HomeMy WebLinkAboutC-6837 - Encroachment Agreement EPN N2009-0046 fpr 3631 Seaview AvenueQZ
RECORDING REQUESTED AND
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WHEN RECORDED RETURN TO:
V
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in Official Records, Orange County
Tom Daly Clerk -Recorder
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2009000112.981 1219pin 04/09/09
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2009-0046)
THIS AGREEMENT is made and entered into this 5th day of March, 2009, by and
between Gayle Hoepner and Constance R. Hoepner, Trustees of the Gayle Hoepner Family
Trust established February 6, 1978 (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 3631 Seaview Avenue, Newport Beach, California 92625 and
legally described as Lot 31, Block 142 of Resubdivision Corona Del Mar Tract, as shown on a
map recorded in Book 4, Page 67 inclusively of Miscellaneous Maps in the office of the County
Recorder of Orange County, California Assessor Parcel Number 052-143-23.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Seaview Avenue and Poinsettia
Avenue rights -of -way (hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel
legally described as Lot 31, Block 142 of Resubdivision Corona Del Mar Tract, as shown on a
map recorded in Book 4, Page 67 inclusively of Miscellaneous Maps in the office of the County
Recorder of Orange County, California; also known as 3631 Seaview Avenue, Newport Beach,
California; 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 variable width entry walkway with varying widths from 7-feet to 10-feet
wide constructed of "Utah Blonde" flagstone pavers encroaching ten feet into the
Seaview Avenue public right-of-way;
(2) A four -foot wide meandering standard concrete sidewalk encroaching up
to ten feet into the Seaview Avenue public right-of-way;
(3) A 7-foot wide by 4 '/z-foot deep carriage walk constructed of "Utah Blonde"
flagstone pavers encroaching up to ten feet into the Poinsettia Avenue Avenue
public right-of-way;
(4) Various private low -growing groundcover in the parkway between the
sidewalk and curb encroaching up to ten feet into the Seaview Avenue and
Poinsettia Avenue public rights -of -way;
(5) Various private landscaping in the planting areas between the property
line and sidewalk not to exceed 30 inches in height encroaching up to ten feet
into the Seaview Avenue and Poinsettia Avenue public rights -of -way; and
(6) Various private irrigation improvements encroaching up to ten feet into the
Seaview Avenue and Poinsettia Avenue public rights -of -way;
and appurtenances in the Seaview Avenue and Poinsettia Avenue rights -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
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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
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.
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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.
(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
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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
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.
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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.
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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.
APPROVED AS TO FORM:
By: , ^: — z -
Mynette . Be uchamp
Assistant City✓ ttorney
ATTEST:
EM
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
Homer Bludau City Manager
OWNER:
By: /
G yle Hoepner, rustee
Gayle Hoepner Family Trust
OWNER:
By6� -
t
onsta a R. H epner, Trustee
Gayle Hoepner Family Trust
f:\users\pbw\shared\encroach\row agree men ts\2009\n2009-0046-3631 seaview ave (gayle hoepner trust).doc
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On lid, 2WCj before me, everw n�nno Notary Public,
personally appeared Ov &, ► �e e�? j%r Q� QonsAance. R . Nc) e? n-e r who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)1�/are
subscribed to the within instrument and acknowledged to me that ft/s�e/they executed the
same in A%s/Nr/their authorized capacity(ies), and that by Nsftr/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.
Notary Public in andkfor said State
OPTIONAL INFORMATION
Title or Type of Document:
Date of Document:
BEVERLY BONANNO
coMM. # 1829692
SEAL NOTARY puBLIC CALIFORNIA
(SEAL) ORANGE COUNTY iiiiii333333
My 00mm. expire' Jan. 6 2013 t
GON5TRUGTION BID ITEM5:
,ONTFbAGTOR SHALL PROVIDE AN ITEMIZED BID COST FOR EACH OF THE FOLLOWING.
OFOUNTAIN FEATURE. FOUNTAIN PROVIDED BY OWNER - CONTRACTOR SHALL INSTALL AND PROVIDE PC
ORAISED STACKED STONE FACED LANDSCAPE WALL ±30" HIGH. SEE DETAIL, TOP OF WALL AT THE SAME
OGROUPS OF FLAG STONES A5 STEPPING 5TONE5 SET ON 3" MORTAR BASE, ALLOW s3" BETWEEN STONE
OCOLORED 6" THICK CONCRETE DRIVE W/ TRAWLED CONTROL JOINTS AS SHOWN. EXPANSION JOINT AT
OFLAG STONE STEPS WITH P-15ER PORTION OF STEP TO BE 5TAGKED STONE. SEE LIGHTING PLAN FOR LIGV TS I r� s r1? PJ
05r05 ON P2-►` A-TE P90PMT9 )
O COLORED CONCRETE SIDE YARD WITH CONTROL JOINTS AS SHOWN AND EXPANSION JOINT AT BASE Ol
OELECTRICAL OUTLET FOR CHRISTMAS TREE LIGHTS, ETC. (INSTALL PER ALL GOVERNING REGULATIONS).
ODASH LINES INDICATE EXISTING CITY SIDEWALK. OBTAIN CITY APPROVAL PRIOR TO DEMO.
ONEW CITY 51DEWALK OBTAIN APPROVAL WITH PUBLIC WORK5 - INSTALL PER CITY STANDARD (5TD.- 1 80
(I- KUT vP i IDE s rA-NyPr" WN cr-e7-E. )
10 FLAG STONE HARD5GAPE, SLOPE TO DRAIN. GROUT SHALL BE TIGHT AND UNIFORM s 1 /2".
8 UTILITY EQUIPMENT SCREEN WALL. CONSTRUCTED BY HOME BUILDER. N.I.G.
12 STACKED STONE FACED SEAT WALL t 1 8" HIGH WITH STONE GAP,
3 BUILT IN GAS GRILL - CONSTRUCTED BY HOME BUILDER. N.I.G.
14 STACKED STONE PLANTER WALL f 1 4" HIGH WITH STONE GAP.
15 3" BED OF GRAVEL OVER FILTER FABRIC. FOR UTILITY AREA.
b 6 FT. SMOOTH STUCCO BLOCK WALL
8 4 FT. SMOOTH STUCCO BLOCK WALL
18 SIDE YARD WOOD GATE.
1 9 EXISTING STREET TREE. PROTECT IN PLACE.
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-K 12E0UL0tS ta. aoA-ilMtsvi
Pe-em. IT
Contractor Shall Use Fibermix Stealth M
Fibers In all Concrete
Fibermix Stealth fiber is a secondary
reinforcement for concrete crack Conti
Fibermix Stealth fibers are not recommc
increasing control joint spacing.
Application Rate - The standard range c
of Fibermix Stealth fibers is 0.-15 to 3.c
d
per cubic yard of concrete depending or
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performance requirements. Fibermix St(
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multifilament fibers are available in 1 /4"
lengths.
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Fibermix Stealth fibers may be added be
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or after the charging operation - at the
plant or in the truck mixer. Fibermix Ste
,y
are uniformly distributed throughout the
after mixing at the rated time and speed
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mixing will not alter its performance.
Gulde specification
Synthetic fibers will be 100 percent virc
polypropylene multifilament bundles extra
polypropylene resin containing no reproc
olefin materials. Fibers must be specifics
manufactured for use as concrete secoi
reinforcement, volume per cubic yard shi
minimum of 0.1 % and be alkali proof. Fibs
comvlu with avolicabie buildina code.,, ann