HomeMy WebLinkAboutC-6640 - Encroachment Agreeement EPN N2005-364 for 239 Via Lido SoudV/
Recorded in official Records, Orange County
Tom Daly, Clerk -Recorder
111114111111111 VIII 11111 11111 lilll lilll VIII Ilill Illi) illll Ilil IIII 24.00
2005000778374 04:14pm 09130105
213 1-10 Al2 7
0.00 0.00 0.00 0.00 18.00 0.00 0.00 0.00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2005-00364)
THIS AGREEMENT is made and entered into this day of
2005, by and between Jan Bruce Balthasar (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 239 Via Lido Soud, Newport
Beach, California 92663 and legally described as Lot 900 of Tract 907 except the
southeasterly 35 -feet and the 40 -foot by 90 -foot section of abandoned Via Cordova except the
northwesterly 10 -feet of Tract 907, as shown on a map recorded in Book 28, Pages 25
through 36 inclusively 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 Via Lido Soud right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot
900 of Tract 907 except the southeasterly 35 -feet and the 40 -foot by 90 -foot section of
abandoned Via Cordova except the northwesterly 10 -feet of Tract 907, as shown on a map
recorded in Book 28, Pages 25 through 36 inclusively of Miscellaneous Maps in the office of
the County Recorder of Orange County, California; also known as 239 Via Lido Soud, 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
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
'
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
V/
Recorded in official Records, Orange County
Tom Daly, Clerk -Recorder
111114111111111 VIII 11111 11111 lilll lilll VIII Ilill Illi) illll Ilil IIII 24.00
2005000778374 04:14pm 09130105
213 1-10 Al2 7
0.00 0.00 0.00 0.00 18.00 0.00 0.00 0.00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2005-00364)
THIS AGREEMENT is made and entered into this day of
2005, by and between Jan Bruce Balthasar (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 239 Via Lido Soud, Newport
Beach, California 92663 and legally described as Lot 900 of Tract 907 except the
southeasterly 35 -feet and the 40 -foot by 90 -foot section of abandoned Via Cordova except the
northwesterly 10 -feet of Tract 907, as shown on a map recorded in Book 28, Pages 25
through 36 inclusively 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 Via Lido Soud right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot
900 of Tract 907 except the southeasterly 35 -feet and the 40 -foot by 90 -foot section of
abandoned Via Cordova except the northwesterly 10 -feet of Tract 907, as shown on a map
recorded in Book 28, Pages 25 through 36 inclusively of Miscellaneous Maps in the office of
the County Recorder of Orange County, California; also known as 239 Via Lido Soud, 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, a
Dark Slate Flagstone Drive Approach in the Via Lido Soud 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 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.
2
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.
(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
9
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.
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: C . �'�---
City Attorney
ATTEST:
i
LL'
FU TZCity Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
By: �-
Cit Manager
5
C
4
rig +3'-1" block wall, stucco to
residence, by General Contractor.
vrought iron side yard
eral (1`n-17171 1-.,,
Faucet
,ctric Meter
z39 \/i/\ WIPO i
PA
�00l
6
I.E
PA
PA
ra
3.01
Existing lighting and fascia materials
to be removed by, General Contractor.
New light fixture, by General Contractor.
2.02
Note: Begin random slate at lip
of existing concrete garage floor.
New double car garage door,
by General Contactor.
2.04
4.02
PA,\/
New single car garage door,
by General Contractor.
A.
Existing lighting and fascia materials
to be removed, by General Contractor.
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On , 200`) before me,
personally appeared
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.
- "�- a , A
otary ublic in "and f",Sate
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
OnS*1. E , 200b, before me,
personally appeared —10I P) (U+lAae
KIMBERLY J. SPEER
Commission # 1548168
Notary Pub4c - Cakfomio
LOS kofts County
LOOMYCOnun. Expires Jam 28, 2009
(This area for official notarial seal)
rsonally 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.M BEBERLYJ. SPEER
Commission #E 1548168
01MVCornrn.ExpkoJan2$,2W91 Notary Public - CaNfowda"an�f los County
LN fv�
Notary PublStat
(This area for official notarial seal)
F:\USERS\PBW\Shared\ENCROACH\ROW Agreements\2005\N2005-0364 239 Via Lido Soud (Balthasar).doc
5
CITY CLERK'S ACKNOWLEDGMENT
State of California
County of Orange
On September 28 , 2005, 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 the person acted, executed the instrument.
Dated this 28th day of September 2005.
WITNESS my hand and official seal.
ofe ��� M - A"
LAVONNE M. HARKL SS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
CAPACITY OF SIGNER DESCRIPTION OF ATTACHED
DOCUMENT:
Municipal Corporation Officer Encroachment Agreement
City Manager EPN2005-00364
SIGNER IS REPRESENTING:
City of Newport Beach
# of Pages 7
Document Date: 09/28/2005
Signer(s) other than named:
Jan Bruce Balthasar
Aaron C. Harp