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HomeMy WebLinkAboutC-7469-1 - Encroachment Agreement EPN N2018-0255 for Right-of-Way along Park AvenueBatch 3584305 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 36.00 *$ R 0 0 1 0 2 0 7 7 9 7$ 2018000250514 3:17 pm 07109118 276 404 Al2 10 0.00 0.00 0.00 0.00 27.00 0.00 0.000.000.00 3.00 Page 5 of 8 Space above this linefor Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2018-0255) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered. into this 1 st day of June, 2018,: by and. between Little Balboa Island Property Owners' Association, .a . California nonprofit corporation ("Association"), 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 RECITALS WHEREAS, the "Encroachment Areas" generally depicted on the maps attached hereto as: Exhibit A (herein :referred to collectively as the "Encroachment Areas") are located within City -owned rights-of-way (herein referred to as the "Right-of:Way") along Park Avenue, Newport Beach, California, 92662; WHEREAS, Association desires to install. and maintain, or cause to be installed and maintained by employees, agents, consultants and .contractors retained by Association . (herein referred: to as "Association's .Designees"), certain non-standard improvements as further described herein. ("Permitted Improvements") within the Encroachment Areas for the benefit of the members of the Association, the residents of Little Balboa Island, members of the general public,..and the City; WHEREAS,: City wishes to accommodate Association's.. desire to beautify the Encroachment Areas by granting Association a right of entry on, over and across the Right of -Way forthe purpose of encroaching onto the Encroachment Areas for the installation and. maintenance thereon of the Permitted Improvements upon the terms and conditions set forth herein; . 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 the Encroachment Areas; and WHEREAS, the parties= hereto desire to enter into this Agreement providing for fulfillment of the conditions required by City to permit Association to install and maintain said Permitted. Improvements. Little Balboa Island Property Associations' Association Encroachment Agreement 1 https://gs.secure-recording.com/Batch/Confirmation/3584305 07/09/2018 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 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2018-0255) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 1st day of June, 2018, by and between Little Balboa Island Property Owners' Association, a California nonprofit corporation ("Association"), 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, the "Encroachment Areas" generally depicted on the maps attached hereto as Exhibit A (herein referred to collectively as the "Encroachment Areas") are located within City -owned rights-of-way (herein referred to as the "Right -of -Way") along Park Avenue, Newport Beach, California, 92662; WHEREAS, Association desires to install and maintain, or cause to be installed and maintained by employees, agents, consultants and contractors retained by Association (herein referred to as "Association's Designees"), certain non-standard improvements as further described herein ("Permitted Improvements") within the Encroachment Areas for the benefit of the members of the Association, the residents of Little Balboa Island, members of the general public, and the City; WHEREAS, City wishes to accommodate Association's desire to beautify the Encroachment Areas by granting Association a right of entry on, over and across the Right - of -Way for the purpose of encroaching onto the Encroachment Areas for the installation and maintenance thereon of the Permitted Improvements upon the terms and conditions set forth herein; 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 the Encroachment Areas; and WHEREAS, the parties hereto desire to enter into this Agreement providing for fulfillment of the conditions required by City to permit Association to install and maintain said Permitted Improvements. Little Balboa Island Property Associations' Association Encroachment Agreement 1 NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: City and Association 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. The installation and maintenance of landscape materials consisting of annual color (flowers) not to exceed two -feet (2') in height on or within the Encroachment Areas, as approved by the Public Works Director or his/her authorized representative (herein after referred to as the "Director"). Association shall provide, at its own sole cost and expense, all labor, materials, tools, equipment, services, permits, transportation and incidental and customary work necessary to fully and adequately install and maintain the Permitted Improvements. b. Any improvements Association may desire to make to the Encroachment Areas (or any portion thereof) other than Permitted Improvements during the term of this Agreement must be approved in advance by the Director. 3. Provided that all of the terms and conditions of this Agreement are fully satisfied, City hereby grants Association and Association's Designees the nonexclusive right to enter upon the Right -of -Way and the Encroachment Areas to install, maintain, use, operate, repair and replace said Permitted Improvements on or within the Encroachment Areas in substantial conformance with the plans and specifications, work plan, or other documentation required by the Public Works Department and placed on file with City, and for no other purposes without the prior written approval of the Director. City will further allow Association to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 4. The term of this Agreement shall commence on the date of execution of this Agreement. 