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HomeMy WebLinkAboutC-4715(A) - Amended and Restated Encroachment Agreement EPN N2021-0646 for 2000 East Ocean Front8/3/22, 11:29 AM Batch 14444910 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 I I I II 1111111 I II 1111111111 II 34.00 *$ R 0 0 1 3 8 8 4 8 7 9$* 2022000267707 11:14 am 08/03/22 90 CR-SCO6 Al2 10 0.00 0.00 0.00 0.00 27.00 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 N2021-0646) THIS AMENDED AND RESTATED ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 22nd day of June, 2022, by and between Ronald Jay Seidner and Kimberly Jane Seidner, Trustee of the Seidner Family Trust dated May 19, 1994 ("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 2000 E. Ocean Front, Newport Beach, California, 92661 and legally described as Lot 1 of Block D, of Tract 518, in the City of Newport Beach, County of Orange, State of California, as per Map recorded in Book 17, Pages 33 to 36 inclusive, of Miscellaneous Maps, in the office of the County Recorder of said County, County Assessor's Parcel Number 048-262-32 ("Property"); WHEREAS, a previous owner of the Property, Bruce Karatz ("Previous Owner"), and the City previously entered into that certain agreement, Agreement for Non -Standard Improvements, dated 21st of May, 1990, which was recorded as instrument number 90- 306339 with the Recorder's Office for the County of Orange on January 5, 1998 ("Former Agreement"); WHEREAS, the Former Agreement permitted the Previous Owner to construct brick pavement constructed over a minimum of six inches of Portland cement concrete pavement, landscaping irrigation system, and limestone and concrete walkway in the Ocean Front E right-of-way that is located adjacent to the Property ("Existing Encroachment"); WHEREAS, the Former Agreement provided that it shall run with the land and be binding upon the heirs, successors, and assigns of Previous Owner's interest in the land; WHEREAS, Owner is the successor in interest to Previous Owner, having acquired ownership via Grant Deed dated November 17, 2021, which was recorded as Instrument Number 2021000731632 with the Recorder's Office for the County of Orange on December 3, 2021; Seidner Family Trust, dated May 19 1994 Encroachment Agreement 1 https://gs.secure-recording.com/Batch/Confirmationi14444910 5/6 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 N2021-0646) THIS AMENDED AND RESTATED ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 22nd day of June, 2022, by and between Ronald Jay Seidner and Kimberly Jane Seidner, Trustee of the Seidner Family Trust dated May 19, 1994 ("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 2000 E. Ocean Front, Newport Beach, California, 92661 and legally described as Lot 1 of Block D, of Tract 518, in the City of Newport Beach, County of Orange, State of California, as per Map recorded in Book 17, Pages 33 to 36 inclusive, of Miscellaneous Maps, in the office of the County Recorder of said County, County Assessor's Parcel Number 048-262-32 ("Property"); WHEREAS, a previous owner of the Property, Bruce Karatz ("Previous Owner"), and the City previously entered into that certain agreement, Agreement for Non -Standard Improvements, dated 21st of May, 1990, which was recorded as instrument number 90- 306339 with the Recorder's Office for the County of Orange on January 5, 1998 ("Former Agreement"); WHEREAS, the Former Agreement permitted the Previous Owner to construct brick pavement constructed over a minimum of six inches of Portland cement concrete pavement, landscaping irrigation system, and limestone and concrete walkway in the Ocean Front E right-of-way that is located adjacent to the Property ("Existing Encroachment"); WHEREAS, the Former Agreement provided that it shall run with the land and be binding upon the heirs, successors, and assigns of Previous Owner's interest in the land; WHEREAS, Owner is the successor in interest to Previous Owner, having acquired ownership via Grant Deed dated November 17, 2021, which was recorded as Instrument Number 2021000731632 with the Recorder's Office for the County of Orange on December 3, 2021; Seidner Family Trust, dated May 19 1994 Encroachment Agreement 1 WHEREAS, Owner desires to update the design of the Existing Encroachment in substantial conformance with the Former Agreement and construct certain non-standard improvements as further described herein ("Permitted Improvements") within the L Street 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: 1. 