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Home My WebLink AboutC-7043-4 - Supplemental Encroachment Agreement EPN N2018-0239 for 1011 Kings RoadBatch 3604942 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 Page 5 of 12 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder 39.00 *$ R 0 0 1 0 2 2 1 0 5 4$ 20180002585711:16 pm 07116118 47 NC -5 Al2 11 0.00 0.00 0.00 0.00 30.00 0.00 0.000.000.00 3.00 Space above this line for Recorders use only. SUPPLEMENTAL ENCROACHMENT AGREEMENT (Encroachment Permit Number N2018-0239) THIS SUPPLEMENTAL ENCROACHMENT AGREEMENT ("Supplemental Agreement") is made and entered into this 25th day of June, 2018, 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 and City previously entered into an Encroachment Agreement (Encroachment Permit Number N2016-0139), which was recorded as Instrument Number 2017000094284 with the Recorder's Office for. the County of Orange on March 7, 2017. This Supplemental Agreement shall. supplement the previously mentioned Encroachment Agreement, and the parties hereto intend for both Agreements to be valid. To the extent there is any. inconsistency between Instrument No. 2017000094284 and this Supplemental Agreement, the terms of this Supplemental Agreement shall control; . WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements) within the Kings Road right-of-way (hereinafter "Right -of -Way") that is located adjacent to Property in addition to those identified in Instrument No. 2017000094284; 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; D'Eliscu Family Trust Encroachment Agreement 1 https://gs.secure-recording.com/Batch/Confirmation/3604942 07/16/2018 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 ce above this line for Recorder's use only. SUPPLEMENTAL ENCROACHMENT AGREEMENT (Encroachment Permit Number N2018-0239) THIS SUPPLEMENTAL ENCROACHMENT AGREEMENT ("Supplemental Agreement") is made and entered into this 25th day of June, 2018, 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 and City previously entered into an Encroachment Agreement (Encroachment Permit Number N2016-0139), which was recorded as Instrument Number 2017000094284 with the Recorder's Office for the County of Orange on March 7, 2017. This Supplemental Agreement shall supplement the previously mentioned Encroachment Agreement, and the parties hereto intend for both Agreements to be valid. To the extent there is any inconsistency between Instrument No. 2017000094284 and this Supplemental Agreement, the terms of this Supplemental Agreement shall control; WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Kings Road right-of-way (hereinafter "Right -of -Way") that is located adjacent to Property in addition to those identified in Instrument No. 2017000094284; 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,- D'Eliscu ight-of-Way; D'Eliscu Family Trust Encroachment Agreement 1 WHEREAS, the proposed improvements were approved by the Newport Beach City Council at the June 12, 2018 City Council Meeting; 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. 2. It is mutually agreed that Permitted Improvements shall be defined as: a. An eight inch (8") wide concrete retaining planter wall, with a maximum height of forty seven and a half inches (47.5") and a maximum exposed height of twenty four inches (24"), encroaching up to five feet (5) into the Right -of -Way; a decorative concrete walkway encroaching up to four feet (4) into the Right - of -Way; and two (2) sets of decorative concrete stairs encroaching up to five feet (5) 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 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 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 A. D'Eliscu Family Trust 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 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 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 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 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. D'Eliscu Family Trust 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] 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 ATTORNEY'S OFFICE Date: �XUWi Z1,2d1i6 By. Aaron C. p Mµ • u•ig City Atto ATTEST- Date-.