HomeMy WebLinkAboutC-9538-2 - First Amended and Restated Encroachment Agreement EPN N2024-0346 for 717 Poinsettia Avenue9/4/24, 3:33 PM
Batch 17971231 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
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
28,00
*$ R 0 0 1 5 1 3 4 2 7 1$
2024000229017 3:01 pm 09/04/24
90 CRSC06 Al2 8
0.00 0.00 0.00 0.00 21.00 0.00 0.000.000.00 0.00
APN: 459-073-18 Space above this line for Recorder's use only.
FIRST AMENDED AND RESTATED
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2024-0346)
THIS FIRST AMENDED AND RESTATED ENCROACHMENT AGREEMENT ("First
Amended Agreement") is made and entered into this 12th day of August, 2024, by and
between LA21 G, LLC, a California limited liability company ("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 717 Poinsettia Avenue,
Newport Beach, California, 92625 and legally described as Lot 17, Block 742 of Tract Corona
del Mar, as shown on a map recorded in Book 3, Pages 41 and 42, of Miscellaneous Maps
in the office of the County Recorder of Orange County, County Assessor's Parcel Number
459-073-18 ("Property");
WHEREAS, Owner and City previously entered into an Encroachment Agreement
N2024-0088 ("Agreement"); which was recorded as Instrument Number 2024000055134
with the Recorder's Office for the County of Orange on March 13, 2024;
WHEREAS, Owner desires to enter into this First Amendment to supersede and
update the certain non-standard improvements Owner is permitted to construct within the
Poinsettia Avenue right-of-way (hereinafter "Right -of -Way") as further described herein and
subject to the terms and conditions herein ("Amended Permitted Improvements");
WHEREAS, said Amended 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 First Amended Agreement
providing for fulfillment of the conditions required by City to permit Owner to construct and
maintain said Amended Permitted Improvements.
LA21 G, LLC First Amended Encroachment Agreement 1
https://gs.secure-erds.com/Batch/Confirmation/l7971231 7/13
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
APN: 459-073-18 Space above this line for Recorder's use only.
FIRST AMENDED AND RESTATED
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2024-0346)
THIS FIRST AMENDED AND RESTATED ENCROACHMENT AGREEMENT ("First
Amended Agreement") is made and entered into this 12th day of August, 2024, by and
between LA21 G, LLC, a California limited liability company ("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 717 Poinsettia Avenue,
Newport Beach, California, 92625 and legally described as Lot 17, Block 742 of Tract Corona
del Mar, as shown on a map recorded in Book 3, Pages 41 and 42, of Miscellaneous Maps
in the office of the County Recorder of Orange County, County Assessor's Parcel Number
459-073-18 ("Property");
WHEREAS, Owner and City previously entered into an Encroachment Agreement
N2024-0088 ("Agreement"); which was recorded as Instrument Number 2024000055134
with the Recorder's Office for the County of Orange on March 13, 2024;
WHEREAS, Owner desires to enter into this First Amendment to supersede and
update the certain non-standard improvements Owner is permitted to construct within the
Poinsettia Avenue right-of-way (hereinafter "Right -of -Way") as further described herein and
subject to the terms and conditions herein ("Amended Permitted Improvements");
WHEREAS, said Amended 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 First Amended Agreement
providing for fulfillment of the conditions required by City to permit Owner to construct and
maintain said Amended Permitted Improvements.
LA21G, LLC First Amended Encroachment Agreement 1
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
City and Owner acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference into this First Amended Agreement.
2. It is mutually agreed that Amended Permitted Improvements shall be defined as:
a. Two (2) one foot (1') wide by 3 feet 8 inches (3'8") long walkways constructed
of precast concrete Belgard Catalina Series Titanium colored pavers set in
sand encroaching up to one foot (1) 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 Amended 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 Amended 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 First Amended 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 First Amended Agreement or subsequent removal of
improvements by City.
5. Owner and City further agree as follows:
a. Owner may construct and install Amended 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. Owner shall maintain Amended 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 Amended Permitted Improvements, except as
otherwise provided herein.
C. If City or other public facilities or improvements are damaged by the installation
or presence of Amended Permitted Improvements, Owner shall be responsible
LA21 G, LLC First Amended Encroachment Agreement 2
for the cost of repairs and restoration of these public facilities or improvements
to their condition at the time of entry into this First Amended 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
Amended 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 Amended Permitted Improvements affected by such
work by City.
(iii) City agrees to bear only the cost of any removal of Amended Permitted
Improvements affected by such work by City.
(iv) Owner agrees to pay all costs for the renewal, replacement, or
restoration of Amended Permitted Improvements.
6. In the event either party breaches any material provision of this First Amended
Agreement, the other party, at its option may, in addition to the other legal remedies
available to it, terminate this First Amended 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 First Amended 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 Amended Permitted
Improvements.
9. Owner agrees that this First Amended 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 First Amended Agreement and all
matters relating to it and any action brought relating to this First Amended Agreement
LA21 G, LLC First Amended Encroachment Agreement 3
shall be adjudicated in a court of competent jurisdiction in the County of Orange,
California.
11. The terms of this First Amended 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 First Amended Agreement or any other rule of
construction which might otherwise apply.
12. This First Amended Agreement represents the full and complete understanding of
every kind or nature whatsoever between the parties hereto, and supersedes all
preliminary negotiations and agreements of whatsoever kind or nature, whether oral,
written, express or implied, relating to the subject matter hereof, all of which are
merged herein and shall not 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 First Amended Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions
of this First Amended Agreement shall continue in full force and effect.
16. To the extent there are any inconsistent terms between this First Amended Agreement
and the Agreement, the terms of this First Amended Agreement shall control.
[SIGNATURES ON NEXT PAGE]
LA21 G, LLC First Amended Encroachment Agreement 4
IN WITNESS WHEREOF, the parties hereto have caused this First Amended
Agreement to be executed on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a Californip municipal corporation
Date: Date:d>1—)41,2-1
By: By:
��&
�'� Aaron C. Harp a t� titi Grace K. Leung
City Attorney City Manager
ATTEST:
Date:
By: fA0*
Leilani I. Brown
City Clerk _
ATTACHMENTS
OWNER(S): LA21G, LLC, a California
limited liability company
Date:
By: �,�.•
WayAe i pfeld,
Corporate Authorized Agent
[END OF SIGNATURES]
Owners must sign in the presence of notary public
Exhibit A — Amended Permitted Improvements Plan as
Approved by Public Works
LA21 G, LLC First Amended 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 ORftNC-xE } ss.
On IS , 20 Zy before me,—TAlt-OR 'Pft1C-\F C-DL-WEu; Notary
Public, personally appeared -A\1 NC— -A .FEtri7 , who proved to
me on the basis of satisfactory evidence to be the person(pI) whose name(s) i are bscribed to the within
instrument and acknowled ed to me that he she/they executed the same in hi her/their authorized
capacity(ie�), and that by hi her/their signatures(s) 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 hand and official seal. g4,j�l°=��,. TAYLOR PAIGE COLWELL
z ( COMM. # 2477311 m
z
u.l `, NOTARY PUBLIC -CALIFORNIA n
ORANGE COUNTY F
My Comm. Expires December23,2027
Signature (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 } 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)
LA21 G, LLC First Amended Encroachment Agreement 6
EXHIBIT A
AMENDED PERMITTED IMPROVEMENTS PLAN
LA21 G, LLC First Amended Encroachment Agreement A-1
EXHIBIT A
SHEET 1 OF 1
5
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