HomeMy WebLinkAboutC-5623(C) - Right-of-Entry Agreement for Bay Avenue and Alley 215 Replacement ProjectN
u
N
RIGHT -OF -ENTRY AGREEMENT WITH
MACFARLANE PROPERTIES, LLC FOR
BAY AVENUE AND ALLEY 215 REPLACEMENT PROJECT
&y�Tj�his Right of Entry Agreement ( "Agreement ") is made this h day of
f� , 2013 ( "Effective Date "), by and between the City of Newport Beach, a
California municipal corporation and charter city, its officers, employees, agents,
invitees, contractors and subcontractors (collectively referred to as "Grantee ") and
MACFARLANE PROPERTIES, LLC ( "Grantor"), as the owners of real property
located at 1902 East Balboa Boulevard, Newport Beach, California 92661, Assessor's
Parcel Number 048 - 240 -41 ( "the Property ").
RECITALS
A. Grantee is a California municipal corporation duly organized and validly existing
under the laws of the State of California with the power to carry on its business
as it is now being conducted under the statutes of the State of California and
the Charter of City.
B. Grantee desires to secure a right of entry in order to enter upon the Property for
the purpose of constructing improvements which will join the existing property
to the new proposed decorative paver in Alley 215, adjacent to the property
( "the Work "), as depicted on Exhibit "A ", attached hereto and incorporated
herein by reference. The Work will consist of removing existing concrete
pavement, reconstructing decorative pavers, adjusting utilities to grades, and
other items as required to complete the Work. Not all of said improvements will
be constructed on the Property.
C. Grantee also desires to secure permission from Grantor to allow the
accommodation of construction equipment, materials and workers necessary
for completion of the Work on and adjacent to the Property.
D. Grantor and Grantee mutually agree that Grantee may enter upon, pass and
re -pass on, over, under and across that portion of land referred to as the
Property adjacent to Alley 215, as further described in Exhibit "A ", for the
purpose of constructing the Work under the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. Recitals
The Recitals set forth above are true and correct and are hereby incorporated
into this Agreement.
�� MI-i
Grantor is the fee owner of that property commonly known as 1902 East
Balboa Boulevard, Newport Beach California, described as:
Parcel 1:
Parcel C, as shown on a Map filed in Book 44, Page 14 of Parcel Maps, in
the office of the County Recorder of Orange County, California.
Excepting there from all oil, gas, and other hydrocarbons and minerals in
and under that part of the lands hereby conveyed lying below a depth of
500 vertical feet below the surface or within the said top 500 feet of said
land for any purposes, as reserved by Louis A. Weisel, et al, in deed
recorded February 8, 1956 in Book 3385, page 138 of Official Records.
P•101 oil F11 PZI 1
Parcel 2:
Parcels A, B and D, as shown on a Map filed in Book 44, Page 14 of
Parcel Maps, in the office of the County Recorder of Orange County,
California.
Excepting there from all oil, gas, and other hydrocarbons and minerals in
and under that part of the lands hereby conveyed lying below a depth of
500 vertical feet below the surface of within the said top 500 feet of said
land for any purposes, as reserved by Louis A. Weisel, et al in deed
recorded February 8, 1956 in Book 3385, Page 138 of Official Records.
Parcel 3:
That portion of Lot 2 of Tract No. 756, as shown on a Map recorded in
Book 23, pages 7 and 8 or Miscellaneous Maps, records of Orange
County, California, that lies Northerly of the Easterly prolongation of the
Southerly line of the 10.00 foot wide alley adjoining said Lot on the North,
said Southerly line also being the Northerly line of Parcel B, as shown on
a Map filed in Book 44, Page 14 of Parcel Maps, in the office of the
County Recorder of said Orange County,
Excepting therefrom all oil, gas, and other hydrocarbons and minerals in
and under that part of the lands hereby conveyed lying below a depth of
500 vertical feet below the surface or within the said top 500 feet of said
land for any purposes, as reserved by Louis A. Weisel, et al in deed
recorded February 8, 1956 in Book 3385, page 138 of Official Records.
Right of Entry- 1902 E Balboa Blvd. Page 2
UNION
The Work will be performed on the Property adjacent to Alley 215 as more particularly
set forth in Exhibit "A ".
3. Right of Entry
Grantor hereby grants to Grantee, and Grantee accepts, a non - exclusive
temporary right of entry on, over, under and across the Property for the purpose of
constructing, installing, repairing and replacing the Work and to allow the
accommodation of equipment, materials and workers necessary therefore.
4. Right of Entry Conditions
Grantor and Grantee agree to Grantee's right of entry to the Property with the
following conditions:
A. Grantee has the right to enter the Property from 7:00 a.m. to 5:00 p.m.,
Monday through Friday, for the purpose of constructing alley
replacement as described herein.
B. Grantee shall advise Grantor of the date of commencement of the Work
not less than seventy -two (72) hours prior to actual commencement of
the Work.
