HomeMy WebLinkAboutC-8790-2 - Encroachment Agreement EPN N2021-0620 for 101 Carnation AvenueBatch 13250996 Confirmation
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RECORDING REQUESTED BY AND
v 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
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2021-0620)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
10th day of February, 2022, 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 Avenue,
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 and City have an existing Encroachment Agreement
(Encroachment Permit Number N2021-0146 & N2021-0322), which was recorded as
Instrument Number 2021000650045 with the Recorder's Office for the County of Orange on
October 26, 2021;
WHEREAS, Owner desires to construct certain additional non-standard
improvements as further described herein ("Permitted Improvements") within the Public Utility
Easement 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:
Aerie Community Association Encroachment Agreement 1
https://gs.secure-recording.com/Batch/Confirmation/1 3250996 02/15/2022
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 N2021-0620)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
10th day of February, 2022, 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 Avenue,
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 and City have an existing Encroachment Agreement
(Encroachment Permit Number N2021-0146 & N2021-0322), which was recorded as
Instrument Number 2021000650045 with the Recorder's Office for the County of Orange on
October 26, 2021;
WHEREAS, Owner desires to construct certain additional non-standard
improvements as further described herein ("Permitted Improvements") within the Public Utility
Easement 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:
Aerie Community Association Encroachment Agreement 1
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. A staircase constructed of concrete with a stone finish encroaching up to three
(3) feet four (4) inches in the storm drain easement; and,
b. A wrought iron gate and fence encroaching up to five (5) feet into the storm
drain easement, as approved by the Public Works Department and as shown
on Exhibit B, attached hereto and incorporated herein by reference.
C. 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
Aerie Community Association Encroachment Agreement 2
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.
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.
Aerie 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. 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 ATTORNEY'S OFFICE
Date:
By: -44, '�I'e , "/ ')
A on C.'
ar
'City Attorn
ATTEST:
Datej, I K I Z4 VZ,
CITY OF NEWPORT BEACH,
a Californiamuni�ip
Date: al corporation
2� (4 �2Z
By:
_ A,
Gr c . Leung
C Manager
OWNER(S): Aerie Community
Association, a California nonprofit
mutual benefit corporation
Date:
By: 0-.1XJ By:
eLeilani I. Brown Michael Pu
City Clerk PresidEmt
Date:
'z - Y - "�
By:
Ric1—rlduan
Secretreasurer
[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
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 02'� Iss.
On \Q--� - r 20 before me, kAC-N►-e lh 5����'iez�^ Nota
Public, personally appeare (�'�c�t� ���+ate ----_ Notary
who proved to
me on the basis of satisfactory evidence to be the person($) whose name(s) is/qF# subscribed to the within
instrument and acknowledged to me that he/-sM/thy executed the same in his/heir/therir authorized
capacity(jiers), and that by his/her/their signatures($) on the instrument the person(o, or the entity upon
behalf of which the persono) 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
9 HALEH SHAFIEZADEH
Notary Public - California
'Fe _ Orange County
Commission ' 2290476
My Comm. Expres May 31. 2023
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 as before me, LA—JQA. � ��,',e 2p,, Q _ Notary
Public, personally appe6r6d M%', c�.g�rG�l\ --
, proved to me on
the basis of satisfactory evidence to be the person(%) whose name(,) is/ato subscribed to the within
instrument and acknowledged to me that he/sWe/th6y executed the same in his/I Sr/their authorized
capacity(ies), and that by his/herr/theif signatures(,$) on the instrument the person($), 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 h
1�C
Signature
and official seal
HALEH SHAFIEZADEH
31
, Notary Public - California
Orange County
Commission e 2290476
My Comm. Exprcs May 31. 2023
(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 1 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"),
consisting of the "Association Property' as shown and defined on the Condominium Plan for
Aerie ("Plan"), recorded on #z / 7, 202JD , as Instrument No.
,,Z0ZA9WV/ g /�jin Official RR56rds 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 202, as Instrument
No. k2.0& L*,Z22!jLq , in Official Records. 47
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:
1. 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:
1. 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, casements,
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
H LO\ .10642-000 h 408524.3 2/19/2020 A-1
DISPUTE RESOLUTION AGREEMENT RECORDED IN OFFICIAL RECORDS ON
`C/ 202Q, AS INSTRUMENT NO. Z ,?4,6W lZ,7�-
HLO\ 30642-00011408524.3 2/19/2020 A-2
EXHIBIT B
PERMITTED IMPROVEMENTS PLAN
Aerie Community Association Encroachment Agreement B-1
9
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