HomeMy WebLinkAboutC-5567(I) - Encroachment Agreement EPN N2016-0415 for 3300 Newport BoulevardBatch 3147022 - Print Confirmations Page 3 of 6
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 -Recorder
II II II II IIIIII IIIIII1II11 11126.00
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2016-0415)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
19th day of December, 2017, by and between Lido House, LLC, a California limited liability
company ("Lessee"), 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, Lessee is the current lease holder, pursuant to a Ground Lease dated
September 9, 2014, and amended, assigned, and assumed on May 3, 2016 ("Lease"), of
property owned by the City located at 3300 Newport Boulevard, Newport Beach, California,
92663, described as County Assessor's Parcel Number 423-111-02 and more particularly
described in Exhibit A attached hereto and incorporated herein ("Property");
WHEREAS, Lessee desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the 32nd Street right-of-way
(hereinafter "Right -of -Way") that is located adjacent to Property consistent with the Lease
and this Agreement;
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;
WHEREAS, section 6.1 of the Lease provides that prior to Lessee commencing work
in the Right -of -Way, Lessee must obtain any required encroachment permit(s) and deliver
any required security instrument(s) in accordance with City's normal practices; and
WHEREAS, the parties hereto desire to enter into this Agreement providing for
fulfillment of the conditions required by City to permit Lessee to construct and maintain said
Permitted Improvements.
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto
agree as follows:
Lido House, LLC Encroachment Agreement 1
https://gs.secure-recording.com/Batch/PrintConfirmations 02/23/2018
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
pace above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2016-0415)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
19th day of December, 2017, by and between Lido House, LLC, a California limited liability
company ("Lessee"), 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, Lessee is the current lease holder, pursuant to a Ground Lease dated
September 9, 2014, and amended, assigned, and assumed on May 3, 2016 ("Lease"), of
property owned by the City located at 3300 Newport Boulevard, Newport Beach, California,
92663, described as County Assessor's Parcel Number 423-111-02 and more particularly
described in Exhibit A attached hereto and incorporated herein ("Property"),
WHEREAS, Lessee desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the 32nd Street right-of-way
(hereinafter "Right -of -Way") that is located adjacent to Property consistent with the Lease
and this Agreement;
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;
WHEREAS, section 6.1 of the Lease provides that prior to Lessee commencing work
in the Right -of -Way, Lessee must obtain any required encroachment permit(s) and deliver
any required security instrument(s) in accordance with City's normal practices; and
WHEREAS, the parties hereto desire to enter into this Agreement providing for
fulfillment of the conditions required by City to permit Lessee to construct and maintain said
Permitted Improvements.
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto
agree as follows:
Lido House, LLC Encroachment Agreement
City and Lessee acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference into this Agreement.
2. It is mutually agreed that Permitted Improvements shall be defined as:
a. A five and a half foot (5'/2') wide by one hundred twenty foot (120) long walkway
constructed of sand buff colored concrete with sand sparkle, encroaching up to
five and a half feet (5'/2') into the Right -of -Way, as approved by the Public
Works Department and as shown on Exhibit B, attached hereto and
incorporated herein by reference.
b. 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 Lessee 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 Lessee 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. Notwithstanding any other provision of this Agreement, upon the expiration or earlier
termination of the Lease, whether by cancellation, forfeiture, or otherwise, Lessee
shall remove all Permitted Improvements and restore the Right -of -Way to the then -
existing City standards within thirty (30) days of such expiration or termination of the
Lease.
6. Lessee and City further agree as follows:
a. Lessee 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 B.
b. Lessee 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 Lessee 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, Lessee shall be responsible for the
Lido House, LLC Encroachment Agreement 2
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 Lessee in advance of its intention to accomplish such
work, provided that an emergency situation does not exist.
(ii) Lessee 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) Lessee agrees to pay all costs for the renewal, replacement, or
restoration of Permitted Improvements.
7. 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 Lessee, City may enter upon
Right -of -Way and remove all or part of the improvements installed by Lessee.
Termination because of breach shall be upon a minimum of ten (10) calendar days'
notice, with the notice specifying the date of termination.
8. In the event of any dispute or legal action arising under this Agreement, the prevailing
party shall not be entitled to attorneys' fees.
9. Lessee 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.
10. Lessee 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 Lessee's interest in the land, whether fee or otherwise; and shall be
recorded in the Office of the County Recorder of Orange County, California.
11. 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.
Lido House, LLC Encroachment Agreement 3
12. 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.
13. 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.
14. 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.
15. Lessee shall, at Lessee'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.
16. 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]
Lido House, 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 OF NEWPORT BEACH,
CITY ATTORNEY'S Sof FICE a California municipal corporation
Date: Date: 2:Zt
By: By: lC.
