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