HomeMy WebLinkAboutC-6611 - Encroachment Agreement EPN N2004-427 for 300 Larkspur AvenueRecorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(EPN2004-0427)
THIS AGREEMENT is made and entered into this -a -19 day of
_3"UA<tL{ , 2005, by and between Jay D. Rifkin, (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 300 Larkspur Avenue, Corona Del Mar,
California, 92625 and legally described as Lot 2, Block 238 of The Map of Corona Del Mar as
shown on a map recorded in Book 3, Pages 41 through 42, inclusively, 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 Seaview Avenue right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 2, Block 238 of The Map of
Corona Del Mar as shown on a map recorded in Book 3, Pages 41 through 42, inclusively, of
Miscellaneous Maps in the office of the County Recorder of Orange County, California; also
known as 300 Larkspur Avenue, Corona Del Mar, 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
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
g
Public Works Department
City of Newport Beach
v
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
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200500012371108:42am 02117(05
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2004-0427)
THIS AGREEMENT is made and entered into this -a -19 day of
_3"UA<tL{ , 2005, by and between Jay D. Rifkin, (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 300 Larkspur Avenue, Corona Del Mar,
California, 92625 and legally described as Lot 2, Block 238 of The Map of Corona Del Mar as
shown on a map recorded in Book 3, Pages 41 through 42, inclusively, 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 Seaview Avenue right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 2, Block 238 of The Map of
Corona Del Mar as shown on a map recorded in Book 3, Pages 41 through 42, inclusively, of
Miscellaneous Maps in the office of the County Recorder of Orange County, California; also
known as 300 Larkspur Avenue, Corona Del Mar, 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 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 a
Concrete Drive Approach, with a width of 15.5 feet and a 2 -foot "X" on the westside of said
drive approach and a 3 -foot "X" on the eastside of the drive approach and appurtenances in
the Seaview Avenue right-of-way as shown on EXHIBIT "A" attached hereto and accepted by
the Public Works Department; and
2. It is mutually agreed that PERMITTED IMPROVEMENTS are not in accordance
with City Council Policy L-2 and City of Newport Beach STD -162-L; and 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
3. 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, specifications,
Exhibit "A" and The Arborist report (Exhibit "B") attachment on file in the CITY. CITY will
further allow OWNER to take all reasonable measures necessary or convenient to accomplish
the aforesaid activities.
4. 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.
5. OWNER and CITY further agree as follows:
a. OWNER may construct and install PERMITTED IMPROVEMENTS and
appurtenances incidental thereto, in substantial conformance with plans, specifications and
2
the Arborist report, on file in the CITY's Public Works Department, and as described on Exhibit
"A" and Exhibit "B" hereto attached.
b. OWNER shall maintain the PERMITTED IMPROVEMENTS in accordance
with general 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 including the existing
street trees are damaged by the installation or presence of PERMITTED IMPROVEMENTS,
OWNER shall be responsible for the full cost of repairs and/or replacement of the City or other
public facilities or improvements including the existing street trees.
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 the 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 renewal, replacement, or
restoration of the PERMITTED IMPROVEMENTS.
6. 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.
3
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.
7. 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.
8. 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:
as
CITY OF NEWPORT BEACH,
a Municipal corporation
:
BY
City Attorney City anager
ATTEST:
ByAl
V �`Y1
City Clerk _,00m.no%,
OWNER:
By:
. R fkin
4
STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE )
O CwN-, _ �� , 200X, before me. r ��—°� l��' �c
_ � i
personally appeared J
(or proved to me on the basis of satisfactory evidence) to be the
person(l whose name( is/ re subscribed to the within instrument and acknowledged to me
that�he/they has executed the same i hi her/their authorized capacity(, and that by
his/ er/their 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 PublicWand and for said State
STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE )
On
personally appeared
2004, before me
CATHY FISHER
Commission # 1341009
z Notary Public - Califomia Z
Orange County >
MY Comm. Enj imps Feb 21, 2006
(This area for official notarial seal)
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\2004\2004-0427 300 Larkspur Ave (Rifkin).doc
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25411 Monte Verde Drive
Laguna Niguel, Ca 92677
949-388-2371
ADVANCED HOR11CULTURE SERVIM
Arborist Report
0 0 0 . . . . . . .
Examination of a Carob Tree at
300 Larkspur; Corona del Mar
Prepared for Jay R )kin,
December 1, 2004
By Mark J. Buberl, ISA
f-- Htbi P
Arborist Report
Report on the feasibility of expanding the
driveway approach at 300 Larkspur
Assignment
On November 29, 2004, Mr. Jay Rifkin contacted me by phone to discuss
his need of an Arborist Report. In order to fulfill a permit requirement for his driveway
approach at 300 Larkspur, the City of Newport Beach required an inspection of the Carob
Tree on the west side of the house (see picture 1). The issue, at least arboriculturally,
was whether the tree could withstand some root disturbance that would result from the
installation of a new expanded driveway approach/apron.
