Loading...
HomeMy WebLinkAboutC-6009 - Encroachment Agreement EPN N2011-0104 for 500 El Modena 049-042-110110 mu RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: t V Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92658-8915 SCANNED Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 24.,00 2011000431826 338 pm 08/31/11 47 412 Ai 7 0.00 0.00 0.00 0.00 18.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2011-0104) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 4t" day of April, 2011, by and between David G. Becker, a single man ("Owner"), and the City of Newport Beach, California, a California municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California, ("City"). WITNESSETH: WHEREAS, Owner is the vested owner of property located at 500 El Modena Avenue, Newport Beach, California 92663 and legally described as Lot 1 of Block 37 of the First Addition to Newport Heights Tract, as shown on a map recorded in Book 4, Page 94 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 049-042-11 ("Property"). WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the El Modena Avenue and Clay Street rights -of -way (hereinafter "Right -of -Way") that is located adjacent to the Property. 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 enter this 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: � K6 a. A 5-foot wide entry walkway constructed of "Sydney Peak" flagstone pavers encroaching 12 feet into the El Modena Avenue public right-of-way; b. A USPS-approved mailbox mounted in a 24-inch square, 42-inch high pilaster constructed of CMU blocks with "Sydney Peak" flagstone pavers encroaching up to twelve feet into the El Modena Avenue public right-of-way; c. Various private low growing groundcover, landscaping, and irrigation improvements encroaching up to 12 feet into the El Modena Avenue and Clay Street public rights -of -way and appurtenances 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. 3. Rights granted under this Agreement may be terminated by City with or without cause and at any time without notice. The City shall make good faith efforts to provide notice (60) days in advance of termination 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. Encroachment Agreement 12 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 not 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. 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. Encroachment Agreement t a t, 13 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. Encroachment Agreement Page 14 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: OFFICE 0,K TH ITY ATTORNEY Date: 44 1 of F, T. By: Leonie Mulvihill, Assistant City Attorney ATTEST: Date: / 'P ATTACHMENTS: CITY OF NEWPORT BEACH, a California Municipal corporation Date: By: Davi iff, City Manager OWNER(s): Date: By: David . Becker Owners must sign in the presence of notary public EXHIBIT A —Plans as approved by Public Works f.•luserslpbwlsharedlencroachlrow agreements120111n2011-0104 500 el modena ave (becker).docx.21.10 Encroachment Agreement P a g e 15 ACKNOWLEDGMENT State of California County of DpWt�c--& } ss. On AVY i L (2, b re me, Notary Public, personally appeared iEVIb e t2�--FCY-Cf'L- ,who proved to me on the basis of satisfactory evidence to be the person(+ whose nameM is/dAw subscribed to the within instrument and acknowledged to me that he/�/Ogy executed the same in his/h*/ter authorized capacity(1�), and that by his/ /tieir signatureon the instrument the person, or the entity upon behalf of which the