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Home My WebLink AboutC-3331 - Encroachment Agreement EPN N2006-0300 for 3619 Ocean BlvdRECORDING REQUESTED AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92659-1768 Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder IIIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII IIIII III I IIIII IIIII IIIII IIII IIII 10.00 2006000504177 08:35am 07/28/06 112 45 Al2 10 0.00 0.00 0.00 0.00 27.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2006-0300) THIS AGREEMENT is made and entered into this o?ofh day of , 2006, by and between Peter A. and Dorothy R. Spataro (hereinafter "OWNER"), and the City of Newport Beach, California, 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"). OWNER is the owner of property located at 3619 Ocean Boulevard, Newport Beach, California 92625 and legally described as Lot 15 of Tract 1257, as shown on a map recorded in Book 38, Page 25 of Miscellaneous Maps in the office of the County Recorder of Orange County, California. WITNESSETH: WHEREAS, OWNER desires to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Ocean Boulevard right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot 15 of Tract 1257, as shown on a map recorded in Book 38, Page 25 of Miscellaneous Maps in the office of the County Recorder of Orange County, California; also known as 3619 Ocean Boulevard, Newport Beach, California 92625; 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 RIGHT-OF-WAY; and 1 WHEREAS, the parties hereto desire to execute an 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. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as: (1) An extension/widening of an existing common driveway off Ocean Boulevard constructed with stone veneer pavers; (2) A 16-foot to 24-foot high colored concrete retaining wall constructed with concrete caissons and tie backs (anchors) containing "Faux" rocks and landscaping on the face of the retaining wall and a 3-foot high metalized tubular railing on top of the retaining wall; (3) A cobblestone entry way; (4) Decorative entry gates with stone pilasters; (5) A bottomless trench drain in the driveway; (6) A 4-foot high concrete block trash enclosure with faux stone veneer; (7) Various landscaping and private drainage system improvements; and appurtenances in the Ocean Boulevard right-of-way as shown on EXHIBIT "A" attached hereto and as approved by the Public Works Department. In addition, if any of the PERMITTED IMPROVEMENTS actually built or installed during the time of construction vary from the 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. 2. 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 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-day notice, specifying in said notice the date of termination. CITY shall incur no 2 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 may construct and install PERMITTED IMPROVEMENTS and appurtenances incidental thereto, in substantial conformance with the plans and specifications on file in the CITY's Public Works Department, and as described on Exhibit "A" attached hereto. b. OWNER shall maintain the 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. c. 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. That 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 the 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. (ii) OWNER shall be responsible for arranging for any renewal, replacement, 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 the renewal, replacement, or restoration of the PERMITTED IMPROVEMENTS. 3 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 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) day 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 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 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. 4 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. APPROVE I AS TO FORM: By: Aaron Harp, Asst. City Attorney ATTEST: C. B / ?%,x/eciken. LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, a Municipal corporation By: Homer Bluda City Manager OWNER: By: Peter pataro OWNER: Dorothy RLSp ataro F:\Users\PBW\Shared\ENCROACH\ROW Agreements\2006\N2006-0300-3619 Ocean Boulevard (Spataro).doc 5 STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On O I D , 200L beforeme, Susan W. Manrow, Notary Public personally appearedl)e kc A. Spa.-hara o � , D[D 117 R . 60pak'ar'y , personally known to me (or 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 hc/shc/they has executed the same in Nei-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 acted, executed the instrument. WITNESS my hand and official seal. ("0 otary Public in and for said State STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) A J. AA.A AA A A A. Ji A.g SUSAN W. MANROWnio COMM. #1434671 (� NOTARY PUBUC • CALIFORNIA —1 CO •4!) %' ORANGE COUNTY O_ My Comm. Expires August 19, 2007 (This area for official notarial seal) On , 200, before me, personally appeared , personally known to me (or 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 has 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 acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State (This area for official notarial seal) 6 wmsc.°GF . Et6iS14•44.01.5 R Rm M HAY IREALMS Eta CM K WSiOKta Siq.G1101a CITY 3i vm 9m1.1, i13 liy Del 4000.0 MRAL Y SCE OW.= 4tm�G4FL' UNDER CONSTRUCTION SITE PLAN 1,441400.41., 6n1 .E6 Eau•edr O J Bldg Line Deck Line 1 �-� „�K1�.L • T_r 11.000101NEL TO Ig PROP • OA2• • IMLR/ EUTRY TO DRAM SINGL FF._ LCA155033 ERLOW DECK REFER TO LANDSCAPE PLANS 111C OF 40 MOOR 64O ac Or • EODO, ROPOSED NEW FAMILY RESIDENCE .00' AT LOWEST LEVEL OEC< ST21NELI MACE OF COPS NEW SPA AT 24. 6• SEE STR C.TVNAL FOR REAR YARD INFORMATION BASEMENT LEVEL LOT TRACT 257 SEGONDLI OR DECK —J 5 Exhibit "A" Sheet 1 of 3 ALL SITE RETAINING WALL, POO FENCES. 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MAW9C3C9'01 9L91-ist (BIO) kV!• myna lave) 090t0 VO'NOV301tl0dM3N 133010 VIOVOV 11203 OLIO-IZ£ (414 113D 6£6£ (VW 'Hd 5£9C6 VO '3VI.4 130 VNO2IOO 'OA19 NV3O 6l9£ OWVIVdS?i3l9d 'S2JW '?1W ?JOd SNV-Id 'ld'dflIJ IHOCIV d`d054NV-I S. �VA313 1d3ONOO SUIV13O NOIJ0f1211SNOO CITY CLERK'S ACKNOWLEDGMENT State of California County of Orange On July 20 , 2006, before me, LAVONNE M. HARKLESS, CITY CLERK OF THE CITY OF NEWPORT BEACH, personally appeared Homer L. Bludau , personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which person acted, executed the instrument. Dated this 20th day of July 2006. WITNESS my hand and official seal. LAVONNE M. HARKLESS, CITY CLERK CITY OF NEWPORT BEACH, CALIFORNIA CAPACITY OF SIGNER DESCRIPTION OF ATTACHED DOCUMENT: Municipal Corporation Officer Encroachment Agreement City Manager EPN2006-0300 SIGNER IS REPRESENTING: # of Pages 10 City of Newport Beach Document Date: 07-20-2006 Signer(s) other than named: Peter A. Spataro, Dorothy R. Spataro Aaron C. Harp