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HomeMy WebLinkAboutC-6884 - Encroachment Agreement EPN N2010-0187 for 230 Poinsettia Avenue31 RECORDING 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 Tory Daly, Clerk -Recorder IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 27.00 20"100004-16007 B-44 am 06/26/10 62 417 Al2 8 0.00 0.00 0.00 0.00 21.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2010-0187) THIS AGREEMENT is made and entered into this 13th day of July, 2010, by and between Michael H. Howarth and Patricia M. Howarth (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 230 Poinsettia Avenue, Newport Beach, California 92625 and legally described as the northeasterly one-half of Lot 28 and all of Lot 30, Block 143 of Resubdivision of Corona Del Mar, 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 052-172-07. WITNESSETH: WHEREAS, OWNER desires to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Poinsettia Avenue right-of- way (hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as the northeasterly one-half of Lot 28 and all of Lot 30, Block 143 of Resubdivision of Corona Del Mar, 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 230 Poinsettia Avenue, Newport Beach, California; 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 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: It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as: a. A five-foot wide entry walkway constructed of "Bluestone" pavers encroaching one foot into the public right-of-way; b. Two 24-inch square stepping stones constructed of "Bluestone" pavers encroaching ten feet into the public right-of-way; C. Various private landscaping in the planting area between the property line and sidewalk not to exceed 36 inches in height encroaching up to one foot into the public right-of-way; and d. Various private irrigation improvements encroaching up to ten feet into the public right-of-way and appurtenances in the Poinsettia 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. 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. Encroachment Agreement f" a 2 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. (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. Encroachment Agreement F=' <z g c; 13 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 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 P ,, g e 14 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: OFFICE OF THE CITY ATTORNEY By: ,jn- eft4 DOBe amp, Assistant City At rney ATTEST: ho By: V "r" UV W ,YI/Yu r ' Leilani Brow6-LituSllerk :[./ NORM CITY OF NEWPORT BEACH, a Municipal corporation By: r LL'j'V1 David Kiff, City Manager OWNER(s): By: _A� Micha . Howarth Patricia M. I ,- [OWNERS MUST SIGN IN PRESENCE OF NOTARY PUBLIC] ATTACHMENTS: EXHIBIT A —Plans as approved by Public Works Encroachment Agreement Page 15 CERTIFICATE OF ACKNOWLEDGEMENT State of California County of ORANGE On ? Z l ` to before me, ng/4 i �- l ge- // , Notary Public, personally appeared u • 40wqolt(b proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature on the instrument the person, 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. _ DANIEL BELL Comm, # 1749085 rn ;�1 S. NOTARY PUBLIC- CALIFORNIA N Signature ORANGE COUNTY I ✓ MY COMM. ExP. DUNE 5, 2011 i 6 /_(Seal) CERTIFICATE OF ACKNOWLEDGEMENT State of California County of ORANGE On — Z l ' to before �1N e (�G Notary Public, personally appeared Gi J` i c' q i k- (�eU'a� o proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature on the instrument the person, 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. n-S'ature (Seal) _ DANIEL BELL COMM. # 1749085 ''np NOTARY PU8LIC-CALIFORNIA V1 ORANGE COUNTY MY Comm, Exp. JUNE 5, 2011 Encroachment Agreement P a g (,; 16 0 ENT, PROPERTY CORNER BEFORE FTH PERMANENT MONUMENTS OR 'x1/2' DIA METAL RODS DRIVEN FLUSH AND MARKED W/ PAINT OVEREXCAVATION & -PORT BY COAST GEOTECHNICAL. REQUIRED FOR EXCAVATIONS THS, AND REINFORCEMENT ARE T. ISED THAT ANY TRENCHING REQUIRE EXTENSIVE REPAIR WORK VORKS UNDER SEPARATE PERMIT. BE REQUIRED FOR THIS PROPERTY GENERAL CIVIL NOTES SHALL BE PER THE GEN 3 ERVICES J CONWAY (949.718.3083) SERVICES IS REQUIRED ON TH PRIOR TO FINAL INSPECTION. 