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HomeMy WebLinkAboutC-9851-1 - Encroachment Agreement EPN N2025-0087 for 401 Avocado Avenue4/3/25, 10:45 AM Batch 18990144 Confirmation RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Attn: City Clerk's Office City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder I� I �� I I� I II I I I II II I I I I II II $72.00 *$ R 0 0 1 5 5 0 0 9 1 6$ 2025000100309 10:31 am 04/03/25 90 CR-SC06 Al2 21 0.00 0.00 0.00 0.00 60.00 0.00 0.00 0.00 0.00 0.00 050-336-28 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2025-0087) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 17th day of March, 2025, by and between CA Avocado 401415, LLC as a Delaware limited liability company ("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 401 Avocado Avenue, Newport Beach, California, 92625 and legally described as Lot 185 Tract 2813 Irvine Terrace Unit 3 in the City of Newport Beach, County of Orange, State of California, as shown on a map recorded in Book 94, Pages 45 through 47 inclusively, of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 050- 336-28 ("Property"); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within and above the City's twenty three foot sewer easement (hereinafter, "Twenty Three Foot Easement') and thirty foot sewer easement (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 to enter into this Agreement providing for fulfillment of the conditions required by City to permit Owner to construct and maintain said Permitted Improvements. 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. CA Avocado 401415, LLC Encroachment Agreement . 1 https://gs.secure-erds.com/Batch/Confirmation/18990144 1/2 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Attn: City Clerk's Office City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 050-336-28 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2025-0087) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 17th day of March, 2025, by and between CA Avocado 401415, LLC as a Delaware limited liability company ("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 401 Avocado Avenue, Newport Beach, California, 92625 and legally described as Lot 185 Tract 2813 Irvine Terrace Unit 3 in the City of Newport Beach, County of Orange, State of California, as shown on a map recorded in Book 94, Pages 45 through 47 inclusively, of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 050- 336-28 ("Property"); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within and above the City's twenty three foot sewer easement (hereinafter, "Twenty Three Foot Easement") and thirty foot sewer easement (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 to enter into this Agreement providing for fulfillment of the conditions required by City to permit Owner to construct and maintain said Permitted Improvements. 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. CA Avocado 401415, LLC Encroachment Agreement 2. It is mutually agreed that Permitted Improvements shall be defined as: a. A two hundred sixty one foot, three and one half inch long (261'-3.5") long by twenty two (22') wide new driveway and approach encroaching thirty feet (30') into the Right -of -Way; b. An eight foot, eight and one half inch (8'-8.5") long by four foot (4') high concrete retaining wall constructed with smooth stucco finish encroaching four feet, eight and one half inches (4'-8.5") minimum to eight feet, seven and one half inches (8'-7.5") maximum into Right -of -Way; C. A one hundred fifty eight foot (158') long by