HomeMy WebLinkAboutC-3873 - Encroachment Agreement EPN N2012-0057 for Southeast Corner of East Balboa Boulevard and Miramar Driver—
COPY
CCO NOT OFR
RECORDING Rt-QUk S ft: IJ [ Y AND
WHEN RECORDED RETURN TO:
City of Newport Beach
Attn: Public Works Department
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658
Exempt from recording fees pursuant to Govt.
Code section 27383
Recorded ii Official Record:, Orange County
ReneeRamirez,
Ramirez, Assistant Clerk -Recorder
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Space Above This Line For Recorder's Use Only
ENCROACHMENT AGREEMENT
(EPN N2012-0057)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this !/#'` day of December, 2012, by and between Balboa Peninsula Point
Association, a California non-profit IRS 501(c)(7) corporation, ("Association"), and the
City of Newport Beach, a California municipal corporation organized and existing under
and by virtue of its Charter and the Constitution and the laws of the State of California
("City").
WITNESSETH:
WHEREAS, on December 11, 2012, the City Council waived City Council
Policies L-6 (Private Encroachments in the Public Rights -of -Way) and B-17 (Parks,
Facilities, and Recreation Program Donations) and authorized the City to enter into an
Encroachment Agreement with Association.
WHEREAS, City is the owner of certain real property in the City of Newport
Beach located on the southeast corner of East Balboa Boulevard and Miramar Drive
and legally described as the East Balboa Boulevard and Miramar Drive public rights -of
way of Tract 518, as shown on a map recorded in Book 17, Pages 33 through 36
inclusively of Miscellaneous Maps in the office of the County Recorder of Orange
County ("Property"). The Property is depicted on Exhibit "A" attached hereto and
incorporated by reference.
WHEREAS, Association desires to construct certain non-standard improvements
as further described herein ("Permitted Improvements") on the Property. The Permitted
Improvements are described and depicted on Exhibit "B" attached hereto and
incorporated by reference.
WHEREAS, there is an existing landscaped area that functions as a
neighborhood park ("Park") on the southeast corner of East Balboa Boulevard and
Miramar Drive,
WHEREAS, Association desires to create a tot lot for public use at the Park by
constructing and installing the Permitted Improvements.
WHEREAS, City desires to accept the constructed Permitted Improvements as a
donation from Association.
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 on the Property.
WHEREAS, the parties hereto desire to enter this Agreement providing for
fulfillment of the conditions required by City to permit Association to construct said
Permitted Improvements.
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto
agree as follows:
1. City will permit Association to construct, install, and use said Permitted
Improvements and appurtenances incidental thereto, on the Property, if in
substantial conformance with the plans and specifications on file in the City. City
will further allow Association to take all reasonable measures necessary or
convenient in accomplishing the aforesaid activities.
2. Rights granted under this Agreement may be terminated by City with or without
cause and at any time without notice. Except in the case of breach, the City shall
make good faith efforts to provide notice sixty (60) days in advance of termination
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 Permitted Improvements by City.
3. Association and City further agree as follows:
a. Association may construct and install Permitted Improvements and
appurtenances incidental thereto, in substantial conformance with the
plans and specifications on file in the City's Public Works Department, and
as described on Exhibit "B" attached hereto.
b. City shall maintain the Permitted Improvements in accordance with
generally prevailing standards of maintenance. Association shall
reimburse the City for all non -routine maintenance performed on the
Permitted Improvements.
Balboa Peninsula Point Association, a California non-profit IRS 501(c)(7) corporation
Page 12
c. If City or other public facilities or improvements are damaged by the
installation or presence of Permitted Improvements, Association shall be
responsible for the cost of repairs.
d. That should City be required to enter onto the Property to exercise its
primary rights associated with the Property, 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 Association in advance of its intention to accomplish
such work, provided that an emergency situation does not exist.
ii. City 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. Association agrees to reimburse all costs for the renewal, replacement,
or restoration of the Permitted Improvements,
4. 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 Association,
City may enter upon the Property and remove all or part of the Permitted
Improvements installed by Association. Termination because of breach shall be
upon a minimum of ten (10) day 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 not be entitled to attorneys
fees and costs.