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 concrete stairway running parallel to the L Street Right -of -Way and encroaching up to seven feet six inches (7'6") into the Right -of -Way, comprised of three inch (3") pavers on top of four inch (4") concrete with #4 rebar over two inch (2") sand, in a configuration, from southwest to northeast, of one (1) step of up to four feet (4') wide by one foot six inches (1'6") in length, adjacent to a seven feet six inch (7'6") wide by nine feet nine inch (9'9") in length concrete pad, adjacent to six (6) steps of up to five feet (5') wide by one foot six inches (1'6") in length, adjacent to a concrete pad of up to five feet (5') wide by six foot (6') in length, adjacent to two (2) steps of up to five feet (5') wide by one foot six inches (1'6") in length, adjacent to a concrete pad of up to five feet (5') wide by four foot eleven inches (4'11 ") in length, adjacent to a concrete pad of up to five feet (5') wide by two foot six and three quarters (2'6 3/4") in length, as approved by the Public Works Department and as shown on Exhibit A, attached hereto and incorporated herein by reference. b. A color washed concrete walkway four feet (4') wide by thirty three feet three and one half inches (33'31/2") in length, encroaching up to four feet (4') 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. c. An eight foot (8') wide brick pavement walkway constructed over a minimum of six inches (6") of Portland cement concrete pavement, as approved by the Public Works Department and as shown on Exhibit A, attached hereto and incorporated herein by reference. d In addition, if any improvements actually built or installed during the time of construction vary from Permitted Improvements approved herein, such Seidner Family Trust, dated May 19 1994 Encroachment Agreement 2 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) 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. Seidner Family Trust, dated May 19 1994 Encroachment Agreement 3 (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. 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. Seidner Family Trust, dated May 19 1994 Encroachment Agreement 4 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] Seidner Family Trust, dated May 19 1994 Encroachment Agreement 5 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: (9/16,/,7p By: on C. Harp City Attorney ATTEST: or Date: 6, /• By: Daeif* Leilani I. Brown City Clerk ATTACHMENTS: CITY OF NEWPORT BEACH, a California municipal corporation Date: -1- 2.7 -LZ Grace K. Leung City Manager OWNER(S): Ronald Jay Seidner and Kimberly Jane Seidner, Trustee of the Seidner Family Trust dated May 19, 1994 Date: By: Ronald Jay Seidner Trustee [END OF SIGNATURES] Owners must sign in the presence of notary public Exhibit A — Permitted Improvements Plan as Approved by Public Works Seidner Family Trust, dated May 19 1994 Encroachment Agreement 6 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 LOS e(r.J } ss. /l On ;J u-LI Z07,2- , 20 before me, lrc. <rzc,( �� u.-< 1)"- , Notary Public, personally appeared • irk.— Gt V\Cr— , 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. v.h) Signatur (seal) CRYSTAL MARLO HOUSTON Notary Public - California Orange County Commission # 2286273 My Comm. Expires May 22, 2023 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 , 20 before me, , Notary Public, personally appeared , 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) Seidner Family Trust, dated May 19 1994 Encroachment Agreement 7 EXHIBIT A PERMITTED IMPROVEMENTS PLAN Seidner Family Trust, dated May 19 1994 Encroachment Agreement A-1 r % IL/ • 1 PUBLIC WORKS NOTES ISSUANCE OF BUILDING PERMIT HE CITY OF NEWPORT BEACH DOES NOT RELIEVE APPLICANTS OF THE LEGAL REQUIREMENTS TO OBSERVE COVENANTS, CONDITIONS AND RESTRICTIONS WHIC MAY BF RECORDED AGAINST S PROPERTY OR TO OBTAIN PLANS. YOU SHOULD CONTACT YOUR COMMUNITY ASSOCLAI IONS PRIOR TO COMMENCEMENT OF ANY CONTSTRUCTION AUTHORIZED RV THIS MEN PRIOR TO PERFORM. ANY WORK IN THE CITY -0F WAY AN ENCROACHMENT PERMIT MUST BE OBD TNOM THE PUBLIC WTAINE WORKS DEPARTMENT AN .CROACHMENT AGREEMENT S REOUNED FOR ALL IMPROV.ENTS WITHIN THE PUBLIC RIGHT OF WAY ALLNON.STANDARD MPROVEMENTS SHALL WITH CRY COUNCILPOLICY LG. PUBLICALL WORK RELATED TO WATER IN THE RIGHT.OF. WAY SHALL BE CONTRACTOR OR AN A PERFORMED ICENSED GENERAL OIONEERNG ALL WORK RELATED TO WASTE WATER IN THE PUBLIC RIONILOSWAY SHALL BE LPERFORMED LICENSED SANRATION SEWER CONTRACTOR OR AN 'A' LICENSED GENERAL ENGINEERING CONTRACTOR EXISTING RESIDENCE N2021-0646 - EXHIBIT A ADDRESS: 2000 E. OCEAN FRONT OWNER: SEIDNER FAMILY TRUST DATED MAY 19, 1994 PAGE 1 OF 2 OPEN.VOLUME COURTYARD / ARCHITECTURAL SITE PLAN V. REFERENCE ONLVi SCALE 1 8- TI pi/ VI ('()A( RI[TI•_ STEP 11 VLI: _. _.. SCALE ai - 2 0 W 0 �F- Z Occ cc u H z >- Q J w2 1—OLL m ul cc X 8 Z LL1o0 ' N lL (Ni 9w�N N Z Uj Z<0a --1°wig "°?Xx �oravi,rq�s