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Home My WebLink AboutC-6984 - Encroachment Agreement EPN N2007-0112 for 2011 Kings 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 Rer.ords, Orange County Toin Daly, Clerk -Recorder IIIIII lill' III.! ll!II III III!I Ill.il IIIII IIIII il!!! !III! lilil IIIII il!I!III 33.00 2007000239298 02-55pm 04113107 221 192 Al2 10 u 00 0 00 000 0 00 27 00 0 00 OM D 00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2007-0112) THIS AGREEMENT is made and entered into this (,;� P- day of MCW6) , , 2002, by and between Alan Brutman (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 2011 Kings Road, Newport Beach, California 92663 and legally described as Lot 1 of Tract 1221, as shown on a map recorded in Book 41, Page 11 of Miscellaneous Maps in the office of the County Recorder of Orange County, California. WITNESSETH: WHEREAS, OWNER desires to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Cliff Drive right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot 1 of Tract 1221, as shown on a map recorded in Book 41, Page 11 of Miscellaneous Maps in the office of the County Recorder of Orange County, California; also known as 2011 Kings Road, 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 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) a 12" to 24" high, 64'-6" long retaining wall measured from existing grade constructed of stucco that is located 6'-6" behind the curb face; (2) low -growing landscaping with a maximum height of 36 inches consisting of Myrtus Communis `Compacts', Rosa `Iceberg', Ligustrum Japonicum 'Texanum', Plumeria Rubra, and Dietes Bicolor that encroaches four feet into the right-of-way; (3) irrigation; (4) a 4'-0" x 10'-0" pad constructed with brown -colored interlocking concrete pavers located at the back of sidewalk; and (5) appurtenances in the Cliff 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 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. 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 APPR VV D AS TO FORM: �..� . By: CBy: .L. Aaron Harp, Asst. City Attorney Homer Blud u, City Manager ATl Em LaVonne Harkless, City Clerk OWNER: By: OA& Alan Brutman f:\users\pbw\shared\encroach\row agreements\2007\n2007-0112 2011 kings rd (brutman).doc STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) On 2003, before me, C 'JG`Y✓e personally appeared A(any by',3fMat-. , personally known to me ( to be the person(s-) whose name(&) is/arm subscribed to the within instrument and acknowledged to me that he/s.14eAl .ey has executed the same in his/her/their authorized capacity(ies), and that by his/ha4theif signature(-s) on the instrument the person(&) or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (� - Ca-4- � A Notary Public in and for said State STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE ) M personally appeared 200_, before me, C. JARRELL Comm. # 1717669 rn V! •'�� m =• NOTARY PUBLIC -CAI "ORNIA ORANGE COUNTY NY Comm. EXP. JAN. 16, 2011 (This area for official notarial seal) , personally known to me (or 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 has 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 acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State (This area for official notarial seal) rM 97.0 F.F. 97.0 F.F. 57.75 FF 97.0 F.F. `U ununr� 0 r Cl �0000 ao 00 5 F.F. 99.5 F.F. 95.5 F.F. pou O O oC 0 uCAOE .. W. i I - �:jr�a► • I a +24" ABOVE 51DENALK AT THI5 POINT 2 T-3 18" BOX 1 T-2 4" E 7H +12" ABOVE SIDEWALK AT TH15 POINT 1 T-1 r -n ' n G!' Q N FINISH SGHEDULE PAVING LEGEND: COLOR/FIN15H/PATTERN SYMBOL ITEM DESCRIPTION I❑ PROP05ED +12" - 24" TALL 5TUC60 WITH CONCRETE ROUND CAP RETAINING WALL 5TUCGO COLOR TO MATCH RESIDENCE 12-1 EX15TINO 5'-0" WIDE 51DENALK PLANTING LEGEND TREES 8YMB0l. 612E SPACING REMARKS MELALEUr-A 61UNG7LIENERNA T-1 • 36' BOX PER PLAN PROVIDE IROM CAJEPUT TREE BAFOWER T _ 2 • MAC*4LIA Ca 'LITTLE GEM' 24• BOX PER PLAN PROVIDE ROOT' BARRIER T-310 PLUMERIA WERA MERI PLLA 14- BOX PER PLAN Pl;a IDE ROOT BARRIER NOTE, L OU 4 R TO MAINTAIN 1T:EE8 ALONG PROPERTY WA4LLM AND FENCEW 7. OUNER TO MAINTAN TREE Wrll-IT TO HELP RETAIN VIEWS 3. ROOT BARRIERS TO ME USED FOR ALL TREES WITHIN 9'-0. OF C4CWcN AREA SHRUBS SYMBOL SIZE SPACING OLIGUST" JAPONI0U1 'TEXAMM' JAPANESE PRIVET B GAL PER PLAN ORCA 'ICEBERG' 6 GAL PER PLAN ODIETES BICOLOR D GAL PER PLAN FORTTLTE LILY. OPEWINTAIN M BETACEU'1 'RUBRs1' FOTAIN GR468 B GAL PER PLAN ANA OAROLNA pQY 5 GAL PER PAN L JAP'CNICA VARIEGATA S GAL PER PAN L OAUMOA GOLD DUST PLANT OrjYjtTJS MY CCM'ANIB 'GCMPA,CTA' S GAL PER PLAN.. EXHIBIT 'A' GROUND COVER LEGEND Sheet 2 of 2 SYMBOL SIZE SPACING RB+AWO Q° FLeReTHON II wo bw AS SHOUN CITY CLERK'S ACKNOWLEDGMENT State of California ) County of Orange ) On March 19 , 2007, before me, LAVONNE M. HARKLESS, CITY CLERK OF THE CITY OF NEWPORT BEACH, personally appeared Homer L. Bludau , personally known to me 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 person acted, executed the instrument. Dated this 19th day of March 2007. CAPACITY OF SIGNER Municipal Corporation Officer City Manager SIGNER IS REPRESENTING: WITNESS my hand and official seal. LAVONNE M. HARKLESS, CITY CLERK CITY OF NEWPORT BEACH, CALIFORNIA DESCRIPTION OF ATTACHED DOCUMENT: Encroachment Agreement EPN2007-0112 # of Pages 10 City of Newport Beach Document Date: March 12, 2007 Signer(s) other than named: Alan Brutman Aaron Harp