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Home My WebLink AboutC-6009 - Encroachment Agreement EPN N2011-0104 for 500 El Modena AvenueAMENDED VERSION OF CONTRACT NO. C-6009 NEVER ENTERED INTO 7/9/2013 Council Meeting CCO NOT OFR e•� a a c a 0,11 111 . • Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92658-8915 Recorded in official Records, orange County Tam Dal , Clerk -Recorder lil��lblilll�lBIIIBIIIN li{II�IVI1111101{f�111(�1IIII 24,00 2011000431826 3:38 pm 08131/11 474`12A42 7 0.00 OAO 0.00 0.00 98.00 0.00 0.00 0.00 Space above this rine for Recorder's use only. ENCROACHMENT AGREEMENT (EPN2011-0104) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 4t' day of April, 2011, by and between David G. Becker, a single man ("Owner"), and the City of Newport Beach, California, a California municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California, ("City"). WITNESSETH: WHEREAS, Owner is the vested owner of property located at 500 EI Modena Avenue, Newport Beach, California 92663 and legally described as Lot 1 of Block 37 of the First Addition to Newport Heights Tract, as shown on a map recorded in Book 4, Page 94 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 049-042-11 ("Property"). . WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the EI Modena Avenue and Clay Street rights-of-way (hereinafter 'Right -of -Way") that is located adjacent to the Property. - 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 enter this 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 5 -foot wide entry walkway constructed of "Sydney Peak" flagstone pavers encroaching 12 feet into the EI Modena Avenue public right-of-way; b. A USPS -approved mailbox mounted in a 24 -inch square, 42 -inch high pilaster constructed of CMU blocks with "Sydney Peak" flagstone pavers encroaching up to twelve feet into the EI Modena Avenue public right-of-way; c. Various private low growing groundcover, landscaping, and irrigation improvements encroaching up to 12 feet into the Ei Modena Avenue and Clay Street public rights-of-way and appurtenances 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 pians 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 with or without cause and at any time without notice. The City shall make good faith efforts to provide notice (60) days in advance of termination 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. Encroachment Agreement Page 12 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 not 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 otherwise, and shall be recorded in the Office of the County Recorder of Orange County, California. Encroachment Agreement Page 13 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 unenforceable by a court of competent jurisdiction, this Agreement shall continue in full force and effect. invalid, illegal, or otherwise the remaining provisions of Pnrrnarhment Aareement Page 14 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates written beiow. APPROVED AS TO FORM: OFFICE OR THE CITY ATTORNEY Assistant City Attorney ATTEST: Date: M ATTACHMENTS: CITY OF NEWPORT BEACH, a California Municipal corporation Date: By: ?itR 1��•\ Davl Iff, V® City Manager OWNER(s): Date: By' — David 0. Becker Owners must sign in the presence of notary public EXHIBIT A—Pians as approved by Public Works tiuserst bwlsharedleneroachlrow agreamentsl20111n2011-0109 500 el modena ave (becker).docx.21.10 Fnrmerhment Anreement Page 15 State of California County of