HomeMy WebLinkAboutC-7043-5 - Amended and Supplemental Enchroachment Agreement EPN N2019-0218 for 1011 Kings RoadBatch 4500755 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
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Space above this line for Recorder's use only.
AMENDED AND SUPPLEMENTAL ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2019-0218)
THIS AMENDED AND SUPPLEMENTAL ENCROACHMENT AGREEMENT
("Agreement") is made and entered into this 23rd day of April, 2019, 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,
in the City of Newport Beach, County of Orange, State of California, as per map recorded in
Book 199, Pages 18 and 19, of Parcel Maps, in the office of the County Recorder of said
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.
WHEREAS, Owner and City previously entered into a Supplemental Encroachment
Agreement (Encroachment Permit Number N2018-0239), which was recorded as Instrument
Number 2018000258571 with the Recorder's Office for the County of Orange on July 6, 2018.
Owner has since changed its mind as to the improvements specified in Encroachment Permit
Number N2018-0239. This Amended and Supplemental Encroachment Agreement shall
serve as the approval pursuant to Section 2(b) of the Supplemental Encroachment
Agreement, whereas such changes or variations of a Permitted Improvement must be
approved in advance by the Public Works Department. Section 2(a) of the Supplemental
Encroachment Agreement shall be amended in its entirety and replaced with what is defined
in Section 2(a) of this Amended and Supplemental Agreement. This Amended and
Supplemental Agreement shall supplement Encroachment Permit Number 2017000094284,
and shall replace Encroachment Permit Number 201800258571. To the extent there is any
inconsistency between Instrument No. 2017000094284, and Instrument No. 201800258571,
the terms of this Amended and Supplemental Agreement shall control;
The D'Eliscu Family Trust, established August 28, 1997 Encroachment Agreement 1
https:Hgs.secure-recording.com/Batch/Confirmation/4500755 04/26/2019
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
pace above this line for Recorder's use only.
AMENDED AND SUPPLEMENTAL ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2019-0218)
THIS AMENDED AND SUPPLEMENTAL ENCROACHMENT AGREEMENT
("Agreement") is made and entered into this 23rd day of April, 2019, 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,
in the City of Newport Beach, County of Orange, State of California, as per map recorded in
Book 199, Pages 18 and 19, of Parcel Maps, in the office of the County Recorder of said
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.
WHEREAS, Owner and City previously entered into a Supplemental Encroachment
Agreement (Encroachment Permit Number N2018-0239), which was recorded as Instrument
Number 2018000258571 with the Recorder's Office for the County of Orange on July 6, 2018.
Owner has since changed its mind as to the improvements specified in Encroachment Permit
Number N2018-0239. This Amended and Supplemental Encroachment Agreement shall
serve as the approval pursuant to Section 2(b) of the Supplemental Encroachment
Agreement, whereas such changes or variations of a Permitted Improvement must be
approved in advance by the Public Works Department. Section 2(a) of the Supplemental
Encroachment Agreement shall be amended in its entirety and replaced with what is defined
in Section 2(a) of this Amended and Supplemental Agreement. This Amended and
Supplemental Agreement shall supplement Encroachment Permit Number 2017000094284,
and shall replace Encroachment Permit Number 201800258571. To the extent there is any
inconsistency between Instrument No. 2017000094284, and Instrument No. 201800258571,
the terms of this Amended and Supplemental Agreement shall control;
The D'Eliscu Family Trust, established August 28, 1997 Encroachment Agreement 1
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;
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;
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. Decorative concrete stairs encroaching up to 29 -inches into the Kings Road
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 Amended and 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 Amended and Supplemental Agreement or
subsequent removal of improvements by City.
5. Owner and City further agree as follows:
The D'Eliscu Family Trust, established August 28, 1997 Encroachment Agreement 2
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
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 Amended and
Supplemental Agreement, the other party, at its option may, in addition to the other
legal remedies available to it, terminate this Amended and 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 Amended and
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
The D'Eliscu Family Trust, established August 28, 1997 Encroachment Agreement 3
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 Amended and 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 Amended and 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 Amended and 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 Amended and Supplemental
Agreement or any other rule of construction which might otherwise apply.
12. This Amended and 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 Amended and 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]
The D'Eliscu Family Trust, established August 28, 1997 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' OFFICE
Date: `t 201
By. 1 -__
-,Aaron C. Harp
City Attorneym�
ATTEST: 4.14,11
Date:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 13-1g
By:
Gr . Leung
Cit 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:
BY: -r — � � �, OLYL_
Bruce Ray D'Eliscu
Trustee, The D'Eliscu Family Trust,
established August 28, 1997
Date: 4'q P 1
By:
All can
Trustee, The
established AL
[END OF SIGNATURES]
§-B°EliscL7'
Eliscu Family Trust,
t 28, 1997
Owners must sign in the presence of notary public
ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by
Public Works
The D'Eliscu Family Trust, established August 28, 1997 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 ss. ,
On /9mri / I l $ 20 before me, %�% �usA h V Notary
Public, personally appeared�r,,,•.� ,b�E/.sou 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 and official seal
�l
Signature
M. SUSAN DIEGO
Notary Public -California
z_ Orange County
Commission ; 2228839
My 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.
(seal)
State of California
County of 1,211ga n e Iss.
On 20_L�__ before me, Notary
Public, personal) appeared,0' �' u proved to me on
the basis of satisfactory evidence to be the person() 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
M. SUSAN DIEGO
Notary Public - California z
@my
Orange County
Commission # 2228839
Comm. Expires Feb 12, 2022
(seal)
The D'Eliscu Family Trust, established August 28, 1997 Encroachment Agreement 6
EXHIBIT A
PERMITTED IMPROVEMENTS PLAN
The D'Eliscu Family Trust, established August 28, 1997 Encroachment Agreement A-1
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NOTE: Decorative concrete,
where noted shall be acid
washed finish w/ topcast #3
1 Enroachment and Street Improvement Site Plan
118" = 1'-0"
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