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Home My WebLink AboutC-8856-1 - Encroachment Agreement EPN N2021-0512 for 613 Carnation Avenue #2Batch 13690198 Confirmation Page 3 of 4 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder 34.00 *$ R 0 0 1 3 6 5 9 7 8 2$ RECORDING REQUESTED BY AND 2022000137397 11:03 am 04/11/22 WHEN RECORDED RETURN TO: 227 RW9A Al2 10 0.00 0.00 0.00 0.00 27.00 0.00 0.000.000.00 0.00 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 N2021-0512) THIS ENCROACHMENT AGREEMENT ("Agreement.) .is made and entered, into this 2nd .day of February; 2022; by and between; on. the one -hand;. Tarek Buys. Houses, LLC, a California limited liability-company.(79rek") and Vanilla 1031, LLC a California limited liability company ("Vanilla") (collectively "Owners"),. and 'on the other_ hand, 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 Calffornia.(" City"). RECITALS WHEREAS, Tarek is the vested owner.of property -located at 613 Carnation Avenue #2, Newport`Beach, California, 92625 and legally described as follows: PARCEL A: AN. UNDIVIDED 1./2 INTEREST .WAND TO PARCEL. 1 OF PARCEL MAP NO. 80 .705; AS SHOWWON.A:MAP FILED. IN BOOK 148, PAGES 34 AND 35 OF PARCEL MAPS, IN THE: OFFICE OF THE: COUNTY RECORDER :OF ORANGE :COUNTY, . CALIFORNIA. EXCEPTING THEREFROM.: UNITS 1: AND 2 A3 SHOWN ON A -CONDOMINIUM ' PLAN RECORDED OCTOBER 6, 1980 -IN BOOK 13777, PAGE 1672 OF OFFICIAL RECORDS -OF .SAID ORANGE -COUNTY. PARCEL Bt UN.IT 2. AS. SHOWN ON THE CONDOMINIUM PLAN REFERENCED IN.PARCEL A ABOVE... . ASSESSOR'S PARCEL NUMBER' 938=010-02 ("613 Carnation Property"); WHEREAS; Vanilla is the vested owner of property located at. 615 Carnation. Avenue CA Newport Beach,, California, 92625 and legally described as.follows: Tarek Buys Houses, LLC and Vanilla 1031, LLC Encroachment Agreement 1 https:Hgs.secure-recording.com/Batch/Confirmation/13690198 04/11/2022 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 pace above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2021-0512) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 2nd day of February, 2022, by and between, on the one hand, Tarek Buys Houses, LLC, a California limited liability company ("Tarek") and Vanilla 1031, LLC a California limited liability company ("Vanilla") (collectively "Owners"), and on the other hand, 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, Tarek is the vested owner of property located at 613 Carnation Avenue #2, Newport Beach, California, 92625 and legally described as follows: PARCEL A: AN UNDIVIDED 1/2 INTEREST IN AND TO PARCEL 1 OF PARCEL MAP NO. 80- 705, AS SHOWN ON A MAP FILED IN BOOK 148, PAGES 34 AND 35 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, CALIFORNIA. EXCEPTING THEREFROM UNITS 1 AND 2 AS SHOWN ON A CONDOMINIUM PLAN RECORDED OCTOBER 6, 1980 IN BOOK 13777, PAGE 1672 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY. PARCEL B: UNIT 2 AS SHOWN ON THE CONDOMINIUM PLAN REFERENCED IN PARCEL A ABOVE. ASSESSOR'S PARCEL NUMBER: 938-010-02 ("613 Carnation Property"); WHEREAS, Vanilla is the vested owner of property located at 615 Carnation Avenue #1, Newport Beach, California, 92625 and legally described as follows: Tarek Buys Houses, LLC and Vanilla 1031, LLC Encroachment Agreement 1 PARCEL A: AN UNDIVIDED Y/2 INTEREST IN AND TO PARCEL 1 OF PARCEL MAP NO. 80-705, AS PER PLAT RECORDED IN BOOK 148 OF PARCEL MAPS, PAGES 34 AND 35, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPTING THEREFROM UNITS 1 AND 2 AS SHOWN ON A CONDOMINIUM PLAN RECORDED OCTOBER 6, 1980 IN BOOK 13777, PAGE 1672 OFFICIAL RECORDS OF SAID ORANGE COUNTY. PARCEL B: UNIT 1 SHOWN ON THE CONDOMINIUM PLAN REFERENCED IN PARCEL ABOVE. ASSESSOR'S PARCEL NUMBER: 938-010-01 ("615 Carnation Property"); WHEREAS, Owners desire to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Carnation Avenue right-of-way (hereinafter "Right -of -Way") that is located adjacent to 613 Carnation Property and 615 Carnation 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 Owners to construct and maintain said Permitted Improvements. NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: City and Owners 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 16 -inch tall by 19 -foot long brick wall encroaching up to 1 -foot into the Right - of -Way; a 16 -inch tall by 2 -foot 9 -inch long brick wall encroaching up to 1 -foot into the Right -of -Way; a 42 -inch wide stone walkway encroaching up to 1 -foot into the Right -of -Way; and a 3 -foot 7 -inch wide stone walkway encroaching up to 1 -foot into the Right -of -Way; 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 Tarek Buys Houses, LLC and Vanilla 1031, LLC Encroachment Agreement 2 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 Owners 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 Owners 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. Owners and City further agree as follows: a. Owners 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. Owners 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 Owners 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, Owners shall be jointly and severally 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 Owners in advance of its intention to accomplish such work, provided that an emergency situation does not exist. (ii) Owners shall be jointly and severally 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. Tarek Buys Houses, LLC and Vanilla 1031, LLC Encroachment Agreement 3 (iv) Owners agree, jointly and severally, to pay all costs for the renewal, replacement, or restoration of Permitted Improvements. 