HomeMy WebLinkAboutC-6736(A) - Encroachment Agreement EPN N2009-0103 for 317 G9ldenrod AvenueQ Recorded in Official Records, Orange County
�•J Torn Daly, Clerk Recorder
RECO
DING
UESTED AND
(— WHEN RRECORDE�D RETURN TO: '�
W'I'!111I N0 FEE
2009000279370 03.18prn 06/01/09
Public Works Department 227 27 Al2 11
v City of Newport Beach 0 00 0.00 0.00 0 00 0.00 0 00 0.00 0 00
Post Office Box 1768
Newport Beach, CA 92659-1768
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2009-0103)
THIS ENCROACHMENT AGREEMENT supersedes and releases the Encroachment
Agreement executed on August 28, 2000 and recorded on September 15, 2000 as Official
Record No. 20000483964 in the Office of the County Recorder of Orange County, California.
THIS AGREEMENT is made and entered into this 15th day of April, 2009, by and
between Jean G. Platt (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 317 Goldenrod Avenue, Newport Beach, California 92625 and
legally described as Parcel 2 of Parcel Map Number 98-164, as shown on a map recorded in
Book 315, Pages 36 through 37 inclusively of Miscellaneous Maps in the office of the County
Recorder of Orange County, California Assessor Parcel Number 052-081-23.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Goldenrod Avenue right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as
Parcel 2 of Parcel Map Number 98-164, as shown on a map recorded in Book 315, Pages 36
through 37 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange
County, California; also known as 317 Goldenrod 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:
(�) A 17.5-foot wide driveway approach and driveway constructed with
stamped colored concrete with a stamped slate finish;
(2) A variable height stucco block wall with a 12-inch cap with a maximum
wall height of 3-feet;
C (3) Two 3-foot square beige colored concrete pavers with an acid wash finish
within the 10-foot wide parkway area on the west side of the Goldenrod
Avenue right-of-way;
(4) A 5-foot wide stone paving entry sidewalk within the 10-foot wide parkway
area on the west side of the Goldenrod Avenue right-of-way;
(5) Landscape timbers located 3 feet behind an existing storm drain manhole
within a planting area between the said driveway approach and driveway
and the Goldenrod Avenue pedestrian bridge;
(6) Various private landscaping not to exceed 30-inches in height and various
private irrigation improvements within the Goldenrod Avenue right-of-way;
and appurtenances in the Goldenrod 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.
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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.
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.
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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 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.
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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 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
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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.
N.
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:
My tte- ea champ
C Assistant f Attorney
ATTEST:
By: Q �- (;1V`"--/
Leilani I. Brown, City blerk
6:�1FORr�
CITY OF NEWPORT BEACH,
a Municipal corporation
By: �.
Homer Blu au, City Manager
FEW
go
Jean G. Platt
F:\Users\PBW\Shared\ENCROACH\ROW Agreements\2009\N2009-0103-317 Goldenrod Avenue (Platt).doc
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On LA
ttN oct
before me, a,L L-oc_! �t
Notary Public,
personally
appeared
�j e_a� Tct . "V[aA_
who
proved to me on the basis of satisfactory evidence to be the person(sfwhose names/w
subscribed to the within instrument and acknowledged to me that 1 e�he/theexecuted the
same in Wher/theif authorized capacity(), and that by hois/her/tWr signature(sKon the
instrument the person(,$), or the entity upon behalf of which the person (eacted, 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.
OA (�Q� (SEAL)
Notary Public in and for said 7"__
OPTIONAL INFORMATION
Title or Type of Document:
Date of Document:
M. LOCEY
Commission # 1611564
Notary Public - California
Orange County
My Comm. Expires Oct 7, 2009
E)UrIK6r 8" OL
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Lj;F,,Z!p Exhibit "A"
Sheet 1 of 3
MATERIALS &GEND
.
1
CONCRETE DRIVEWAY PER ENGINEER
2
STONE PAVING TO BE SELECTED BY OWNER
3
STONE PAVING W/ 6" CONCRETE BAND
4
REPLACE CITY SIDEWALK PER OTY STANDARDS
5
COLORED CONCRETE SAW CUT AT 24" W/ STAMPED
SLATE FINISH
6
4' WIDE CONCRETE WALKWAY COLOR TO BE
SELECTED W/ ACID WASH FINISH
7
TILE PAVER TO MATCH INTERIOR
8
3`X3' CONCRETE PAVER COLOR TO BE
SELECTED W/ ACID WASH FINISH
9
TILE POT SHELF TILE TO BE SELECTED
10
ARCHITECTURAL POTS TO BE SELECTED BY OWNER
NOTE- EACH POT SHALL BE PLACED OVER A 3" DRAIN
AND HAVE AUTOMATIC IRRIGATION
11
NATURAL COLOR CONCRETE W/ ACID WASH
PLANT LIST
TREES
TI HYMENOSPORUM FLAVUM
T2 TRISTANIA CONFERTA
SHRUBS
S1 PHOENIX-,RCGELENII
S2 AUCUBA JAPONICA VARIEGATA
S3 BOUGAINVILLEA'LA JOLLA'
S4 BUXUS MICROPHYLLA
55 CLIVIA MINIATA
S6 HEMEROCALLIS HYBRID PINK
S7 LIGUSTRUM JAPONICUM
S8 LIRIOPE MUSCARI
S9 NANDINA DOMESTICA
S10 PHILODENDRON ZANEDUE
511 PHORMIUM 'BRONZE BABY'
S12 SYZYGIUM PANICULATUM
S13 PELARGONIANUM PELTATUM
S14 AZALEA SPECIES
SWEETSHADE
BRISBANE BOX
PYGMY DATE PALM
GOLD DUST PLANT
DWARF BOUGAINVILLEA
JAPANESE BOXWOOD
KAFFIR LILY
DWARF
PRIVET
BIG BLUE LILY TURF
HEAVENLY BAMBOO
DWARF -PHILODENDRON
DWARF NEW ZEALAND FLAX
EUGENIA
IVY GEI
TREE K Exhibit "A"
Sheet 2 of 3
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