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. Upon termination of this Agreement, Association hereby agrees and covenants to forthwith remove, or cause to be removed, from the Encroachment Areas any and all Permitted Improvements and to restore the Encroachment Areas to at least as good a condition as such areas were in prior to the execution of this Agreement. City shall incur no liability whatsoever in the event of the termination of this Agreement or subsequent removal of improvements by City. 5. Association and City further agree as follows: a. Association may construct and install Permitted Improvements in substantial conformance with the plans and specifications, work plan or other documentation on file in City's Public Works Department. Little Balboa Island Property Associations' Association Encroachment Agreement 2 b. Association 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 Association to maintain, replace or repair any City -owned pipeline, conduit, cable or other City -owned facilities or improvements located in, on or under the Encroachment Areas in, on or under Right -of -Way, except as otherwise provided herein. C. If City -owned or other public facilities or improvements, whether in, on or under the Right -of -Way or in, on or under the Encroachment Areas, are damaged by the installation or presence of Permitted Improvements, Association shall be responsible for the cost of repairs and restoration of any such City -owned or other public facilities or improvements to their condition at the time of entry into this Agreement. d. That Association will not permit any dangerous condition to be created in, on or under the Encroachment Areas or any portion thereof. e. That all acts and things done by Association or Association's Designees on, in or within the Encroachment Areas or the Right -of -Way will be done in a careful and reasonable manner, in accordance with all federal, state and local laws. That Association will enter upon the Right -of -Way and the Encroachment Areas entirely at its own cost, risk and expense. g. Should City be required to enter onto the Encroachment Areas or any portion thereof to exercise its primary rights associated with said Encroachment Areas, 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 Association in advance of its intention to accomplish such work, provided that an emergency situation does not exist. (ii) Association 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) Association 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 Association, City may enter Little Balboa Island Property Associations' Association Encroachment Agreement 3 upon the Encroachment Areas and remove all or part of the Permitted Improvements installed by Association. 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 or costs. 8. Association hereby agrees to and 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, installation, maintenance, or continued existence of Permitted Improvements or the activities of Association or any of Association's Designees, or in any way connected with Association's or Association's Designees' entry upon the Right -of -Way or the Encroachment Areas. All use of and entry upon the Right -of -Way and the Encroachment Areas shall be at the sole cost, risk and expense of Association. Notwithstanding the foregoing, Association shall not be liable for and this indemnity obligation shall not apply to property damage or bodily injury occasioned by the sole negligence or willful misconduct of City and its officers, employees or agents. This indemnity shall survive the termination or expiration of this Agreement. 9. Association 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 Association'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. Association shall, at Association's own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including Little Balboa Island Property Associations' Association Encroachment Agreement 4 federal, state, county or municipal, whether now in force or hereinafter enacted, applicable to Association's activities granted by this Agreement. 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] Little Balboa Island Property Associations' Association 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: Z0 vr_ 2v 1-9� y: � SL Aaron C. H City Attorney ATTEST: � � r Date: CITY OF NEWPORT BEACH, a California municipal corporation Date: -i 1311-( By: (0'1-ks Dave -Kit City Manager ASSOCIATION: LITTLE BALBOA ISLAND PROPERTY OWNERS' ASSOCIATION, a California nonprofit corporation Date: (n- ( Z - f? By: g', By: Z,, Z -A -t , V, Leilani I. Brown Ken Yon rs City Clerk Preside t T-111, Date: . By _ '4�-74 Donna Ham nd Secreta rY [END OF SIGNATURES] Association must sign in the presence of notary public ATTACHMENTS: Exhibit A — Maps Generally Depicting the Locations of the Encroachment Areas Little Balboa Island Property Associations' Association 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 California County of 0V_"&jF }ss. On _�u 1� , 2 01 Ss , 20�!'_ before me, Au A, -y-1 R • _ Pt-RKA Df+ Notary Public, personally appeared Kt=`J `IONKEqs , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(z is/afe-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(*- on the instrument the person(s�, 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. WITNESS my hand and official 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. ..... ' ALLISON RODRIGUEZ PARADA COMM.# 2159918 NOTARY PUBLIC - CAUFORNIA ° ORANGE COUNTY My Comm. Expires July 15.2M (seal) State of California County of _ _ '0Y'CjLV1 y } ss. On Tky�Q 2-1, 2C t 8 20 before me, J tX5 f i Y\ L otti Notary Public, personally appeared _ Ponno, H(koA on proved to me on the basis of satisfactory evidence to be the person whose name( is/�Ve subscribed to the within instrument and acknowledged to me that lye/she/th�A executed the same in Vs/her/their authorized capacity(io), and that by hA/her/tl & signaturesm on the instrument the person), or the entity upon behalf of which the persons, -4 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 w JUSTIN LEE COMM ... 2081593 D U a; NOTARY PUBLIC -CALIFORNIA —� LO ORANGE COUNTY W teary My Term Exp. Sept. 14, 2018 1 (seal) Little Balboa Island Property Associations' Association Encroachment Agreement 7 EXHIBIT A MAPS GENERALLY DEPICTING THE ENCROACHMENT AREAS [Behind this page.] Little Balboa Island Property Associations' Association Encroachment Agreement A-1 N �= O X !E ami X CO W ]AV 1V15Aii:) (B Q C N LU E L U � o fD ¢ O a co U C W C) li 0 M x t _ 3AV 3NOlVGV O 3 d d m Z �gACF/ c0 rn -2 leueo < pueaE Q N N L @ a .6—f 4- O (0 O JQ N U C W X-C U' W LU a O 00 Q o li 0 Inv 3Nlavw t _ o� a 3 ami �m z t' �u> c0 C N L U (0 O U C W