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HomeMy WebLinkAboutC-7773-1 - Encroachment Agreement EPN N2006-0052 for 402 and 404 Dahlia AveRECORDING REQUESTED AND WREN RECORDED RETURN TO: City Clerk's Office City of Newport Beach Post Office Box 1768 Newport Beach, CA 92659 -1768 Recorded in Official Records, Orange County Tom Daly, Clerk- Recorder NO FEE FEE 2006000698029 K01am 10117106 117 48 Al2 12 o:oo 0.00 0.00 0.00 0.00 o.00 0.00 0.00 0 00 C3 -i �1 Space above this line. Reserved for Use by Recorder LL Lu W 1 - c > a" - - ENCROACHMENT AGREEMENT: 402 and 404 Dahlia Avenue (EPN 2006 -0052) v i THI ENCROACHMENT AGREEMENT is made and entered into this C day of Jdvitmr , 2006, by and between Taylor Browman (hereinafter "Owner "), and the City of Newport B ach, 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"). RECITALS: WHEREAS, Owner is the owner of that certain real property located in the City of Newport 1 Beach, County of Orange, State of California, commonly known as 404 Dahlia Avenue, and legally described as Lots 4 and 6, Block 332 of the Corona del Mar Tract, as shown on a map recorded in Book 3, Pages 41 and 42 inclusively, of Miscellaneous Maps in the office of the County Recorder of Orange County, California (hereinafter the "Property"). WHEREAS, Owner desires to subdivide the Property to create two parcels to be commonly known as 402 Dahlia Avenue and 404 Dahlia Avenue. The property at 402 Dahlia Avenue shall be the parcel to the south of 404 Dahlia Avenue. Owner plans to build a two -unit residential building on each of the legal lots. WHEREAS, the existing easterly Dahlia Avenue pubic sidewalk terminates midway in front of the 404 Dahlia Avenue property frontage and does not provide pedestrian access to the proposed building at 402 Dahlia Avenue. The existing public alley adjacent to the development site terminates approximately two feet north of the 402 Dahlia Avenue southerly property line, and does not provide sufficient turn -around space for vehicles exiting the proposed building at 402 Dahlia Avenue. WHEREAS, the Public Works Department has requested that Owner provide direct and acceptable pedestrian and vehicle access to 402 Dahlia Avenue. Due to the site's topography, retaining walls and caissons will need to be constructed in the public right -of -way to support the sidewalk extension. WHEREAS, City is the owner of certain fee and/or easement interests on the Dahlia Avenue right -of -way adjacent to the Property, as well as on the alley right -of- -way in Alley 22 -D at the side of the Property and the public slope below and between the Property and Bayside Drive below the Property (hereinafter "City Property" or "Right-of-Way"). WHEREAS, in order to create access to the newly created parcel at 402 Dahlia Avenue, Owner desires to install the following non - standard improvements on the City Property in the locations depicted on Exhibit "A ": (A) In the Dahlia Avenue Right -of -Way and the public slope below and between 402 Dahlia Avenue and the Bayside Drive roadway, a concrete sidewalk extension with caissons and retaining walls constructed of integrally colored masonry blocks to match the color of the adjoining natural ground (hereinafter referred to as the "Sidewalk Extension Structure "), as well as landscaping, irrigation, a drainage system, and related appurtenances on the City Property; and (B) in the Alley 22 -D right -of -way and public slope below and between 402 Dahlia Avenue and the Bayside Drive roadway, a concrete alley extension with caissons connected by vertical walls, retaining walls constructed of integrally colored masonry blocks, and an alley deck consisting of a monolithic built -in, full -width concrete vehicle wheel stop and metal guardrail with signage (hereinafter referred to as the "Alley Extension Structure "), as well as landscaping, irrigation, a drainage system, and related appurtenances on the City Property as shown on Exhibit "A" attached hereto and detailed on the plans and specifications approved by the City in the following plan: Plan No. A 5157_S (402 & 404 Dahlia Avenue Sidewalk and Alley Extension Structure). The improvements described in this paragraph shall hereinafter collectively be referred to as the "PERMITTED IMPROVEMENTS." WHEREAS, said PERMITTED IMPROVEMENTS may interfere in the future with the City's ability to construct, operate, maintain, and replace City and other public facilities and improvements within the City Right -of -Way. WHEREAS, City has agreed to grant Owner an encroachment permit ( "Permit ") for the PERMITTED IMPROVEMENTS in accordance with Chapter 13 of the Newport Beach Municipal Code on the condition that Owner executes this Agreement and agree to the conditions herein. WHEREAS, the parties hereto desire to execute an agreement outlining the conditions required by City to permit Owner to construct and maintain said PERMITTED IMPROVEMENTS. NOW, THEREFORE, the parties hereto agree as follows: 1.0 License. The City hereby grants to Owner a license revocable with or without cause at any time by the City to construct and maintain the PERMITTED IMPROVEMENTS upon all of the terms and conditions of the Permit and this Agreement ( "License "). 