HomeMy WebLinkAboutC-6845 - Encroachment Agreement EPN N2008-0158 for 320 Eving Canyon Road---
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RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
This Document as electronically recorded by
"R Cert Mail A
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
1111111111111111111I 111111111111111111IIIII111111I1111130.00
2008000383060 08:53am 08/12/08
2138A129
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2008-0158)
THIS AGREEMENT is made and entered into this 28th day of July, 2008, by and
between Richard M. Taketa and Patricia A. Taketa, Trustees of the Richard and Patricia
Taketa Living Trust established December 29, 1999 (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 320 Evening Canyon Road, Newport Beach,
California 92625 and legally described as Lot 67 of Tract 1116, as shown on a map recorded
in Book 36, Pages 19 through 20 inclusively of Miscellaneous Maps in the office of the County
Recorder of Orange County, California Assessor Parcel Number 052-202-16.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Evening Canyon Road right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot
67 of Tract 1116, as shown on a map recorded in Book 36, Pages 19 through 20 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, California; also
known as 320 Evening Canyon Road, Newport Beach, California 92625; 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
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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
(1) A 23-foot wide and a 10-foot deep driveway approach constructed with
standard grey concrete pavers with sod between the pavers and Shadow
Grey stone pavers around the outside border encroaching ten feet into the
public right-of-way;
(2) A 4-foot wide carriage walkway constructed of Shadow Grey stone pavers
encroaching ten feet into the public right-of-way;
(3) Various private landscaping not to exceed 12-inches in height
encroaching up to ten feet into the public right-of-way;
(4) Various private low -growing groundcover in the planting area measured a
minimum of 18 inches from the curb face;
(5) Various private irrigation improvements encroaching up to ten feet into the
public right-of-way;
and appurtenances in the Evening Canyon 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.
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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
or enlargement of existing or future public facilities or improvements, CITY
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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
the merit or outcome of any such claim or suit arising from or in any manner
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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.
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.
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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.
APPROVE AS TO FORM:
By: ' ( V C�—
Aaron Harp, Asst. City Attorney
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By:
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LaVonne Harkless, City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
Homer Bluda , City Manager
OWNER: Richard and Patricia Taketa Living Trust
By: P__CC'L4M _'_1aLCZ41 1
Richard M. Tak—la
TrusteeQ� talc
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By d
Patricia A. Taketa,
Trustee
f:\users\pbw\shared\encroach\row agreements\2008\n2008-0158-320 evening canyon road (r & p taketa living trust).doc
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On �0 OF)
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personally appeared
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Notary Public,
who
proved to me on the basis of satisfactory evidence to be the person(k) whose name((qhre
subscribed to the within instrument and acknowledged to me that h she they executed the
same in hi he their authorized capacity(ies), and that by hi /her heir 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 and and official al.
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(SEAL)
Notary Public in and for said State
OPTIONAL INFORMATION
Title or Type of Document:
Date of Document:
VICKI L. RANCK
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