Aaron C. HarpDave
City Attorney City Manager
ATTEST:
Date: a2 3
By: A&_
Leilani I. Brown
City Clerk
LESSEE(S): Lido House, LLC, a
California limited liability company
Date:
By: Olson Real Estate Group, Inc., a
California corporation, its Manager
By:
Lessees must sign in the presence of notary public
ATTACHMENTS: Exhibit A - Legal Description
Exhibit B - Permitted Improvements Plan as Approved by
Public Works
Lido House, LLC Encroachment Agreement 5
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 0Y'a'- ?- } ss.
On FebYu4vy 4 20_% before me, SAaXWv N'50-' J , Notary
Public, personally appeared R6beY ID,— Ol S?;K who proved to
me on the basis of satisfactory evidence to be the personk&) whose name( -,)Is subscribed to the within
instrument and acknowled ed to me that fLi�e��e executed the same in his hera#a-i" authorized
capacity(ies), and that b is � signatures(o on the instrument the person(as , or the entity upon
behalf of which the person* 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.
SHARON OUYANG
WITNESS my hand and official seal. Commission # 2112659
Notary Public • California
Orange County
My Comm. Ex ires Ma 22, 2019
Signatur (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/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)
Lido House, LLC Encroachment Agreement s
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 , 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)
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/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)
Lido House, LLC Encroachment Agreement 6
MIMI
EXHIBIT A
LEGAL DESCRIPTION
Lido House, LLC Encroachment Agreement
EXHIBIT A.
LEGAL DESCRIPTION
"LEASE PARCEL"
THAT PORTION OF LOTS 6 AND 7 IN SECTION 28, TOWNSHIP 6 SOUTH, RANGE 10 WEST, SAN
BERNARDINO MERIDIAN IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF
CALIFORNIA, TOGETHER WITH THOSE PORTIONS OF LOT 1 IN BLOCK "A" AND "THE HUDSON" OF
MAP OF "LANCASTER'S ADDITION TO NEWPORT BEACH", AS SHOWN ON A MAP RECORDED IN
BOOK 5, PAGE 14 OF MISCELLANEOUS MAPS, THAT PORTION OF LOT 3 OF TRACT NO. 1117, AS
SHOWN ON A MAP RECORDED IN BOOK 35, PAGE 48 OF MISCELLANEOUS MAPS AND THAT
PORTION OF A 20.00 FOOT ALLEY, AS VACATED BY THAT CERTAIN RESOLUTION NO. 3280 OF THE
CITY COUNCIL OF SAID CITY, A CERTIFIED COPY OF WHICH WAS RECORDED MARCH 11, 1946 IN
BOOK 1400, PAGE 189 OF OFFICIAL RECORDS, ALL OF RECORDS OF SAID COUNTY, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWESTERLY CORNER OF SAID LOT 3, THENCE ALONG THE WESTERLY
LINE OF SAID LOT 3, NORTH 00°09'03" EAST 128.00 FEET TO THE WESTERLY TERMINUS OF THAT
CERTAIN COURSE SHOWN AS "N89°15'30"E 90.00 FEET" ON THE SOUTHERLY BOUNDARY OF
PARCEL 1 OF PARCEL MAP RECORDED IN BOOK 85, PAGES 1 AND 2 OF PARCEL MAPS, RECORDS OF
SAID COUNTY AND BEING THE TRUE POINT OF BEGINNING;
THENCE ALONG THE SOUTHERLY BOUNDARY OF SAID PARCEL 1, THE FOLLOWING FOUR (4)
COURSES:
(1) NORTH 00°09'03" EAST 53.55 FEET,
(2) NORTH 39°53'38" WEST 108.61 FEET TO THE BEGINNING OF A CURVE CONCAVE
SOUTHWESTERLY, HAVING A RADIUS OF 351.15 FEET,
(3) NORTHWESTERLY 306.25 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
49°58'10" AND
(4) NORTH 89°51'48" WEST 97.67 FEET TO THE MOST NORTHEASTERLY CORNER THAT
CERTAIN IRREVOCABLE OFFER OF DEDICATION TO THE CITY OF NEWPORT BEACH
RECORDED SEPTEMBER 18, 2014 AS INSTRUMENT NO. 2014000378678, OF OFFICIAL
RECORDS OF SAID COUNTY;
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THENCE ALONG THE EASTERLY LINE OF SAID IRREVOCABLE OFFER OF DEDICATION THE FOLLOWING
TWO (2) COURSES:
(1) SOUTH 00°26122" WEST 47.25 FEET,
(2) NORTH 88°31'14" WEST 8.13 FEET TO AN ANGLE POINT THEREIN;
THENCE LEAVING SAID EASTERLY LINE SOUTH 01°27'07" WEST 12.14 FEET;
THENCE SOUTH 49°26'59" WEST 22.96 FEET TO A POINT IS SAID EASTERLY LINE, SAID POINT BEING
