HomeMy WebLinkAboutC-6564 - Encroachment Agreement (for 2889 Way Lane)Recorded in Official Records, County of Orange
RECORDING REQUESTED AND Tom Daly, Clerk -Recorder
WHEN RECORDED RETURN TO: lillill11111I I111l1111111111l 11111111111111111111111111111111111NO FEE
U Public Works Department 2004000360129 08:23am 04128104
213 1.loAl2s
City of Newport Beach 0.00 o.o0.00
0.00 0.00 0.00 0.00 0.00
Post Office Box 1763
Newport Beach, CA 92659-1763
EXEMPT FROM FILING FEES -PER GOVERNMENT CODE 6103
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
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THIAGREEMENT is made and entered into this day of
, 2004, by and between Richard Dean Lewis Family Trust (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 2889 Way Lane,
Newport Beach, California, 92625 and legally described as Lots 1 and 2, Block C-33 of
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.
WITNESSETH:
WHEREAS, CITY desires to construct and OWNER desires to maintain certain non-
standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Goldenrod
Avenue right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to Lots 1 and 2,
Block C-33 of 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; also known as 2889 Way Lane, 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
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WHEREAS, the parties hereto desire to execute an agreement providing for fulfillment
of the conditions required by CITY to permit OWNER to 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 a
City -installed landscaped planting area in the Goldenrod Avenue right-of-way where OWNER
shall provide irrigation and landscape maintenance with planting not exceeding five feet in
height, as shown on EXHIBIT "A" attached hereto and as approved by the Public Works
Department. In addition, the proposed PERMITTED IMPROVEMENTS may vary at the time of
construction. Hence, any changes must be approved 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, 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 may construct and install irrigation and appurtenances incidental
thereto, in substantial conformance with plans and specifications therefore on file in the CITY's
Public Works Department, and as described on Exhibit "A" hereto attached.
b. OWNER shall maintain the PERMITTED IMPROVEMENTS in accordance
with general prevailing standards of maintenance and the landscaping at a maximum height of
five feet, and pay all costs (including water) and expenses incurred in doing so. However,
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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
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 of its intention to accomplish such work,
if any emergency situation does not exist.
(ii) OWNER shall be responsible for arranging for any renewal,
replacement, or restoration of the PERMITTED IMPF:OVEMENTS
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, replacement, or
restoration of the PERMITTED IMPROVEMENTS.
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 and/or maintained 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.
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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 roanner conne(;ted 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 TO FORM:
By: OIxx /�L _z9i
City Attor ey
ATTEST:
By:xlld5-4� �i
. ettxl,1�9
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
City anager
OWNER: R
By:
Richa
4
chard Dean Lewis Famil Trust
n Lewis;
STATE. OF CALIFORNIA)
) ss:
COUNTY OF ORANGE )
On_hL_U_Ua_n 2004, before me, Alo U V , �'3c l �P-q
personally appeared tC. R
_Z.
p (or proved to me on the basis of satisfactory evidence) to be the
person() whose name(�s is/are subscribed to the within instrument and acknowledged to me
tha �e>be/the"as executed the same i 11�Isl- r authorized capacity(44, and that by
slhe ihEir signatuiEE4 on the instrument the person(j) or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
A -v_'
t-naA1SDQAA_' -
Notary Public in and for said State
STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE )
On
, 2004, before me,
IAN MANSOUR
Commisslon # 1424298
92 Notary Public • California
Orange County
My Comm. Expires Jul 11, 2007
(This area for official notarial seal)
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)
f:\users\pbw\shared\encroach\row agreements\2003\2003-xxxx 2889 way lane (lewis).doc
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02/25/2004 14:00 949-650-5643 PARKS TREES PAGE 02
Southland,
Landscape Maititenance & Installation
P.O. Box 11437
Costa Mesa. CA 92627
949-589-7704 Office
949-589-0611 Fax
7/25/03
Customer Information:
City Open Area
Above China Cove
Proposal
City Of Newport Beach
General Services
Complete initial cleanup of this area including weeding, dead vegitation rem-
--oval, and trimming of underbrush along the inner perimeter of this area
Install automatic irrigation to service this area utilizing the water and
electricity
supply from the
private
residence*
at 2889
Way Avenue,
Corona Del
Mar. The
irrigation will be
serviced
by two
antisyphon
valves, 3/4
" Rain
Bird brand, and all pipe will be 3/4" brown line ultra violet resistant
rating, schedule.. 40#. RainBird sprinklers mounted on J" risers will be in-
-stalled to irrigate this area. A outdoor lockable controller will be in --
-stalled on site.
We will supply and install thirty one gallon, Statice plants and thirty one
gallon Osteospernum plants, the planting mix will be GPS 1# from Aguinaga fert-
-ilizer. This bid includes all disposal fees to complete this work.
Total bid amount will be ........... ................................$2,685.00
* We will be proceeding with this project with the understanding that the City will
obtain permission, for the utility usage mentioned above.
--------------
Southland Landscape Maintenance
Approval :
----------------------------------------------
Exhibit A
CITY CLERK'S ACKNOWLEDGMENT
State of California
County of Orange
On n6.CL\- a , 2004, before me, LAVONNE M. HARKLESS,
CITY CLERK OF THE CITY OF NEWPORT BEACH, personally appeared
�{cDCl('\eC L G��-cd«�-� , 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 the person acted, executed the instrument.
Dated this QC14 day of )T)A Cc Y\ 2004.
CAPACITY OF SIGNER
Municipal Corporation Officer
SIGNER IS REPRESENTING:
City of Newport Beach
WITNESS my hand and official seal.
cA
LAVONNE M. HARKLE-S)S, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
DESCRIPTION OF ATTACHED
DOCUMENT:
# of Pages 77
Document Date: /4(,o
Signer(s) other than named: 1
,cAr- d s1 CPccJ,'S