C. Prior to commencement of the Work, Grantee shall provide Grantor with
the names and telephone numbers of each contractor or subcontractor
who will be performing Work on the Property.
D. At the conclusion of each work day, Grantee shall ensure the cleanup
and removal of debris so as to maintain the Property in as neat and
clean a condition as possible, given the remaining Work to be
performed.
E. The right of entry does not include the right to engage in any material
storage, long term parking of vehicles, trailers, or other equipment
storage on the Property.
F. Grantee shall indemnify Grantor against and hold Grantor harmless from
any loss of or damage to any property, or injury or death of any person
whomsoever, proximately caused in whole or in part by negligence of
Grantee or by any act or omission for which Grantee is liable in the
exercise of the rights herein granted.
Right of Entry- 1902 E Balboa Blvd. Page 3
G. Grantor agrees and is responsible for notifying all tenants of all
information regarding this Agreement for entry onto the Property.
Improvements
Upon completion of the Work, Grantee shall convey, and Grantor shall accept,
ownership of all improvements installed on the Property as part of the Work. Grantor
shall be responsible, at Grantor's own expense, for any and all maintenance, repair
and replacement of the improvements installed on the Property as part of the Work.
6. Term and Termination
This Agreement shall commence when executed by the parties and shall
terminate upon completion of the Work. In any event, this Agreement shall terminate
no later than September 30, 2014.
7. Notices
Notices, requests or demands by either party shall be in writing and shall either
be personally served or be sent by U.S. Mail and addressed to the following persons:
To Grantee: Frank Tran, Associate Civil Engineer
Public Works Department
City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658
Ph: 949 -644 -3340
To Grantor: James O. Buckingham
MacFarlane Properties, LLC
1902 E Balboa Blvd.
Newport Beach, CA 92661
Phone: 949- 852 -2030
Notices, requests and demands, if not personally served, shall be deemed
received upon the expiration of forty -eight (48) hours after postmark or deposit in a U.
S. post office or mail.
8. Attorneys Fees
In the event of any dispute or legal action arising under this Agreement, the
prevailing party shall not be entitled to attorney's fees.
Right of Entry- 1902 E Balboa Blvd. Page 4
Severabilitv
If any term or portion of this Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions
of this Agreement shall continue in full force and effect.
10. Gontrollina Law and Venue
The laws of the State of California shall govem this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be adjudicated in
a court of competent jurisdiction in the County of Orange, State of California.
11. Integrated Agreement and Modifications
This Agreement represents the full and complete understanding of every kind
or nature whatsoever between the parties hereto, and all preliminary negotiations and
agreements of whatsoever kind or nature are merged herein. No verbal agreement or
implied covenant shall be held to vary the provisions herein. This Agreement may not
be amended or modified except by written amendment signed by both parties hereto.
[SIGNATURES ON NEXT PAGE]
Right of 1902 bo Blvd. '.•-
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
Date:CITY AffjQ! ,�S OFFICE
",—A V � w (i
ron C. Harp
City Attorney
ATTEST:
Date: /3
By:
Leilani I. Brown
City Clerk
ti
U
c
^ORNIP
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 1 of I of p,
By: n
Dave RiW
City Manager
GRANTOR: MACFARLANE
PROPERTI S, LIJC
Date:
By:
/Ja es O. Buckingham,
anaging Member
[END OF SIGNATURES]
Attachments: Exhibit A — Depiction of On -Site Improvements
Right of Entry- 1902 E Balboa Blvd. Page 6
EXHIBIT A
DEPICTION OF ON -SITE IMPROVEMENTS
Right of Entry- 1902 E Balboa Blvd. Page 7
1903 i 1905 i 1907 � 1909 , 1911 , 1913 '
-- --"" -- � 1902 �
l 502 i
500
t i
EAST BALBOA BLVC1
r
uw
T-1821 1803 1905 ( 1911 w 2001 2005
i 1 I E JI
Right of Entry- 1902 E Balboa Blvd. Page 7
ACKNOWLEDGMENT
State of California
County of 1 ss.
On _
Notary
before me,
Public, personally appeared
_,who 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 executed the same in his /her /their authorized capacity(ies), and that by
his /her /their signatures(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
ACKNOWLEDGMENT
State of California
Countyof CRAN66 )ss.
(seal)
On SG Gtr ky Z3, 203before me, CAY'i'Yfr4lit Lne, ,
Notary Public, personally appeared
�jAmts 0. 13U6K+`A4h4m
_,who roved to me on the basis of satisfactory evidence to be the person(') whose
name(pis /aV subscribed to the within instrument and acknowledged to me that
he /s*thLdy executed the same in his /her /their authorized capacity(ioil and that by
his /hfrf /thpfr signatures(oj on the instrument the personapl, or the entity upon behalf of
which the person(Xacted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal. CARMEN LEE
Commission # 1908930
Notary Public • California
Orange CouCounty � M Comm. Wires Nov 3.2014
Signature (seal)
Right of Entry- 1902 E Balboa Blvd. Page 8