2.0 Covenants. (a) In General. Owner hereby agrees to install and maintain the PERMITTED IMPROVEMENTS in accordance with this Agreement, the Public Works Department's Permit requirements, and all applicable provisions of the City of Newport Beach Municipal Code, as amended from time to time. (b) Encroachment Permit. Owner agrees to obtain an Encroachment Permit from the Public Works Department authorizing the work in the public Right -of -Way and to comply with all conditions of the permit. (c) Public Use. Owner agrees that upon completion of the Alley Extension Structure and upon written acceptance by City, the Alley Extension Structure shall be open for public use and for access to other properties. 2 3.0 Maintenance Obligations (a) Owner shall install, maintain, and repair the landscaping, irrigation, drainage system, slopes and related appurtenances on the City Right -of -Way and the area below and surrounding the Alley and Sidewalk Extension Structures. The improvements outlined in this Paragraph shall hereinafter be referred to collectively as the "LANDSCAPE IMPROVEMENTS." (b) Owner shall maintain the LANDSCAPE IMPROVEMENTS in accordance with generally prevailing standards of maintenance, and pay all costs incurred in doing so, including the cost of water and electricity. In the event that Owner does not maintain the LANDSCAPE IMPROVEMENTS and the City Property as required herein, City may terminate this License as more particularly provided herein. (c) Upon written acceptance of the Alley Extension Structure by City, City shall own, repair and maintain the Alley Extension Structure located within the City Right -of -Way. (d) The Sidewalk Extension Structure shall be owned and maintained by Owner. Owner shall maintain the Sidewalk Extension Structure in accordance with generally prevailing standards of maintenance, and pay all costs incurred in doing so. In the event that Owner does not maintain the Sidewalk Extension Structure as required herein, City may terminate this License as provided herein. 4.0 Other Terms. Owner and City further agree as follows: (a) Owner may construct and install the PERMITTED IMPROVEMENTS and appurtenances incidental thereto, provided they are in substantial conformance with the plans and specifications in Plan Number A 5157 S (402 & 404 Dahlia Avenue Sidewalk and Alley Extension) on file in the City's Public Works Department, and as described on Exhibit "A" attached hereto. If the PERMITTED IMPROVEMENTS as 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. (b) If City or other public facilities or improvements are damaged by the construction of the PERMITTED IMPROVEMENTS, Owner shall be responsible for the cost of repairs and restoration. (c) Should City be required to enter onto said Right -of -Way to exercise its primary rights associated with the 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 all or a portion of the PERMITTED IMPROVEMENTS, as required, and in such event: (i) City shall notify Owner 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) Owner agrees to bear the cost of any removal of the PERMITTED IMPROVEMENTS or appurtenances affected by such work by City. (iv) Owner agrees to pay all costs for renewal, replacement, or restoration of the PERMITTED IMPROVEMENTS. 5.0 Material Breach. In the event any 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. In the event the breaching party is the Owner, City may enter upon the Right -of -Way and remove all or part of the PERMITTED IMPROVEMENTS. However, City agrees that it will not permanently deny vehicular access to the Property. Termination because of breach shall be upon a minimum of ten (10) days notice, with the notice specifying the date of termination. 6.0 Indemnity. (a) Owner hereby agrees to indemnify and defend the City, its City Council, boards, commissions, officers, agents and employees, from and against, any and all actions, suits, claims, damages to persons or property, losses, costs, expenses, penalties, obligations, errors, omissions or liabilities, including reasonable attorneys' fees, regardless of the merit or outcome of any such claim or suit, which may arise in consequence of the City entering into this Agreement or in any way connected with, arising from, or related to the design, construction, maintenance or continued existence of the PERMITTED IMPROVEMENTS, with the exception of the maintenance of the Alley Extension Structure following written acceptance by City. (b) Owner agrees that during construction of the PERMITTED IMPROVEMENTS, Owner shall indemnify and hold harmless adjoining property owners from any and all damage to their property or structures caused by the construction of the PERMITTED IMPROVEMENTS. 