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
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2018000250514 3:17 pm 07109118
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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
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Little Balboa Island Property Associations' Association Encroachment Agreement A-1
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