six foot (6') high concrete retaining wall constructed with smooth stucco finish encroaching eight feet, seven and one half inches (8'-7.5") minimum to fourteen feet, three and one half inches (14'-3.5") maximum into the Right -of -Way; d. A nine foot, four and one half inch (9'-4.5") long by seven foot (7') high concrete wall constructed with stone veneer finish encroaching nine feet, four and one half inches (9'-4.5") into the Right -of -Way; e. A fifty eight foot, six inch (58'-6") long by six foot (6') high concrete retaining wall constructed with smooth stucco finish encroaching twelve feet (12') minimum to thirteen feet, two and one half inches (13'2.5") maximum into the Right -of -Way; A twenty foot (20') wide by seven foot (7') high painted steel driveway gate encroaching twenty feet (20') into the Right -of -Way; g. Various height new landscaping encroaching twenty three feet (23') into the Twenty Three Foot Easement and a maximum of fourteen feet (14') into the Right -of -Way; h. A six foot, five inch (6'5") new concrete stair on grade encroaching twelve feet (12') by eight feet, six and one half inches (8',6.5") into the Right -of -Way; A six foot, five inch (6'5") long by four foot (4') high concrete retaining wall constructed of smooth stucco finish encroaching twelve feet (12') by eight feet, six and one half inches (8',6.5") into the Right -of -Way; A five foot, four inch (5'4") by seven foot, ten inch (7'10") concrete landing encroaching twelve feet (12') by eight feet, six and one half inches (8',6.5") into the Right -of -Way; k. With the foregoing, as approved by the Public Works Department and as shown on Exhibit A, attached hereto and incorporated herein by reference. In addition, if any improvements actually built or installed during the time of construction vary from Permitted Improvements approved herein, such CA Avocado 401415, LLC Encroachment Agreement 2 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. b. 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. 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 and restoration of these public facilities or improvements to their condition at the time of entry into this Agreement. d. 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 Permitted Improvements, as required, and in such event: (i) 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. CA Avocado 401415, LLC Encroachment Agreement 3 (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 Owner's 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. 11. The terms of this Agreement shall be construed in accordance with the 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. 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. CA Avocado 401415, LLC Encroachment Agreement 4 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] CA Avocado 401415, LLC Encroachment Agreement 5 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: �Ij I a' 7 6 By: Aaroi f C. Harp \ ; City Attorney ATTEST: Date:% By: dr &. +N� Leilani I. Brown City Clerk ATTACHMENTS: CITY OF NEWPORT BEACH, a California 7un7pal coon oration Date: z 20 z By: Gra eung Cit Manager OWNER(S): CA Avocado 401415, LLC, a Delaware limited liability company, acting by and through its Manager, CA Investments 3G, LLC, a Delaware limited liability company Date: By. . Christopher E. Erblich Manager Date: 'SL-?