7.0 Insurance. (a) General Liability Coverage. Owner shall obtain and maintain for the duration of this License, a general liability policy in the amount of one million dollars ($1,000,000.00) per occurrence for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by Owner, their agents, representatives, employees, contractors, or subcontractors, or which may arise from or in connection with the design, construction, maintenance or continued existence of the PERMITTED IMPROVEMENTS, with the exception of the maintenance of the Alley Extension Structure following written acceptance by City. City shall be named as an additional insured on said policy. (b) Automobile Liability Coverage. Owner shall maintain automobile insurance covering bodily injury and property damage for all activities arising out of or in connection with the construction of the PERMITTED IMPROVEMENTS, including coverage for any owned, hired, non - owned, or rented vehicles, in an amount not less than one million dollars ($1,000,000.00) combined single limit for each occurrence. City shall be named as an additional insured on said policy. (c) Workers Compensation Insurance. Owner shall require the Contractor hired to construct the PERMITTED IMPROVEMENTS to maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. (d) All insurance shall be subject to the approval of the Public Works Department and City's Risk Manager as to amounts and form. 8.0 Bonds: Prior to construction of the. PERMITTED IMPROVEMENTS, the Owner shall obtain, provide and maintain at his own expense the following bonds: (1) a Labor and Materials Payment Bond in the amount of one hundred percent (100 %) of the total cost of the PERMITTED IMPROVEMENTS; and (2) a Faithful Performance Bond in the amount of one hundred percent (100 %) of the total cost of the PERMITTED IMPROVEMENTS. The term of the Faithful Performance Bond shall extend for one (1) year after acceptance of the PERMITTED IMPROVEMENTS by the City. The Labor and Materials Payment Bond and the Faithful Performance Bond shall be issued by an insurance organization or surety that is: (1) currently authorized by the Insurance Commissioner to transact the business of insurance in the State of California, (2) listed as an acceptable surety in the latest revision of the Federal Register Circular 570, and (3) assigned a Policyholders' Rating A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property- Casualty. Prior to construction, Owner shall deliver the Labor and Materials Payment Bond and the Faithful Performance Bond to the City, along with a certified copy of the "Certificate of Authority" of the Insurer or Surety issued by the Insurance Commissioner, which authorizes the Insurer or Surety to transact surety insurance in the State of California. 9.0 Termination. The License is terminable with or without cause by the City at any time. Owner shall remove the PERMITTED IMPROVEMENTS and restore the City Property to its former condition, at Owner's sole cost and expense, within thirty (30) days of written notice from the City. In the event Owner fails to remove the PERMITTED IMPROVEMENTS and restore the City Property within said time period, City shall have the right to do so without notice. Owner shall immediately reimburse the City for all out - of- pocket expenses expended to remove the PERMITTED IMPROVEMENTS and restore the City Property. Said amounts shall accrue interest from the date expended by the City at the maximum non - usurious interest rate permitted by law. 10.0 Covenants Running With the Land. The covenants and restrictions by Owner set forth in this Agreement: (a) are made for the direct benefit of the City Property; (b) will constitute covenants running with the land and equitable servitudes; (c) will bind Owner and every person having any fee, leasehold, or other interest in any portion of the Owner's property at any time or from time to time; and (d) will inure to the benefit of the City and every person having any fee, leasehold or other interest in the City Property at any time or from time to time. 11.0 Miscellaneous. (a) Successors and Assigns. Owner agrees that this Agreement shall remain in full force and effect from execution thereof and shall be binding upon the heirs, successors, and assigns of Owner's interest in the land, whether