HomeMy WebLinkAboutC-8810-1 - First Amended and Restated Encroachment Agreement EP98-283 for 4707 Seashore DriveBatch 12639765 Confirmation
I
O
U 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 6
Recorded in Official Records, Grange County
Hugh Nguyen, Clerk -Recorder
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FIRST AMENDED AND RESTATED
ENCROACHMENT AGREEMENT
(Encroachment Permit Number EP 98-283)
THIS FIRST AMENDED AND RESTATED ENCROACHMENT AGREEMENT ("First
Amended Agreement") is made and entered into this 1st day of November, 2021, by and
between TMS BEACH PROPERTIES, LLC, an Arizona limited liability company registered
with the California Secretary of State ("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, City and Jan -Erik Palm ("Former Owner") entered into an Encroachment
Agreement EP 98-283 ("Agreement"), recorded with the County Recorder of Orange County,
California, on September 24, 1998, regarding the property located at 4707 Seashore Drive,
Newport Beach, California and legally described as Lot 4, Block 47, Tract Third Addition to
Newport Beach, as shown on a map recorded in Book 3, Page 31 inclusively of
Miscellaneous Map in the office of the County Recorder of Orange County, California ,
Accessor's Parcel Number 424-45403 ("Property") and certain non-standard improvements
within the Seashore Drive right-of-way ("Right -of -Way");
WHEREAS, Owner became the vested owner of the Property pursuant to the transfer
of ownership memorialized by that certain Grant Deed, dated May 31, 2007, and recorded
July 9, 2007, in the office of the County Recorder of Orange County as Document Number
2007000427662 ("Grant Deed");
WHEREAS, Owner is identified on the Grant Deed as "TMS BEACH PROPERTIES,
LLC, of which the sole member is the TMS Revocable Trust dated February 22, 1994 and
Timothy J. Salmon and Marci E. Salmon are the Trustees of the TMS Revocable Trust dated
February 22, 1994";
WHEREAS, pursuant to Section 9 of the Agreement, the Agreement shall run with
land, the Property, and shall be binding upon the Former Owner's interest and the Former
Owner's successors in interest in the land, which eventually transferred to Owner by virtue
of the Grant Deed, and remained binding upon Owner's interest in the Property;
TMS BEACH PROPERTIES, LLC, Encroachment Agreement
https://gs.secure-recordin<r.coi-n/Batch/Confirmation/I 2639765 121i07!292 1
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.
FIRST AMENDED AND RESTATED
ENCROACHMENT AGREEMENT
(Encroachment Permit Number EP 98-283)
THIS FIRST AMENDED AND RESTATED ENCROACHMENT AGREEMENT ("First
Amended Agreement") is made and entered into this 1st day of November, 2021, by and
between TMS BEACH PROPERTIES, LLC, an Arizona limited liability company registered
with the California Secretary of State ("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, City and Jan -Erik Palm ("Former Owner") entered into an Encroachment
Agreement EP 98-283 ("Agreement"), recorded with the County Recorder of Orange County,
California, on September 24, 1998, regarding the property located at 4707 Seashore Drive,
Newport Beach, California and legally described as Lot 4, Block 47, Tract Third Addition to
Newport Beach, as shown on a map recorded in Book 3, Page 31 inclusively of
Miscellaneous Map in the office of the County Recorder of Orange County, California ,
Accessor's Parcel Number 424-454-03 ("Property") and certain non-standard improvements
within the Seashore Drive right-of-way ("Right -of -Way");
WHEREAS, Owner became the vested owner of the Property pursuant to the transfer
of ownership memorialized by that certain Grant Deed, dated May 31, 2007, and recorded
July 9, 2007, in the office of the County Recorder of Orange County as Document Number
2007000427662 ("Grant Deed");
WHEREAS, Owner is identified on the Grant Deed as "TMS BEACH PROPERTIES,
LLC, of which the sole member is the TMS Revocable Trust dated February 22, 1994 and
Timothy J. Salmon and Marci E. Salmon are the Trustees of the TMS Revocable Trust dated
February 22, 1994";
WHEREAS, pursuant to Section 9 of the Agreement, the Agreement shall run with
land, the Property, and shall be binding upon the Former Owner's interest and the Former
Owner's successors in interest in the land, which eventually transferred to Owner by virtue
of the Grant Deed, and remained binding upon Owner's interest in the Property;
TMS BEACH PROPERTIES, LLC, Encroachment Agreement 1
WHEREAS, the parties desire to enter into this First Amended Agreement to
supersede and update the certain non-standard improvements Owner is permitted to
construct within the Right -of -Way as further described herein and subject to the terms and
conditions herein ("Amended Permitted Improvements");
WHEREAS, the Amended 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 First Amended Agreement
providing for fulfillment of the conditions required by City to permit Owner to construct and
maintain said Amended Permitted Improvements.
