Loading...
HomeMy WebLinkAboutC-8790-1 - Encroachment Agreement EPN N2021-0146 & N2021-0322 for 101 Carnation AvenueBatch 12199798 Confirmation V 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 2 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder II I I 11 II 1111 11111 1 !I II 1 I II IJI I II 58.00 *$ R 0 0 1 3 2 7 9 7 4 8$* 2021000650045 8:58 am 10126121 90 RW9A Al2 18 0.00 0.00 0.00 0.00 51.00 0.00 0.000.000.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Numbers N2021-0146 & N2021-0322) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 20th day of October, 2021 by and between Aerie Community Association, a California nonprofit mutual benefit corporation ("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 101 Carnation Ave, Newport Beach, California, 92625, Orange County Assessor's Parcel Number 052-013-40 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 Carnation Ave right-of-way (hereinafter "Right -of -Way") that is located adjacent to Property,- WHEREAS, roperty;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. Aerie Community Assocation Encroachment Agreement 1 https://gs.secure-recording.com/Batch/Confirmation/12199798 10/26/2021 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 Numbers N2021-0146 & N2021-0322) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 20th day of October, 2021 by and between Aerie Community Association, a California nonprofit mutual benefit corporation ("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 101 Carnation Ave, Newport Beach, California, 92625, Orange County Assessor's Parcel Number 052-013-40 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 Carnation Ave 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. Aerie Community Assocation Encroachment Agreement 2. It is mutually agreed that Permitted Improvements shall be defined as the following, as approved by the Public Works Department and as shown on Exhibit B attached hereto and incorporated herein by reference: a. A four (4) foot wide decorative walkway constructed of stone tile encroaching up to the back of sidewalk within the Right -of -Way; b. An eighty-four (84) inch long by twenty-four (24) inch wide public bench constructed of sand colored concrete within the Right -of -Way; C. A public drinking fountain constructed of reinforced concrete with an aggregate finish within the Right -of -Way; and, d. A forty-two (42) inch high wrought iron guardrail on top of a forty (40) inch maximum height retaining wall below the sidewalk elevation that encroaches up to four (4) feet, two (2) inches into the Right -of -Way, as approved by Planning Commission Resolution PC2021-022, dated August 19, 2021. 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 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. Aerie Community 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 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. (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. Aerie Community 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] Aerie Community 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 ATTORt4Y' OFFICE Date: /0//i 2/ By. A on C.f City Attor e' �p•�� ATTEST: IV9� Date: ►9F City Clerk LAl.1FCORi ATTACHMENTS: CITY OF NEWPORT BEACH, a California municipal corporation Date: o / J -0/'L( By: Gwo. Leung Cit anager OWNER(S): Aerie Community Association, California nonprofit mutual benefit a corporation Date: By: Michael urcell Presiden Date: By: v Rich rd Julia Secretary reasurer [END OF SIGNATURES] Owners must sign in the presence of notary public Exhibit A — Legal Description of Property Exhibit B — Permitted Improvements Plan as Approved by Public Works Aerie Community 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}ss. On OL70fSC7— 14 20 74 before me,pf'u i01(•4yDL-Vj J6 ,At- Notary Public, personally appeared Mt C.N-D E PMUP- ,4 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 hand and official seal. KAYOFUJIOKAVOSNIKAWA <� Notary Public - California z Orange County � Commission # 2249412 My Comm. Expires Aug 7, 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 County of fly- ss. �a�1� S. �Cc.l On �-�-o�ir ( 20 ?