith (collectively the "Relocation Work") within the deadline of one (1) year from the Effective Date. If City’s interest in a portion of the Existing Trail Easement is no longer necessary for trail purposes due to dedication of the Replacement Trail Easement and construction of the Replacement Trail as determined by the City in its sole and reasonable discretion, City shall vacate its interest in the portion of the Existing Trail Easement on the Property that is no longer necessary for trail purposes. Furthermore, Ahamed shall grant City a trail easement over such portions of the Property as may be necessary to maintain connectivity of the trail route, as reasonably determined by City. The terms and conditions of any grant or grants of easement shall be reasonably acceptable to City and shall, among other things, require Ahamed to complete any and all necessary trail improvements thereon to ensure public safety and usability thereof for its intended purpose.
    2. Ahamed agrees to deposit with City, within thirty (30) days after the Effective Date, the amount of Thirty-Eight Thousand Three Hundred Seventy-Five Dollars ($38,375) (the "Deposit") as prepayment of the costs and expenses incurred by City in connection with the performance of the Relocation Work that may become necessary pursuant to Subsection 4.4. In addition, Ahamed agrees to pay City any amounts of the costs and expenses incurred by City in connection with the performance of the Relocation Work that may become necessary pursuant to Subsection 4.4, in excess of the Deposit within thirty (30) days after the date on which Ahamed receives a request for payment thereof. The Deposit shall be refunded in full upon implementation of either of the alternate permanent solutions set forth in Section 3 and Subsection 4.1 of this Agreement. Furthermore, if City must complete the Relocation Work, any portion of the Deposit remaining deduction of all costs of completion of the Relocation Work shall be refunded to Ahamed.
    3. Ahamed agrees that if the Relocation Work is not completed within one (1) year from the Effective Date, Ahamed shall pay City one hundred dollars ($100) per calendar day until the Relocation Work has been completed (the "Penalty"), as reasonably determined by City. Ahamed shall pay the Penalty, or portion thereof as may be already accrued, within thirty (30) days after the date on which Ahamed receives a request for payment thereof. Payment of Penalty shall not negate Ahamed’s obligation to pay any additional Penalty as may accrue for continued failure to comply with the terms of this Agreement. Notwithstanding the foregoing, the Penalty shall not be payable with respect to any day that Ahamed is not able to perform the Relocation Work solely because of work that is required to be, but has not yet been, completed by City before the Relocation Work can recommence.
    4. In the event Ahamed fails to implement the permanent solution set forth in Section 3 and also fails to complete the Relocation Work in accordance with Section 4 within one (1) year of the Effective Date, City shall have the right, but not the obligation, to undertake the relocation work and deduct all costs and expenses associated therewith from the Deposit and shall be entitled to the Penalty in accordance with Subsection 4.3. City shall diligently, and in good faith, work to complete the Relocation Work in the shortest time feasible.
  5. Run With Land. The covenants made in this Agreement shall run with the land and shall burden the Property for the benefit of City. Such covenants shall inure to the benefit of, or bind, as the case may require, the respective heirs, representatives, successors and assigns of Ahamed and City. Ahamed hereby authorizes City to record this Agreement in Official Records of Los Angeles County, California. This Agreement shall become null and void at such time as a permanent solution is implemented pursuant to either Section 3 or Section 4 of this Agreement, or if City completes the Relocation Work pursuant to Subsection 4.4, and Ahamed has paid City all costs and expenses due for any Relocation Work and any Penalty due to City pursuant to this Agreement.
  6. Severability. In the event that any provision hereof is deemed to be illegal or unenforceable by a court of competent jurisdiction, such a determination shall not affect the validity or enforceability of the remaining provisions thereof, all of which shall remain in full force and effect. In the event that any such provision shall be deemed invalid due to its scope or breadth, such provision shall be deemed valid to the extent of the scope or breadth permitted by law.
  7. General Provisions. This Agreement is made and entered into in the State of California and shall in all respects be interpreted, enforced and governed under the laws of the State of California. This Agreement contains the entire agreement between the parties relating to the rights herein granted and the obligations herein assumed. Any valid subsequent modification of this Agreement shall be in writing, signed by the parties. In the event of any controversy, claim or dispute relating to this Agreement or breach hereof, any legal action shall be filed in Los Angeles County, California.
  8. Waiver. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making such waiver.
  9. Hold Harmless. To the fullest extent permitted by law, and in addition to Ahamed’s other obligations hereunder, at law, in equity or otherwise, Ahamed agrees to protect, indemnify, defend and hold City and its elected officials, officers, directors, employees, representatives, agents and affiliates free and harmless from and against any action, suit, claim, investigation, proceeding, mediation or arbitration at law or in equity or before or by any foreign or domestic court, arbitrator, mediator or otherwise (including reasonable attorney’s fees and expenses in connection therewith), and pay or reimburse City in full, any and all liability, loss, cost, expense or damage of any kind or nature that City may sustain or incur or that may be brought or claimed against City in connection with (a) the encroachment into the Existing Trail Easement and the Existing Pathway across the Adjacent Property or (b) any act, neglect, fault or omission of City or its agents, employees, visitors, invitees or licensees, except if the sole cause of such indemnification liability is the willful misconduct of City.
  10. Further Assurances. Ahamed and City shall execute such further documents consistent with the terms of this Agreement, including documents in recordable form, as City shall from time to time find necessary or appropriate to effectuate its purpose in entering into this Agreement.
  11. Amendment of Agreement. No modification, rescission, waiver, release or amendment of any provision of this Agreement shall be made except by a written agreement executed by Ahamed and City.
  12. Entire Agreement. This Agreement constitutes the entire understanding and agreement of the parties hereto. This Agreement integrates all of the terms and conditions mentioned herein or incidental thereto, and supersedes all prior negotiations, discussions and agreements between City and Ahamed concerning all or any part of the subject matter of this Agreement.
  13. Notices. Any notice, request, direction, demand, consent, waiver, approval or other communication required or permitted to be given hereunder shall not be effective unless it is given in writing and mailed by either first class mail, certified mail, postage prepaid, return receipt requested or by a commercial overnight courier, and addressed to the parties at the addresses stated below, or at such other address as either party may hereafter notify the other in writing as aforementioned:
  14. Ahamed: Sultan and Farida Ahamed
    6270 Ocean Terrace Drive
    Rancho Palos Verdes, California 90275

