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Home My WebLink AboutC-3872 - Encroachment Agreement EPN N2011-0190 for 3431 Ocean Blvd.COPY CCO NOT OFR RECORDU 4G RE:QI lt. STED BY ANt) WHEN RECORDED RETURN IO: Public Works Department City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Re ;oiled in Offh iul Records, Orange County Flogli NTJ. yen, Glerk•keca der III I I, I II MillIIII II11 b p 0 0 0 6 8 4. 4 6 8 a 201400029089511f0 am 07122114 65 413 Al2 F13 14 0.00 0.00 0.00 0.00 39.00 0.00 0.00 0.00 4 Space above this line for Recorders use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2011-0190) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 16th day of June, 2014, by and between Lawrence Tabak and Lana Tabak, as Trustees of the Tabak Family Trust dated December 3, 1997 ("Owner), and the City of Newport Beach, a California municipal corporation and charter city, organized and existing under and by virtue of its Charter and the Constitution, and the laws of the State of California ("City'). RECITALS WHEREAS, Owner is the vested owner of property located at 3431 Ocean Blvd, Newport Beach, California 92625 and legally described as Lot 8 of Tract 1257, as shown on a map recorded in Book 38, Page 25 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 052-120-64 ("Property"); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Ocean Boulevard and Narcissus Avenue right-of-way (hereinafter "Right -of -Way") that is located adjacent to 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 into 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: 1. City and Owner acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. It is rnutually rartfenc thaf I errnitted Improve opts shall be defined as: a. An existing cornmon driveway to be constructed with eggshell -colored cut stone pavers encroaching up to 20 feet into the Ocean Boulevard public right-of-way; b. An existing retaining wall to be modified with a tan -colored stucco with varying heights up to 7 feet as measured from the driveway surface encroaching up to 21 feet into the Ocean Boulevard public right-of-way; c. An 8-inch high planter wall constructed of tan -colored stucco encroaching up to 20 feet into the Ocean Boulevard public right-of-way; d. Various privately owned and maintained drainage lines including planter drains and French drains encroaching into the Ocean Boulevard and Narcissus Avenue public rights -of -way; e. Nine sets of below grade "tie -back" anchors and appurtenances for the private retaining wall/ building foundation adjacent to the Ocean Boulevard public right-of-way. Each "tie -back" anchor will consist of five to six 0.6- inch steel strands, will be placed at depths from 10 feet to 45 feet below existing grade and will encroach up to 48 feet, 3 inches into the Ocean Boulevard public right-of-way; Four sets of below grade "tie -back" anchors and appurtenances for a private retaining wall! building foundation adjacent to the Narcissus Avenue public right-of-way. Each "tie -back" anchor will consist of four to six 0.6-inch steel standards and will encroach up to 46-feet, 2-inches into the Narcissus Avenue public right-of-way; Various private low -growing groundcover, landscaping, and irrigation improvements encroaching up to 37 feet into the Ocean Boulevard public right-of-way and appurtenances as approved by the Public Works Department and as shown on Exhibit A, attached hereto and incorporated herein by reference. h. In addition, if any improvements actually built or installed during the time of construction vary from 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. 3. 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 City. City will further allow Owner to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. g. Tabak Family Trust Encroachment Agreement 4. I,tights granted under this Agreement may bo virminated by City with or withou cause and at any time without notice. City shall make good faith efforts provide sixty (60) calendar days' notice 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. 5. 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 City's Public Works Department, and as described on Exhibit A. b. Owner shall maintain 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. 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 Permitted Improvements, as required, and in such event: (1) 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 Permitted Improvements affected by such work by City. (iii) City agrees to bear only the cost of any removal of Permitted Improvements affected by such work by City. (iv) Owner agrees to pay all costs for the renewal, replacement, or restoration of Permitted Improvements. 6. 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 Tabak Family Trust Encroachment Agreement may enter upon Right -of -Way and remove all or part of the it nprovements installed by Owner. Tormination because of breach shall be upon a.nimum of lean (10) calendar days' notice, with the notice specifying the date of termination. 7, In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 8. 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 Permitted Improvements. 