HomeMy WebLinkAboutC-8665-1 - Encroachment Agreement EPN N2019-0008 for Lots K,L,M,N,O and P of Tract 907Batch 99426921 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 3 of 8
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
43.00
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2021000253210 3:34 pm 04114121
227 NCR2 Al2 12
0.00 0.00 0.00 0.00 33.00 0.00 0.000.000.00 3.00
above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2019-0008)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
13 day of EJM.%y, 2021, by and between Lido Isle Community Association, a California
nonprofit mutual benefit corporation, whose mailing address is 701 Via Lido Soud, Newport
Beach, CA 92663 ("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, City is the vested owner of various medians in the City of Newport Beach,
California, 92663 legally described as Lots K, L, M, N, 0, and P of Tract 907, as shown on a
map recorded in Book 28, Pages 25 through 36 Inclusively, of Miscellaneous Maps in the
office of the County Recorder of Orange County(" Property");
WHEREAS, City and Association previously entered into that certain Encroachment
Agreement recorded in the Official Records of Orange County, CA on October 6, 1997, and
assigned Instrument No. 19970494994, concerning certain improvements constructed by
Association within the Piazza Genoa right-of-way (the "First Encroachment Agreement");
WHEREAS, City and Association previously entered into that certain Encroachment
Agreement (EPN2005-0357) recorded in the Official Records of Orange County, CA on
December 19, 2005, and assigned Instrument No. 2005001010706, concerning certain
improvements constructed by Association within the Via Lido and Via Antibes right-of-ways
(the "Second Encroachment Agreement");
WHEREAS, Association desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Via Antibes, Piazza Lido, Via
Genoa, and Via San Remo right-of-ways (hereinafter "Right -of -Ways") that are 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 -Ways; and
Lido Isle Community Association Encroachment Agreement 1
https://','s.secru-e-recording.com/Batch/Confirmation/994?69? 04/14/202 1
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 N2019-0008)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
13 day of 2021, by and between Lido Isle Community Association, a California
nonprofit mutual benefit corporation, whose mailing address is 701 Via Lido Soud, Newport
Beach, CA 92663 ("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, City is the vested owner of various medians in the City of Newport Beach,
California, 92663 legally described as Lots K, L, M, N, O, and P of Tract 907, as shown on a
map recorded in Book 28, Pages 25 through 36 Inclusively, of Miscellaneous Maps in the
office of the County Recorder of Orange County("Prope rty");
WHEREAS, City and Association previously entered into that certain Encroachment
Agreement recorded in the Official Records of Orange County, CA on October 6, 1997, and
assigned Instrument No. 19970494994, concerning certain improvements constructed by
Association within the Piazza Genoa right-of-way (the "First Encroachment Agreement");
WHEREAS, City and Association previously entered into that certain Encroachment
Agreement (EPN2005-0357) recorded in the Official Records of Orange County, CA on
December 19, 2005, and assigned Instrument No. 2005001010706, concerning certain
improvements constructed by Association within the Via Lido and Via Antibes right-of-ways
(the "Second Encroachment Agreement");
WHEREAS, Association desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Via Antibes, Piazza Lido, Via
Genoa, and Via San Remo right-of-ways (hereinafter "Right -of -Ways") that are 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 -Ways; and
Lido Isle Community Association Encroachment Agreement 1
WHEREAS, the parties hereto desire to enter into this Agreement providing for
fulfillment of the conditions required by City to permit Association to construct and maintain
said Permitted Improvements; and
WHEREAS, the parties hereto desire to have this Agreement replace the First
Encroachment Agreement and the Second Encroachment Agreement, such that the parties'
respective rights and responsibilities concerning the Permitted Improvements and all matters
related thereto will be governed by this Agreement and not by the First Encroachment
Agreement or the Second Encroachment Agreement.
