HomeMy WebLinkAboutC-6923 - Encroachment Agreement EPN N2007-0485 for 2281 Orchard DriveN
Cp RECORDING REQUESTED AND Recorded in Official Records, orange County
J WHEN RECORDED RETURN TO: Tom Daly, Clerk -Recorder
39.00
Public Works Department 200800020015410:26am 04/29/08
City of Newport Beach 106 198 Al2 12
Post Office Box 1768 0.00 0.00 0.00 0.00 33,00 0.00 0.00 0.00
Newport Beach, CA 92659-1768
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2007-0485)
THIS AGREEMENT is made and entered into this 10tn day of April, 2008, by and
between Stuart Michael Guthrie, trustee of the Stuart M. Guthrie Family Trust, (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 2281 Orchard
Drive, Newport Beach, California 92660 and legally described as Lot 6 of Tract 14288, as
shown on a map recorded in Book 671, Pages 47 through 48 inclusively of Miscellaneous
Maps in the office of the County Recorder of Orange County, California Assessor Parcel
Number 439-342-19.
WIT NESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Orchard Drive right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot 6
of Tract 14288, as shown on a map recorded in Book 671, Pages 47 through 48 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, California; also
known as 2281 Orchard Drive, Newport Beach, California 92660; 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 constnict 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 36-foot, 5-inch wide driveway constructed of beige cobblestone pavers
encroaching 10 feet into the public right-of-way
(2) A variable width entry walkway with varying widths from 6-feet to 8-feet
wide constructed of beige cobblestone pavers and flagstone encroaching
10 feet into the public right-of-way;
(3) Two Phoenix dactylifera 'Medjool" trees on either side of the proposed
entry walkway in the parkway planting area encroaching up to 10 feet into
the public right-of-way;
(4) Two Olea euporea 'Swan Hill' trees on either side of the driveway
approach in the parkway planting area encroaching up to 10 feet into the
public right-of-way;
(5) 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 Orchard Drive 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
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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.
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
CITY OF NEWPORT BEACH,
a Municipal corporation
APPROVED AS TO FORM:
"Harp,Asst.
ByBye ,�,Attorney Homer Bluda , City Manager
ATTEST:
By. ��0,
LaVonne Harkless, City Clerk
OWNER:
By:
Stuart Michael uthrie
Trustee, Stuart M. Guthrie Family Trust
f:\users\pbw\shared\encroach\row agreements\2007\n2007-0485-2281 orchard drive (stuart m. guthrie family trust).doc
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On `qt It IOD
before
me, yg-L_0CC�
Notary Public,
personally appeared
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who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
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(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.
M. LOCEY
Commission # 1611561
WITNESS my hand and official seal. NotaryOraten9 CounlitornioN
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My Comm. Expires Oct 7, 2009
(SEAL)
Notary Public in and for said
OPTIONAL INFORMATION
Title or Type of Document: eA ^4 zxy7-CX1ES
Date of Document:
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CITY CLERK'S ACKNOWLEDGEMENT
State of California
County of Orange
On April 23 2008, before me, LAVONNE M.
HARKLESS, CITY CLERK OF THE CITY OF NEWPORT BEACH, personally
appeared Homer Bludau , 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 executed the same in his authorized
capacity, and that by his signature on 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.
Dated this 23rd day of April 2008.
WITNESS my hand and official seal.
c�tixoRN`f LAVONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
CAPACITY OF SIGNER DESCRIPTION OF ATTACHED
DOCUMENT:
Municipal Corporation Officer
Encroachment Agreement
City Manager
EPN2007-0485
SIGNER IS REPRESENTING:
# of pages 12
City of Newport Beach
Document Date: April 10, 2008
Signer(s) other than named:
Stuart Michael Guthrie
Aaron C. Harp