OR&n►GC— _)ss, On & L (2, )-011 befQre me, 4 i -4N Notary P blec er onally appeared 41AVID C -a. �r2_ ,who proved to me on the basis of satisfactory evidence to be the person whose name(O is/4w subscribed to the within instrument and acknowledged to me that he! /tW executed the same in histh*/ttiai�i- authorized capacity(kJ, and that by his/ /t14leir signature 'on the instrument the person, or the entity upon behalf of which the person) acted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. L. NARRfB Commlasfon M 1840150 WITNESS hand and official seal. Notary Public • California oranoo County Comm. iras Mat 12 013 V aat y (seal) ACKNOWLEDGMENT State of California County of('2VIpt,"g. ) ss. On — Aug 1 -11 S0*0 before me, Notary Public, personally appeared �Vrxy3 c� 11LT- ,who proved to me on the basis of satisfactory evidence to be the person(<whose name -K +o7are subscribed to the within instrument and acknowledged to me that ,%Wshefthey executed the same in mer/their authorized capacity(ies); and that by Vhiher/their signatures(aron the instrument the person(s),--or the entity upon behalf of ch the person(Kcted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. M. LOCEY WITNESS my hand and official seal. commission � 1854451 jda Notary Public - California Lj!rOran0o County i„ / "/J lc M Comm. n Iron nty7.2013 Signature (seal) EncroachmentArreement Page 16 OWNER: Becker "DRESS -1500 El Modena Ave Newport Beach, CA 92663 i }TAOhtWAtt. QTENO NANPRAR36' • WALL OR RtVRl P0515 POT P W I. 1, LROLOSFB US90LESPA6EUtR1EAA6TAw WT WCKEIS°HA ATON MESWNTUTA il FYPSFACEPtiNAiON yAESOrA3TAp1 MV NOr PA55tHAdIOR. MMUM f IFARADOM. PA WAE AN AT1S NACO,RAIODRIgLEAVAYOROTTERRPAPxY WAR WHEATIATDR. IEN110r, 01 FERENONPERMAtxlf.d CPPE. ITGG RTPORT EbR+et642. rmnE.wcssaEB )BfVFLx1Lx.0 5NER 216. ER xfiPTS AR�A13AN0 PARRIOORS�ROOd1SLFA0PHG t0 ramE W PxWTRw canmucnar. fANORIGRAlGOONDEITSERAb OCCURS A10EtiSEER WInRAEaAPMEMONEY. IRLYwnxsxxNOradxPETeExrs. MAWMSA'IX.PAIA'IOEFFVILNEIGHTPWSNFO LIEInwRa.lnllEsb NOTEOOTIEAWbE.$EE EflwR eeTAna+s AVHERE PAfiamEO. NORNEFERENCE Ilia srrnnlon dcbdsnrathcr mmedAa inM For rbc 3vmP sn"O � avullxl rvuhrs liivnsNby the City of ' .�pertBwch. ss shell nor be Pivmyx. sri cd. mveJ or retacxca -10i. lb, Coy N of•waY wilMut Prior sc'A" yroval Gom the GrncraH Sttvim4 :fatlmeM. TO PERP Y ; IN CITY RI' TT n- I .ROACNiviEi>fl OBTAINED F" I WORKS DErli d'll"E if li tlEWPoPi q(ACn 9 W.tt'E-11`PoPi FNXI .r .. n. .•�l�Mk .. ii 1A Exhibit "A" Sheet I of I N2011-0104 .W- �k Tom-rNU1tul MIT lmo'.rt E$TERIOft WAlt{SILPNEWt REMOVAL DFANY CRY TNEES REMRES PRIOR APPROVAL FROM GENERAL � SRATLOE I-I{OU0 CONSTRW SERVICES DEPARTMENT. ME$ CE)UPTUN: STORAGE MORE THAN 39 FROM POPE SUER PROJECTION OHERPURU 95RWGSERRLATERAL To BE CHANGED AND ACLEAN- OUT INSTALLED AT THE PROPERTY LINE TO COMPLY WITH CITY STANDARDS IF ANY OME FOLLWWNG 00M PRPRWEGTION OF CONDOONS OCCUR, PROVIDE PUBLIC WORKS STANDARD DETAIL ON THE UBC CRAP. 32. ONAWINGS. TRRSN A. ALTERATION TO THE BUILDING SEWER IS DONE. B, ADDIRONAL PLUMBING FKM5S REQUIRE INCREASE IN SNE OF BUILDING SEWER TRASH CAN BTORAUE AREA C. MN IT IS FOUND TTHAT THE BUILDING SEARS IS WALLED IN AN ILMIALOfl NOTBE LOCAIEOINREOUIPo UNGANRARYMAHRER. D, IF AREA Of STRUCTURAL REMODEL 4 AMNON IS GREATER THAN 50%OFTHE TEMPERECCIRSS EMSIWO AREA. MLTEMPEREOOVSSTOB 11 RC68Nifi SR@OIYRNId. STRUCTUMErINFER L ; SEES7 PALORAWMISFORSTRUC1lNN.OEFEAREPSURMRI d m� I B T— L� I f + I 4, I W V 6PS S I ]NEER SHALL PROVIDE THE I a. I RUCTION DOCUMENTS. I