HomeMy WebLinkAboutC-8880-2 - Amended and Restated Encroachment Agreement EPN N2022-0141 for 1010 Kings RoadBatch 13962083 Confirmation
Page 7 of 8
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
II I I II 11111 III IIII I I II I I I I II 28.00
*$ R 0 0 1 3 7 3 6 0 6 9 $ *
2022000183458 9:58 am 05/17/22
65 RW10A Al2 8
0.00 0.00 0.00 0.00 21.00 0.00 0.000.000.00 0.00
Space above this line for Recorder's use only.
AMENDED AND RESTATED ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2022-0141)
THIS AMENDED AND RESTATED ENCROACHMENT AGREEMENT ("Agreement")
is made and entered into this 6th day of April, 2022, by and between 1010 Kings LLC, a
California limited liability company ("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 1010 Kings Road,
Newport Beach, California, 92663 and legally described as Lot 7, Block G of Tract 1219, Cliff
Haven, in the City of Newport Beach, County of Orange, State of California, as per map
recorded in Book 38, Pages 26 and 27 of Miscellaneous Maps in the office of the County
Recorder of Orange County, County Assessor's Parcel Number 049-211-23 ("Property");
WHEREAS, the former owners of the Property, Bruce D'eliscu and Allyson D'eliscu
(collectively "Former Owner') and City previously entered into an Encroachment Agreement
(Encroachment Permit Number EP97-360), which was recorded as Instrument Number
19980004497 with the Recorder's Office for the County of Orange on January 5, 1998
("Former Agreement");
WHEREAS, the Former Agreement was based on a waiver granted by the City
Council permitting the Former Owner to construct a thirty two inch (32") wall in the public
right of way ("Permitted Wall");
WHEREAS, Former Owner granted to Owner the Property via Grant Deed dated
March 2, 2020, which was recorded as Instrument Number 2020000418303 with the
Recorder's Office for the County of Orange on August 18, 2020;
WHEREAS, Owner desires to update the. design of the Permitted Wallin substantial
conformance with the Former Agreement, and install additional improvements in the public
right-of-way authorized by City Council Policy L-6;
1010 Kings LLC Encroachment Agreement 1
https://gs.secure-recording.com/Batch/Confirmation/I 3962083 05/17/2022
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.
AMENDED AND RESTATED ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2022-0141)
THIS AMENDED AND RESTATED ENCROACHMENT AGREEMENT ("Agreement")
is made and entered into this 6th day of April, 2022, by and between 1010 Kings LLC, a
California limited liability company ("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 1010 Kings Road,
Newport Beach, California, 92663 and legally described as Lot 7, Block G of Tract 1219, Cliff
Haven, in the City of Newport Beach, County of Orange, State of California, as per map
recorded in Book 38, Pages 26 and 27 of Miscellaneous Maps in the office of the County
Recorder of Orange County, County Assessor's Parcel Number 049-211-23 ("Property");
WHEREAS, the former owners of the Property, Bruce D'eliscu and Allyson D'eliscu
(collectively "Former Owner") and City previously entered into an Encroachment Agreement
(Encroachment Permit Number EP97-360), which was recorded as Instrument Number
19980004497 with the Recorder's Office for the County of Orange on January 5, 1998
("Former Agreement");
WHEREAS, the Former Agreement was based on a waiver granted by the City
Council permitting the Former Owner to construct a thirty two inch (32") wall in the public
right of way ("Permitted Wall");
WHEREAS, Former Owner granted to Owner the Property via Grant Deed dated
March 2, 2020, which was recorded as Instrument Number 2020000418303 with the
Recorder's Office for the County of Orange on August 18, 2020;
WHEREAS, Owner desires to update the design of the Permitted Wall in substantial
conformance with the Former Agreement, and install additional improvements in the public
right-of-way authorized by City Council Policy L-6;
1010 Kings LLC Encroachment Agreement 1
WHEREAS, Owner and City now wish to enter into this Agreement to amend, restate
and replace the Former Agreement upon the terms and conditions stated herein. To the
extent there is any inconsistency between the Former Agreement and this Agreement, the
terms of this 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;
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.
