HomeMy WebLinkAboutC-7847-1 - Encraochment Agreement EPN N2021-0044 for 42 Ocean VistaBatch 976710 Confirmation
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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
Page 1 of 4
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2021-0044)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
11th day of March, 2021, by and between Island Lagoon Homeowners Association, a
California nonprofit mutual benefit corporation ("HOA"), Sylvia Doreen Michler, a member of
the HOA ("Member"), 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"). HOA and Member are referred collectively as
"Owner'. Owner and City are referred td as "parties".
RECITALS
WHEREAS, HOA is the vested owner of property located at Lot 15 of Tract 9679,
Book 482, Pages 1 through 6, in the City of Newport Beach, County of Orange, State of
California.
WHEREAS, Member is the vested owner of property located at 42 Ocean View #47,
Newport Beach, California, 92660, APN 939-630-33 ("Property");
WHEREAS, Member has constructed certain non-standard improvements as further
described herein ("Permitted Improvements") within the City's Storm Drain Easement
(hereinafter "Easement") that is located in HOA's property, adjacent to Property;
WHEREAS, the Permitted Improvements are in HOA property but were installed by
and for the benefit of Member;
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 Easement;
WHEREAS, HOA and Member entered into a Real Property Maintenance, License,
Encroachment and Indemnity Agreement ("Real Property Agreement") concerning the
Permitted Improvements, recorded in the Official Records of Orange County, CA on
December 7, 2020, and assigned Instrument No. 2020000717456, permitting Member to
Island Lagoon Homeowners Association Encroachment Agreement 1
httpS://gs.Secure-recoi-ding.com/Batch/Confirmation/9765710
03/31 /2021
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 N2021-0044)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
11th day of March, 2021, by and between Island Lagoon Homeowners Association, a
California nonprofit mutual benefit corporation ("HOA"), Sylvia Doreen Michler, a member of
the HOA ("Member"), 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"). HOA and Member are referred collectively as
"Owner". Owner and City are referred to as "parties".
RECITALS
WHEREAS, HOA is the vested owner of property located at Lot 15 of Tract 9679,
Book 482, Pages 1 through 6, in the City of Newport Beach, County of Orange, State of
California.
WHEREAS, Member is the vested owner of property located at 42 Ocean View #47,
Newport Beach, California, 92660, APN 939-630-33 ("Property");
WHEREAS, Member has constructed certain non-standard improvements as further
described herein ("Permitted Improvements") within the City's Storm Drain Easement
(hereinafter "Easement") that is located in HOA's property, adjacent to Property;
WHEREAS, the Permitted Improvements are in HOA property but were installed by
and for the benefit of Member;
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 Easement;
WHEREAS, HOA and Member entered into a Real Property Maintenance, License,
Encroachment and Indemnity Agreement ("Real Property Agreement") concerning the
Permitted Improvements, recorded in the Official Records of Orange County, CA on
December 7, 2020, and assigned Instrument No. 2020000717456, permitting Member to
Island Lagoon Homeowners Association Encroachment Agreement 1
install the Permitted Improvements in HOA's property and obligating Member for the
maintenance, repair and replacement; 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:
a. Three (3) foot, six (6) inch wide concrete steps encroaching up to ten (10) feet,
six (6) inches into the existing Easement, within Lot 15 of Tract 9679 adjacent
to 42 Ocean Vista #47, 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 Easement, 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.
Island Lagoon Homeowners Association Encroachment Agreement 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 Easement to exercise its primary
rights associated with said Easement, 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.
(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 spay 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
Easement 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.
%. 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.
Island Lagoon Homeowners Association Encroachment Agreement 3
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]
Island Lagoon Homeowners Association 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
Dater
By:
;AaronHarp
City AForney
ATTEST: 22
Date:_ rat
�i . �l 11, ►/.�Il�/11//
:.
Citv Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: '? l I /
By: t{'
406X6� '
Grace K. Leung
City Manager
OWNER:
HOA: Island Lagoon Homeowners
Association, a California nonprofit mutual
benefit corporate n
Date: , 0
By:
elinda Morgan
President
Date: 3 4' 202A
A/ ZZ -3)z 61� 0 � I
By' '
Swesh Khemlani
Treasurer
MEMBER: Sylvia Doreen Michler
Date:
By.�
Sylvi Doreen Michler
M er, Island Lagoon Homeowners
Association
Owners must sign in the presence of notary public
[END OF SIGNATURES]
ATTACHMENTS: Exhibit A - Permitted Improvements Plan as Approved by
Public Works
Island Lagoon Homeowners Association 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
County of 0 f ss.
On 4A, 20 2.\ before me, UkV,t m (Ame, CAY4(A5n Notary
Public, personally appeared ";nr)& Ma[R Q , 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 my hanoand official seal.
Signature
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.
WILLIAM CHASE SANDERSON
Notary Public - California
Orange County
* Commission # 2341331
My Comm, Expires Jan 12, 2025 +
(seal)
State of California
County of _ 6 ss.
On 20 Q-1 before me, ejwc / u���
rib h 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 W(d official seal.
Signature
WILLIAM CHASE SANDERSON
` Notary Public - California
' Orange County
~ Commission # 2341331
My Comm. Expires Jan 12, 2025
(seal)
Island Lagoon Homeowners Association Encroachment Agreement &�,-
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 Califor is
County of. )ss.
On d , 20� before me, Notary
Public, bersoally appeared , who proved to
me on the basis of satisfactory evib ence 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)
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.
• •DAMIANE-DELGADO•• • }
COMM. # 2261646 f
y NOTARY PUBLIC i CALIFORNIA N
Orange County
Commission Expires March 19,2023 }
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)
Island Lagoon Homeowners Association Encroachment Agreement 6,6
EXHIBIT A
PERMITTED IMPROVEMENTS PLAN
Island Lagoon Homeowners Association Encroachment Agreement A-1
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LAGUNA HILLS. CA92663
949.716.7002
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42 OCEAN NEWPORT BEACH, CA 92660
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