HomeMy WebLinkAboutC-7899-1 - Enroachment Agreement EPN N2020-0396 for 1404 South Bay Front` Batch 7231035 Confirmation
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Recorded Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
111111111111111111111111111IIIIII111 11111111II1 1�11 I I 111111134.00
RECORDING REQUESTED BY AND $ R o 0 1 1 9 3 8 9 0 2$
WHEN RECORDED RETURN TO: 2020000416299 9:46 am 08118120
105419AA12 9
`Attn: City Clerk's Office 0.00 0.00 0.00 0.00 24.00 0.00 0.000.000.00 3.00
:.City. of. Newport Beach
P.O: B.ox:1768
_. Newport Beach, CA 92658=8915
Space. above this.lineior Recorder's use only.
ENCROACHMENT AGREEMENT... '-
(EncroachrnentPermit Nurrliber N2020-0396)
THIS ENCROACHMENT:AGREEMENT.("Agreement's, is made and .entered :into this:
6th .day of. July,.: -2020, by` and between Frye: Family Partnership,. a California` lintited
partnership ("O"r, and the City of Newport Beach, a Califomia municipal corporation and
charter city, .organized. and existing under and .by virtue.of 6:.Charter and the. Constitution,
and, the laws .of the State- of Califomia ("City':
RECITALS.
b11HEREAS
Owner is. fixe .vested .owl vF lortted af`1404 South 'Front,'
PrtY . Bay
Newport Beach,. CaGfomik:92660 and legally described as Lot 3, Bkx* Two.& Section Four,
Bal)oa-lslaM,-in.the. C' of ,, .
Ity. Newport Beach, County of Orange State of Cafifomia; as per.
Map recorded in. Book. T . Page 37 of Miscellaneous Maps in.the Office. of the Camty.Reconder>
of Orange. County; County. Assessor's Parcel Number 050-173-12 CProperty's;
111 HEREAS
. ; Owner desires to construct certain non-standard improvements as further
described. herein ("Permitted Imp.rovement5") within `the :South' :Bay: Front ;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;,maintaih, aridCity and other. public facilities and'improvements
within .Right=of-Way, and.
WHEREAS,, the parties h..ereto desire to enter into this Agreement. providing. for.
fulfillnient'of the
....
onditions .required_ by City top ermit Owherto construct and maintain -said .
Permitted Improvements.
NOW, . THEREFORE, in..consideration ..of the. mutual_. promises;the::parties: hereto
agree as follows:
1. City and Owner acknowledge that. the above Recitals are true .and correct and are
hereby incorporated by reference into this Agreement:
2. 1t is mutually:agreed that Permitted Improvements shall be defined as: _.
Frye_:Family Partnership En croach.mentAgreement 1
https:Hgs.secure-recording.com/Batch/Confirmation/7231035 08/18/2020
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 N2020-0396)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
6th day of July, 2020, by and between Frye Family Partnership, a California limited
partnership ("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 1404 South Bay Front,
Newport Beach, California, 92660 and legally described as Lot 3, Block Two of Section Four,
Balboa Island, in the City of Newport Beach, County of Orange, State of California, as per
Map recorded in Book 7, Page 37 of Miscellaneous Maps in the Office of the County Recorder
of Orange County, County Assessor's Parcel Number 050-173-12 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as further
described herein ("Permitted Improvements") within the South Bay Front 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:
Frye Family Partnership Encroachment Agreement 1
a. A 23 -foot 4 -inch long by 1 -foot 6 -inch wide by 2 -foot tall patio above sidewalk
grade, encroaching up to 1 -foot 6 -inches into the Right -of -Way and setback 3 -
feet from the sidewalk;
b. A 2 -foot tall fence constructed of steel railings and clear glass panels on top of
the patio, encroaching up to 1 -foot 4 -inches into the Right -of -Way and setback
3 -feet 2 -inches from the sidewalk, as approved by the Public Works
Department and as shown on Exhibit A, attached hereto and incorporated
herein by reference.
C. 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 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.
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
Frye Family Partnership Encroachment Agreement 2
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.
(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
Frye Family Partnership Encroachment Agreement 3
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]
Frye Family Partnership 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: (,,.13p /ZoZo
CITY OF NEWPORT BEACH,
a Californi municipal corporation
Date: V /-z 0, zo
By: (.- _ By:
Aaron C. Harp Gr K. Leung
City Attorney Manager
ATTEST:
Date: 7 - J y ~ 2C ZC
7 B
Leilani rown
ATTACHMENTS:
OWNER(S):
California lin
Date: -7/
By:
John
General
[END OF SIGNATURES]
Frye Family Partnership, a
ted,,partnership
rtner
Owners must sign in the presence of notary public
Exhibit A — Permitted Improvements Plan as Approved by
Public Works
Frye Family Partnership Encroachment Agreement 5
ACKNOWLEDGMENT
A notary pub 'c or other officer completing this
certificate verifies')only the identity of the individual who
signed the docum6nt to which this certificate is
attached, and not the tr hfulness, accuracy, or validity
of that document.
State of Cali7WUC
County of L
On �-j) t,t i o 20
Public, pers ally appeared �C`r1 r�
me on the basis of satisfactory evidence to be
instrument and acknowledged to me thatq
capacity(ies), and that by (h��her/their sig�at
behalf of which the person($) acted, exeeutec
before
n
`-. Notary
who proved to
h-�e,pbrson( -Whose name(s) is/are subscribed to the within
j h�/they executed the same in His/her/their authorized
Ires(s')"OQ the instrument the personkg), or the entity upon
the instruMent.
I certify under PENALTY OF P�-RJURY under the laws of thq State of California that the foregoing
ct./' \
paragraph is true and corre,
WITNESS my hand an -official seal.SHELBY LYNN FORD
Notary Public - California
z
Orange County >
Commission X 2239545
My Comm. Expires May 3, 2022
Signature (seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
Count ofr nun— } ss. II
On 20'2 before me, e L Notary
Public, persorlIally appeared proved to me on
the basis of satisfactory evidence to be the erson(,a�} ose nameA Gare subscribed to the within
instrument and acknowledged to me that %/she/they executed the same in (aher/their authorized
capacityjiees), and that by Oher/their signatures($) on the instrument the personV1 or the entity upon
behalf of which the person(,a') 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. SHELBY LYNN FORK
Notary Public - California
ites_,A414Y o Orange County
��; 3Commission � 2239,
My Comm. Expires May 3, 2022
Signature (seal)
Frye Family Partnership Encroachment Agreement 6
EXHIBIT A
PERMITTED IMPROVEMENTS PLAN
Frye Family Partnership Encroachment Agreement A-1
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