HomeMy WebLinkAboutC-6664 - Encroachment Agreement EPN N2009-0076 for 700 Acacia Avenuek/
Recorded in Official cords, Orange County
Tom Daly, Clerk -Recorder i
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200900051675108:02am 09/30/09
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ENCROACHMENT AGREEMENT
(EPN2009-0076)
THIS AGREEMENT is made and entered into this 17th day of August, 2009, by and
between Lido Acacia Realty, LLC (hereinafter "OWNER"), and the City of Newport Beach,
California, a municipal corporation organized and existing under and by virtue of its Charter
and the Constitution and the laws of the State of California, (hereinafter "CITY"). OWNER is
the owner of property located at 700 Acacia Avenue, Newport Beach, California 92663 and
legally described as Lot 2 of Block 729 of Corona Del Mar, as shown on a map recorded in
Book 3, Pages 41 through 42 inclusively of Miscellaneous Maps in the office of the County
Recorder of Orange County, California Assessor Parcel Number 459-082-07.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Acacia Avenue right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot 2
of Block 729 of Corona Del Mar, as shown on a map recorded in Book 3, Pages 41 through 42
inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County,
California; also known as 700 Acacia Avenue, Newport Beach, California 92663; and
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
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RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
U
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
k/
Recorded in Official cords, Orange County
Tom Daly, Clerk -Recorder i
''ll'! �r ! : iii i I'll' Mil P111111:11111111111133.00
200900051675108:02am 09/30/09
'100 236 Al2 10
0.0() 0.00 0.00 0 00 27.00 0 00 0.00 0.00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2009-0076)
THIS AGREEMENT is made and entered into this 17th day of August, 2009, by and
between Lido Acacia Realty, LLC (hereinafter "OWNER"), and the City of Newport Beach,
California, a municipal corporation organized and existing under and by virtue of its Charter
and the Constitution and the laws of the State of California, (hereinafter "CITY"). OWNER is
the owner of property located at 700 Acacia Avenue, Newport Beach, California 92663 and
legally described as Lot 2 of Block 729 of Corona Del Mar, as shown on a map recorded in
Book 3, Pages 41 through 42 inclusively of Miscellaneous Maps in the office of the County
Recorder of Orange County, California Assessor Parcel Number 459-082-07.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Acacia Avenue right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot 2
of Block 729 of Corona Del Mar, as shown on a map recorded in Book 3, Pages 41 through 42
inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County,
California; also known as 700 Acacia Avenue, Newport Beach, California 92663; and
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
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WHEREAS, the parties hereto desire to execute an 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:
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as:
(a) A 3 -foot high grey colored block perimeter wall, a 1 -foot high grey colored
block planter wall, and a 3 -foot high, 16 -inch square grey colored block
pilaster encroaching up to 4 -feet into the public right-of-way at the
intersection of Acacia Avenue and Fourth Avenue;
(b) Two 4 -foot wide entry walkways constructed with flagstone pavers
encroaching up to 2 -feet into Acacia Avenue right-of-way;
(c) Various private landscaping not to exceed 36 -inches in height and various
private irrigation improvements within the Acacia and Fourth Avenue
rights-of-way;
and appurtenances in the Acacia and Fourth Avenue rights-of-way as shown on
EXHIBIT "A" attached hereto and as approved by the Public Works Department.
In addition, if any of the PERMITTED IMPROVEMENTS actually built or installed
during the time of construction vary from the 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.
2. 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 the CITY.
CITY will further allow OWNER to take all reasonable measures necessary or
convenient in accomplishing the aforesaid activities.
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3. Rights granted under this Agreement may be terminated by CITY at any time by
giving 60 -day notice, 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.
4. 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 the CITY's Public Works Department,
and as described on Exhibit "A" attached hereto.
b. OWNER shall maintain the 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.
d. That 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 the PERMITTED IMPROVEMENTS, as required,
and in such event:
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(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 the PERMITTED IMPROVEMENTS
affected by such work by CITY.
(iii) CITY agrees to bear only the cost of any removal of the
PERMITTED IMPROVEMENTS affected by such work by CITY.
(iv) OWNER agrees to pay all costs for the renewal, replacement, or
restoration of the PERMITTED IMPROVEMENTS.
5. 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 the 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) day notice, with the notice specifying the date of
termination. In the event of litigation, commenced with respect to any term of
condition of this Agreement, the prevailing party shall be entitled to reasonable
attorneys fees and costs incurred.
6. 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
the PERMITTED IMPROVEMENTS.
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7. 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 OWNERS' interest in the land, whether fee or
otherwise, and shall be recorded in the Office of the County Recorder of Orange
County, California.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
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13. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
APPROVED AS TO FORM:
By:
M to bA3ehamp
Assistant City Attorney
ATTEST:
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By: ?� �-
�f Leilani I. Brown, City Cl4k
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CITY OF NEWPORT BEACH,
a Municipal corporation
By:
City Kranager
bP►VIOA.KIf-F
OWNE
By:
Benja . Jung, anaging Member
Lido Acacia Realty, LLC
OWNER:
By: I/ , L. Nva
R. 'Stephen Dann s, Managing Member
Lido (Acacia Realty, LLC
F:\Users\PBW\Shared\ENCROACH\ROW Agreements\2009\N2009-0076-700 Acacia Avenue (Lido Acacia Realty LLC).doc
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On S,epkmber 1d� 100 before me, Pec fl ooG Notary Public,
personally appeared Senn o wits L- • Tuna a rl d �2- S pheV) N aVlnq�s who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) Ware
subscribed to the within instrument and acknowledged to me that Ike/they executed the
same in WeAieF/their authorized capacity(ies), and that by h4sA-,94their signature(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.
4n--;j;� (SEAL)
Notary PuIllic in and for said State
OPTIONAL INFORMATION
Title or Type of Document:
Date of Document:
Commission dF 1740748
to Notary Public - California
Orange County
MrCWM90nApr22,2011
Exhibit "A"
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