HomeMy WebLinkAboutC-6631 - Encroachment Agreement EPN N2005-170 for 1027 Dolphin Terrace^-
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
I
City of Newport Beach
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Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in Official Recorus, Orange County
Tom Daly, Clerk -Recorder
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2005000354294 01:45pm 05/09/05
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2005-0170)
THIS AGREEMENT is made and entered into this _�V14 day of
VA , 2005, by and between Arboles Development LLC and Charles Bogner,
Manager f the Arboles Development LLC, (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 1027 Dolphin Terrace, Newport Beach, California,
92625 and legally described as Lot 7, of Tract 5130, as shown on a map recorded in Book
190, Pages 43 through 44, incl Bively, of Miscellanev)U,s 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 Dolphin Terrace right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to Lot 7, of Tract 5130, as shown on a
map recorded in Book 190, Pages 43 through 44, inclusively, of Miscellaneous Maps in the
office of the County Recorder of Orange County, California; also known as 1027 Dolphin
Terrace, Newport Beach, California, 92.625 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
non-standard paving of the sidewalk and drive approach with seashell aggregate lithocrete
and appurtenances in the Dolphin Terrace 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, 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
therefore 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
K
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. 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 agrees to 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 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) 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.
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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.
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: , _ ,� r. //,,,
; C 4 4, +- City Attorney
ATTEST:
By:�
City erk
�E•wPO
U
�,gCIFo��`P
CITY OF NEWPORT BEACH,
A Municipal corporation
By:
Cit Manager
OWNER:
By: 2S; Zc
Charles Bogner
Arboles iDeveiopment LLC
4
STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE )
On �1 �f I 2005, before me, cc)
personally appeared—C 1(16 )%A oar
personally known to me (or pry
person( whose name() is are
to t h /she/they has executed 1
hi her/their signatureX on the
me on the basis of satisfactory evidence) to be the
subscribed to the within instrument and acknowledged to me
:he same i hi /her/the`irr authorized capacity), and that by
instrument the person(, or the entity upon behalf of which the
person acted, executed he instrument. ��` 111
WITNESS my hand and official seal.
a� 'Q I
'bfrv�'�
Notary Public in and for said State
STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE )
LEILANI I. BROWN
Commission # 1336673
z -d Notary Public - California i
Orange County
My Comm. Expires ,tan 25, 2006
(This area for official notarial seal)
On MM �_ , 2005, before me, ti IG(V�' %* KA�1
personally appeared hf'iA"
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name Disre subscribed to the within instrument and acknowledged to me
bhis/
he he/they has executed the same in is/ er/their authorized capacit S), and that by
er/their signatureAon the instrument the person 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
LEiLANI I. BROWN
Commission # 1336673
Notary Public - California Z
Orange County
ioMy Comm. Expires Jan 25, 2006
(This area for official notarial seal)
F:\USERS\PBW\Shared\ENCROACH\ROW Agreements\2005\N2005-0170 1027 Dolphin Terr (Bogner).doc
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