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 Amended Agreement.
2. It is mutually agreed that Amended Permitted Improvements shall be defined as:
a. 31.66 linear feet of flagstone tile with a grey in color free form pattern over
concrete driveway approach/walkway encroaching up to 3 feet into the
Seashore Drive public 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 Amended 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 Amended 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 First Amended Agreement or subsequent removal of
improvements by City.
5. Owner and City further agree as follows:
TMS BEACH PROPERTIES, LLC, Encroachment Agreement 2
a. Owner may construct and install Amended 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 Amended 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 Amended 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 Amended 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
Amended 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.
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,
TMS BEACH PROPERTIES, LLC, Encroachment Agreement 3
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 Amended Permitted
Improvements.
9. Owner agrees that this First Amended 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 First Amended Agreement and all
matters relating to it and any action brought relating to this First Amended Agreement
shall be adjudicated in a court of competent jurisdiction in the County of Orange,
California.
11. The terms of this First Amended 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 First Amended Agreement or any other rule of
construction which might otherwise apply.
12. This First Amended Agreement represents the full and complete understanding of
every kind or nature whatsoever between the parties hereto, and supersedes all
preliminary negotiations and agreements of whatsoever kind or nature, whether oral,
written, express or implied, relating to the subject matter hereof, all of which are
merged herein and shall not 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 Amended Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions
of this First Amended Agreement shall continue in full force and effect.
16. To the extent there are any inconsistent terms between this First Amended Agreement
and the Agreement, the terms of this First Amended Agreement shall control.
[SIGNATURES ON NEXT PAGE]
TMS BEACH PROPERTIES, LLC, Encroachment Agreement 4
IN WITNESS WHEREOF, the parties hereto have caused this First Amended
Agreement to be executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 10 • i
By: JC �1
ron C. arp
City Attorney
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: [ yes y)
s
By: 1?�� ('��
Gr ce . Leung
Ci anager
ATTEST:
Date:- ..�
OWNER(S): TMS BEACH PROPERTIES,
LLC, an Arizona limited liability
company`
_Z
Date:
tryBy: IPV\_
'
By:
Leilani I. Brown
i.'15almon
City Clerk
rustee of TMS Revocable Trust dated
February 22, 1994, sole member of TMS
P0
Beach Properties, LLC
Date: � � ' %� • 21
l
B
`��iFoaN�P
Marci E. Salmon
Trustee of TMS Revocable Trust dated
February 22, 1994, sole member of TMS
Beach Properties, LLC
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENTS: Exhibit A — Amended Permitted Improvements Plan as
Approved by Public Works
--- ----------- _-- -----------------
TMS BEACH PROPERTIES, LLC, 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 Ga44&Fm4s 'fq k1 n V16�-
County of /}.i(�f � ss.
On L`i� R� 20 be re me, - Notary
Public, personally appeared L 11 who proved to
me on the basis of satisfactory evidence to a the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me tOt he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their/slgnatures(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 OFA" PERJURY under the laws of the State of California that the foregoing
paragraph is true and corr ct.
WITNESS my hand d offlclal seal. JENNIFER DESIDERIO
Notary Public Arizona
Maricopa County
Commission # 594629
My Commission Expires December 12, 2024
�► (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 L a ss. (�
OnZ 20 7k before me,4'k� (Xa r� In Notary
Public, pe s ally appeared Mc�Q,2_ l w 1 d- timeA-'A �r �cr proved to me on
the basis of satisfactory evidence to be the person(s) wh6 se 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 y ha d and official seal.
Signatur
9omyKRISTIAN A. ANDERSON
Notary Public - California
Orange County
Commission # 2363323 Comm. Expires Jun 29, 2025
(seal)
TMS BEACH PROPERTIES, LLC, Encroachment Agreement 6
EXHIBIT A
AMENDED PERMITTED IMPROVEMENTS PLAN
TMS BEACH PROPERTIES, LLC, Encroachment Agreement A-1
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