32 4 o0ti 5 I I EH I� JI �I I I: ZI s I O S o I 'o o I � z y I 35 1 NISI 25 2q C 24 ti �I I GZ v EH jl\ I I 3 ,o �ODOI I ip �� SOILS RE('_ COAST GE ;HNICAL DATED: 10/13/2008 (W.O. 370608-01) 14747 ARTESIA BLVD., SUITE 1-D, LA MIRADA, CA 90638 PH: 714.521.0169 FAX: 714.521.0179 SOIL BEARING VALUE AT 1800 PSF 5. GRADING QUANTITIES: 1600 YARDS TOTAL CUT 1600 YARDS TOTAL FILL 60 LINEAR Ff. DRAINAGE LINE (4" P.V.C. SCHEDULE 40, 1 % MIN. SLOPE) U.N.O. 5 PLANTER DRAINS 1 FLATWORK DRAINS 32. 33' 'LANTER 34. ]REPLACE 35. MAIL BOX 36. BBQ & COUNTER 37. LANDSCAPE WALL 38. ... 39_ COLUMN 40. ... SERVICES 51. ELECTRICAL METER 52. ELECTRICAL P.O.C. 53. WATER SERVICE ® BUILD 54. WATER METER & P.O.C. 55. GAS METER 56. GAS P.O.C. 57. PHONE J-BOX 0 BUILDII 58. PHONE P.O.C. 59. CABLE TV J-BOX ® BUII 60. CABLE TV P.O.C. SPECIALTY 61. BUILDING SETBACK PLUS 62. 30" MINIMUM TO EDGE C 63. BACK FLOW VALVE 64. LAWN AREA 65. WALL FOUNTAIN 66. 67. STATUARY 68. 69. CONCRETE PATIO w/ SANDSTON 70. PATTERN OF DEVELOPMENT SITE PLAN KEYNOI ��- PL SUBJECT PROPERTY SAND BAGS STACKED TWO -- / HIGH AROUND SITE EROSION CONTRC 1. HARDSCAPE WITH SWALE 2. EARTHEN SWALE 3. 3" DIA. PLANTER DRAIN NOS 4. 4" DIA. DECK DRAIN NDS121 5. BOTTOMLESS CATCH BASIN 6. PERC iLATION PIPE 7. 4" P _" DRAIN SCH.40 1 % MII 8. LIN 2 DRAIN 9. ROOF OR DECK DRAIN TIE-IN 10. 11. TOP>F SLOPE 12. TOE )F SLOPE 13. NATURAL GRADE 14. CUT/FILL LINE 15. 27 SHEET FLOW i6. COMPACTED BERM 17. GRADE BREAK 18. DRAINAGE FLOW LINE 19. HIGH POINT 20. FINE GRADE TO DRAINAGE DE Q 21, CURB 2. GUTTER 23. ALLEY w 24. PARKWAY 0 25. 26. SIDEWALK DRIVE APPROACH & APRON Z 27. 28. THRU CURB DRAIN ELECTRIC METER (36" LEVEL 29. NEW UG SERVICE TO ELECTR O 30. EXISTING 36" CMU P/L RETI a_ 31. 1" MAX STEP AT OUTSWING 32. PLANTER AREA 33. HARDSCAPE AREA 34. 35. LAWN AREA EXISTING STREET TREE - PF 36. PROVIDE EROSION CONTROL 37. V-DITCH 38, BUILDING LINE 39. NEW STREET TREE - HONG 40. 41. GAS SERVICE IN UG VAULT 42, GAS SERVICE IN WALL CABIN 43. SEWER COTG PER CITY STI 44. 45, . ELECTRIC METER (36" CLEA] 46. NEW WATER METER PER CIT 47. EXISTING WATER METER, F1Ei 48. ... 49. ... 50. ... N cl %'o cq o'o U QI O cd C'4 � c �z r-+ t- W 00 O � O N W En Z _^ 36 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of `` ( ) r- a a On I� before me, l-+`iI VC { 6 E,,O& Date Here Insert Name and Title of Officer personally appeared ��. V1 A, � f I ,g ' SNANA ELISE STANLEY Commission a ' -� # 1861499 z � ��- z Notary Public - California z z Orange County D My Comm. Ex ire$ Au 16, 2013 who proved to me on the basis of satisfactory evidence to be the person*) whose name,() is/� subscribed to the within instrument and acknowledged to me that he/arc executed the same in his/hetlh&- authorized capacity(ies), and that by his/herfthVT 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. Signature,�16m P Place Notary Seal and/or Stamp Above nat o otary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Docpment (,� a j` Title or Type of Document: Cif jj j(\. Af Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): I❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact Trustee Guardian or Conservator II Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual M. ❑ Partner — ❑ Limited ❑ General Top of thumb here [.7 Attorney in Fact ❑ Trustee Guardian or Conservator J Other: Signer Is Representing: ©2008 National Notary Association • 9350 De Soto Ave., P.O. 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