HomeMy WebLinkAboutC-7958-1 - First Amendment to Encroachment Agreement EPN N2020-0603Batch 8489975 Confirmation
00
t11
r
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Attn: City Clerk's Office
City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658-8915
Page ] of 2
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
106.00
*$ R 0 0 1 2 3 2 4 8 4 2$
202000072326911:11 am 12/09/20
93 RW14A Al2 8
0.00 0.00 0.00 0.00 21.00 0.00 0.000.0075.00 3.00
Space above this line for Recorders use only.
FIRST AMENDMENT
TO ENCROACHMENT AGREEMENT
(ENCROACHMENT PERMIT NUMBER N2020-0603)
THIS FIRST AMENDMENT TO ENCROACHMENT AGREEMENT ("First
Amendment") is made and entered into as of this _ day of November, 2020 ("Effective
Date"), by and between RICHARD DELLAR AND RENEE DELLAR AS TRUSTEES OF
THE RICHARD DELLAR & RENEE DELLAR REVOCABLE TRUST DATED 7/16/2003
("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
A. On May 6, 2003, City and GLENN M. LEWIS and DOROTHEA LEWIS entered
into an Encroachment Agreement dated May 6, 2003 (EPN2003-04100)
("Agreement") regarding the property located at 127 East Bay Front, Newport
Beach, California 92662 and legally described as Lot 18 in Block 4, Section 5 of
Balboa Island, in the City of Newport Beach, County of Orange, State of California,
as per map recorded in Book 8, Page 9, inclusively, of Miscellaneous Maps in the
office of the County Recorder of Orange County, County Assessor's Parcel
Number 050-184-18 ("Property") and certain non-standard improvements
("Permitted Improvements") within the Park Avenue and East Bay Front rights-of-
way (hereinafter "Right -of -Way") that are located adjacent to Property.
B. On May 15, 2017, Owner became the vested owner of the Property pursuant to
the transfer of ownership memorialized by that certain Grant Deed recorded on
June 9, 2017, in the office of the County Recorder of Orange County as Document
Number 2017000235467 ("Grant Deed").
C. Pursuant to. Section 7 of the Agreement, the Agreement shall run with the land of
the Property and be binding upon the Owner's interest in the land as transferred
to Owner by virtue of the Grant Deed.
D. The parties desire to enter into this First Amendment to supplement the Permitted
Improvements Owner is permitted to construct within the Right -of -Way as further
described herein and subject to the terms and conditions herein.
Richard Dellar & Renee Dellar Revocable Trust dated 7/16/2003 First Amendment to
Encroachment Agreement Page 1
littps://gs.sectire-recording.com/Batch/Coiif i-mation/8489975 12/09/2020
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Attn: City Clerk's Office
City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658-8915
Space above this line for Recorder's use only.
FIRST AMENDMENT
TO ENCROACHMENT AGREEMENT
(ENCROACHMENT PERMIT NUMBER N2020-0603)
THIS FIRST AMENDMENT TO ENCROACHMENT AGREEMENT ("First
Amendment") is made and entered into as of this day of November, 2020 ("Effective
Date"), by and between RICHARD DELLAR AND RENEE DELLAR AS TRUSTEES OF
THE RICHARD DELLAR & RENEE DELLAR REVOCABLE TRUST DATED 7/16/2003
("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
A. On May 6, 2003, City and GLENN M. LEWIS and DOROTHEA LEWIS entered
into an Encroachment Agreement dated May 6, 2003 (EPN2003-04100)
("Agreement") regarding the property located at 127 East Bay Front, Newport
Beach, California 92662 and legally described as Lot 18 in Block 4, Section 5 of
Balboa Island, in the City of Newport Beach, County of Orange, State of California,
as per map recorded in Book 8, Page 9, inclusively, of Miscellaneous Maps in the
office of the County Recorder of Orange County, County Assessor's Parcel
Number 050-184-18 ("Property") and certain non-standard improvements
("Permitted Improvements") within the Park Avenue and East Bay Front rights-of-
way (hereinafter "Right -of -Way") that are located adjacent to Property.
B. On May 15, 2017, Owner became the vested owner of the Property pursuant to
the transfer of ownership memorialized by that certain Grant Deed recorded on
June 9, 2017, in the office of the County Recorder of Orange County as Document
Number 2017000235467 ("Grant Deed").
C. Pursuant to Section 7 of the Agreement, the Agreement shall run with the land of
the Property and be binding upon the Owner's interest in the land as transferred
to Owner by virtue of the Grant Deed.
D. The parties desire to enter into this First Amendment to supplement the Permitted
Improvements Owner is permitted to construct within the Right -of -Way as further
described herein and subject to the terms and conditions herein.
