HomeMy WebLinkAboutC-9038-1 - Encroachment Agreement (for 854 Avocado Avenue)1
00 RECORDING REQUESTED AND
(`n WHEN RECORDED RETURN TO:
O
City Clerk RI CE*IVED
City of Newport Beach
Post Office Box 1768
3300 Newport BoulevarcV9 DEC 22 A 3 :31
Newport Beach, CA 92659-1768
Recorded in the County of Orange, California
Gar L Granville, Clerk/Recorder
IIII�IIIIIIIIIIIIIIIIIIIIIIIIIIIII No Fee
J9990851464 10:26AM 12/15/99
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Doc Types: 003 ^,r
Snce afv'e; t 1;(Ine for Recorder's use only.
EXEMPT RECORDING REQUEST PER ,�(�i
GOVERNMENT CODE 6103 ENCiiuA%riidiENT AGI�`EMENT Qe
THIS AGREEMENT is made and entered into this /31h day of _Ie-cC-m b car , 1999,
by and between The Irvine Company, a Delaware Corporation (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 ate Avocado Avenue,
Newport Beach, California and legally described as a portion of Parcel 1 of Parcel Map 90-361
(hereinafter "SUBJECT PROPERTY"), as shown on a map recorded in Book 270, Pages 15
through 18 inclusively of Parcel Maps in the office of the County Recorder of Orange County,
California;
WITNESSETH:
WHEREAS, OWNER desires to construct and maintain certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within a portion of an existing
25-foot and 10-foot easements, for water facility purposes (hereinafter "EASEMENTS")
serving Parcel 1, Parcel Map 90-361, as shown on a map recorded as Document No.
19990356366 of Official Records in the office of the County Recorder of Orange County,
California; 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 EASEMENTS; and
WHEREAS; the parties hereto desire to execute an agreement providing for fulfillment
of the conditions required by CITY to permit OWNER to construct, reconstruct and maintain
said PERMITTED IMPROVEMENTS;
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree
as follows:
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1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as
decorative brick and concrete patio paving, low walls, pilasters, fountain, planters and
appurtenances in the 25-foot and 10-foot EASEMENTS as shown on EXHIBIT "A" attached
hereto and as approved by the City Engineer.
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 EASEMENTS, all in substantial conformance with 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.
3. If permitted improvements interfere in the future with CITY's ability to construct,
operate, maintain, and replace CITY and other public facilities and improvements within
EASEMENTS,'then the rights granted under this Agreement may be terminated by CITY at
any time by giving 60 days' notice (provided, however, that prior to such notice of termination
the parties agree to meet and confer in good faith to promptly resolve any issues respecting
such interference and OWNER has been given the opportunity to cure the same), 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 plans and specifications
therefor on file in the CITY's Public Works Department, and as described on Exhibit "A" hereto
attached.
b. OWNER shall maintain the PERMITTED IMPROVEMENTS in accordance
with general 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.
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d. That shoula CITY be required to enter onto saia EASEMENT to exercise its
primary rights associated with said EASEMENTS, 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:
(i) CITY shall notify OWNER of its intention to accomplish such work,
(if any emergency situation does not exist) by giving 60 days prior written notice and the
parties agree to meet and confer in good faith to minimize any damage to the permitted
improvement or any interference to the operation of the subject property.
(ii) OWNER shall be responsible for arranging for any renewal 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 renewal 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
EASEMENTS and remove all or part of the improvements installed by OWNER. Termination
because of breach shall be upon a minimum of thirty (30) days' notice, unless the breach is
cured within such 30 day period, 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, waive, 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 of any such claim or suit to the
extent arising from or in any manner connected with the design, construction, maintenance, or
continued existence of the PERMITTED IMPROVEMENTS.
7. OWNER shall accept the fact that surface drainage water may enter onto the
"SUBJECT PROPERTY" from "EASEMENTS" located in the City of Newport Beach, County of
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Orange, State of California, as depicted on Exhibit "A" attached hereto, whether naturally or as
a result of the development or improvement of the "EASEMENTS".
8. OWNER shall accept and waive any and all liability for any damages to the
"SUBJECT PROPERTY" caused by the flow of such surface drainage water onto the
"SUBJECT PROPERTY". OWNER shall defend, indemnify, waive 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 of any such
claim or suit to the extent arising from or in any manner connected to surface drainage water
entering the "SUBJECT PROPERTY" from the "EASEMENTS".
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 OWNERS' interest in the land whether fee or otherwise, and shall be recorded in
the Office of the County Recorder of Orange County, California.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first -above written.
CITY OF NEWPORT BEACH,
a Municipal corporation
APPROVED AS TO FORM:
By: By: �.
City Attorney City Ma4ager
AT'
City Clerk
Ag\COM-Plaza s
CD
UJ
4
OWNER: IRVINE RETAIL PROPERTIES COMPANY
a Division of THE IRVINE COPANY a
Delaware corporation
By: 4!S ti?�
Keith C. Eyrich, Vice President
Development
By
Thomas P. Lynch, ice President
Project Management
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
No. 5907
State of California
County of Orange
On October 19, 1999
DATE
before me, Ana R. Gutierrez
NAME, TITLE OF OFFICER - E.G.,'JANE DOE, NOTARY PUBLIC"
personally appeared Keith C. Eyrich and Thomas P. Lynch
NAME(S) OF SIGNER(S)
ER personally known to me - OR - ❑ 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 ac-
knowledged to me that he/she/they executed
the same in his/her/their authorized
capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s),
ANAR.cuMMU or the entity upon behalf of which the
Commission# 119420b person(s) acted, executed the instrument.
i Notary Public - Caftmia
Orange County
WComm.6gzesSep 18,2002 WITNESS my hand and official seal-.
V �
SIGNATURE OF NOTARY
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
❑ INDIVIDUAL
CORPORATE OFFICER
V.P. Development - I RPC
TITLE )
❑ PARTNER(S) ❑ LIMITED
❑ GENERAL
❑ ATTORNEY -IN -FACT
❑ TRUSTEE(S)
❑ GUARDIAN/CONSERVATOR
❑ OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
Irvine Retail Properties Company
a division of The Irvine Company
re—co-rproration
DESCRIPTION OF ATTACHED DOCUMENT
Encroachment Agreement with City of
Newport Beach - Tommy Bahamas
oro nt,Ty@ bAXffP BOCUMENT
3 Pages
NUMBER OF PAGES
October 19, 1999
DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
01993 NATIONAL NOTARY ASSOCIATION - 8236 Remmet Ave., P.O. Box 7184 - Canoga Park, CA 91309-7184