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HomeMy WebLinkAboutC-4143(A) - Encroachment Agreement EPN N2009-0073 for 721 Saint James RoadRECORDING REQUESTED AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92659-1768 Recorded in Official Records, Orange County Torn Daly, Clerk -Recorder 'Ila !l IV rfill 27.00 200900017298012:19pm 04/09109 227 27 A-12 8 0 00 0.00 0.00 0.0.10 21 00 0_00 0.00 0 00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2009-0073) THIS AGREEMENT is made and entered into this 6th day of March, 2009, by and between Timothy B. and Dorothy S. Hobin (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 721 St. James Road, Newport Beach, California 92663 and legally described as Lots 13 and 14 of Tract 1218, as shown on a map recorded in Book 37, Pages 47 through 49 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California Assessor Parcel Number 049-271-04. WITNESSETH: WHEREAS, OWNER desires to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the St. James Road right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lots 13 and 14 of Tract 1218, as shown on a map recorded in Book 37, Pages 47 through 49 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; also known as 721 St. James Road, Newport Beach, California 92663; 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 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) An 8-foot wide entry walkway constructed with Terra Cotta colored stone pavers encroaching 10-feet into the public right-of-way; (2) A 22-foot wide limestone colored driveway approach and driveway encroaching 10-feet into the public right-of-way; (3) Various private landscaping not to exceed 36-inches in height and various private irrigation improvements encroaching up to 10-feet into the public right-of-way; and appurtenances in the St. James Road 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. 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 2 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: (i) CITY shall notify OWNER in advance of its intention to accomplish such work, provided that an emergency situation does not exist. 3 (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. 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 4 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: Mynette D. afuc amp Assistant City A orney ATTEST: By: Leilani I. Brown, C' y Clerk CITY OF NEWPORT BEACH, a Municipal corporation By. Homer Blud OWNER: By: OWNER: By: , City Manager Tim thy B. Hobin Dor thy S. Hobin F:\Users\PBW\Shared\ENCROACH\ROW Agreements\2009\N2009-0073-721 St. James Road (Hobin).doc 6 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA) COUNTY OF ORANGE ) On i A ?�09 before me, C, .`1 A (Lo , Notary Public, personally appeared-.77-t-to-Nkm 1.1 440 1:1A.oGb iiri k/ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) it/are subscribed to the within instrument and acknowledged to me that h&slre/they executed the same in hiis r/their authorized capacity(ies), and that by h+c/19er/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 mwhand and official seal. (SEAL) Notarfor said State C. JANDRO COMM. #1653945 OPTIONAL INFORMATION (n `.