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HomeMy WebLinkAboutC-8806-1 - Encroachment Agreement EPN N2021-425 for 110 Via BarcelonaBatch 12593202 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 1 of 2 Recorded in Official Records, Grange County Hugh Nguyen, Clerk -Recorder 40.00 *$ R 0 0 1 3 3 7 3 0 4 8$ 2021000729544 9:17 am 12102121 90 PP2A Al2 12 0.00 0.00 0.00 0.00 33.00 0.00 0.000.000.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2021-0425) THIS ECHMENT AGREEMENT (,Agreement") is made and entered into this 11� day o 021., by and between Lido Isle Community Association, a California nonprofit corporation ("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, Association is the vested owner of property located at 110 Via Barcelona, in the City of Newport Beach, California, legally described as N Tr 907 Blk Lot 1071 Tr 907 Lots 1071 To 1075 inclusive, County Assessor's Parcel Number 423-142-01; WHEREAS, Association desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Lido Isle Bridge right-of-way (hereinafter "Right -of -Way"); 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; WHEREAS, the Permitted Improvements and Encroachment Permit No. N2021-0425 were approved by the City Council pursuant to Resolution 2021-85, subject to certain conditions of approval; and 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. 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. Lido Isle Community Association Encroachment Agreement 1 https://gs.secure-recording.com/Batch/Confirmation/1259 3202 12/02/2021 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 N2021-0425) THIS ENCRO CHMENT AGREEMENT ("Agreement") is made and entered into this _LS day o 1 021, by and between Lido Isle Community Association, a California nonprofit corporation ("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, Association is the vested owner of property located at 110 Via Barcelona, in the City of Newport Beach, California, legally described as N Tr 907 Blk Lot 1071 Tr 907 Lots 1071 To 1075 inclusive, County Assessor's Parcel Number 423-142-01; WHEREAS, Association desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Lido Isle Bridge right-of-way (hereinafter "Right -of -Way"); 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; WHEREAS, the Permitted Improvements and Encroachment Permit No. N2021-0425 were approved by the City Council pursuant to Resolution 2021-85, subject to certain conditions of approval; and 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. 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. Lido Isle Community Association Encroachment Agreement 1 2. It is mutually agreed that Permitted Improvements shall be defined as: a. The annual installation of lighted garland and wreaths on each side of the Lido Isle Bridge during the December Holiday season. Said lights are to connect to City power sources and will be subsidized by the general fund, 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 Association 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 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 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. 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 -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 Lido Isle Community Association 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 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. 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. Lido Isle Community Association Encroachment Agreement 3 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. 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. [SIGNATURES ON NEXT PAGE] Lido Isle 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 ATTOR EY'S OFFICE Date: n z 2 By: a n C. HeO7t .o . 1.1-'' y Attor ATTEST: Date:_ In CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Gra96/<. Leung Cit anager ASSOCIATION: LIDO ISLE COMMUNITY ASSOCIATION, a California nonprofit cor oratio Date:/11,2,,,;_ p By: ' &�es President [END OF SIGNATURES] Owners must sign in the presence of notary public ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by Public Works Lido Isle 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 D — }ss. OnNb 20 al before me„ V017 Notary Public, personally appeared X&AMM V1 I who proved to me on the basis of satisfactory evidence to be the person($) whose name($) is/e/e subscribed to the within instrument and acknowledged to me that he/sfye/thjgy executed the same in his/hdr/th)4ir authorized capacity(iqrs), and that by his/hir/thiir signatures on the instrument the person(4, or the entity upon behalf of which the person/cA 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 m hand and official seal. 1h P'z Signature OM CHAVON KANE Notary Public • California Orange County Commission # 2381469y Comm. Expires Nov 3, 2025 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. (seal) 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 6 EXHIBIT A PERMITTED IMPROVEMENTS PLAN Lido Isle Community Association Encroachment Agreement A-1 EXHIBIT A COA` �yW vt , rr„e xra,„. i VICINITY MAP CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT SEPT. 14, 2021 Man �( \ �� Man a Im I AMY; N U© H JJ 16 )c