person) 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. L. HARR-S Commission #� 1840150 WITNESS n hand and official seal. 0Notary Public - California Orange County MY Comm. Expires Mar 12, 2013 i at a (seal) ACKNOWLEDGMENT State of California County of to jVi;q► :rqs } ss. On Aug 1-11 2ot.N before me, vtx LOCe- , Notary Public, personally appeared ct Ica ,who proved to me on the basis of satisfactory evidence to be the person(a-whose name() gRare subscribed to the within instrument and acknowledged to me that ,�5Wshe/they executed the same in er/their authorized capacity(i&s), and that by her/their signatures(s�-bn the instrument the person(s4, or the entity upon behalf of hich the person(Kcted, 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. ktl(- Signature (seal) M LOCEY Commission #t 1864451 Notary Public - California Orange County Encroachment Agreement' < 6 OWNER: Becker ADDRE'SS:'500 El Modena Ave Newport Beach, CA 92663 I � FROM WALL. EXTEND HANDRAILS 6- `WALL OR NEWEL POSTS PER PLAN- 1. ENCLOSED USABLE SPACE UNDER A STAIR .3 EXCEPTION. IATE PICKETS SHALL BE SPACED SUCH THAT A .3 EXP 5 EXCEPT THAT ON SIDES OF A STAIR 4AY NOT PASS THROUGH. NIMUM HEADROOM. PROVIDE AN ATTIC N A CORRIDOR HALLWAY OR OTHER READILY ESTOR BY'HEATILATOR','LENNOX•. OR ,CE HEARTH PER MANUF. B CODE. I ICC REPORT ESR #2542, (OLITE, ICC #2469 ) BY VELUX, IGC # NER 21 b - ER #6075 (BROOMS AND CORRIDORSIROOMS LEADING TO (ABLE IN EXISTING CONSTRUCTION. CONDITIONING CONDENSER AS OCCURS. )VIDE 13 SEER CARRIER EQUIPMENT ONLY. MPLY WITH SOUND REQUIREMENTS. IHROOM SINK. PROVIDE FFULL HEIGHT POLISHED 1TE MIRROR, UNLESS NOTED OTHERWISE. SEE ERIOR ELEVATIONS WHERE PROVIDED. :TION REFERENCE VISION N TIC mmction debris or other materials mod for the dump must be haule43 'aulcrs licensed by the Cily of ,port Beach. cs shall not be planted. trimmed. aovcd or relocated withm the Cuy hi -of -way without prior w""ea Proval from the General Service► :partmcnt. TO PERT T'..: IN CITY R",T Ir "ROACH"' - , OBTAINED WORKS i�2�-i )F Nr. `R.P RT ../C'!9.t"'�!r"�'t ,.Li0C; MEW. i imm-PIimm ti11f face» In rsnUL REMOVAL OF ANY CITY TREES RE0j14FS PRIOR APPROVAL FROM GENERAL EXTERIOR WALLIS) OF NEW ( SHALL BE 1-HOUR CONSTRUI SERVICES DEPARTMENT. SIDES (EXCEPTION: STORAGE MORE THAN 31Y FROM PROPE SEWER PROJECTION OVER PUOJI MAXIMUM PROJECTION OF 6 EXISTING SEWER LATERAL TO BE CHANGED AND A CLEAN -OUT INSTALLED AT THE PROPERTY LINE TO COMPLY WITH CITY STANDARDS IF ANY OF THE FOLLOWING CONDITIONS OCCUR. PROVIDE PUBLIC WORKS STANDARD DETAIL ON THE UBC CHAP. 32. DRAWINGS. A. ALTERATION TO THE BUILDING SEWER IS DONE. B. ADDITIONAL PLUMBING FIXTURES REQUIRE INCREASE IN SIZE OF BUILDING SEWER. C. WHEN IT IS FOUND TTHAT THE BUILDING SEWER IS INSTALLED IN AN ILLEGAL OR TRASH TRASH CAN STORAGE AREA NOT BE LOCATED IN REOUIR! 1 UNSANITARY MANNER. D. IF AREA OF STRUCTURAL REMODEL + ADDITION IS GREATER THAN 50% OF THE EXISTING AREA. TEMPERED CLASS ALL TEMPERED GLASS TO B DEFERRED SIURTAIS DEFERRED SUBMITTALS TO BE REVIEWED BY PROJECT ARCHITECT OR ENGINEER OF RECORD AND CERTIFIED PRIOR TO SUBMITTAL FOR PLAN REVIEW. a-- Yin Css > VL SEE STRUCTURAL ENGINEERING DRAWINGS AND ENGRG DRAWINGS FOR DEFERRED SUBMITTAI 5 VERIFY WITH STRUCTURAL Ej GINEER. I - AUTOMA I IRE SPRINKLERS FABRICA E ROOFTRUS;ES - SEE STR JC I JRAL DRAWINGS FOR STRUCTURAL DEFERRED SUBMITTALS. b1 7 n1 1 P E I >�' I I- / � I N SIFT HIGH y S N GATE —— — — $ I I.S. - F �(� II I J I n Exhibit "A„ INEER SHALL PROVIDE THE i � �, T Sheet 1 of 1 I. RUCTION DOCUMENTS. I N2011-0104