6. In the event Owners, on the one hand, or City, on the other hand, breaches any material provision of this Agreement, then the non -breaching 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 Owners, City may enter upon Right -of -Way and remove all or part of the improvements installed by Owners. 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. Owners shall, on a joint and several basis, 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. Owners, collectively and individually, agree that this Agreement shall remain in full force and effect from execution thereof; shall run with the land; shall be binding upon their respective heirs, successors, and assigns of 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 any other term, covenant or condition contained herein, whether of the same or a different character. Tarek Buys Houses, LLC and Vanilla 1031, LLC Encroachment Agreement 4 14. Owners shall, collectively and individually, at Owners' own cost and expense on a joint and several basis, 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] Tarek Buys Houses, LLC and Vanilla 1031, LLC 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 OF NEWPORT BEACH, CITY ATTORNEY'S OFFICE a California municipal corporation Date: a - g - ZZ Date: �i �'►/LL BY By. C L, Harp Grace K. Leung i City Attorney City Manager ATTEST: OWNER(S): Tarek Buys Houses, LLC, a Date: California.li " i da ity �o,7pany Date:.-`` jt2/f /tea By:�i.. �!.��. �.//i I/ll Leilani ['Brown Peter • City Clem Member Date: �/1�1� Tarek G. EI Moussa Member OWNER(S): Vanilla 1031, LLC, a California, I'' itgd liability `cLo/m��pa Date: `Y7 72c7_ 7/1J2 By: Kris DiN i Managing Mem [END OF SIGNATURES] Owners must sign in the presence of notary public ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by Public Works Tarek Buys Houses, LLC and Vanilla 1031, LLC Encroachment Agreement 6 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 j ,\A &, County of Cy- 12, __)ss. On V\cti'`c1N i1\ 0 A L , 20 2 before me, %-n Notary Public, personally appeared "P. cLA NOwho proved to me on the basis of satisfactory evidence to be the person whose name,( is/0 subscribed to the within instrument and acknowledged to me that he/s( y executed the same in his/ /tWr authorized capacity(, and that by hi Ijer/tt�r signatures 'f on the instrument the person or the entity upon behalf of which the person ,A 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. ANNETTE BOLLA-FLORES Notary Public • California z Orange County Imi �Commission p 2287571 My Comm. Expires May 5, 2023 � i ature (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 ` )fj2 + C )SS. 6� C On Me- k� 20 2Z before me, i 1V�- ��a " lil�/�l S, Notary Public, personally appeared V�-Lmsc. , proved to me on the basis of satisfactory evidence to be the personK) whose namets is/?A subscribed to the within instrument and acknowledged to me that he/shigYthej-executed the same In his/,!P!16�0�er authorized capacity, and that by his/f signaturesA on the instrument the person,(, or the entity upon behalf of which the perso 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. ANNE17E BOLLA-FLORES Notary Public - California Orange County Commission # 2187571 ' My Comm. Expires May 5, 2013 i nature (seal) Tarek Buys Houses, LLC and Vanilla 1031, LLC Encroachment Agreement 7 Arizona Notarial Acknowledgement State of Arizona County of Maricopa cxda? 1. Subscribed and sworn this day of/ 2M, by (S, Nu Ct ( , whose identity was proven to me on the basis of satisfactory evidence to be the person who he or she claims to be, and acknowledged that he or she signed the above/attached document. I- E�g� sr CATHERINE HO LUM Notary Public - Arizona Mancopa Gountyires w , My Gommssion 2024 Seal September t•� ado rsta'�� Commission �k X93948 �'L rr•'1� Notary Public Signature OS l EXHIBIT A PERMITTED IMPROVEMENTS PLAN Tarek Buys Houses, LLC and Vanilla 1031, LLC Encroachment Agreement A-1 I r\ — ------------------------------ —-------- _ \\ �I Q W N � z 2 g = Y io U m w Y J W Z O F - w Exhibit A 1 of 1 sO=1 J 2 Y < U_ J F- X m W p = Z N OX 2 CO o _Z _ eZ 3NM\i�] �ILUd � II I I O 8-I� Q w z I Z W W _I �I U Z Ln e > I I .oz s � I I IY IW W W ZI Z W J I() = W g ..6-. Z p o X LU Or �I Qz Z X n� � o o � Q LL U A = I I r\ — ------------------------------ —-------- _ \\ �I Q W N � z 2 g = Y io U m w Y J W Z O F - w Exhibit A 1 of 1 sO=1 J