HomeMy WebLinkAboutC-9062-2 - Encroachment Agreement EPN N99-475 for 3709 Ocean BlvdRECORDING REQUESTED AND
CJ WHEN RECORDED RETURN TO:
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0 Office of the City Clerk
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in Official Records, County of Orange
Gary Granville, C:ierk-Recorde
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EP99-475),���
This Encroachment Agreement supersedes the Encroachment Agreement executed on
March 1, 2000 and recorded on March 3, 2000 as Official Record No.2000121144 in the Office
of the County Recorder of Orange County, California. THIS AGREEMENT is made and
entered into this �),3. day of 2000, by and between Gary Feldman
(hereinafter "OWNER"), and the Cityof Newport Beach California a municipal ew p c pal 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 3709 `
Ocean Boulevard, Newport Beach, California and legally described as a portion of Block "A",
Corona Del Mar Tract, (hereinafter ("SUBJECT PROPERTY") as shown on a map recorded in
Book 3, Pages 41 and 42 inclusively of Miscellaneous Maps in the office of the County
Recorder of Orange County, California;
WITNESSETH:
WHEREAS, OWNER desires to construct and maintain certain non-standard
improvements and existing non-standard improvements (hereinafter "PERMITTED
IMPROVEMENTS") within the Ocean Boulevard right-of-way (hereinafter "RIGHT-OF-WAY")
serving of a portion of Block "A", Corona Del Mar Tract, as shown on a map recorded in Book
3, Pages 41 and 42, inclusively of Miscellaneous Maps in the office of the County Recorder of
Orange County, 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
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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 reconstruct 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
concrete stairway with low voltage lighting, steel/concrete entry way with 36" high glass railing,
grouted pavers/sandblast finished driveway and approach, raised block wall planters, and
landscaping, and appurtenances in the Ocean Boulevard right-of-way as shown on EXHIBIT
"A" attached hereto and as approved by the City Engineer. In addition, the proposed
PERMITTED IMPROVEMENTS may vary at the time of construction. Hence, any changes
must be approved by the City Engineer and shall be on 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, all in substantial conformance with 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 days' 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 plans and specifications
therefor on file in the CITY's Public Works Department, and as described on Exhibit "A" hereto
attached.
b. OWNER shall maintain the PERMITTED IMPROVEMENTS in accordance
with general prevailing standards of maintenance, and pay all costs and expenses incurred in
doing so. In addition, any new and existing trees, shrubs, and landscaping that are on the
adjacent City property shall be maintained at or below the existing roof line of the existing
structure at all times. 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.
V,
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 of its intention to accomplish such work,
if any emergency situation does not exist.
(ii) OWNER shall be responsible for arranging for any renewal 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 renewal 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) days' 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, waive, 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.
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7. OWNER shall accept the fact that surface drainage water may enter onto the
"SUBJECT PROPERTY" from "RIGHT-OF-WAY" located in the City of Newport Beach, County
of Orange, State of California, as depicted on Exhibit "A" attached hereto, whether naturally or
as a result of the development or improvement of the "RIGHT-OF-WAY".
8. OWNER shall accept and waive any and all liability for any damages to the
"SUBJECT PROPERTY" caused by the flow of such surface drainage water onto the
"SUBJECT PROPERTY". OWNER shall defend, indemnify, waive, 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 to surface drainage water
entering the "SUBJECT PROPERTY" from the "RIGHT-OF-WAY".
9. 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.
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:
Ci Attorney
ATT
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By:
M y
OWNER:
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dman -7/W
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On 2000, before me/--; . oaP tt2'TDL&, t 5maq `�� Lic
personally appeared C�,�u �r..��IJ , personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) Is 4 subscribed to the within instrument and acknowledged to me that
e JtIttoir
Vy has executed the same in hi Vr/tVir authorized capacity(ies), and that by
9I I0signature(s) on the instrument the person(s) or the entity upon behalf of which the
persog acted, executed the instrument.
WITI ftS my hand and official seal.
Public in and for said State
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On A1AAL GI '�
personally appeared
known to me f-eFw
(This area for official notarial seal)
1i
SANDRA ARTOLA
Commission # 1164707
Z . Notary Public - California
' Orange County
My Comm. Expires Dec 7, 2001
2000, before me, t'p,1MA � '
persona,ll
to be the persona
whose n � is/krp)subscribed to the within instrument and acknowledged to me that
he/sh th hsLas executed the same in his/he eir authorized capacity('es) and that by
his/her heir ignatur n the instrument the perso 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)
F:\USERS\PBW\GWONG\WP51 \AG\FELDMANEP99-475CDM-A. DOC
LEILANI V. IIN
Commission # 1170960 Z
Na ary Public - Calfornia >
Orange County
My Ccrnm. Expires Jan 25, 2002
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PLANTING LEGEND
Key
Qty.
Size
Botanical Name
Common Name
BAM. OLD
10
24" box
Bambusa oidhatnii
Oldham Bamboo
DRA. DRA
l
24" box
Dracaena draco
Dragon Tree
FIC MCC
1
24" box
Ficus McClendenii
nen
PITY AUR
20
24" box
Phyllostachy aurea
Golden Bamboo
ASP ILA
10
15 gal.
Aspidistra eliator'Variegat
Cast Iron Plant
COR SEL
6
15 gal.
C.ortaderia selloana'Pumila'
Dwarf Pampas Grass
DAS WHE
1.
5 gal.
Daslarion. wheeleri
Desert Spoon
PIIO MAO
13
5 gal.
Phonrtium tenax'Maori Queen'
New Zealand Flax
PHO TOM.
1 gal,
Phormium'Tom Thumb'
Dwarf Bronze Flax
ROS GR.O
12
5 gal.
Rosa 'Meidiland'
Ground Cover Rose
ROS SEL
6
.5 gal..
Rosa - owner selection
Cutting Rose
FES OVI
1 gal.
Festuea muelleri .
Blue Fescue
Remarks
height 15'-25'
iq pot; to be selected
height 6'-8'
Height T-4'
in pint; to be selectcd
h..eigbt 3'
space 12" o.c.
space 12" o.c.
Z 0/- 2
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