HomeMy WebLinkAboutC-7043-3 - Encroachment Agreement EPN N2016-0139 for 1011 Kings RoadDocument -2913 983 -Page- i
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Page 1 of 1
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
1111111111111111111111111111111111111 IlIIl 11111111111111111111111111111 Jil42.00
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2016-0139)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
22nd day of February, 2017, by and between Bruce Ray D'Eliscu and Allyson Jean Ayres-
D'Eliscu, as Trustees of the D'Eliscu Family Trust established August 28, 1997 ("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 1011 Kings Road,
Newport Beach, California, 92663 and legally described as Parcel 1 of Parcel Map 84-712,
as shown on a map recorded in Book 199, Pages 18 through 19 of Parcel Maps, in the office
of the County Recorder of Orange County, County Assessor's Parcel Number 049-212-19
("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as further
described herein ("Permitted Improvements") Within the Kings Road sewer easement right-
of-way (hereinafter "Right -of -Way") 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 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 Owner to construct and maintain said
Permitted Improvements.
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto
agree as follows:
City and Owner acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference into this Agreement.
D'Eliscu Family Trust Encroachment Agreement 1
about:blank 03/07/2017
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
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 N2016-0139)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
22nd day of February, 2017, by and between Bruce Ray D'Eliscu and Allyson Jean Ayres-
D'Eliscu, as Trustees of the D'Eliscu Family Trust established August 28, 1997 ("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 1011 Kings Road,
Newport Beach, California, 92663 and legally described as Parcel 1 of Parcel Map 84-712,
as shown on a map recorded in Book 199, Pages 18 through 19 of Parcel Maps, in the office
of the County Recorder of Orange County, County Assessor's Parcel Number 049-212-19
("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as further
described herein ("Permitted Improvements") within the Kings Road sewer easement right-
of-way (hereinafter "Right -of -Way") 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 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 Owner to construct and maintain said
Permitted Improvements.
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto
agree as follows:
City and Owner acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference into this Agreement.
D'Eliscu Family Trust Encroachment Agreement 1
2. It is mutually agreed that Permitted Improvements shall be defined as:
a. Pre -cast concrete stepping stone on -grade pads encroaching into the 10 -foot
wide sewer easement, wood and steel handrails with fence post style footings
encroaching into the 10 -foot wide sewer easement, pre -cast stepping on -grade
pads encroaching into the 10 -foot wide sewer easement, a retaining wall with
a maximum height of 4.83 -feet tall along the westerly property line encroaching
into the 8 -foot wide and 10 -foot wide sewer easements;
b. A 2 -foot tall curb along the westerly property line encroaching into the 8 -foot
wide sewer easement;
C. A balcony with handrails that provides a minimum of 10 -feet of clearance from
finish grade above the 8 -foot and 10 -foot wide sewer easements;
d. A 15.5 -foot wide decorative driveway approach constructed of permeable
precast concrete pavers with 4 -inch divisions filled with decorative rock set in
mortar encroaching up to 11 -feet 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; and
e. 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 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 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. 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 A.
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
D'Eliscu Family Trust Encroachment Agreement 2
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 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 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 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
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 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.
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 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.
D'Eliscu Family Trust Encroachment Agreement 3
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.
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 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]
D'Eliscu Family Trust 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 ATTO N 'S OFFICE
Date: , �S 7
Aaron •
City Attorney
ATTEST: 31117
Date:
By:wa�j- M ►'\____
Leilani I. Brown
City Clerk
ATTACHMENTS:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 7J2, 2, Ili
By:
Dave diff
City Manager
OWNER(S): Bruce Ray D'Eliscu and
Allyson Jean Ayres-D'Eliscu, as
Trustees of the D'Eliscu Family Trust
established Au ust 28, 1997
Date i7
Bruce Ray D'Eliscu
Trustee
Dai
By:
Trustee
[END OF SIGNATURES]
Owners must sign in the presence of notary public
Exhibit A — Permitted Improvements Plan as Approved by
Public Works
D'Eliscu Family Trust 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 ofytal e }ss.