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. Lot K - Concrete monument wall and activity sign, low voltage lighting, concrete
hardscape, landscaping, irrigation and appurtenances located within the
median in the Via Antibes public right-of-way, as shown in Exhibit 1, attached
hereto an incorporated herein by reference. All changes made to landscaping
by Association shall be approved in advance by City. All trees shall be
maintained by City;
b. Lot L & M - Mulch, irrigation and appurtenances located within the medians (2)
in the Piazza Lido public right-of-way, as shown in Exhibit 2, attached hereto
an incorporated herein by reference. All trees shall be maintained by City;
C. Lot N - Five (5) "Queen" Palms, Seven (7) "Kentia" Palms, "Phoenix Robelini,
Strelitzia Reginae", "Agapanthus Africanus", Rock Outcroppings, irrigation,
decorative lighting and appurtenances in the landscaped median within Piazza
Genoa right-of-way (see the First Encroachment agreement), as shown in
Exhibit 3, attached hereto an incorporated herein by reference. All trees shall
be maintained by City; and,
d. Lot O & P - Landscaping, irrigation and appurtenances located within the
medians (2) in the San Remo public right-of-way, as approved by the Public
Works Department and as shown on Exhibit 4, attached hereto and
incorporated herein by reference. All trees shall be maintained by City.
e. 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 Association to construct, reconstruct, install, maintain, use, operate,
repair and replace said Permitted Improvements and appurtenances incidental
Lido Isle Community Association Encroachment Agreement 2
thereto, within a portion of Right -of -Ways, if in substantial conformance with the plans
and specifications on file in City. City will further allow Association 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
by providingsixty (60) calendar days' written notice of termination. Rights granted
under this Agreement may be terminated by Association with or without cause by
providing one-year written notice of termination. City shall incur no liability whatsoever
in the event of the termination of this Agreement or subsequent removal of
improvements by City. Any notice given pursuant to this Paragraph 4 or pursuant to
Paragraph 6 below shall be given by first-class mail addressed as follows:
If to Association -701 Via Lido Soud, Newport Beach, CA 92663.
If to City— Public Works Director
City of Newport Beach
Public Works Department
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658
5. Association and City further agree as follows:
a. Association 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. 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 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, Association 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 -Ways to exercise its primary
rights associated with said Right -of -Ways, 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:
Lido Isle Community Association Encroachment Agreement 3
(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
upon Right -of -Way and remove all or part of the 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.
8. Association 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. Unless otherwise terminated, 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
Lido Isle Community Association Encroachment Agreement 4
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
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.
16. This Agreement shall replace the First Encroachment Agreement and the Second
Encroachment Agreement, such that the parties respective rights and responsibilities
concerning the Permitted Improvements and all other matters relating thereto shall be
governed by this Agreement and shall not be governed by the First Encroachment
Agreement or the Second Encroachment Agreement.
[SIGNATURES ON NEXT PAGE]
Lido Isle Community 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:—S j 3 2r(
By:
'4k—Aar C. Harp
City Attorney
ATTEST:
Date: --i3 -Zo l
B
keilani I. Brown
City Clerk �Eacy
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: LI_11-2021
By:
Gr . Leung
Ci anager
ASSOCIATION(S): LIDO ISLE
COMMUNITY ASSOCIATION, a
California nonprofit mutual benefit
corporation
Date:��Zci-L /
By:
Eric Henn
President
[END OF SIGNATURES]
Associations must sign in the presence of notary public
ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by
Public Works
ACKNOWLEDGMENT
Lido Isle Community Association Encroachment Agreement 6
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 Cali rnia
County of 6 JIV-li. ss.
On ;,-, / ``i � YI-1 20 91 before me, J�����I ���� Notary
Public, personally appearedwho proved to
me on the basis of satisfactory evidence to be the person(g) whose name(a) is*e subscribed to the within
instrument and acknowledged to me that he/sly/they executed the same in his/hg%/theft authorized
capacity(iEK), and that by his/her/therr signatures() on the instrument the person(g), 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.°°T
45�;;,,;�_tiF KELLY BIGELOW
< Notary Public - California =
Orange County
*° Commission k 2305214
C1CIF00.qr My Comm. Expires Sep 14, 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 }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)
Lido Isle Community Association Encroachment Agreement 7
EXHIBIT A
PERMITTED IMPROVEMENTS PLAN
Lido Isle Community Association Encroachment Agreement A-1
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