— TTEST: DateI 13 f : : 1gJAVW---- Leilani Brown City Clerk �a U �IL \__.. FORN%F CITY OF NEWPORT BEACH, a California municipal corporation Date: :� j i2 -j 1 By: . -�� Dave ff City Manager OWNER(S): Bruce Ray D'Eliscu and Allyson Jean Ayres-D'Eliscu, as Trustees of the D'Eliscu Family Trust established August 28, 1997 Date: Bruce Ray D'Eliscu Trustee Date: :4 ' '1^ 1 Y'^ By:d� All}rs`on Jean yr s-D'Eli Trustee [END OF SIGNATURES] Owners must sign in the presence of notary public ATTACHMENTS: 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 of F9►^�xM!q ) q � 1 On V ►/ / , D before me, / /yj , 45U a h A '(f 0 (insert name and title of e officer) personally appeared rvC� �,/�� mpe All / O'n e n u who proved to me on the basis of gatisfactory evidence to be the person(s) whose names Ware subscribed to the within instrument and acknowledged to me that fae44eJthey executed the same in h tl/hef/their authorized capacity(ies-), and that by h+sfliff/their 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 Signature M. SUSAN DIEGO Notary Public - California z @my Orange County Commission x 2228839 Comm. Expires Feb 12, 2022 (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 Orgy e } SS. On „ 20before me, A/, 15 s v► D e Notary Public, persorially appearedu �'/; v �z ,t' // h J 5roved to me on the basis of satisfactory evidence td be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he%sl:te/they executed the same in Fisher/their authorized capacity(ies), and that by hider/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 Notary Public - California Z@my Orange County > Commission k 2228839 Comm. Expires Feb 12, 2022 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 On SS. 20 before me, Public, personally appeared (seal) , Notary 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 1011 Kings Road Kings Road Right of Way 10'-10 1/4" PL to Curb '-0",, Curb Paved Street II rs II II � II IM (n) driveway and approved under! r -O h z permit v; wCn 901 -n r - C Cn (e) water line in Kinos Rd. _ R.O.W. - verify siz and m location in field (n) decorative con rete stairs on grade 6" riser, 1' tread / 1" nosing overhang (n) decorative cq'ncrete path on grade N N N N N 0 1! U N II U p Cn IIT r- CI 6) n 1 vEP _ 1 O` N _ - 93.67 T.O.W. Z 91.6 ''lantlin II O c = 91.62' F.S. q 0 N 11 II NJ V I � (n) concrete lanter IIv • CL II ` 5 '-0" enc' achment a- I I ;n 4'-0" eric ' achment II See 5/RE -2 for additional info I I I I I N ± 9 36" to ste (n) co Crete stairs on grade I I II 6" ris r, 1' tread w/ 1" 11 II nosi g overhang IM (n) driveway and approved under! r -O h z permit v; wCn 901 -n r - C Cn (e) water line in Kinos Rd. _ R.O.W. - verify siz and m location in field (n) decorative con rete stairs on grade 6" riser, 1' tread / 1" nosing overhang (n) decorative cq'ncrete path on grade CO CO CO N Cn RR U n �m C � � Z N E � LL_O(f N fn U � � N Y W z o 1 Enroachment and Street Improvement Site Plan REP -1 1/8" =1'-0" Revocable Encroachment Permit I I a- f6 N N N 0 1! U N cin cCn p Cn IIT r- CI 6) n 1 vEP _ 11 00 _ - 93.67 T.O.W. Z 91.6 ''lantlin I I 91.62' F.S. q II I (n) concrete lanter V I wall max 5' " encroachment 92.62'top. step' into street O.W. II See 5/RE -2 for additional info O I I I (n) co Crete stairs on grade 6" ris r, 1' tread w/ 1" 11 II nosi g overhang N _ II II 4'-4" " wall I I I II Max 5'-0" encroachment into R.O.W. ;d II II (n) street tree approved under 1p separate permit - maintain -- w I II I I 5'-0" clear NOTE: Decorative concrete, O where noted shall be acid w W w washed finish w/ topcast #3 N Ut -n j D - G) 0 CO CO CO N Cn RR U n �m C � � Z N E � LL_O(f N fn U � � N Y W z o 1 Enroachment and Street Improvement Site Plan REP -1 1/8" =1'-0" Revocable Encroachment Permit D'Eliscu Residence New Single Family Residence 1011 Kings Rd. Newport Beach, CA 92663 "4 5 1 PLANTER WALL Q�'pFESSIO A Sy �2c w 6840 a s CIVI\- �.�. OF CA\ \F�� "4 BARS 1@ 12" O.C. EACH WAY 6" CONCRETE WALL 9 ESI/FrIE REP -2 Revocable Enroachment Permit ? 3 =11 LA I-1 I LE L 7111 xOCs Q) �0 ' - I I �' C14> - o — — (2) "4 ; IS' 5 1 PLANTER WALL Q�'pFESSIO A Sy �2c w 6840 a s CIVI\- �.�. OF CA\ \F�� "4 BARS 1@ 12" O.C. EACH WAY 6" CONCRETE WALL 9 ESI/FrIE REP -2 Revocable Enroachment Permit 10'-9 1/2" PL to Curb and Gutter max encroachm V.I.F. 4'-2" wall tol(E) water line P. L. 93.67' T.O.W. l i i �d o s (� 2 LL X EP- M C 1 En_ tryT 5'-9 1/2" to curb and gutter (E) Curb and gutter Paved Street 0' (e) water line in Kings Rd. R.O.W. - verify size and location in field (n) concrete planter wallmax5'-0" encroachment into street R.O.W. See 5/REP-2 for additional info r Wall Section M CO CO N a) ¢ U E U LO to U U C U 0 ca U L m` U C -a (D cD m fa U � -a Q � a J L N In a=r J �o > y¢C14 v; CO L ILL Q CO REP - 3 Revocable Encroachment Permit Section