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Home My WebLink AboutC-6146 - Encroachment Agreement EPN N2015-0187 for 501 Park Avenue & 132 Agate AvenueCOPY CCO NOT OFR V RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Recorded In Official Records, Orange County Hugh Nguyen, Clerk -Record er 1:1i11l .30,00 +$ R 0 0 0 7 7 2 1 3 1 3 8+ 201500039378510:41 am 07129115 47411A1F13 8 0.00 0.00 0.00 0.00 21.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2015-0187) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 30th day of June, 2015, by and between Antares Group, LLC ("Owner'), and the City of Newport Beach, a California municipal corporation and charter city, organized and existing under and by virtue of its Charter and the Constitution, and the laws of the State of California ("City"). RECITALS WHEREAS, Owner is the vested owner of property located at 501 Park Avenue & 132 Agate Avenue, Newport Beach, California 92662 and legally described as Lot 21 and 22, Block 9 of Tract Resubdivision of Section 1 of Balboa Island, as shown on a map recorded in Book 6, Page 30 of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Numbers 050-052-35 and 050-052-36 ("Property"); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Park Avenue right-of-way (hereinafter "Right -of -Way") that is located adjacent to Property; 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 fulfillment of the conditions required by City to Permitted Improvements. to enter into this Agreement providing for permit Owner to construct and maintain said NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: City and Owner acknowledge that the above Recitals are true and correct and are hereby Incorporated by reference into this Agreement. Antares Group, LLC Encroachment Agreement 1 It is mutually agreed that Permitted improvernents shall be defined as a. A raised concrete slab and wrought iron fence with a maximum height of 3 feet and 56 feet in length encroaching up to 3 -feet 2 -inches into the Park Avenue right-of-way; b. A portion of an ADA curb ramp with truncated domes encroaching up to 3 -feet 2 -inches into the Park Avenue right-of-way; and C. A 6 -inch tall by 9 -feet long raised planter encroaching up to 3 -feet 2 -inches in the Park Avenue right-of-way, as approved by the Public Works Department and as shown on Exhibit A, attached hereto and incorporated herein by reference. d. In addition, if any improvements actually built or installed during the time of construction vary from 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. 3. 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, if in substantial conformance with the plans and specifications on file in City. City will further allow Owner to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 4. Rights granted under this Agreement may be terminated by City with or without cause and at any time without notice. City shall make good faith efforts to provide sixty (60) calendar days' notice 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 improvements by City. 5. Owner and City further agree as follows: a. Owner may construct and install Permitted Improvements and appurtenances incidental thereto in substantial conformance with the plans and specifications on file in City's Public Works Department, and as described on Exhibit A. Owner shall maintain Permitted Improvements in accordance with generally 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. G. 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. Antares Group, LLC Encroachment Agreement 2 d. Should City he 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, replacernent or enlargement of existing or future public t cilities or improvements, City may remove portions of Permitted Improvements, as required, and in such event: (1) City shall 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 Permitted Improvements affected by such work by City. (iii) City agrees to bear only the cost of any removal of Permitted Improvements affected by such work by City. (iv) Owner agrees to pay all costs for the renewal, replacement, or restoration of Permitted Improvements. 6. 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 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) calendar days' notice, with the notice specifying the date of termination. 7. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 8. 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 Permitted Improvements. 9. 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. 10. 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, California. Antares Group, LLC Encroachment Agreement 3 11. The terns of this Agreonwnit shall be construed in accordance with the meaning of the language used and nh�ill not be construed for or against either, I tarty by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 12. 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. 13. 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. 14. Owner shall, at Owner'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. 15. 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] Antares Group, LLC Encroachment Agreement 4 IN WITNESS WHEREOF, the parties: hereto have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTCjRN Y� S OFFICE Date: By: ��- Aaron C. Harp City Attorney ATTEST: Date: Zl•� By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date:_ I i-1 • t-) t3y:—. _ --- Dave Kiff City Manager OWNER(S): Antares Group, LLC Date:,�;1,-)& / Zfl/Sy By; G� Steven J. Rogers Member, Anta s Group, LLC [END OF SIGNATURES] Owners must sign in the presence of notary public ATTACHMENTS: Exhibit A— Permitted Improvements Plan as Approved by Public Works Antares Group, LLC Encroachment Agreement 5 ACKNnWLEDGMENT A notary public or other nflicr:r comhloting this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of ORA►,G6 } ss. On :ru (4 20 1S before me, �`f Ng �%h►J-Suxr�wj Notary Public, personally appeared STSVe l T, k4gag� A4 6 'PwnAeAA v, Rncaaes, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) jb/are subscribed to the within instrument and acknowledged to me that dWa/ehe/they executed the same in -14i 4"Wtheir authorized capacity(ies), and that by4is/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. RYAN VAN BUREN mON COMM ... 2101290 �mn (FjNOTARY PUBLIC -CALIFORNIA -1 (� ORANGE COUNTY W ry ream Iaxv Peourerr aa, zme Ir u (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of ) ss. On 20 before me, Notary Public, personally appeared 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/shelthey 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) Antares Group, LLC Encroachment Agreement 6 EXHIBIT A PERMITTED IMPROVEMENTS PLAN Antares Group, LLC Encroachment Agreement A-1 'P'A" '"'AVEAiION NUE Pfl 'E... 5a^3g EE NSI®®®oae® �€ CAFE 41%EO USED COMMFNGInL WITN flE6Ni1Pl ABOVE y 501 PAR% PVP n NEWPORT REAON CA 11062 EXHIBIT A f. OF 1 '�a —Xxr, O WE WELL r 1� JxI• UAG MRO SEIM.GAREA _F EXbN/C PaOPERIY m I Vii• � I Ii t mr"of=W f C/NB FACf � EA15f0I0 S4'F1100t -a- gEgR6lfp [NC/lAlCldILR/ L_ MD lHf R?.NT N' WAY 1. Ay ~[111 .. EIRstWC 10BRUGT NL - i RGW L ( V. � KLAHLMN OIFfFafNRAt D 'P'A" '"'AVEAiION NUE Pfl 'E... 5a^3g EE NSI®®®oae® �€ CAFE 41%EO USED COMMFNGInL WITN flE6Ni1Pl ABOVE y 501 PAR% PVP n NEWPORT REAON CA 11062 EXHIBIT A 1 OF 1 '�a —Xxr, O WE WELL r 1� JxI• UAG MRO SEIM.GAREA _F EXbN/C PaOPERIY m EX6RN0 MGHt —WWY ® t mr"of=W .> � C/NB FACf � EA15f0I0 S4'F1100t -a- gEgR6lfp [NC/lAlCldILR/ L_ MD lHf R?.NT N' WAY 1. Ay ~[111 .. EIRstWC 10BRUGT NL - i RGW L ( V. � KLAHLMN OIFfFafNRAt D 1 � •Rl � Q qi --Mi' AM RA4P YWl ACCF54&Ufl' � -N£W taVNG20 OWES 1 ' ' A'£1Y P JTR • d¢ 9... fXLSMG C.'M4"aE/E MNNC �ro anwN gg��11 d& ® R O [We ®® R R ROOM O OD OO M y 6gi1l11! ill, 11 'i O Ow il 1111 j Ili Iv i 0 ill 'i llia a gg lA ) y 'P'A" '"'AVEAiION NUE Pfl 'E... 5a^3g EE NSI®®®oae® �€ CAFE 41%EO USED COMMFNGInL WITN flE6Ni1Pl ABOVE y 501 PAR% PVP n NEWPORT REAON CA 11062