�� NOTARY ORANGECOUNTY13 PUBLIC CALORNIA O 7'F My Comm Expires April 22, 2010 �YY�Yr Title or Type of Document: Date of Document: -Coo} wide Terra Gotk s+one eni^ry wolkwoy. 0 Limed -one, drivewoy apIprooen Limeskvne driveway CONSTRUCTION NOTES: GRADING I )CONSTRUCT DRIVEWAY APPROACH (TYPE III)PER CITY STD 166-L REMOVE AND REPLACE EXISTING DRIVEWAY APPROACH. CONTRACTOR SWILL RECONSTRUCT A MIN_ Of 12" OF AC ADJACENT TO NEw GUTTER. THE NEW SLOT PAVE STRUCTURAL SECTION SHALL BE 12- FULL DEPTH ASPHALT CONCRETE PATCHBACK T)4 CONSTRUCT 6" CONCRETE CURB (TYPE B)PER CITY STD. 182-L CONSTRUCT TRENCH GRAIN •PER DETAIL HEREON. CONSTRUCT CONCRETE CUTTER PER DETAIL HEREON. CONSTRUCT 4" DRAINAGE PIPE (SDR 35) © 1%. CONSTRUCT 6 ATRIUM DRAIN PER NOS, INC. OR EQUIVALENT CONSTRUCT BOTTOMLESS TRENCH DRAIN PER DETAIL HEREON. CONSTRUCT RIP -RAP ENERGY DIFFUSER PER DETAIL HEREON. 10 CONSTRUCT 4- SUBORAIN UNE. WATER 0 O O @CONSTRUCT 2" WATER SERVICE WITH 1 1/2•• METER PER CITY Of NEWPORT BEACH STD. 503-L. @TRENCH RESURFACING PER CITY OF NEWPORT BEACH STD. 105-L-8. (:)REMOVE EXISTING WATER METERS(2) AND CAP EXIST. SERVICE AT MAIN. Exhibit "A" Sheet 1 of 1 PROPOSE0 9L000UAU FF.-69.00�v NOTES: m la 'np1-1: -Tr1 'L`CL.Z�Zi- 3" r,• 7. )ILifi,'. ck, . 41135 o IF ANY OF THE EXISTING PUBLIC IMPROVEMENTS SURROUNDIN E ITE IS DAMAGED BY THE W' PRIVATE WORK. NEW CONCRETE SIDEWALK. CURB AND GUTTER L S 8 T AVEMEN.1. AND OTHER PUBLIC IMPROVEMENTS WILL DE REQUIRED 8Y THE CIT H TIME .0E-PRIVATE/ CONSTRUCTION COMPETION. SAID DETERMINATION AND THE EXTENT REPAIR WORK--SHALL- AND 8E MADE AT THE DISCRETION OF THE PUBUC WORKS INSPECTOR.2 AN EXISTING STREET TREE ON ST. JAMES ROAD SIIALL BE PROTF10 IN PLACE( UNALITHORI3ED TREE REMOVAL(S) HILL TRIGGER SUBSTANTIAL PENALTIES FOR A ,HE PARTIES `NVOL'4D. II 3 ST. JAMES ROAD IS ON THE CITY'S STREET -CUT MORATORIUM. TRENCHING INTO ST. JAMS ROAD AS A PART OF THIS DEVELOPMENT WILL REOUIRE EXTEI4 I STREET REPAIR WORK PER CITY STANDARD NO. 105-L. 4. AN APPROVED ENCROACHMENT PERIAIT IS REOUIRED FOR ALL WORK AC17aTIES WITHIN THE PUBUC RIGHT-OF-WAY. 5 A CITY ENCROACHMENT AGREEMENT IS REOUIRED FOR ALL NON-STANDARD PRIVATE IMPROVEMENTS WITHIN THE PUBUC RIGHT-OF-WAY. 6 SURVEYOR OR ENGINEER SHALL PERMANENTLY MONUMENT PROPERTY CORNERS OR OFFSETS BEFORE STARTING GRADING. 7. SURVEYOR TO FILE A CORNER RECORD OR RECORD OF SURVEY WITH THE OFFICE OF THE COUNTY SURVEYOR. C:; OTECHNICAL: GEO—ETKA, INC. 739 N. MAIN STREET ORANGE, CA. 92868 1_1 ( .s01 771-F,Q11 BENCHMARK: THE ELEVARONS SHOWN HEREON ARE BASED UPON THE COUNTY OF ORANGE BENCHMARK NO. N65-15-70, ELEV.=66.246 FEET (NCV029) ALUMINUM BENCHMARK DISC STAMPED 'NBS-15-70', SET IN THE NW'LY COR. OF A 4.0 FT. BY 15.0 FT. CONC. CATCH BASIN. MONU- MENT IS LOCATED IN THE SElY CDR. OF THE INT. OF DOVER BRIE AND 16R1 STREET. 88 FT. SELY OF THE C.L OF DOVER, 31 FT. S'LY OF THE C.L OF 16TH ST AND 5.7 FT. ELY OF A IRAfFIC SIGNAL POLE. MONUMENT LS SET tut wIn! nor tlTFWAUx OWNER: TIMOTHY B. HOBIN 525 CATALINA DRIVE NEWPORT BEACH, CALIFORNIA 926( (949) 675-5791 (949) 675-5793