ON A NON -TANGENT CURVE CONCAVE EASTERLY, HAVING A RADIUS OF 2724.04 FEET, A RADIAL
LINE TO SAID POINT BEARS NORTH 82°33'58" WEST;
THENCE ALONG SAID EASTERLY LINE THE FOLLOWING SEVEN (7) COURSES:
(1) SOUTHERLY 89.31 FEET ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 01°52'43" TO
THE BEGINNING OF A REVERSE CURVE, HAVING A RADIUS OF 58.00 FEET, A RADIAL LINE TO
SAID POINT BEARS SOUTH 84°26'40" EAST,
(2) SOUTHERLY 13.75 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 13°35'10",
(3) SOUTH 19°08'30" WEST 36.43 FEET TO THE BEGINNING OF A CURVE CONCAVE EASTERLY,
HAVING A RADIUS OF 42.00 FEET,
(4) SOUTHERLY 10.88 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 14°50'20" TO
THE BEGINNING OF A COMPOUND CURVE, HAVING A RADIUS OF 2736.04 FEET, A RADIAL
LINE TO SAID POINT BEARS NORTH 85°41'50" WEST,
(5) SOUTHERLY 62.82 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 01°18'56" TO
THE BEGINNING OF A REVERSE CURVE, HAVING A RADIUS OF 873.00 FEET, A RADIAL LINE
TO SAID POINT BEARS SOUTH 87°00'46" EAST,
(6) SOUTHERLY 74.65 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 04°53'58"
TO THE BEGINNING OF A REVERSE CURVE, HAVING A RADIUS OF 37.00 FEET, A RADIAL
LINE TO SAID POINT BEARS NORTH 82°06'48" WEST,
(7) SOUTHERLY 9.24 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 14°18'33" TO
AN ANGLE POINT IN SAID EASTERLY LINE;
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April 19, 2016
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THENCE CONTINUING ALONG SAID EASTERLY LINE AND THE SOUTHERLY PROLONGATION THEREOF,
NON TANGENT TO SAID CURVE, SOUTH 39°29'57" EAST 40.40 FEET TO A POINT ON A NON -
TANGENT CURVE CONCAVE NORTHERLY, HAVING A RADIUS OF 37.00 FEET, A RADIAL LINE TO SAID
POINT BEARS SOUTH 17°24'48" WEST;
THENCE EASTERLY 9.24 FEET ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 14°18'32";
THENCE SOUTH 86°53'44" EAST 46.04 FEET;
THENCE NORTH 26°56'46" WEST 20.77 FEET;
THENCE SOUTH 86°56'46" EAST 180.71 FEET;
THENCE SOUTH 26°56'46" EAST 21.18 FEET TO THE BEGINNING OF A CURVE CONCAVE
NORTHEASTERLY, HAVING A RADIUS OF 8.50 FEET;
THENCE SOUTHEASTERLY AND EASTERLY 9.33 FEET ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 62°55'02";
THENCE SOUTH 89°51'48" EAST 118.46 FEET TO THE BEGINNING OF A • CURVE CONCAVE
NORTHERLY, HAVING A RADIUS OF 700.00 FEET;
THENCE EASTERLY 57.71 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 04°43'26";
THENCE NORTH 38°56'26" EAST 12.78 FEET;
THENCE NORTH 82°44'09" EAST 9.41 FEET;
THENCE SOUTH 07°15'51" EAST 5.48 FEET;
THENCE NORTH 84°41'29" EAST 41.64 FEET;
THENCE NORTH 00°00'01" WEST 5.47 FEET;
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April 19, 2016
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THENCE NORTH 89°59'59" EAST 5.25 FEET TO A POINT ON A NON -TANGENT CURVE CONCAVE
SOUTHWESTERLY, HAVING A RADIUS OF 48.00 FEET, A RADIAL LINE TO SAID POINT BEARS
NORTH 87°05'54" EAST;
THENCE NORTHWESTERLY 27.22 FEET ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF
32°29'36" TO A POINT OF NON -TANGENCY, A RADIAL LINE TO SAID POINT BEARS
NORTH 60°24'30" EAST;
THENCE NORTH 00°43'30" EAST 29.78 FEET;
THENCE SOUTH 89°58'22" EAST 9.24 FEET;
THENCE NORTH 00°00'08" EAST81.62 FEET TO SAID SOUTHERLY BOUNDARY OF PARCEL 1;
THENCE ALONG SAID SOUTHERLY BOUNDARY NORTH 89°50'57" WEST 12.85 FEET TO THE TRUE
POINT OF BEGINNING.
CONTAINING 171,504 SQUARE FEET, 3.972 ACRES MORE OR LESS.
AS SHOWN ON EXHIBIT "B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF.
SUBJECT TO CONVENANTS, CONDITIONS, RESTRICTIONS, RESERVATIONS, EASEMENTS AND
RIGHTS -OF -WAY OF RECORD, IF ANY.
DATED TH IS r h DAY OF ArriA L.- , 2016
KURT R. TROXELL, L.S. 7854
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EXHIBIT B
Permitted Improvements Plan
as Approved by Public Works
Lido House, LLC Encroachment Agreement
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