On I7 , 20 I7 before me, /(l Su San /��,�� o Notary
Public, personalIV appearedE ' u I!1 Jc ' a u, who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s)4s/are subscribed to the within
instrument and acknowledged to me that 4e/ they executed the same in 44-9 w4their authorized
capacity(ies), and that by h4sA of 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
M. SUSAN DIEGO
Commission #2055204 z
< "=: Notary Public - California z
z • Orange County
My Comm. E ires Feb 12, 2018
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 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)
D'Eliscu Family Trust Encroachment Agreement 6
EXHIBIT A
PERMITTED IMPROVEMENTS PLAN
D'Eliscu Family Trust Encroachment Agreement A-1
Property Line
Line of Side Yard Setback
I li I
I I I I
A
E
outline of shade structure above. I I outline of shade structure beam
erside of shade structure at "`j a
Untlbove. Underside of roof save at
min. 23' above F.G. of easement min. 26' above F.G. of easement
below "�� below
I Deck
N ,I Polished Concrete o/
.__.___._.. Barring
_ e
deck partially encroaching
easement. Underside of deck at
P Y 9 into
mm. 10' above F.G. T1I
I � I o
e
I � I a
E
— — o
I 3'-212"
I
E
EXHIBIT A
I �
nla
I I �
proposeds eI easement
I
I I �
I I �
I e
I I �
I �
I �
I I �
I I i
I �
I I �
-- /----I---------------
Line
- -----Line of Side Yard Setback J
Property Line
D'Eliscu Residence 013-2015 Anders Lasater Architects, inc.
New Single Family Residence ag� aB CA 926512
1011 Kings Rd. 949 ���s
Newport Beach, CA 92663 andera@anderslasaterarchite bL..00m
sewer engineering plans for more information
Line of
�I
A A
deck above partially encroaching
m into easement. Underside of deck
E I u at min. 10' above F.G.
(n) precast concrete stepping pads
on grade
� Patio
78.96' F.F.
Permeable Pavers
1M
(proposed sewer _
T- Q
outline of deck above
(n) step O
stones on grade
,I'll 73.00' I DN
DN
...........
1/4"=1.0„
D'Eliscu Residence 013-2015
New Single Family Residence
1011 Kings Rd.
Newport Beach, CA 92663
Anders Lasater Architects,,,,.
384 Forest Avenue, Suits 12
j Laguna Beach, GA 92651
949 280 7097 Anders
949 497 1927 0fice..
anders c@anderslasaterarchilects.00m.
(n) precast concrete stepping
stones on grade
(n) wood and steel handrail n
Fence -posts". 'a.
00ing
i�
(n) precast concrete stepping pads
j
on grade
i_
it
I
location of sewer cleanout (typ.) -
ii
see sewer realignment plan for
------
I
additional information
_
-- _ ----
I
/ r
I Patio
78.96'F.F.--
Permeable Pavers
(n) sewer lateral for house -see sewer
NI
realignment plan for additional
information
(n) sewer lateral for pool drain - see
E
ewer realignment plan for additional
I
information
Line of Side Yard Setback
EIEIE:
— — —
— — — —
Property Line
1/4"=1.0„
D'Eliscu Residence 013-2015
New Single Family Residence
1011 Kings Rd.
Newport Beach, CA 92663
Anders Lasater Architects,,,,.
384 Forest Avenue, Suits 12
j Laguna Beach, GA 92651
949 280 7097 Anders
949 497 1927 0fice..
anders c@anderslasaterarchilects.00m.
10'-0"
proposed sewer easement
I I
proposed sewer easement
1/4" = 1'-0"
D'Eliscu Residence 013-2015 Anders Lasater Architects, Inc.
nue, Suite 17
New Single Family Residence ,cAszs51 I
1011 Kings Rd. ndes
9 orfi�e
Newport Beach, CA 92663
ii0*)Ot
rslasateachitecscom
10'-0"
proposed sewer easement
101-0
proposed sewer easement
1/4" = 1.4.
) sewer easement at 1011 Kings Road
.oncrete stepping pads on grade
I sewer pipe per sewer realignment plan
.oncrete stepping pads on grade
D'Eliscu Residence
013-2015 Anders Lasater Architects, i3O.
New Single Family Residence
384 Forest Avenue, Suite 12
Laguna Beach, 6A 92651
1011 Kings Rd.
949497 27Mera
Newport Beach, CA 92663
anders@anderslasaterarchitectscom
1/4" =1'-0"
D'Eliscu Residence
013-2015 Anders Lasater Architects, Inc.
New Single Family Residence
384 Forest Avenue, Suite 12
Laguna Beach, CA 92651
1011
1011 Kings Rd.
94499 2807097
Ofccem
Newport Beach, CA 92663
anders@anderslasaterarchitectscom