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Home My WebLink AboutC-8535-1 - Encroachment Agreement EPN N2017-0617 for 800 to 984 Avocado AvenueBatch 3182773 Confirmation RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Page 1 of 2 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder I IIII111111111111111111111111111111111111111111111111111111111111111!111108.00 +$ R 0 0 0 9 9 3 4 7 1 7$+ 201800008100511:40 am 03107118 740SA12F73 9 0.00 0.00 0.00 0.00 24.00 0.00 0.000.00 75.00 Space above this line for Recorders use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2017-0617) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 28th day of February, 2018, by and between The Irvine Company LLC, 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 800 to 984 Avocado Avenue, Newport Beach, California, 92660 and legally described as Parcel 1 of Parcel Map No. 90-361, as shown on a map recorded in Book 270, Pages 15 through 18 Inclusively, of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 442-272-05 and 442-014-28 ("Property"); WHEREAS, Owner previously installed and desires to construct certain additional non-standard improvements as further described herein (collectively "Permitted Improvements") within the Avocado Avenue and East Coast Highway right-of-ways (hereinafter "Right -of -Way") that are 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. The Irvine Company LLC Encroachment Agreement Page 1 https://gs.secure-recording.com/Batch/Confirmation/3182773 03/07/2018 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Public Works Department City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2017-0617) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 28th day of February, 2018, by and between The Irvine Company LLC, 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 800 to 984 Avocado Avenue, Newport Beach, California, 92660 and legally described as Parcel 1 of Parcel Map No. 90-361, as shown on a map recorded in Book 270, Pages 15 through 18 Inclusively, of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 442-272-05 and 442-014-28 ("Property'); WHEREAS, Owner previously installed and desires to construct certain additional non-standard improvements as further described herein (collectively "Permitted Improvements") within the Avocado Avenue and East Coast Highway right-of-ways (hereinafter "Right -of -Way") that are 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. The Irvine Company LLC Encroachment Agreement Page 1 2. It is mutually agreed that Permitted Improvements shall be defined as: a. A 2.4 -foot tall by 102 -foot long block wall encroaching up to 12.3 -feet into the Avocado Avenue and East Coast Highway right-of-ways, as approved by City Council on January 9, 2018 and all landscaping and irrigation facilities between such block wall and Owner's property line; and two (2) 5 -foot wide walkways constructed of river view blend precast pavers, installed at grade, encroaching up to 3.2 feet into the Avocado Avenue public right-of-way; and four (4) 5 foot wide walkways constructed of lakeside brown colored concrete, installed at grade, encroaching up to 1 -foot into the Avocado Avenue public right-of-way, as approved by the Public Works Department and as shown on Exhibit A, 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 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. If Permitted Improvements interfere in the future with City's ability to construct, operate, maintain, and replace City and other public facilities and improvements within the Property, then the rights granted under this Agreement may be terminated by City at any time by giving sixty (60) days' prior notice (provided, however, that prior to such notice of termination the parties agree to meet and confer in good faith to promptly resolve any issues respecting such interference and Owner has been given the opportunity to cure the same to the City's satisfaction), specifying in said notice the date of termination. Except to the extent resulting from City's breach of the foregoing obligations set forth in this Section 4, 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. The Irvine Company LLC Encroachment Agreement Page 2 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, by giving sixty (60) days prior written notice.The parties agree to meet and confer in good faith to minimize any damage to the Permitted Improvements or any interference to the operation of the Property, with the ultimate decision on the scope of such work lying with the