HomeMy WebLinkAboutC-6668 - Encroachment Agreement EPN N2008-0430 for 2117 Seville AvenueRecorded in Official i<ecords, Oran. County
Tom Daly, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(EPN2008-0430)
THIS AGREEMENT is made and entered into this 9t" day of July, 2009, by and
between Eric S. Betzler and Cynthia Joan Betzler (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 2117 Seville Avenue, Newport Beach, California
92661 and legally described as Lot 100 of Tract 948, as shown on a map recorded in Book 30,
Pages 6 through 7 inclusively of Miscellaneous Maps in the office of the County Recorder of
Orange County, California Assessor Parcel Number 048-292-04.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Seville Avenue right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot
100 of Tract 948, as shown on a map recorded in Book 30, Pages 6 through 7 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, California; also
known as 2117 Seville Avenue, Newport Beach, California 92661; 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
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.
1
RECORDING REQUESTED AND
r
WHEN RECORDED RETURN TO:
v
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in Official i<ecords, Oran. County
Tom Daly, Clerk -Recorder
111►I 11111111111111 IMI Illi 11111111►1I III IIIII IIP IIE 11111 ill! IIII 33.00
2.00900045747212:OOpm 08125109
100 286 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
(EPN2008-0430)
THIS AGREEMENT is made and entered into this 9t" day of July, 2009, by and
between Eric S. Betzler and Cynthia Joan Betzler (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 2117 Seville Avenue, Newport Beach, California
92661 and legally described as Lot 100 of Tract 948, as shown on a map recorded in Book 30,
Pages 6 through 7 inclusively of Miscellaneous Maps in the office of the County Recorder of
Orange County, California Assessor Parcel Number 048-292-04.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Seville Avenue right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot
100 of Tract 948, as shown on a map recorded in Book 30, Pages 6 through 7 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, California; also
known as 2117 Seville Avenue, Newport Beach, California 92661; 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
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.
1
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. A 5 -foot wide by 3 -foot, 6 -inch deep carriage walk and a 3 -foot wide by
one -foot deep entry walkway constructed of "Bouquet Canyon" flagstone
pavers encroaching up to ten feet into the public right-of-way;
b. Four 4 -inch wide by 3 -foot, 6 -inch long and three 4 -inch wide by one -foot
long concrete mow strips encroaching up to ten feet into the public right-
of-way;
C. One "Bouquet Canyon" stepping stone paver, approximately two feet
wide, encroaching one foot into the public right-of-way;
d. Various private landscaping not to exceed 30 inches in height
encroaching up to ten feet into the public right-of-way;
e. Various private low -growing ground cover in the planting area measured a
minimum of 18 inches from the curb face;
f. Various private irrigation improvements encroaching up to ten feet into the
public right-of-way; and appurtenances in the Seville Avenue 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.
2
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 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:
3
(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.
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.
4
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.
8. The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
9. The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by
reason of the authorship of the Agreement or any other rule of construction
which might otherwise apply.
10. This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
11. A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
12. OWNER shall at OWNER'S own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
13. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
5
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:
OFFICE OF THE CITY ATTORNEY:
By:
ynet a D. B u hamp,
Assistant City Attorney
ATTEST:
in
Leilani Brown,
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
omer Bludau,
City Manager
OWNER:
By:
Eric S. Betzler
OWNER:
On
Cynth4i Joan Betz
WNIA10-1 -141,
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF OSE )
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proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
subscribed to the within instrument and acknowledged to me that he/she/ he executed the
same in his/her/& his/her/&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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(SEAL)
Notary Pub rd for said State
OPTIONAL INFORMATION
Title or Type of Document:
Date of Document:
BOBBY S. Y1.1""" . Commission # 1688010
��; Notary Public - California
Z ' _ s , los Angeles County
4My Comm. Expires Sep 14, 2010
CALIFORNIA• ACKNOWLEDGMENT
State of California
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County of `!�-�f N14;
On 'VJ `t , before me, L)LL.ii\N b�A94jl�
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Date Here Insert Name and Title o�Xe Officer
personally appeared
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Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact •
❑ Trustee Top of thumb here
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing
RIGHTTHUMBPRINT
OF SIGNER
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who proved t me on the basis of satisfactory evidence to
be the person namepq is/A, subscribed to the
within instrument and acknowledged to me that
he/sjfe/t executed the same in his/Krr/tWir authorized
capacityX)'' and that b his/hkr/)Ij' , signatureA on the
instrument the person, or the entity upon behalf of
L. WASHINGTON
which the person acted, executed the instrument.
Commission # 1840150 Z
;.,; Notary Public California >
I certify under PENALTY OF PERJURY under the laws
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My Comm. Expires Mar 12, 2013+
of the State of California that the foregoing paragraph is
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true and correct.
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WITNESSih d an� official seal.
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Signatere Z %-'
Place Notary Seal Above
Signature of Notary Public
OPTIONAL
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 another document.
Description of Attached Document
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Title Type Document: "�� �Q' Co-t� t yq e-1-JI'l c mo )
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Document Date:
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact •
❑ Trustee Top of thumb here
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing
RIGHTTHUMBPRINT
OF SIGNER
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ADDRESS: 2117 Seville Ave 2
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Exhibit "A"
Sheet 1 of 2
N2008-0430
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A
Cherry Laurel
Prunus caroliniam
S gal
2
B
Llrope Muscad
'Momw's while'
5 gal
7
C
Geranium *
'mini cascade'
1 gal
21
D
Dwarf Gardenia
GardenlaJasminoldes
'Prostrata
S gal
1
E
Red sage
Salvia coainra
S gal
2
F
NasuiWin
tropaeolum majus
1 gal
4
G
Pittospotum
tivheeler's dwarf
S gal
3
I
Day lily
Hemerocallis flava
S gal
7
J
Japanese Barberry
Berberls thunbergll
S gal
4
K
Painted Fern
dthyrium niponlcum
Plcftm
S gal
1
L
Boxwood
Round topiary
S gal
2
M
Bacopa
Sulera
flat
1
N
English Ivy
Hedera helix
flat
1
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Magnolia Graqndiflora
Vale Gem
15 gal
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White Creeping thyme
Ove ping Thyme
flat
2
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OWNER: Betzler
ADDRESS: 2117 Seville Ave
Newport Beach, CA 92661
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Exhibit "A"
Sheet 2 of 2
N2008-0430