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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 �J Post Office Box 1768 Newport Beach, CA 92659-1768 Recorded in Official Recorus, Orange County Tom Daly, Clerk -Recorder II I!II 111!1 I IIII I III! 1!1!1 I IIII I IIII I IIII !1111 IIII! I IIII !1111 IIII I III !III 21.00 2005000354294 01:45pm 05/09/05 213 110 Al2 6 0.00 0.00 0.00 0.00 15.00 0.00 0.00 0.00 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 1 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. 3 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 5 CONSTRUCT JJ677E5 � QUANr/TY EST/MRTE_ Applicant's name: Charles B N= DESCRIPT14N d '40R 14 SMAJ, ALAN muA1rr/TY PP o� A. I Address• 1027 Dolphin Terrace f• rzEivinv9 cums tw: oxwEwars/vEaeack �a L.R. Drawn By: William Tiepe CRE 1. CONST CLIR734crarrER an cF 3. C4M7' I21vSMAl71AL DRIWWAY 14) SF -� d t" �l'1�" �.0 CITY OF NEWPORT BEACH- + GRADING PLAN -TRY 1027 DOLPHIN. TERRACE _... _ ., ,..... •................, ....:. LOT 7, TRACT N0.5130LL AIL u 3 � sl+vJ G`r" �� . mac► � ' � � �3 •.' 2" r a. •: opt � 4 `�w 4 t' 1 � s� • 1 OS V� I �, Ap ARA 4 ?oo �, , ` ^h' �p�• 0`'iJ�� L. �q. 4• ire . amu' + t ;•, S 3.-..--"' � ��y1GFl £OIC'