HomeMy WebLinkAboutC-9131-1 - Encroachment Agreement EPN N2005-0419 for 2112 East Balboa BlvdI
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RECORDING REQUESTED AND
WHEN RECORDED RETURN TO
V Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in Official Records, orange County
Toni DalY, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(EPN2005-N2005-0419)
THIS AGREEMENT is made and entered into this aTG, day of
Ltn — I K---, , 2005, by and between James B. Collins (authorized signature) and
Russell Fluter (authorized signature) on behalf of JRR 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 2112 E. Balboa
Boulevard, Newport Beach, California, 92661 and legally described as Parcel 1 of Parcel Map
(Resubdivision 303), as shown on a map recorded in Book 37, Page 13, inclusively of Parcel
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 E. Balboa Boulevard right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as
Parcel 1 of Parcel Map (Resubdivision 303), as shown on a map recorded in Book 37, Page
13, inclusively of Parcel Maps in the office of the County Recorder of Orange County,
California; also known as 2112 E. Balboa Boulevard, Newport Beach, California, 92661; 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
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.
WHEREAS, James B. Collins and Russell Fluter has the legal authority to sign and
enter into this Agreement on behalf of the Owner, pursuant to that certain Certificate Of
Formation of JRR Development, LLC designated Exhibit "B" and incorporated herein by
reference.
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
"Eurocobble Granite" pavers on concrete sub -base driveway/driveway approaches, "Sanora
Gold Flagstone" pavers on concrete sub -base carriage walkway, landscaping, and
appurtenances in the E. Balboa Boulevard 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
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 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,
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.
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 a nd expenses whatsoever, i ncluding reasonable a ttorneys' f ees
(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 t hat t his Agreement s hall remain i n f ull f orce a nd effect f rom
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: 4 C. �--�
. S 4 g N } City Attorney
ATTEST:
18 lRtV�,I City Clerk
CITY OF NEWPORT BEACH,
A Municipal corporation
_1
By:
City anager
OW ER:
u orized Signature
J mes B. Collins
OWNER: :2� ;?'�
Authorized Signature
Russell Fluter
STATE OF CALIFORNIA)
) ss:
COUNTY OF ORANGE )
On ,> , 2005, before me ` - G
personally appeared ;,C,
personally known to me '(or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) i are ubscribed to the w' 'n instrument and acknowledged to me
that he/sh /the y has executed the same in his/h r/the' authorized capacity(ies), and that by
his/he their signature(s) on the instrument the person(s) or the entity upon behalf of which the
person acted, executed the instrument.
WNS y hand n fficial s
7
NiEbTry ublic in and for said State
STATE OF CALIFORNIA)
VICKI L. RANCK
COMM. #1458809
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NOTARY PUBLIC CALIFORNIA
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ORANGE COUNTY
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My Comm. Expires December 26, 2007
(This area for official notarial seal)
) ss:
COUNTY OF ORANGE )
On�Wii� , 2005, before me,( lu�(� '�✓1 Vl���(�
personally appeared LUVOI,( L RCIit&A
personally known to me ( e) to be the
person(* whose names) is/afe subscribed to the within instrument and acknowledged to me
that he/s4@4h4 y has executed the same in his/bei#ieik authorized capacity(4es), and that by
his/h.44heif signature(sl on the instrument the person() -or the entity upon behalf of which the
person acted, executed the instrument. LEILANI I. BROWN
Commission # 1336673
Notary Public - California i
Orange county
WITNESS my hand and official seal. MyCorn+n.Expires Jan 25,2o06
GCnM L
Notary Public in and for said State
(This area for official notarial seal)
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CITY CLERK'S ACKNOWLEDGMENT
State of California
County of Orange
On December 8 , 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 8th day of December 2005.
CAPACITY OF SIGNER
Municipal Corporation Officer
City Manager
SIGNER IS REPRESENTING:
WITNESS my hand and official seal.
2 "dA4�' M -
L VONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
DESCRIPTION OF ATTACHED
DOCUMENT:
Encroachment Agreement
EPN2005-N2005-0419
# of Pages 1 22
City of Newport Beach Document Date: 12/08/2005
Signer(s) other than named:
James B. Collins, Russell Fluter,
Aaron C. Harp