� before me, kQ f 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. �c Sign tur JAMIE 5. WALKER Notary Public - California ZOrange Omy County Commission d 2247194 Comm. Expires Jun 22, 2022 (seal) Aerie Community Association Encroachment Agreement 6 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Aerie Community Association Encroachment Agreement A-1 ASSOCIATION PROPERTY DEED EXHIBIT "A" All of that certain real property located in the City of Newport Beach, County of Orange, State of California, described as follows: Lot I of Tract No. 16882, as shown on a Subdivision Map, recorded in Book 928, Pages 49 and 50, of Miscellaneous Maps, in the Office of the Orange County Recorder ("Map's, consisting of the "Association Property" as shown and detained on the Condominium Plan for Aerie ("Plan"), recorded on /7, 202JD as Instrument No. in Official R ords of Orange County, California ("Official Records', EXCEPTING THEREFROM, the Units and Common Area depicted in the Plan. EXCEPTING AND RESERVING FOR THE BENEFIT OF GRANTOR, and its successors and assigns, together with the right to grant and transfer all or a portion of the same, easements for access, ingress, egress, encroachment, support, maintenance, drainage, use, enjoyment, repairs, and for other purposes over other areas, all as shown in the Plan, and as described in the Declaration of Covenants, Conditions and Restrictions and Reservation of Easements for Aerie ("Declaration"), recorded on 2020, as Instrument No.AW4WZZ2JW , in Official Records. FURTHER EXCEPTING AND RESERVING FOR THE BENEFIT OF GRANTOR, and its successors and assigns, together with the right to grant and transfer all or a portion of the same, as follows: I. The right to place on, under or across the Association Property. transmission lines and other facilities for a community antenna or cable television and/or communications system or systems and thereafter to own and convey such lines and facilities. and the right to enter upon the Association Property to service, maintain, repair, reconstruct and replace said lines and shall not unreasonably interfere with Grantee's reasonable use and enjoyment of the Association Property. 2. Nonexclusive easements of access, ingress, egress, maintenance, repair, drainage, encroachment, support, and for other purposes, and easements and rights as reserved to Grantor, all as described in the Declaration. SUBJECT TO: I. Taxes/Assessments. Non -delinquent general and special real property taxes and all non -delinquent unpaid general. supplemental and special assessments; and 2. Record Matters. Covenants, conditions, restrictions, easements. reservations, dedications, rights and rights-of-way of record or discoverable by inspection or survey including without limitation the Declaration and Map. THE ASSOCIATION PROPERTY IS ALSO CONVEYED AND ACCEPTED SUBJECT TO THE ASSOCIATION Hi_o, 30642-0001\1408i24 3 2/1 9;2020 A-1 DISPUTE RESOLUTION AGREEMENT RECORDED IN OFFICIAL RECORDS ON ,440l, 202Q, AS INSTRUMENT NO. &z1a6 yAzz4s" 61 H LO 30642-0001 `, 408524.3 2119/2020 A-2 EXHIBIT B PERMITTED IMPROVEMENTS PLAN Aerie Community Association Encroachment Agreement B-1 m OC) o m_ X LU J CD Z co E s .-i'Wa mz zi tL0/1912'x'^0'1-L8C05{�iSC0911gNWON3B H-'iY3B SIgdMNAIYLIW81iS �V�vI:N ZWa x UpY O W 1 O O 2 2 W Z O w J W w W w LU U) U Q W m Z O t - C7 z F ' _ Z ;j U z �' Z W -j _ m Cl - 0 O w" w U z m . ry It 00CO � Oz __ W U C1 Z W W p m M 2 X W 0 O M � NO � s CJ O I n O M oc _ M Q O CJ O (1 w U w ct� _ Y W --I U i _O Q s d o N 53: r p <w J> P Q W i - W W p u) O M � O O M I II I CJ O I n O M oc _ M W w .� W OU F~ CO mo N _J -T o �° \ S vVIQ y 1 f} ryry� 'J S.nl'IYdSMZI IZOMI2'GvA'Z-LBCOSIli8CM.1 �OMW�N38 W�V3U 1NOdM3M5lV1llWBI1S ptl�V lel W Q =W p U N 6 II Y) W. U W U O U Q eo o W m z n z p = ZLIJ U �_ LU z Wm L > V J O z0 uZ Q [p m LU J i LUQ W m >a U)Lij _S > ? CJ z O _ Q I II �- ij V i\ V m LOGO �UANTF.' 2 10' DIA. ItS 0 0 n 0 ACOH �AQ�F Cl ,,LS7l!4 SEALER: STANDARD GLOSS SEALER GENERAL PRODUCT NOTES. j-lllf:"S AU !