    City: City of Rancho Palos Verdes
    30940 Hawthorne Boulevard
    Rancho Palos Verdes, California 90275
    Attn: City Manager

    No communications via facsimile or electronic mail shall be effective to give any notice, request, direction, demand, consent, waiver, approval or other communications hereunder.

  15. Counterparts. This Agreement may be executed in counterparts, all such executed counterparts shall constitute the same agreement, and the signature of any party to any counterpart shall be deemed a signature to, and may be appended to, any other counterpart.
  16. Captions. The captions appearing at the commencement of certain paragraphs hereof are descriptive only and for convenience of reference. Should there be any conflict between any such caption and the paragraph at the head of which it appears, the paragraph, and not such caption, shall control and govern in the construction of this Agreement.
  17. Attorney’s Fees. In the event of any dispute, action, proceeding or controversy regarding the existence, validity, interpretation, performance, enforcement or claimed breach of this Agreement, the prevailing party shall be entitled to recover all of their or its costs, including reasonable attorneys' fees incurred in connection therewith.
  18. Joint Preparation. None of the Parties hereto shall be deemed to be the drafter of this Agreement, but it shall be deemed that this Agreement was jointly drafted by each of the Parties hereto. The terms of this Agreement shall not be interpreted or construed in favor of, or against, any party hereto. Should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against any party herein, but rather by construing the terms of this Agreement as a whole according to their fair meaning.

IN WITNESS WHEREOF, the parties hereto have executed this Covenant as of the day and year first above written.

AHAMED:

_________________________________
SULTAN J. AHAMED

_________________________________
FARIDA S. AHAMED

CITY: CITY OF RANCHO PALOS VERDES

_________________________________
MAYOR

ATTEST:

_________________________________
Carolynn Petru, City Clerk

STATE OF CALIFORNIA )
)
COUNTY OF LOS ANGELES )

On __________ ___, 2005, before me, ________________________________________, a Notary Public in and for the State of California, personally appeared _____________________ _____________________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument.

WITNESS my hand and official seal.

_________________________________________
Notary Public in and for the State of California

(SEAL)

STATE OF CALIFORNIA )
)
COUNTY OF LOS ANGELES )

On __________ ___, 2005, before me, ________________________________________, a Notary Public in and for the State of California, personally appeared _____________________ _____________________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument.

WITNESS my hand and official seal.

_________________________________________
Notary Public in and for the State of California

(SEAL)

STATE OF CALIFORNIA )
)
COUNTY OF LOS ANGELES )

On __________ ___, 2005, before me, ________________________________________, a Notary Public in and for the State of California, personally appeared _____________________ _____________________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument.

WITNESS my hand and official seal.

_________________________________________
Notary Public in and for the State of California

(SEAL)

STATE OF CALIFORNIA )
)
COUNTY OF LOS ANGELES )

On __________ ___, 2005, before me, ________________________________________, a Notary Public in and for the State of California, personally appeared _____________________ _____________________________, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument.

WITNESS my hand and official seal.

_________________________________________
Notary Public in and for the State of California

(SEAL)