HomeMy WebLinkAboutC-1623 - Encroachment Agreement (for 2061 Ocean Blvd)RECORDING REQUESTED AND
WHEN RECORDED RETURN TO: 005 22001046 22 27
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City Clerk
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in the County of .•ange, California
Gary L. Granville, Clerk/Recorder
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19950438153 11:03am 10/05/95
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
THIS AGREEMENT is made and entered into this .5 day of , 1995,
v Marie C% Gehno/f
by and between Mr &�, ���/ (hereinafter "OWNER"), and the City of Newport Beach,
at-tCalifornia, a municipal corporation organized and existing under and by virtue of its Charter and the
Constitution and the laws of the State of California, (hereinafter "CITY");
WITNESSETH:
WHEREAS, OWNER desires to reconstruct certain non-standard improvements (hereinafter
"PERMITTED IMPROVEMENTS") within the Ocean Boulevard and "M" Street public rights -of -way
(hereinafter "RIGHTS -OF -WAY") that is located adjacent to Lot 16, Block D, Tract No. 518 as shown on
a map recorded in Book 17, Pages 33-36 of Miscellaneous Maps in the office of the County Recorder of
Orange County, California; also known as 2061 Ocean Boulevard, Balboa, California; and
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 RIGHTS -OF -WAY; and
WHEREAS; the parties hereto desire to execute an agreement providing for fulfillment of the
conditions required by CITY to permit OWNER to reconstruct and maintain said PERMITTED
IMPROVEMENTS;
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows:
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as five (5)
Prunus campanulata (Taiwan Cherry) trees, three (3) to be planted within the "M" Street right-of-way and
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two (2) to be planted within the Ocean Boulevard right-of-way as shown on EXHIBIT "A" attached hereto
and as approved by the City Engineer and the City's Urban Forester.
2. CITY will permit OWNER to plant, replant, maintain, replace said PERMITTED
IMPROVEMENTS and appurtenances incidental thereto, within RIGHTS -OF -WAY, all in substantial
conformance with plans and specifications on file in the CITY. CITY will further allow OWNER to take
all reasonable measures necessary or convenient in accomplishing the aforesaid activities.
3. Rights granted under this Agreement may be terminated by CITY at any time by giving 60
days' notice, 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.
4. OWNER and CITY further agree as follows:
a. OWNER shall purchase 24" boxed container Prunus capanulata (Taiwan Cherry) trees
as parkway trees.
b. OWNER shall plant PERMITTED IMPROVEMENTS and appurtenances incidental
thereto, in substantial conformance with plans and specifications therefor on file in the CITY's Public
Works Department, as described on Exhibit "A" hereto attached and in accordance with the following
procedure:
(i) All pits shall be dug with the bottom level, width equal to two times the
diameter of the ball, and the depth 1 1/2 times the height of the container from which the tree is planted.
(ii) General Services shall determine if soil analysis is required, or if the
native soil is appropriate. If the native soil is used it must be combined with a commercial fertilizer as
approved by the General Services Department.
(iii) Trees must be set in center of pit, in a vertical position, so that the crown
of the ball will be level with finish grade, and shall bear the same relationship to finish grade after allowing
the watering and settling, and shall bear he same relationship to finished grade that it did to soil surface in
its container.
(iv) A depressed water basin must be prepared capable of holding 10 gallons
of water. Thereafter, watering shall be done at week intervals by the developer for a period of one year.
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(v) Each tree must be properly supported by two lodgepole pine stakes or
other material approved by the General Services Department. Stakes shall be a minimum of eight feet in
length. All trees must be staked at the time of planting by placing stakes in prepared holes and driving the
stake a minimum of 30 inches in soil.
(vi) All trees shall be secured to stakes with a cinch tie. Eight penny duplex
nails shall be used to secure the brace to the stakes --two per side.
(vii) A root barrier approved by the General Services Department shall be
installed.
c. OWNER shall maintain the PERMITTED IMPROVEMENTS in accordance with
general prevailing standards of maintenance and pay all costs and expenses incurred in doing so.
Maintenance shall include a minimum of once a year tree trimming per City standards. 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.
d. That should CITY be required to enter onto said RIGHTS -OF -WAY to exercise its
primary rights associated with said RIGHTS -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 the PERMITTED IMPROVEMENTS, as required, and in
such event:
(i) CITY shall notify OWNER of its intention to accomplish such work, if
any emergency situation does not exist.
(ii) OWNER shall be responsible for arranging for any renewal or
restoration of the PERMITTED IMPROVEMENTS affected by such work by CITY;
(iii) CITY agrees to bear only the cost of any removal of the PERMITTED
IMPROVEMENTS affected by such work by CITY;
(iv) OWNER agrees to pay all costs for renewal or restoration of the
PERMITTED IMPROVEMENTS.
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5. 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 the RIGHTS -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) days' notice, with the notice specifying the date of termination. In the event of litigation
commenced with respect to any term of condition of this Agreement, the prevailing party shall be entitled to
reasonable attorneys fees and costs incurred.
6. OWNER shall 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 the PERMITTED
IMPROVEMENTS.
7. 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 OWNERS'
interest in the land whether fee or otherwise, and shall be recorded in the Office of the County Recorder of
Orange County, California.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the
day and year first -above written.
APPROVED AS T f FORM:
City Attorney
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CITY OF NEWPORT BEACH,
a Municipal corporation
By:
Mayor
OWNERS:
By:
By: Z �- ---
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
ss:
On I 0 1 q , 1995, before me,
, personally appeared V,Q,I,(A/ C OvYLel,
MICA/WV-j C,f , / ,personally known to me (or roved to me on the
basis of satisfactory evidence) the person(s) whose name(s)ySiare subscribed to the within instrument
and acknowledged to me thatJ1e/she/they executed the same ittlaislicriltheir authorized capacity(ies), and
that by 1 /her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal
Signature C /%/ti (LA , �p
1 vra/ AA
11NAM.DO
COMM. # 1030937
Notary Public — Cduornb
ORANGE COUNTY
My Comm. Expires OCT 27.1990
(This area for official notarial seal)
STATE OF CALIFORNIA )
) ss:
COUNTY OF O GE )
On , 1995, before me,
, personally appeared
GE4C4L l .
basis of satisfactory evidence't6ibe 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 signature(s) on the instrument the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal
ag\e-connol.enc
o-Ps ?
,personally known t6ime (or proved to me on the
(This area for official notarial seal)
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,fh -eh
Shauna Lyn Oyler k
Comm #1002681
NOTARY PUBLIC CALIFORNIA^
ORANGE COUNTY �%
Comm. Expres Aug 22. 1997 -
OM&
\SIDEWALK
Not to Scale
LOCATION MAP
111101.
OCEAN BOULEVARD
9' _ 9 ' _ _ /o'f
2061 OCEAN
MEM NISEI
ALLEY
v
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TAIWAN CHERRY TREE
in 3' X 3' TREE WELL, Typ.
Bc R
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EXHIBIT "A"