-DGES EE P-,cEC MANUFAk' ,ldRING BORDER TO BE PAIN17ED GC SUANDARD OWE SECTION VIEW EXHIBIT B 4 of 8 .th riz gr,.t.r Date SIDE VIEW QCO CONSTRUCTION PLAN LOGO I LOGO I NEWPORT REACH NF-VlJPGDRT BEACH BENCH TN2 EXHIBIT B 5 of 8 e CONTEMPORARY DRINKING FOUNTAINS Iftonurdot SINCE 1853 GV Series MODEL GVJ19 BARRIER FREE, PEDESTAL MOUNTED DRINKING FOUNTAIN STANDARD FEATURES ■ Adult ADA Compliant ■ Resistant to sunlight, heat, moisture and wear ■ 18 gage, 304 stainless steel bowl ■ Reinforced concrete with aggregate finish ■ Polished stainless steel, anti -rotation non -squirt bubbler ■ 100 mesh inlet strainer ■ Access door, heavy duty steel, vandal resistant ■ Vandal resistant galvanized steel bottom plate SUGGESTED SPECIFICATIONS Model GVJ19 is a barrier free pedestal mounted, vandal resistant, square drinking fountain made from an 18 gage, 304 stainless steel bowl mounted into a reinforced brown concrete aggregate pedestal. Unit shall be activated by a front mounted self-closing button, by using less than 5 pounds of force, which activates an internally mounted valve with an adjustable stream regulator controlling the water flow. Bubbler shall be polished stainless steel with a non - squirt feature and operate on water pressure range of 20-105 psig. Fountain is certified to ANSI A117.1, Public Law 111-380 (NO -LEAD), CHSC 116875 and NSF/ANSI 61, Section 9. Fixture meets ADA, ADA Standing Person, and ADA Child requirements when mounted appropriately. Options Notes: ' See separate option sheet. 2 This option is not available freeze -resistant. GREEN Co,fHS a (F- c+scwmlies following® standards: Nsrflwstsi �. MODEL: (Must Specify) Q GVJ18 Tan Concrete Aggregate ❑ GVJ19 Brown Concrete Aggregate (Shown) OPTIONS (additional costs maybe incurred) Q -CH30 Child height, 30" bubbler height Q -FRU 1 Freeze resistant, 1 valve' Q-FRU2 Freeze resistant, 2 valves' Q -FRU3 Freeze resistant, 3 valves ' Q -FS Foot spray Q -HB1 Hose bibb, compression, with hose threaded outletNB' 2 Q -HB2 Hose bibb, loose key, with hose threaded outlet/VB ' 2 Q -HB4 Hose bibb, loose key, recessed vandal resistant, with hose threaded outlet/VB' 2 Q -IGM In -ground 14" mounting Q -JF1 Jug filler, spigot, self-closing valve with plain end ' 2 Q -JF2 Jug filler, pushbutton, self-closing valve with plain end' Q -NP1 Non-pollutable, freeze resistant, 1 valve Q -NP2 Non-pollutable, freeze resistant, 2 valves ❑ -NP3 Non-pollutable, freeze resistant, 3 valves Q -PF Pet fountain Member of U.S. GreenGRecyclabfe ` water Building Product Conserving Councfl Producf Ai WARNING: Cancer and Reproductive Harm - www.P65Warnings.ca.gov MURDOCK MFG. • 15125 Proctor Avenue • City of Industry, CA 91746 USA Member of ci Phone 800-453-7465 or 626-333-2543 • Fax 626-855-4860 • www.murdockmfg.com MOAR15 GROUP GVJ19 04/20118 SINCE 1853 EXHIBIT B 6 of 8 CONTEMPORARY DRINKING FOUNTAINS GV Series 1 ] MODEL GVJ19 13" I BARRIER FREE, PEDESTAL MOUNTED [330] DRINKING FOUNTAIN 174., --� 134„ 4�- [451 ] (337] 31" [788] 1$" Valve specifications: F [8 Minimum,'Maximum Pressure 30 to 100 psi. } 6$" [156] ACCESS "331"4 i PANELS 8 f WASTE OUTLET [841 ] I V� SUPPLIED ANCHORS JL I - qY a d $ C7 IM - 4 a GENERAL NOTES: 1. ALL DIMENSIONS ARE IN INCHES (MM]. *2. STANDARD ADULT ADA HEIGHT SHOWN. OPTIONAL -CH30 HEIGHT MODEL AVAILABLE. 3. STOP VALVE NOT PROVIDED. Murdock Mfg. Tr" warrants that its products are free from defects in material or workmanship under normal use and service for a period of one year from date of shipment. Murdock's liability under this warranty shall be discharged solely by replacement or repair of defective material, provided Murdock Tr" is notified in writing within one year from date of shipment, FO.B industry, California. All dimensions are subject to cr • Model Number &Options_- _- __UuanCdmanufactures tolerance of plus 0167,us W nominal and subject to change withuul notice. Murdock company assumes no responsibility for use of • void or superseded data. Dimensions • . may change with the addition of Title _ optional accessories. Murdock Mfg."". Member of Morris Group Signature Internationale". Please visit S!Approval for www.murdockmfg.com for most .__.. _ MURDOCK MFG. • 15125 Proctor Avenue • City of Industry, CA 91746 USA ' Memberoi � i Phone 800-453-7465 or 626-333-2543 • Fax 626-855-4860 • www.murdockmfg.com ""Ris 1; n::11 G VJ 19 041201,18 U) m L:L '£od'-Add eQopV 'l -S unM'WV WK:6 LZOZ/9L/L '9tf L6d–V IISIHX3'6mP'luewyoeaou39Z£o\s6ulMejp\uogeweo-uegnr\s;uello\:g 1 L Wt z_t z t- t tX t Q 1Lz� z 0 ALS r�Og t ,ILL ZJ w L= 4 ILl L U, z z 0 ALS wz Q ul O HF- m N it U, LU z 0 lu7 HF- m N Q V �z l Z z� 4lu0 OQ —o m� m f— m X LU L;L 'god•jod egopV 'IazS unM'WV 6L*.EL:6 6ZOZ/WL 'Z6d_b 1181HX3 '6nnp �uawyoeaou39ZE0\sBu�nne�p�uo��ewe�-uel�n��sluall�\ S �O _ N n N to LU �o a N Q 0 � ^1 .. �� Q �• z O F W lu t. LU La 111 LL tl s Q x LLI z z fy W� - LU {— m N 1L Q - J X V X 0 Z �Q<z fy w� m > Z w O-1 —o IY o MMELMMEMI m