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HomeMy WebLinkAboutC-9131-1 - Encroachment Agreement EPN N2005-0419 for 2112 East Balboa BlvdI r CO 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 Illlill!111111111.1I!IIIIIIIIIiI!IIIIIIIIIIII!IIIIIIIiIINIIIIIIIIIIII!iIIIINO FEF. 1005000998158 08:14am 12/14105 212 143 Al2 9 ;� oci 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Space above this line for Recorder's use only. 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 n U NOTARY PUBLIC CALIFORNIA m ORANGE COUNTY O 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) f:\users\pbw\shared\encroach\row agreements\2005\N2005-0419 2112 E. Balboa Blvd (Collins).doc ■■ 1= Raj xs N z a LU W ON Z p ra < fir ffll4 �Yl Z< o a a o o 0 0 Jp. 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