9. Owner agrees that this Agreement shall remain in hill force and effect from execution thereof; shall run with the land; shall be binding upon the heirs, successors, and assigns of Owner's interest in the land, whether fee or otherwise; and shall be recorded in the Office of the County Recorder of Orange County, California. 10. 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, California. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. Tabak Family Trust Encroachment Agreement IN WiTNESS WHEREOF, the parties henMo have caused this Agreement ID he executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date:_ Aaron C.IHarp ..- City Attorney ATTEST: / la rte„. Date: k 4 By: \s, Leilani 1. Brown City Clerk ATTACHMENT: CITY OF NEWPORT BEACH, a California municipal corporation Date: 1\ Dave Kiff City Manager OWNER(S): Lawrence Tabak and Lana Tabak, Trustees of the Tabak Family Trust dated December 3, 1997 Date: / Lawrence Tabak Trustee Date: By: Lana Tabak Trustee [END OF SIGNATURES] Owners must sign in the presence of notary public Exhibit A —Permitted Improvements Plan as Approved by Public Works Ma4CM1110 Tabak Family Trust Encroachment Agreemen ACKNOWLEDGMENT State of California County of } ss. On 20 before me, , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) istaYe,' subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/theirauthorized capacity(ies), and that by his/her/their signatures(s) on the instrument the persons) 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. WETNESS my hand and official seal. Signature (seal) ACKNOWLEDGMENT State of California County of } ss. On 20 before me, Notary Public, personally appeared 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 signatures(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 (seal) Tabak Family Trust Encroachment Agreement EXHIBIT A PERMITTED IMPROVEMENTS PLAN AS APPROVED SY PUBLIC WORKS Tabak Family Trust Encroachment Agreement Page A-1 0 Tabak Family Trust 3431Ocean Blvd Newport Beach, CA 92625 CONCEPTUAL SCALE: Va SEE AREA ONAOS ON OWL OW GTE GNAWS RAN SEE AANTEE DRAMS MD RAEpCN DRAINS ON SKEET Al MO OWL HA% ENCROACHMENT PERMIT (For ytvewny and Ientleeapad Slope arooc Immwrlatoly rrom 343T ammo b:ve.. atlml e PLANTING NOTES: Nativo tonalnl vauthern Cailnrnle. deter -telecom Mont vpadav per camernla waetvl coambaloe pWaellnaa ElwinB ME bo tomparar.Iy Irrigated anti a3ta lfeed and will be n'vnvevcly maintained by the owner of Ma adiwtae.: properly Wetted It 3431 ocean blvd., aem IRRIGATION NO7e Tanporary abore proanC tlrlp IMpetlen will Oa uSod until Mantes; m notactronea Proeaaro coPpanseWho grip aalfNera wl be wad for Vezina Exhibit "A" Sheet 2 of 7 N2011-0190 L-1 MON Jr113 1111 EC imam' VID NJ% XL 04.40* 1St FLII 4t. 40 Sce spoTION- li-DI ERN NL I, V149 4 m ,isso Ocean Boulevard :143 f,h;, PhOttttlY 9ACP MELD VIJ nEgyilia 11(VEIM Vila. " W^ OOP MAIMS Exhibit "A" Sheet 3 of 7 N2011-0190 tiv tw1/4 knot 4" ttr/ +VP • / 0114CH -24 Fr11)11 Eflitt. grmc , MPS c X a 110-4" Oki (CM) LP NOT'OASED liVAL pest artoaV::..A .711- 044010 0111 RIBOND ' Q 0;1_41- Monti FRUO hit), : 949 ,rel -miso WAy. 21 2000 021%IPM p5 Narcissus Avenue Exhibit "A" Sheet 4 of 7 N2011-0190 - S C H E D U L SOLDIER BEAMS ANcHORS COMMENTS 'A'59 SOLDIER BEAM NUMBER ec SIZE „L.:I , 1,' :'• is= rasp , et ts saters , ...cat boxist evz °bin? • . 4-0X . 717 140 W16x I 9 12 24 CAN w1tt6 •12 12 30 - CANTILEVER 13 W24x145 4. 2 20 6 #4 8x65 "7 24 15 CORRER BRACE W1 ir 12 4 - #6 es vaix 1 37 14 36. _ _ - - - - - - - - - - CORNER PIZ #7 THRL) #9 W21x83 14 30 140 240 5 30 30 54 1.30 195 5 30 30 45 #7 e ya .e.so toiLNER awc.ED 9 10 THRU # W21x53. • 2 41 17 30 174 261 5 30 30 60 1 46 8 30 30 45 - #13 W21 x83 37 19 30 140 210 •5 30 30 54 130 195 5 30 30 45 - fr14- ., 1,121x83 e 37 14 30' GORNER PILE #15 11-ERU#16 W21x53 37 14 30 140 210 5 30, 50 54 130 195 5 - _ W1#647 317 ' 30 15 24 102 153 4 90 1 30 - #18 15118x65 3 24' 15 24 134 201 6 3 0 54 --, — #19 W21x58 1 16 17 30 420 1V15:40 9 12 24 CANTILEVER , SREATFittiC ng shall be smooth polyethylene confooning to ASTM 0-12 ends of sheathing with tape to prevent intrusionDr grout CNORS: Exhibit "A" Sheet 5 of 7 N2011-0190 PECIFICATION SitAnt ) be ma -chine drilled Stras are to he accuray l-trAT=4, so thz r relation tote existino pretext), line. OSAM STANDARD OS. OS. STA}I0AN0 • PNAEN0 3 SIDES/ v 08, STANDARD :EAHING r 7E OS AHCNOR PIPS no DSI STANDAR0 SOLDIER arm —�. (SEE SCHEDULE0ULE). NPTCfTFR SUNPETTRTMNOT SHOWN ANCHOR POCKET DETAIL 7xl r9 ( DOueLER PLATE SHAFT (RE NL IFF PLATER SIDES FF. P NTES OPENING: X' VD FLANGE WIDTH t0 f POINT) CES�ES LOW *OK DAMN (TIP —SEE TASLT,) AN0H09 ANDLF (5Ed SOHEDULE) Exhibit "A" Sheet 6 of 7 N2011-0190 9aa41. 2t PLATE TAFLE Wl 0x57 WISHED W214 G li a11 MtH.THElNOS�✓`' d,}tit j ilus •,r,�x"" NHDTNEP.WIECT v$K{II N',: i ,_....,......PPUDPfIAft B1I01LC•' - 11IEC1U0 WAS NUF-IN IIFEPONSIALE CF:' a 111P.0410F' 111E0T WARRDl6ANDU Yr.• 1.Td4..13 • V !DANDAINCS' PAW 4 x j Si Li eimob6 (SR SCHEAuLE) f ; • 81.4k IAIN 30`,-0" MIN onna. !WAWA VAST PACE onu ogno 'SECOND RAW Er -ix 40. W) 04 7960 - `.,nyto t3r Y,c4...1P11 r,i O190160 EXIMINO GRADE Nam( AI,TERNAYC ANCHOR POMMY 1.0CATIOH NOW W ANCHOR . SOLDIER OrAM SORECII.C.0 RWAFT DRILL SENOR AND ANCHOR DETAIL Exhibit "A" Sheet 7 of 7 N2011-0190 • "ROBORACE MOO NAM ANT45,