-/ bLaE By: C::> Paul Sta , y Reed Manager [END OF SIGNATURES] Owners must sign in the presence of notary public Exhibit A — Permitted Improvements Plan as Approved by Public Works CA Avocado 401415, LLC Encroachment Agreement 6 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 GafffoTnta i . Z P a County of Mdl i (20 )ss. On 17N / 20before me, ✓1 Notary Public, personally appeared 2 , who proved to me on the basis of satisfactory evidence to be the perso (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. Sig ture 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. (seal) KARLA BRUNSON Notary Public, State of Arizona Maricopa County Commission # 646938 My Commission Expires State of ea4Dr-rtis Ay-i2ona County of 1` 1 N-1 c.o ,pew } SS. On rl as- c1-N ate{ , 20 A 5 before me, ao4 0-1 Notary Public, personally appeared CV\r i VX5-F 6 k" proved to me on the basis of satisfactory evidence to bete 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. ASHLEY ORgNgpUg M*V PU*-ftbdlYl�mir AAA Av0laiTY C0mrd88imissitxn * B64T23 ExpifMANI27, 2W Signature (seal) CA Avocado 401415, LLC Encroachment Agreement 7 EXHIBIT A PERMITTED IMPROVEMENTS PLAN CA Avocado 401415, LLC Encroachment Agreement A-1 EXHIBIT A 1 OF 12 LS a rch itects LAIDLAW SCHULTZ 31 I I Second Avenue Corona del Mar, CA 92625-2322 T: (949) 645-9982 F: (949) 645-9554 W: LSarchitects.com Encroachment Permit - Decorative/ Non-standard Detailed Description of Proposed Work: 1) 261'-3 1/2" long x 22' wide new driveway and approach encroaching 30'-0" max. within 30'-0" sewer easement. Material Finish: Standard Gray Concrete See Plan for detailed dimension information. 2) Site Retaining wall within the 30'-0" sewer easement. A) 8'-8'/2" long x 4'-0" max height smooth stucco finish concrete retaining wall, encroaching 4'-8'/2" min. - 8'-7'/2" max, within 30'-0" sewer easement. B) 158'-0" long x 6'-0" max height smooth stucco finish concrete retaining wall, encroaching 8'-7'/2" min.- 14'-3'/2" max. within 30'-0" sewer easement. C) 9'-4'/2" long x 7' max height stone veneer finish concrete wall, encroaching 9'-4 '/2" max, within 30'-0" sewer easement. D) 58'-6" long x 6'-0" max height smooth stucco finish concrete retaining wall. Encroaching 12'-0" min. - 13'-2'/2" max, within 30'-0" sewer easement. 3) Painted Steel 20'-0" W x 7'-0" H Driveway gate within 30'-0" sewer easement. Call box with Key operated gate switch by KNOX per NBFD. City Utilities department to be provided keyed access. 4) New Landscaping within 30'-0" sewer easement, 23'-0" sewer easement. 5) New concrete stair on grade (6'-5" x 3'-3"), retaining wall (6'-5" long x 4'-0" max height, smooth stucco finish) and concrete landing (5'-4" x 7'-10") encroaching 12'-0" x 8'-6'/2" max. within 30'-0" sewer easement. Q CVLL 2 X N ` •�. Ch bq a 3 a) CieN N a 3 0 (D N ° > U a a v) N o T o j CY) o m O c c _0 M 3 C a) a CaV C m Cie a) : X N M P W LL _ O w co Cb b/ d �5�/ do de .40 Ole a)a) FlN N 0 9 1 o'l 0'-0" Ease ent: +, 5 6 7 i r: O a o � � c 1 - Standard Gray Concrete Driveway Detail EXHIBIT A NOTES: 1. THIS DETAIL IS FOR REFERENCE ONLY TO ILLUSTRATE SOILS REPORT REQUIREMENTS. HARDSCAPE DESIGN BY OTHERS. 2. SEE SOILS REPORT FOR OVEREXCAVATION AND SUBGRADE PREPARATION REQUIREMENTS. of `f----.