Richard Dellar & Renee Dellar Revocable Trust dated 7/16/2003 First Amendment to
Encroachment Agreement Page 1
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. City and Owner acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference into this First Amendment.
2. The Permitted Improvements shall be defined to include the following, as shown
on Exhibit A:
a. A five foot (5) wide walkway constructed of slate gray tile over concrete
encroaching up to one foot (1) into the Park Avenue Right -of -Way;
b. A fifteen foot, three inch (153") long by one foot (1) tall concrete block wall
encroaching up to one foot (1) into the Park Avenue right of way;
C. A three foot (3') wide walkway constructed of slate gray tile over concrete
encroaching up to four feet (4) into the East Bay Front Right -of -Way;
d. A thirteen foot, six inch (13'6") long by one foot (1) tall concrete planter
encroaching up to four feet (4) into the East Bay Front Right -of -Way;
e. A twelve foot, eight inch (12'8") long by one foot (1) tall concrete planter
encroaching up to four feet (4') into the East Bay Front Right -of -Way;
f. Concrete stairs that encroach up to one foot, six inches (1'6") into the East
Bay Front Avenue Right -of -Way;
g. A twenty nine foot, two inch (29'2") wide patio, one foot, six inches (1'6")
above the adjacent walkway elevation that encroaches up to one foot, six
inches (1'6") into the East Bay Front Right -of -Way.
h. 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 First Amendment 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 Amendment or subsequent removal of
improvements by City.
Richard Dellar & Renee Dellar Revocable Trust dated 7/16/2003 First Amendment to
Encroachment Agreement Page 2
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 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 First
Amendment.
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 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.
Richard Dellar & Renee Dellar Revocable Trust dated 7/16/2003 First Amendment to
Encroachment Agreement Page 3
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 First Amendment 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
therwise;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 Amendment and all
matters relating to it and any action brought relating to this First Amendment shall
be adjudicated in a court of competent jurisdiction in the County of Orange,
California.
11. The terms of this First Amendment 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 Amendment or any other rule of
construction which might otherwise apply.
12. This First Amendment 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 First Amendment is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this First Amendment shall continue in full force and effect.
16. To the extent there are any inconsistent terms between this First Amendment and
the Agreement, the terms of this First Amendment shall control.
[SIGNATURES ON NEXT PAGE]
Richard Dellar & Renee Dellar Revocable Trust dated 7/16/2003 First Amendment to
Encroachment Agreement Page 4
IN WITNESS WHEREOF, the parties have caused this First Amendment to
Encroachment Agreement to be executed on the dates written below.
APPROVED AS TO FORM:
CITY ATT!'S OFFICE
Date: 11 �
By: —, J" , ——
ar C. p c;nA 1111'C110
i y Attorfievy
ATTEST: • � 4zv
Date: /�
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: DEC 0 6 2020
By:
Gr e K. Leung
City Manager
OWNER(S): RICHARD DELLAR AND
RENEE DELLAR AS TRUSTEES OF
THE RICHARD DELLAR & RENEE
DELLAR REVOCABLE TRUST DATED
7/16/2003
Date:
ByOvor /
. By:
Leilani I. Brown Richard Dellar
City Clerk Trustee
Date: ZOZO
By:
Renee Dellar
Trustee
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENTS: Exhibit A — Amended Permitted Improvements Plan as
Approved by Public Works
Richard Dellar & Renee Dellar Revocable Trust dated 7/16/2003 First Amendment to
Encroachment Agreement Page 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. -T
On /Vv tie^ Sir , 20 2a before me, )cu�,_,� /w'��✓,
Notary Public, personally appeared ;� �er�J SAve. a / ter- 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
r)araaraoh is true and correct.
WITNESS my hand and official seal
JACOB PARTIDA
Notary Public— California
Z Orange County
Commission # 2186392
My Comm. Expires Mar 12. 2021
ure (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 %l /Z?,% 20before me,
Notary Public, personally appeared kt-,A es_ IJI,�xr
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.
ignature
JACOB PARTIDA
Notary Public — California z
Orange County
Commission # 2186392
My Comm. Expires Mar 12, 2021
(seal)
Richard Dellar & Renee Dellar Revocable Trust dated 7/16/2003 First Amendment to
Encroachment Agreement Page 6
EXHIBIT A
AMENDED PERMITTED IMPROVEMENTS PLAN
Richard Dellar & Renee Dellar Revocable Trust dated 7/16/2003 First Amendment to
Encroachment Agreement Page A-1
-#O--rxF-
L- K -
At
f c--- urvw
77
'Af rA-
EXHIBIT A
1 O F 1
4-z-o/
SM4:4-r
DAK.V- CF