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Home My WebLink AboutC-7787-1 - Encroachment Agreement EPN N2019-0593 for 2928 Ocean BoulevardBatch 5575289 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 1111111111111111111111111111111111111 II 11 11111111111111111111111111118.00 *$ R 0 0 1 1 3 3 1 3 5 7$* 201900051264710:18 am 12109119 90 SC5 Al2 10 0.00 0.00 0.00 0.00 0.00 0.00 0.000.000.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2019-0593) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 8th day of November, 2019, by and between 2928 Ocean LLC, a California 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 2928 Ocean Boulevard, Newport Beach, California, 92625, Orange County, County Assessor's Parcel Number 052- 062-10, and as legally described on Exhibit A, attached hereto and incorporated herein by reference ("Property"); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Iris Avenue right-of-way (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. 2. It is mutually agreed that Permitted Improvements shall be defined as: 2928 Ocean LLC Encroachment Agreement 1 https:Hgs.secure-recording.com/Batch/Confirmation/5575289 12/09/2019 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 N2019-0593) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 8th day of November, 2019, by and between 2928 Ocean LLC, a California 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 2928 Ocean Boulevard, Newport Beach, California, 92625, Orange County, County Assessor's Parcel Number 052- 062-10, and as legally described on Exhibit A, attached hereto and incorporated herein by reference ("Property"); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Iris Avenue right-of-way (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. 2. It is mutually agreed that Permitted Improvements shall be defined as: 2928 Ocean LLC Encroachment Agreement 1 a. A five (5) foot wide entry walkway constructed with limestone pavers encroaching one (1) foot 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 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 B. 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. 2928 Ocean LLC Encroachment Agreement 2 (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 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 2928 Ocean LLC Encroachment Agreement 3 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] 2928 Ocean 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 ATTORNEY'S OFFICE Date: 7 /2-01'k By: (�� ) e� �, r,e Aaron C. Harp .�\ City Attorney \IP11- ATTEST- Date-.— By: a9A4-'0WV'�-- Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date-._I,�/raj By: – A ___- Gp6ce,*. Leung i anager OWNER(S): 2928 Ocean LLC, a nager [END OF SIGNATURES] Owners must sign in the presence of notary public ATTACHMENTS: Exhibit A — Legal Description of Property Exhibit B — Permitted Improvements Plan as Approved by Public Works 2928 Ocean 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 Count of ss. On 20c"I before me ,DL)Is an W. [A -'" "-C" L o Notary Public, personally appeared a j4 - . C' i a r KP , 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 m hand d official l. *MY SUSAN W. MANROW y ansea<Notary Public - CalifOrange CountyCommission # 2298500 Comm. Expires Aug 19, 2023 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 I 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) 2928 Ocean LLC Encroachment Agreement 6 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY 2928 Ocean LLC Encroachment Agreement A-1 Exhibit "All All those portions of Lots 1, 2 and 3 of Block 35 of the Resobdivislon of Corona Del Mar, in the City of Newport Beach, as per Map recorded in Book 4, Page 67 of Miscellaneous Maps, records of said County, described as follows: Beginning at the most Easterly corner of said Lot 1; thence along the Northeasterly line of said Lois 1, 2 and 3, North 50 Degrees West 75 feet to a point in the Northeasterly line of Lot 3, which is distant 10 feet ftm the most Easterly corner of Lot 3; thence along a line 10 feet from and parallel with the Southeasterly line of said Lot 3, South 40 Degrees West 46 feet to apoint; thence South 9 Degrees West 46 feet to a point in said Lot 2; thence South I Degree East 46.36 feet to a point in the Southerly Iine of said Lot 1; and the Northerly line of Ocean Boulevard, as shown on said Map of the Resubdivision of Corona Del Mar; thence along said Southerly line of Lot 1, and Northerly line of Ocean Boulevard, on a curve concave to the North, the radius of which is 192 feet, a distance of 49.22 feet and the chord of which curve bears North 65 Degrees 11 Minutes 34 Seconds East 49.09 feet; thence along the Southeasterly line of said Lot 1, North 40 degrees Bast 76 feet to the point of beginning. EXHIBIT B PERMITTED IMPROVEMENTS PLAN 2928 Ocean LLC Encroachment Agreement B-1 I -W TP Exhibit "A" P9WER Sheet 1 of 1 i AT AT j— L 6UT R 1$U. 4 44 i :.v. ..j --T T L Li j . ..... J__j J- 4 L I J 1-1— I L . jis A -.1 .-L A .......... L L WAT f T T i- --l— �Ji + 1. Property tines ADDRESS 2. Distance from property tine to all encroachments in the PROW 3. Dimensions of proposed improvements 4. Any excavation requires underground utilities be shown on plan li P sewer gas water} 5. Street names Permit No. Nwoi .9 -o5c,23 !C'R URB. -G- U -M -t .. ...... . ...... A F TI. + 4 i— J. T. f j J . The: f6[[dwffigjt6Tj§ mustaccurately �oh' the drawing w'j n ....... .. T ---r 1. Property tines ADDRESS 2. Distance from property tine to all encroachments in the PROW 3. Dimensions of proposed improvements 4. Any excavation requires underground utilities be shown on plan li P sewer gas water} 5. Street names Permit No. Nwoi .9 -o5c,23