City. (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 thirty (30) calendar days' notice, unless the breach is cured within such thirty (30) calendar day period, 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 (collectively, the "City Parties") 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 (each a "Claim") arising from or in any manner connected with the design, construction, maintenance, or continued existence of Permitted Improvements, provided however, that Owner's indemnity obligations shall not apply to the extent and Claim is caused by the active negligence or willful misconduct of the City Parties. The Irvine Company LLC Encroachment Agreement Page 3 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. 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] The Irvine Company LLC Encroachment Agreement Page 4 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTf RNEY'S,OFFICE Date: r�4 By: 46f Aaron C. Harp to, aI�-A % City Attorney CITY OF NEWPORT BEACH, a California municipal corporation Date: -M(o)w By: Dave <iff City Manager ATTEST: cy OWNER(S): The Irvine Company LLC, a Date: Delaware limi ed liability company �,��//��,,,, Date:7 By: c /•V'/1/� By _ 2G 24 Lei ani I. Brown o is K. Raym nd City Clerk Vice President, General Counsel, Retail ATTACHMENTS Properties Date: 212115 BY: "&, i Kareem Ali Vice President, Development, Retail Properties Management [END OF SIGNATURES] Owners must sign in the presence of notary public Exhibit A — Permitted Improvements Plan as Approved by Public Works The Irvine Company LLC Encroachment Agreement Page 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 n`rliQ } ss. On FFB 7 7 7018 IJ before me, V. Hill Public, personally appeared LA-rP % tt�l \S me on the basis of satisfactory evidence to be the person(s) whose nam (s),is/are instrument and acknowledged to me that bees *they executed the same in capacity(ies), and that by bislber/their signatures(s) on the instrument the behalf of which the person(s) acted, executed the instrument. Notary who proved to subscribed to the within WeAMenYheir authorized person(s), or the entity upon I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. ------------------- V HILL WITNESS my hand and official seal."' Notary Public - California Z Orange County s z Commission # 2179666 My Comm. Es Ires Feb 11, 2021 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) The Irvine Company LLC Encroachment Agreement Page 6 EXHIBIT A PERMITTED IMPROVEMENTS PLAN The Irvine Company LLC Encroachment Agreement Page A-1 I _ _ PAVER WALKWAY DETAIL 4 DESCRIPTION LI J (SEE SHEET 2) MATERIAL/ — — , NO. J\ CONCRETE WALK' SUPPLIER DETAIL 3 I �'- (SEE SHEET 2) CONCRETE WAL DETAIL 2 I (SEE SHEET 2) L PROPERTY UNE CONCRETE WALKWAY _ DETAIL 1 r (SEE SHEET 2) t - I I I I I I I I I w -� 0 z w I a a U 0 I a I I I— PLANTER WALL DETAIL I I SEE RIGHT) I -o I I I I 900 AVOCADO I I I I I I -- EXHIBIT A I_ 2.6' 1 I 32' PROPOSED 1 PAVER LA131INU WALKWAY PLANTER WALL (approx. 102 LF IN PUBLIC R/W) CITY i SIDEWALK I PROPERTY LINE I 7.7 I EX. MAX WALL HEIGHT 2.4' PLANTER WALL DETAIL SCALE 1"=20' PAVING TYPES NOTE DESCRIPTION MANUFACTURE/ MATERIAL/ NO. CORONA DEL MAR PLAZA SUPPLIER PRODUCT NO. COLOR ENCROACyHMENT PERMIT !IA6TE: APPIAN RIVER OPRECAST z N Q ACKERSTONE (STANDARD VI EW m o PAVERS CHAMFER) BLEND OCONCRETE 2 PAVING DAVIS INTEGRAL LAKESIDE COLORS COLOR BROWN (4" THICK) T7 PACIFIC COAST HIGHWAY SCALE: 1'=60' PREPARED BY: CORONA DEL MAR PLAZA 112112018 ®Stantec ENCROACyHMENT PERMIT !IA6TE: RBJIE C�926G8 DRIVE, SUITE ICO EXHIBIT HEET z N Q DF 2 m o 949.23.6000 stantcc.corn Pl CONCRETE WALKWAY DETAIL 1 EXHIBI OF (2 ,PROPOSE PROPERTY WALKWAY LINE IMPROVEMENT 1.0' �I — CfiY SIDEWALK I I I CONCRETE WALKWAY DETAIL 2 WALKWAY IMPROVEMENT I clrr SIDEWALKI-, PROPERTY I LINE C CONCRETE WALKWAY DETAIL 3 I t 0.4'ui WALKWAY IMPROVEMENT PAVER WALKWAY �\ PROPERTY "g SCALE: 1 °=10' PREPARED BY: LINE DATE: 0.8' 01/2!5/J2018 2 PR POSED WALKWAY IMPROVEMENT I I I i _ f N I I CITY EXHIBIT SHEET LE SIDEWALK I OFO N I PROPERTY I LINE I 2 PROPOSED _ WAI KWAY IMPROVEMENT CONCRETE WALKWAY DETAIL 1 EXHIBI OF (2 ,PROPOSE PROPERTY WALKWAY LINE IMPROVEMENT 1.0' �I — CfiY SIDEWALK I I I CONCRETE WALKWAY DETAIL 2 WALKWAY IMPROVEMENT I clrr SIDEWALKI-, PROPERTY I LINE C CONCRETE WALKWAY DETAIL 3 I t 0.4'ui WALKWAY IMPROVEMENT PAVER WALKWAY �\ DETAIL 4 "g SCALE: 1 °=10' PREPARED BY: DATE: CORONA DEL MAR PLAZA 01/2!5/J2018 N ® Stantec ENCROACHMENT PERMIT N 38 TECHNOLOGY DRIVE, SUITE ICC IRVg 2618 EXHIBIT SHEET = 1 949.923.6000 sfonfec.com OFO N