HomeMy WebLinkAboutC-9203-1 - Encroachment Agreement EPN (for 1327 Balboa Blvd)RECORDING REQUESTE, AND
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WHEN RECORDED RETURN TO:
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Public Works Department
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City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
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Recorded in the County of Orange, California
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ENCROACHMENT AGREEMENT .5
THIS AGREEMENT is made and entered into this day of
1998, by and between Newport Mesa Unified School District (Carol Stocker, Executive
Director of Facilities and Operations); 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 1327 Balboa Boulevard, Newport Beach, California and
legally described as Lots 14 to 27, Block 13, Tract 234, as shown on a map recorded in Book
13, Pages 36 and 37 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 (hereinafter "PERMITTED IMPROVEMENTS") within Balboa Boulevard, 13th
Street, and 141h Street right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to
1327 Balboa Boulevard, Newport Beach, California;
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 execute an agreement providing for fulfillment
of the conditions required by CITY to permit OWNER to reconstruct and maintain said
PERMITTED IMP'r?"I"',/EMENTS;
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree
as follows:
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1. It is mutually agreed that PERMITTED IMPROVL,,IENTS shall be defined as
concrete sidewalk with grouted brick ribbons on 5-feet centers, landscaping, and
appurtenances in 13"' Street, 14th Street, and Balboa Boulevard right -of -away as shown on
EXHIBIT "A" attached hereto, conform to City Council Policy L-8, and as approved by the City
Engineer. In addition, all landscaping shall have a maximum height of 24-inches.
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 terminateJ by CITY at any time by
giving 60 days' notice, specifying in said notice the date of termination. CITY shall incur no
liability whatsoever ir, 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. However, nothing herein shall be construed to require OWNER to maintain, replace
or repair any private-t.lwned or CITY -owned pipeline, conduit or cable located in or under said
PERMITTED IMPROVEMENTS, except as otherwise provided herein.
c. If priv=ate-owned, 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 the 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 portio; to of the PERMITTED
IMPROVEMENTS, a.3 required, and in such event:
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(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 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 ank, 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first -above written.
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CITY OF NEWPORT BEACH,
a Municipal corporation
APPROVED AS TO FORM:
By: By: "4z11vZ/-
City Atto ey City M6naogr
ATTEST:
City Clerk
OWNER: Newport Mesa Unified School District
(Authorized Signature/Title)
By: r
��c`s
Carol Stocker
Executive Director of Facilities & Operations
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STATE OF CALIFOP,.NIA ,
) ss:
COUNTY OF ORANGE )
On 100 4 1998, before me,I�i
personally appeared Ind I MIAIQ h I
personally known to me avidepz4to be the
person(') whose nameM isMm subscribed to the within instrument and acknowledged to me
that he/sheftey has executed the same in his/herltheir authorized capacity fti, and that by
hislhadthak signature() on the instrument the personm 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
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On
(This area for official notarial seal)
LEILANI V. INES
t Commission # 1170960
L .,F No-ory Puollc California
Orange County
== vy ^ .T r .. Expires Jan 25, 2002
1998, before, me
personally bppEVared�
personally known to me, (or--proved-to--me-on--th- -basis--of--satisfac-Cory-evidence) to be the
person(s) whose name(q is/ar& subscribed to the within instrument and acknowledged to me
that .he/she/they has Executed the same in his/her/their authorized capacity(i•es), and that by
hWher/thsfir signaftira(.s'�on the instrument the person,(s-yor the entity upon behalf of which the
person acted, executed the instrument.
WITN SS my hand and official seal.
_, 2<.c
Notary Public in and for said State
(This area for official notarial seal)
`r
RUTH ANN MC MILLEN
Commission # 1164420
z , -A Notary Public - California
Orange County
My Comm. Expires Dec 6, 2001
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