HomeMy WebLinkAboutC-6493(A) - Encroachment Agreement EPN N2008-0214 for 507 Poppy AvenueZ
Recorded in Official Records, Orange County
� RECORDING REQUESTED AND Tom Daly, Clerk -Recorder
WHEN RECORDED RETURN TO: 1111111 Jill! 30.00
Public Works Department 200800035648512:43pm 07125108
v City of Newport Beach -103 181 Al2 9
Post Office Box 1768 0.00 0.00 0.00 0.00 24.00 0.00 0.00 0.00
Newport Beach, CA 92659-1768
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2008-0214)
THIS ENCROACHMENT AGREEMENT supersedes the Encroachment Agreement
executed on October 3, 2003 and recorded on October 27, 2003 as Official Record No.
2003001317567 in the Office of the County Recorder of Orange County, California.
THIS AGREEMENT is made and entered into this 19th day of June, 2008, by and
between David M. and Mary S. Haugen (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 507 Poppy Avenue, Newport Beach, California
92625 and legally described as Lot 7, Block 543 of Corona del Mar Tract, as shown on a map
recorded in Book 7, Pages 41 and 42 inclusively of Miscellaneous Maps in the office of the
County Recorder of Orange County, California Assessor Parcel Number 459-222-17.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Poppy Avenue right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot
7, Block 543 of Corona del Mar Tract, as shown on a map recorded in Book 7, Pages 41 and
42 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County,
California; also known as 507 Poppy Avenue, Newport Beach, California 92625; and
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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.
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) A fence constructed of either steel or wood that will not exceed 36" in
height with five 18 -inch square masonry pilasters that will be finished with
smooth plaster with a stone cap encroaching one foot into the public right-
of-way;
(2) A 51 -inch wide entry walkway constructed of grey slate pavers
encroaching one foot into the public right-of-way;
(3) Various private landscaping along the back of sidewalk not to exceed 30
inches in height encroaching up to one foot into the public right-of-way;
(4) One 36 -inch by 24 -inch and three 34 -inch by 12 -inch grey slate stepping
stones located in the parkway encroaching up to 10 feet into the public
right-of-way;
and appurtenances in the Poppy 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
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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 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
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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.
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
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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.
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.
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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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
CITY OF NEWPORT BEACH,
a Municipal corporation
APPROV D AS TO FORM:
By: �— By:.
Aaron Harp, Asst. City ttorney Homer Bludau, 6ity Manager
ATTEST:
By: A�Z�
LaVonne Harkless, City Clerk
OWNER:
y:
David M. Haugen
OWNER:
By:
Mary S. Haugen
f:\users\pbw\shared\encroach\row agreements\2008\n2008-0214- 507 poppy avenue (haugen).doc
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On 77 101 C6 before me, YV- LO , Notary Public,
personally appeared -pCW1dl &kk -j- ►A.A42i V S. l-i-p���C�,� who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/ate
subscribed to the within instrument and acknowledged to me that Ike/they executed the
same in h+sttTr/their authorized capacity(ies), and that by hie rer/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.
tlz"� (SEAL)
Notary Pu lic in and for said State
OPTIONAL INFORMATION
Title or Type of Document:
Date of Document:
M. LOCEY
CommisWon #E 161156#
Notary Puck - CoNtomia
Orange County
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Exhibit "A" tAuop - 02ly
Sheet 1 of 1