-O� SEE SOILS REPORT FOR SUBGRADE REQUIREMENTS 4 OF 12 SURFACE TEXTURE, TILE, PAVERS, ETC. PER LANDSCAPE PLANS �A DRIVEWAYS HARDSCAPE A MIN. SLAB THICKNESS 6" 4" B MIN. AGG. BASE THICKNESS 4" - C MIN. REINFORCEMENT (O.C. / E.W.) #4@18" #4@18" D MAX. SAWCUT OR COLD JT. SPACING 10' 8' E THICKENED EDGE DEPTH 12" 12" F THICKENED EDGE WIDTH 8" 8" DETAIL TYPICAL DRIVEWAY / HARDSCAPE SECTION PER SOILS REPORT BY G3SOILWORKS INC. Scale: N.T.S. 2- Retainina Wall -Plan EXHIBIT A \ STAIRS -ON -GRADE \ 13 \ S10 \ `\ EXTEND REAR WALL \ \ \ FOOTING REBAR 4M ` 4M \ \ MIN. S"INTO FRONT sli `\ \ S11 \ FOOTING 511 76 \ S13 \ \\\ \ \ \ \\ \ \ z < \ WALL BACKFILL @ 5 OF 12 4C \ \ \ MATCH LINE SEE SHEET TOP \/ \ 4M'\ \ \ 511 \\ \ \ I I ` I I \ 2 \ \ la I I \ \\ lz ---- \ 4M S11 \\ \ 1 I I \\ 1 I I \ \ M \ \ 511 \ \ \ \ \ \ \ \ \ \ 4F \ \ S11 / 2 \ \ 2 `V \ STEM THICKNESS EXHIBIT A 2 - Retaining Wall 6 OF 12 Detail Section / Schedule FOOTING SHALL �\ NOT EXTEND PAST \ I HORIZONTAL BARS PER SCHEDULE (EA. FACE FOR 2 CURTAINS) PROPERTY LINE OR \\\ INTO CITY EASEMENTS VERTICAL BARS —\ (EXTERIOR FACE) PER SCHEDULE TOE U O._ / d a L a d G C c Q J � L O O > a pO SHEAR KEY J 6"-8" WALL - 2x4 F 10" WALL - 2x6 n. w 12" WALL - 2x6 o SHEAR KEY MAY BE OFFSET AS w REO'D. FULL -WIDTH KEY IS PERMITTED - #5 CONT. BARS - SPACED @ 12" O.C., VERTICALLY KEY OFFSET KEY WIC R� VERTICAL BARS (SOIL FACE) PER SCHEDULE; HOOK INTO FOOTING AND EXTEND TO TOE AS -SHOWN HEEL BARS PER SCHEDULE #5 CONT. BARS @ 18" O.C. TOP & BOTTOM OF FTG. HEEL T N O L d a as BOTTOM BARS #5 @ 12" O.C. (MIN.) KEY BARS PER SCHEDULE; HOOK INTO FOOTING BeBuercwe W.1LLlYPE NPIBMUM BET. Hi. 3TEYTAx:NlE55 i0E NEFL KEY KET WIBTB I�YOFFSET F YERBCB/i9 SpL VEAAGL —E FXTEPoCA FM IpBiZPYTFL BIAS HEEL 10=Y BYS BOTiOY B.NS Y ! f TQ r P f - r b@lIOII a 0@ 0.G bf YfO.C. - —YBYF 9 05 Q 1r O.C. Now 4y4 Z3 2 B f Td P 2.T 1-e P b@1TOC b@tfOC. b@tf O.C. b01fO.0 NONE � T r Tl r Td Ti P OOrOl. b�1rOA b@If O.O b�1r0.0 MdE Scale: N.T.S. M M El O O cM >n H r J Q Q J J J a s CO LL LLI N < C� C� O 0 CD = O LO LO LO L(y X co FnLO T T T T cn LO T T W W N?� F- in K X K J ap 2 2 2 0o _ Co 2 2 O_ T M M N T M T CV N E d � >- z O a1 Y L Z m Rf O pO `t �c `t Z �• m > > 0 3 U o CD cm = J o z Y m Q Q t� U_ J � m Q L a = � L O Z H- > m _ Z N •- C7 W `p ?� L LU = i 0.J cn Y vyi = E 3 Q i C v = i O LU c4 c i ++ o m O U. C7 ? y E E o N O a) = t i i C O UCL ) 0) N mmCL O O v �z Q n. a Lu Q � NQ Q W� O C� Z > z W W W _ J LLL. Q Z Q W 0 D � J J 0HZ Q W > >w O= LL. m Z W U f— Z U w -iw i-- �Q v a O cnaa Q a a CCU Q cn000 Q Q ll ll a m04 LL = o x CD w u ACA RED 1 GAL. @ 3' O.C. PIT TUR 15 GAL. @ 30" O_C. G 7 1 AGA FLA 15 GAL. LIP NO SOD 1 5 GAL. @ 18" O.C. LIP NOD SOD 5 AGA FLA 15 GAL. 1� - 1 411 - \\ 1 • 401 EXHIBIT A 10 OF 12 1 GAL. @ 3' O.C. ROS HUN 1 GAL. @ 18" O.C. Scale: N.T.S. 0 LIP NOD SOD 7 AGA FLA 15 GAL. 1$71 I58') ZZ 6 LIR GIG 5 GAL JUN PAT 11 GAL. @ 24" O t ' ' V IST' i 41 102 LIG TEX 15 GAL_ '@ 18" O: PIT CRA '5GAL @30"OC EXHIBIT A 11 OF 12 ACA RED 1 GAL. @ 3' O.C. PIT TUR 15 GAL. @ 30" O.C. 7 AGA FLA 15 GAL_ I LIP NOD Dl TAB- \\ 5 G @ 16" O.0 - J - \ 23 DUR ERE 15 GAL. ` - - �� S LIR GIG 5 GA \. 1 No \ f SOD 5 GAL. @ 18" O.C. 8 AGA FLA 15 GAL. LIP NOD .00l A Scale: N.T.S. 5 EXHIBIT A 12 OF 12 #3 NOSING BARS (TYP.) CONTINUOUS BARS (MATCH SIZE AND SPACING AS REQUIRED IN SLAB) PER ARCHITECT d a Lu Lu a o d ° 0 SLOPING #4 BARS @ 18" O.C. cc d 4 \// (LAP 18" W/ SLAB ° REINFORCEMENT) d O1wwwo ° cc < o Q \ 9OpC3 1'-0" (2) #4 BOTTOM BARS I STAIRS ON GRADE Eil Scale: N.T.S. ORIGIN ID:SCFA (602) 230-3500 SHIP DATE: 21MAR25 KARLA BRUNSON ACTWGT: 0.50 LB VAN TUYL COMPANIES INC. 14747 N. NORTHSIGHT bLVD CAD: 11213407711NET4535 SUITE 111-431 SCOTTSDALE, AZ 85260 BILL SENDER UNITED STATES US TO CITY OF NEWPORT BEACH CITY OF NEWPORT BEACH 100 CIVIC CENTER DRIVE NEWPORT BEACH CA 92660 (949) 644-3311 REF: CA AVOCADO INV: III ���I��I��I�����II���I�II�I���IIIIII��II��II�II���I�II�III�I�III�III�I� III�II r r r {� ri Express nEi �,�� � , , ,,.• �i, 'tip ��'� MON - 24 MAR 10:30A T0RK0# 7728 9097 0514 PRIORITY OVERNIGHT 92660 WZ TWHA CA —US SNP,