An inspection was to be made and a report generated that would outline
the condition of the tree and the impact, if any, that construction of a new driveway
approach would have on the health and continued viability of the tree.
Observations
On November 30, 2004 I made a site visit to 300 Larkspur in Corona del
Mar to view and examine the Carob tree. The tree, a mature Ceratonia siliqua, is
approximately 35 feet tall with a canopy of 20 feet by 15 feet. There is one main trunk
with two co -dominant leaders measuring 15" DBH (Diameter at Breast Height) and 19"
DBH, respectively. The tree appears to be in good condition. There are no obvious
diseases or pests present. There is no evidence of a fungus attack at the root crown (no
conks). The leaf color is good, with only minor interveinal chlorosis at the top of the tree.
There are numerous branch scars resulting from past multiple pruning events and the tree
underwent a root pruning when a new curb was installed next to the tree (unknown time
frame).
The tree is situated within a very narrow parkway on the west side of the
house and within ten (10) feet of an existing driveway approach. Except for a large root
flare, there is minimal surface rooting evident. There is a defunct irrigation system for the
pre-existing turf. The sidewalk is in good repair and the street, curb and gutter are not broken up
from roots.
Drawing a straight line from the north edge of the new garage opening to
the street would put the new driveway apron within three (3) feet of the trunk of the tree
(see pictures 2 and 3).
Analysis
The Carob tree has adapted quite well to its surroundings and root
limitations. The tree has obviously been drawing enough water from sources far away
from the trunk, most likely in the neighbor's yards and even across the street. The tree
has withstood the trauma of a root pruning next to the trunk when a new curb was
installed next to the tree sometime in the past.
The expansion of the driveway approach towards the tree in order to
accommodate the widening of the garage is feasible considering the relatively small
percentage of root disturbance that will take place. Usually, 90% of a tree's roots will be
located in the top 12" of soil. In this case, it seems that more of the roots have gone
deeper in search of water, and the disturbance to the top 8"-12" of approximately 25
square feet, where the apron will be installed, will have a relatively minor impact. Care
must be taken to keep all construction activity at least three feet away from the trunk.
Recommendation
It is recommended that the driveway apron be installed a minimum of
three feet away from the trunk of the Carob tree. Please see pictures 4 and 5 for a before
and after (conceptual) view of the installation of the apron. Notice that the concrete stays
at least three feet away from the trunk. This is in order to protect the buttress roots from
damage during construction. It would be best that no roots over three inches in diameter
be cut.
It is also recommended that mulch be applied to the surface around the
tree for an area extending a minimum of three feet from the trunk. Keep the mulch at
least two inches away from the trunk. No fertilization is called for at this time. No
irrigation water is to be applied that would hit the trunk of the tree. It would be best that
turf not be planted in the parkway and that the parkway not be disturbed any more than
absolutely necessary. If stone, or some other hard surface, is to be installed in the
parkway, it shall be installed with open joints and not installed in mortar.
The tree does not need to be trimmed for at least another two to three
years. Keep the tree under observation for possible ill effects of the contiguous
construction. I would recommend at least an annual inspection of the tree.
Thank you for the opportunity to advise on this project. If I can be of further assistance,
please do not hesitate to call.
Mark J. Buberl, ISA
WC -2017
3
EXHIBIT A
300 LARKSPUR
1. West side of house, widened garage, Carob Tree
Mark Buberl, ISA Pictures taken November 30, 2004 Page 1 of 3
EXHIBIT A
300 LARKSPUR
2. Straight line from edge of new garage opening to street
3. Showing three feet from trunk
Mark Buberl, ISA Pictures taken November 30, 2004 Page 2 of 3
EXHIBIT A
300 LARKSPUR
4. Existin
5. Recommended position of new apron
Mark Buberl, ISA Pictures taken November 30, 2004 Page 3 of 3
CITY CLERK'S ACKNOWLEDGMENT
State of California )
County of Orange )
On February 9 , 2005, 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 the person acted, executed the instrument.
Dated this 9th day of February
CAPACITY OF SIGNER
Municipal Corporation Officer
Citv Mana
SIGNER IS REPRESENTING:
2005.
WITNESS my hand and official seal.
LAVONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
DESCRIPTION OF ATTACHED
DOCUMENT:
Encroachment Aqreement
EPN2004-0427
# of Pages 13
City of Newport Beach Document Date: 01/28/2005
Signer(s) other than named:
Jay D. Rifkin
Daniel Ohl