fee or otherwise. (b) Amendment or Modification. This Agreement may not be modified or amended except by written agreement executed by the then -owner of the Applicant's property and the City Property and recorded in the Office of the County Recorder, County of Orange, California. (c) Goveming Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. (d) Severability. The invalidity or unenforceability of any provision of this Agreement with respect to a particular party or set of circumstances shall not in any way affect the validity and enforceability of any other provision hereof or the same provision when applied to another party or to a different set of circumstances. (e) Recordation. This Agreement shall be recorded in the Office of the County Recorder, County of Orange, California, and it shall serve as notice to all parties succeeding to the interest of Owner or the City that their use of the Property and the City Property shall be benefited and/or restricted in the manner herein described. (f) Priority. Owner agrees that this Agreement shall always be prior and superior to and shall be recorded prior to any mortgage, deed of trust, or any other hypothecation for security hereafter placed on the Property. Owner agrees to execute and deliver to City any instrument that may be deemed necessary to effect subordination to this Agreement of any mortgage or deed of trust or other hypothecation already recorded against the Property, such that the covenants, conditions and restrictions in this Agreement shall be binding upon and effective against any owner whose title is derived through foreclosure or trustee's sale or otherwise. [SIGNATURES ON FOLLOWING PAGE] IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. APPROVED AS TO FORM: Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: By V trulv / d 1 •L �� LaVonne Harkless, City Clerk Attachment: Exhibit "A" CITY OF NEWPORT BE A M orporatio By: Don Webb, Mayor for the City of Newport Beach OVA F: Users /CAT /Shared/AG/Enaoachment Agreements/402 & 404 Dahlia Avenue.doc CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of County of —1 )V On personalty appeared.JI—Vi s LOO 1. BROMM gS CamYWan 1 1633477 t Non PYWC - Cmkmlo Orange Courtly M/Camm:8"wJan23.201 I as. me, ��G�WI I• �W�rn WAN Name antl TWe ol015oti e. YLH� 4ersonally known to me ❑ proved to me on the basis of satisfactory evidence to be the person(e) whose name(s) is/am subscribed to the within instrument and acknowledged to me that he/speApe�, executed the same in his/herkbeic_ authorized capacity(Ws)i and that by his/herkMeir� signature(*on the instrument the person(e), or the entity upon behalf of which the personal acted, executed the instrumerrt. WITNESnd a fficia�l seal.• - �. iJ /Old eigneWre of Ac OP77ONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and Could prevent fraudulent removal and reattachment of this form to anatherdocumant. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: OREM ❑ Individual Top of thumb here ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney -in -Fad ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: ®1999 Natloeal Notary Asexiatlo0 - 9950 De a -AVM., P.O. Box 2002 • Chatsxnnr,. CA 91919-2002 • wrw.nelianelmtary0i0 Pmtl. No. 5w Reorder: Call Tdl . 181)0$]8882) STATE OF CALIFORNIA) ) ss: COUNTY OF- ORANGE ) On 1 2006, before personally appi ed personally known to me or proved to me on the basis of satisfactory e ' ence) to be the personH whose name(e) is/ape subscribed to the within instrument and ac edged to me that he/she /4tey has executed the same in his/tier�tieir authorized capacity(ies� that by hisAier/their signaturefsj on the instrument the person(e) or the entity upon behalf o ch the person acted, executed the instrument. WITNESS my hand and official . -A '. 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M•mW •YMi• NOTE: BEM Y141R Hvx [ Mmin Ilm 9 P41N Ce916 caa -.asmc rmu.nmm M R F mM .1 )---tm«Y I M C 1• i �1i >< SECTION —B E e NEED ENCROACHMENT AGREEMENT W /.OWNER TO MAINTAIN WALLS IN PERPETVITY wr VIEW FROM BAYSIDE DR'. TOWARD END LANDSCAPE PLAN qYy I ❑10 Irl RAILING DETAIL MONTELEONE ASSI 3�+J NORM W W ia.p•q i I�i�i EXHIBIT "A" Sheet 3 of 4 . CONCRETE: . ueaaawx taww avama�a4�an x mmxe wum mmmr n f uman mum•aw.wo-im ♦ immmm.Nmww wuu•n.aew awimnw.R .man no am o-nemwR.carttm[c ••n c wmn>u•am va[wnlvas ao.bnm[ wr.•umnww x wX°°ia Ra sn�miwmna>u•ma.o • NFmmaw�amo°�vrwwvcm�wioa.nm rmnm [ .mcwmawm mn um.w�srvxsm aviR 3. w°eo m�u m m�a+ am rm w 9YWiR3a _ —_� R Y V I S I - - - - { - - -- F. - - - - - - -- - - _W VERI YALL DIMENSIONS W/GRAOING PLAN3d Q..�. � AfiCHITECTURAI PLANS RW s '"°'° PRECISE GRADING PLAN xengnewa�eAwneo . . � Ott OF NE0.ROBT0PACN ' IOIIF.OA iNeiR fm � EXHIBIT "A" Sheet 4 of 4