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Home My WebLink AboutC-8707-1 - Encroachment Agreement EPN N2021-0264 for 4916 Seashore DriveBatch 10579664 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 Page 7 of 8 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder II I I II III !I I II I I I I I I I I II I II 37.00 *$ R 0 0 1 2 8 8 9 4 4 5 20210003807991:30 pm 06108121 363 RW10A Al2 10 0.00 0.00 0.00 0.00 27.00 0.00 0.000.000.00 3.00 above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2021-0264) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 4th day of June, 2021, by and between Alejo PS89, 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 4916 Seashore Drive, Newport Beach, California, 92663, Orange County Assessor's Parcel Number 424-464-06, and legally described as 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 2.5 -foot wide City easement for walkway and public utility purposes 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 ollows: 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: Alejo PS89, LLC Encroachment Agreement 1 https://gS.Secure-recording.com/Batch/Confirmation/10579664 06/08/20? 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 above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2021-0264) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 4th day of June, 2021, by and between Alejo PS89, 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 4916 Seashore Drive, Newport Beach, California, 92663, Orange County Assessor's Parcel Number 424-464-06, and legally described as 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 2.5 -foot wide City easement for walkway and public utility purposes 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: Alejo PS89, LLC Encroachment Agreement 1 a. Sixty six (66) linear feet of four (4) inch PVC (Polyvinyl Chloride) drainage pipe encroaching six (6) inches into the two and a half (2.5) foot wide 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. Alejo PS89, 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 Alejo PS89, 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] Alejo PS89, 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 ATTORN Y'S OFFICE Date: W 2 2'VV By: 1-1--Z ' - Aaron C. Harp City Attorney cs-°� ATTEST: Date: �. CITY OF NEWPORT BEACH, a California municipal corporation Date: JUN 0 7, 2021 By: Grp§5K. Leung C al Manager OWNER(S): Alejo PS89, LLC a California Limited Liability Company Date: 6dy Herrera e Manager [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 Alejo PS89, 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 County of Air ma }ss. On , ,� _^e- ' J-0k�-k 20 b fore �je, ��/�v� �i5Se��— Notary Public, personally appeared f f , who proved to me on the basis of satisfactory evidence to be the p rson(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. EVAN BISIM WITNESS my hand ant official seal.QMy Notary Public - California Orange County Commission # 229013J023 Comm. Expires May 26, Sign ure (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 nca^, ' } ss. c On �. 5Zlo'ea a-om 20 before Notary Public, personally appeared I Ali 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. *my EVANBISSWITN S my handand official seal. Notary Public - CaliforniaOrange County Commission # 2290130 Comm. Expires May 26, 2013 Si ure (seal) Alejo PS89, LLC Encroachment Agreement 6 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Alejo PS89, LLC Encroachment Agreement A-1 EXHIBIT A LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF NEWPORT BEACH IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: LOT 80 OF TRACT NO. 3813, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 162PAGES I I TO 19_ INCLUSIVE, OF MISCELI-ANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPTING THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND OTHER GEOTHERMAL RESOURCES AS DEFINED IN CALIFORNIA PUBLIC RESOURCES CODE SECTION 6903 46 SEQ., THAT MAY BE WITHIN OR UNDER THE PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE PERPETUAL RIGHTS OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR, AND STORING IN AND REMOVING THE SAME FROM SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR D[RECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE HEREINABOVE DESCRIBED, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE TO THE LAND HEREINABOVE DESCRIBED, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELL TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO RE -DRILL, RE -TUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN, AND OPERATE ANY SUCH WELLS OR MINES WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE OF THE REAL PROPERTY. ANY AND ALL WATER, WATER RIGHTS, OR INTERESTS THEREIN, NO MATTER HOW ACQUIRED BY GRANTOR, AND OWNED OR USED BY GRANTOR IN CONNECTION WITH OR WITH RESPECT TO THE REAL PROPERTY TOGETHER WITH THE PERPETUAL RIGHT AND POWER TO TRANSFER OR ASSIGN TO OTHERS, TO EXPLORE, DRILL, RE -DRILL, REMOVE AND STORE THE SAME FROM THE REAL PROPERTY OR TO DIVERT OR OTHERWISE UTILIZE SUCH WATER, WATER RIGHTS OR INTEREST ON ANY OTHER PROPERTY OWNED OR LEASED BY GRANTOR, WHETHER SUCH WATER RIGHTS SHALL BE REPAIRIAN, OVERLYING, APPROPRIATIVE, LITTORAL, PERCOLATING. PERSCRIPTIVE, ADJUDICATED, STATUTORY OR CONTRACTURAL; BUT WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF THE REAL PROPERTY IN THE EXERCISE OF SUCH RIGHTS. A PN: 424-464-06 EXHIBIT B PERMITTED IMPROVEMENTS PLAN Alejo PS89, LLC Encroachment Agreement B-1 W Zi 3AIHG 3HOHSd3S w > c� o Q M.:.._.._.......,_ ..... .-.._:.:........... ....,_.. ¢ W U CIO Z ° IL- t-- ►.0 cn EDU- w m = O ` ------ -- U uLul F C O 0 a z w W Z �f f W f If 0 oF- I , r Y LO J ui i n 9 I i 1` in 3 i p � p Q W W U) CD o CD LO i I f � I � I�. II I,. ;II 1 h If f f 3nN3nd 3Nnld3N i