HomeMy WebLinkAboutC-9491-2 - Supplemental Encroachment Agreement EPN N2025-0333 for 1501 Kings Road9/9/25. 11:45 AM
Batch 19811620 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
$39.00
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2025000248270 11:17 am 09/09125
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Space above this line for Recorder's use only.
SUPPLEMENTAL ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2025.0333)
THIS SUPPLEMENTAL ENCROACHMENT AGREEMENT ("Agreement") is made
and entered into this 9th day of September, 2025, by and between Jon Fosheim and Penny
Fosheim, Husband and Wife as Joint Tenants ("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 1501 Kings Road,
Newport Beach, California, 92663, Orange County Assessor's Parcel Number 049-222-19
and as legally described on Exhibit A, attached hereto and incorporated herein by reference
("Property");
WHEREAS, Owner and City previously entered into an Encroachment Agreement
(Encroachment Permit Number N2023-0491), which was recorded as Instrument Number
2024000002509 with the Recorder's Office for the County of Orange on January 4, 2024.
WHEREAS,. This Supplemental Agreement shall supplement Encroachment Permit
Number 2024000002509;
WHEREAS, Owner desires to construct certain non-standard improvements as further
described herein ("Permitted Improvements") within the Kings Road public utility sewer
easement (hereinafter "Public Utility Easement") 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 Public Utility Easement; 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.
Jon Fosheim and Penny Fosheim Encroachment Agreement 1
https://gs.secure-erds.com/Batch/Confirmation/l9811620 1/4
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.
SUPPLEMENTAL ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2025-0333)
THIS SUPPLEMENTAL ENCROACHMENT AGREEMENT ("Agreement") is made
and entered into this 9th day of September, 2025, by and between Jon Fosheim and Penny
Fosheim, Husband and Wife as Joint Tenants ("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 1501 Kings Road,
Newport Beach, California, 92663, Orange County Assessor's Parcel Number 049-222-19
and as legally described on Exhibit A, attached hereto and incorporated herein by reference
("Property");
WHEREAS, Owner and City previously entered into an Encroachment Agreement
(Encroachment Permit Number N2023-0491), which was recorded as Instrument Number
2024000002509 with the Recorder's Office for the County of Orange on January 4, 2024.
WHEREAS,. This Supplemental Agreement shall supplement Encroachment Permit
Number 2024000002509;
WHEREAS, Owner desires to construct certain non-standard improvements as further
described herein ("Permitted Improvements") within the Kings Road public utility sewer
easement (hereinafter "Public Utility Easement") 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 Public Utility Easement; 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.
Jon Fosheim and Penny Fosheim Encroachment Agreement 1
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto
agree as follows:
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 six and a half foot (6'-5") tall by twenty seven (27) feet long retaining wall
constructed of railroad ties that encroaches up to ten (10) feet into the ten (10)
foot wide City sewer easement;
b. A six and a half foot (6'-5") tall by sixteen (16) foot long retaining wall
constructed of railroad ties encroaching up to ten (10) foot into the ten (10) foot
wide easement; and,
C. A two (2) foot tall by thirty one (31) feet three (3) inches long retaining wall
constructed railroad ties with a forty two (42") inch tall wrought iron railing on
top of the wall that encroaches ten (10) feet into the ten (10) foot wide City
sewer easement, as approved by the Public Works Department and as shown
on Exhibit B, attached hereto and incorporated herein by reference.
d. 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 the Public Utility Easement, 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 Supplemental 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 Supplemental 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.
Jon Fosheim and Penny Fosheim Encroachment Agreement 2
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 Public Utility Easementto exercise
its primary rights associated with said Public Utility Easement, 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 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 Supplemental
Agreement, the other party, at its option may, in addition to the other legal remedies
available to it, terminate this Supplemental Agreement and, in the event the breaching
party is Owner, City may enter upon Public Utility Easement 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 Supplemental 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.
Jon Fosheim and Penny Fosheim Encroachment Agreement 3
9. Owner agrees that this Supplemental 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 Supplemental 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 Supplemental 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 Supplemental Agreement or any other rule of
construction which might otherwise apply.
12. This Supplemental 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 Supplemental 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]
Jon Fosheim and Penny Fosheim 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 ATTORNEYS OFFICE
Date: 6f /?�7 S
CITY OF NEWPORT BEACH,
a California pupicipal corporation
Date: 01 ITI ;�0 25
By:Lm'By:
A on C. Harp PrVe K. Leung
City Attorney OKY Manager
ATTEST:
Date: Z
By:
M
In -
OWNER(S): Jon Fosheim and Penny
Fosheim, Husband and Wife as Joint
Tenants
Date: .2— o ZS—
By:
Jon osheim
Date: L ��
By.
Penny Foshej
[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
Jon Fosheim and Penny Fosheim 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
Count of �� )SS QQ
On County
`i 20 before me, biz "' 'J�^'y' Notary
Public, personally appeared ; `c. , who 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 xtd official seal.
Si ture
>' ERIKA LYN BURNETT
CON1A1, #24431 73
Z m Notary Public Z
��. -�� �' California X
Orange County o
M Comm. Expires Apr. 2, 2027
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 Calif rnia
County of V )ss. 7, -
On 20 2� boDre me, 11 �� �� Notary
Public, pet sonally appeared Grt ` l U' proved to me on
the basis of satisfactory evidence to b t e 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
paragraph is true and correct.
laws of the State of California
that the foregoing
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Jon Fosheim and Penny Fosheim Encroachment Agreement 6
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Jon Fosheim and Penny Fosheim Encroachment Agreement A-1
EXHIBIT "A„
LEGAL DESCRIPTION
Real p-operty In the City of Newport Beach, Cutinb; of Orange, State of California, described as
b1lows:
LOT 40 IN BLOCK "E" OF TRACT NO. 1219, AS SHOWN ON A MAP RECORDED IN BOOK 38,
PAGES 26 AND 27 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY,
CALIFORNIA.
EXCEPT THEREFROM, ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL
GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN THAT MAY
BE WITHIN OR UNDER THE PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER
WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING
THEREFOR, AND STORING IN AND REMOVING THE SAME FROM SAID LAND OR ANY
OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND
14INE FROM LANDS OTHER THAN THOSE HEREINABOVE DESCRIBED, OIL OR GAS WELLS,
TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE LAND
HEREINABOVE DESCRIBED, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY
DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE
EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR,
DEEPEN AND OPERATE ANY SUCH WELLS OR MINES, WITHOUT, HOWEVER, THE RIGHT
TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE
UPPER S00 FEET OF THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED, AS
RESERVED IN DEEDS OF RECORD.
AFN: 049-222-19
EXHIBIT B
PERMITTED IMPROVEMENTS PLAN
Jon Fosheim and Penny Fosheim Encroachment Agreement B-1
Exhibit B
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