2. It is mutually agreed that Permitted Improvements shall be defined as:
a. A 9-foot 1-inch long by 32-inch tall block wall with white stucco finish and black
pre -cast cap encroaching up to 6-feet into the Right -of -Way; a five-foot seven-
inch long by 32-inch tall block wall with white stucco finish and black pre -cast
cap encroaching up to 6-feet into the Right -of -Way; a 24-foot long by 32-inch
tall block wall with white stucco finish and black pre -cast cap encroaching up
to 6-feet into the Right -of -Way; and a 24-inch square by 42-inch tall pilaster
mailbox encroaching up to 12-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.
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 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)
1010 Kings LLC Encroachment Agreement 2
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
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.
1010 Kings LLC Encroachment Agreement 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 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 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]
1010 Kings LLC 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: q / 19 / ap
By: Pt
a on C. Harp � Ll•(a•W
C y Attorney
ATTEST:
Date:��7��22
�.,i.��,�...J /I1/►tLlCity Clerk
,U
<<, r
FrFoPO
ATTACHMENTS:
CITY OF NEWPORT BEACH,
a California mupicipaI corporation
Date:
By:
Panager
ng
C
OWNER(S): 1010 Kings LLC, a
Californi limited liability company
Date: 1--7;'-2 r 2 "Z
By: V V
Allen Yan Cho
Member
DE
By
[END OF SIGNATURES]
Owners must sign in the presence of notary public
Exhibit A — Permitted Improvements Plan as Approved by
Public Works
1010 Kings 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 California
County of ORA IV& F ) ss.
On /4-PPIL 20_12 before me, T-tu e1-rfi-M Notary
Public, personally appeared H:r2A-Aj& 3Ao V`n/ 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.
Signature
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)
6'a-�-
THU PHAM
Notary Public - California
Orange County
Commission a 2371079
State of California
County of } ss.
On "R/d-- 22� 20 ?-Z- before me, pam Notary
Public, personally appeared Al YN ,�2A/ , 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
THU PHAM
Notary Public - California
J Z
Orange County
Commission ; 2371079
(seal)
1010 Kings LLC Encroachment Agreement 6
EXHIBIT A
PERMITTED IMPROVEMENTS PLAN
1010 Kings LLC Encroachment Agreement A-1
21,Orl 1 OF 1
24"X24" SQUARE PILASTER EXII
MAILBOX 42" TALL WITH SELF"CLO
METAL FINISH ���� GA
RE
9'1" LONG BY 32" TALL
BLOCK WALL WITH 911 vi
WHITE STUCCO AND 6' P,A.
BLACK PRE -CAST CAP
FINISH
Z
U`
0.0-
u �� 0
EXISTING DRIVEWAY
I
to <
0 (NO CHANGES
.651 PROPOSED)
I
<
Olz
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NEW, SAND FINISH
CONCRETE WALKWAY,
I
Lu
SLOPED DOWN TO
.0
6BACKSIDE OF CORB
57' LONG BY 32" TALL
< BLOCK WALL WITH
517'v
P.A.
WHITE STUCCO AND
D 9
1
0 BLACK PRE -CAST CAP
O�JFINISH
DN 2R INN 21?
I.
GO
EXISTING GARDEN--.
NEW
"CORCRE-T-
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WALL TO REMAIN I
WA. LKWAY
PLANT ONE - 3�" sox 4-
. . . . . . . . . .
L2 IL
Xyl Ac A
0 2 NEW
I
PRUN' US CEIFERA
CON ETE STEPS
f 'NEWPORr STREET TREE
6" RISERS W/ 14"
�:�R
IN PARKWAY PER CITY
1) DEPTH)
COUNCIL G-6-
-NFWSQUARE
PlLASTERS,.24" ABV
A
24'LONG BY 32" TALL
L-A
BLOCK WALL WITH
-
GRADE
WHITE STUCCO AND
24'1
> < �' I
EXISTING
BLACK PRE -CAST CAP
LANDSCAPED AREA
(NO CHANGES
FINISH
PROPOSED)
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30r-011
—
FRONT YARD SETBACK
CK
ALL PLANTS IN THE PUBLIC RIGHT '-A�tLwL147HTINGIN
Of WAY OTHER THAN TURF TO BE THE PUBLIC PROP
REPLACED WITH GROUND- RIGHT-OF-WAY EXISTING, 6-F
COVER THAT WILL NOT EXCEED SHALL BE PRIVACY I
36-INCHES IN HEIGHT REMOVED