5. Association shall defend, indemnify and hold harmless City, its City Council,
boards, committees, and commissions, officers and employees from and against
any and all loss, damage, liability, claims, suits, costs and expenses whatsoever,
including reasonable attorneys' fees, 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.
6. This Agreement shall automatically terminate upon the City's acceptance of
ownership of the Permitted Improvements.
7. The laws of the State of California shall govern 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.
Balboa Peninsula Point Association, a California non-profit IRS 501(c)(7) corporation
Page 13
F3. The terms of this Agreement shall be construed in accordance witli 1Iie meaning
of the language used and shall not be construed for or against either party by
reason of the authorship of the Agreement or any other rule of construction which
might otherwise apply.
9. 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.
10. A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character,
11, Association shall at Association's own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
12. 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.
[SIGNATURES ON NEXT PAGE]
Balboa Peninsula Point Association, a California non-profit IRS 501(c)(7) corporation
Page 14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
„ te.\ 1
By: (-'t
Aaron C. Harp
City Attorney
ATTEST:
Date: :
if 0/ is
By: ir411":4.41,4V,
Leilani I. Brown '
City Clerk
ATTACHMENTS:
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: 1 h "02.
By: Z, Irk
Dave\KIW
City Manager
ASSOCIATION: Balboa Peninsula Point
Association, a California non-profit IRS
501(c)(7) corporation
Date: „fle 0:
,.. • •
By:
Presiden
Date: )
By:
Dennis Borowsky
Vice President
Corrublision 0 1917253
Wiry Public • Cuilforais
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[END OF SIGNATURES]
Association must sign in the presence of notary public
EXHIBIT A — Plans as approved by Public Works
EXHIBIT B — Permitted Improvements
Balboa Peninsula Point Association, a California non-profit IRS 501(c)(7) corporation
Page I 5
I in "A"
Property Depiction
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Exhibit "A"
Sheet 1 of 1
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Permitted Improvements
It is mutually agreed that Permitted Improvements shall be defined as:
a. A 3 foot, 3 inch high rockblocks climbing tunnel, raptor rock head, and raptor rock
tail playground equipment manufactured by Playworld Systems;
b. A 36 inch high fence and a 6 foot wide by 36 inch high double gate constructed of
white vinyl material surrounding the tot lot;
c. Approximately 11 cubic yards of "washed plaster" playground sand at 18 inches
thick;
d. Approximately 275 square feet of ProDek pour -in -place rubber surfacing, including
a 3/8" thick colored surface course;
e. A 6 foot wide standard concrete entry walkway extending to Miramar Drive;
f. A 24 inch by 36 inch granite donor plaque located adjacent to the entry walkway;
g. A 24 inch deep Century root barrier located along the inside perimeter of the vinyl
fence, entry walkway, and bender board located along the outside perimeter of the
planter hedge;
h. landscaping, artificial turf, and irrigation modification improvements and
appurtenances.
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,
Municipal Operations, and Recreations & Senior Services Departments and shall
be shown on the "As Built" plans.
Balboa Peninsula Point Association, a California non-profit IRS 501(0)(7) corporation
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Exhibit "B"
Sheet 2 of 2
R10MA9_ff[ 17
State of California
County of ()r0r1
ACK .NOV
} ss.
On-Del'en,ticir_r" 17, a.'01'• before me,
Notary Public, personally appeared )6-via A-.
Kb -Car tEAblc-
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/sly/they executed the same in his/he/their authorized capacity(ies), and that by
his/heP/theifsignatures(s)' on the instrument the person(* 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 / / (seal)
ACKNOWLEDGMENT
State of California
County of } ss.
KIM RIEFF
Commission w 166753E
Notary Public - Callfornlo
Onnpa County
Comm. Eaplres Jon 26. 2016
On before me,
Notary 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 (seal)
Balboa Peninsula Point Association, a California non-profit IRS 501(0)(7) corporation