HomeMy WebLinkAboutC-6371(A) - Encroachment Agreement EPN N2001-055 for 2723 Ocean BoulevardRecorded in official Records, County of Orange
Gary Granville, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(N2001-055)
THIS AGREEMENT is made and entered into this /` day of��ri�
2001, by and between Martin Cisek (hereinafter "OWNER"), and the City of Newport Beach,
California, a municipal corporation organized and existing under and by virtue of its Charter
and the Constitution and the laws of the State of California, (hereinafter "CITY"). "OWNER" is
the owner of property located at 2723 Ocean Boulevard, Newport Beach, California and legally
described as Lot 3 of Assessor's Parcel Map Book 52, Page 46, as shown on a map recorded
in Book 52, Page 46 inclusively of Parcel Maps in the office of the County Recorder of Orange
County, California;
WITNESSETH:
WHEREAS, OWNER desires to construct and maintain certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Ocean Boulevard
right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 2723 Ocean Boulevard,
Newport Beach, California and legally described as Lot 3 of Assessor's Parcel Map Book 52,
Page 46, as shown on a map recorded in Book 52, Page 46 inclusively of Parcel Maps in the
office of the County Recorder of Orange County, California;
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 execute an agreement providing for fulfillment
of the conditions required by CITY to permit OWNER to reconstruct and maintain said
PERMITTED IMPROVEMENTS;
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree
as follows:
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RECORDING REQUESTED :AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
U
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in official Records, County of Orange
Gary Granville, Clerk -Recorder
111111 Illi IIII 1111111111111111111111 III I VIII lilt 22.00
2001044445411:28am 07103101
109 73 Al2 9
0.00 0 00 0.00 0.00 16.00 0.00 0 00 0 00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(N2001-055)
THIS AGREEMENT is made and entered into this /` day of��ri�
2001, by and between Martin Cisek (hereinafter "OWNER"), and the City of Newport Beach,
California, a municipal corporation organized and existing under and by virtue of its Charter
and the Constitution and the laws of the State of California, (hereinafter "CITY"). "OWNER" is
the owner of property located at 2723 Ocean Boulevard, Newport Beach, California and legally
described as Lot 3 of Assessor's Parcel Map Book 52, Page 46, as shown on a map recorded
in Book 52, Page 46 inclusively of Parcel Maps in the office of the County Recorder of Orange
County, California;
WITNESSETH:
WHEREAS, OWNER desires to construct and maintain certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Ocean Boulevard
right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 2723 Ocean Boulevard,
Newport Beach, California and legally described as Lot 3 of Assessor's Parcel Map Book 52,
Page 46, as shown on a map recorded in Book 52, Page 46 inclusively of Parcel Maps in the
office of the County Recorder of Orange County, California;
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 execute an agreement providing for fulfillment
of the conditions required by CITY to permit OWNER to reconstruct and maintain said
PERMITTED IMPROVEMENTS;
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree
as follows:
1
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1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as
landscaping, irrigation, and appurtenances in the Ocean Boulevard right -of -away as shown on
EXHIBIT "A" attached hereto and as approved by the City Engineer. The Privet hedge located
on both the north and south sides of the driveway cannot exceed a height of 36 -inches at any
time. In addition, the proposed PERMITTED IMPROVEMENTS may vary at the time of
construction. Hence, any changes must be approved by the City Engineer and shall be shown
on the "As Built" plans.
2. 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, all in substantial conformance with plans and
specifications on file in the CITY. CITY will further allow OWNER to take all reasonable
measures necessary or convenient in accomplishing the aforesaid activities.
3. Rights granted under this Agreement may be terminated by CITY at any time by
giving 60 days' notice, 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.
4. OWNER and CITY further agree as follows:
a. OWNER may construct and install PERMITTED IMPROVEMENTS and
appurtenances incidental thereto, in substantial conformance with plans and specifications
therefor on file in the CITY's Public Works Department, and as described on Exhibit "A" hereto
attached.
b. OWNER shall maintain the PERMITTED IMPROVEMENTS (except City -
maintained turf) in accordance with general prevailing standards of maintenance, and pay all
costs and expenses incurred in doing so. Any landscaping that is within the Ocean Boulevard
right-of-way shall be low growing and be maintained a 3 -foot maximum height at all times to
permit a view down to the beach and white water area where possible. In addition, no
landscaping shall obstruct view to the adjacent residents, residents across Ocean Boulevard,
and residents/non-residents along the street/sidewalk of Ocean Boulevard. 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.
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b. OWNED, shall agree that all vehicles e,.,,ing through the driveway
adjacent to Ocean Boulevard shall be facing forward (i.e. front of vehicle facing street traffic).
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.
d. That 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 the PERMITTED IMPROVEMENTS,
as required, and in such event:
(i) CITY shall notify OWNER of its intention to accomplish such work,
if any emergency situation does not exist.
(ii) OWNER shall be responsible for arranging for any renewal or
restoration of the PERMITTED IMPROVEMENTS affected by such work by CITY;
(iii) CITY agrees to bear only the cost of any removal of the PERMITTED
IMPROVEMENTS affected by such work by CITY;
(iv) OWNER agrees to pay all costs for renewal or restoration of the
PERMITTED IMPROVEMENTS.
5. 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 the
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) days' notice, with the
notice specifying the date of termination. In the event of litigation commenced with respect to
any term of condition of this Agreement, the prevailing party shall be entitled to reasonable
attorneys fees and costs incurred.
6. 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 the PERMITTED IMPROVEMENTS.
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7. OWNER shall accept the fact that surface drainage water may enter onto the
"SUBJECT PROPERTY" from the Ocean Boulevard "RIGHT-OF-WAY" located in the City of
Newport Beach, County of Orange, State of California, as depicted on Exhibit "A" attached
hereto, whether naturally or as a result of the development or improvement of the "RIGHT-OF-
WAY".
8. OWNER shall accept and waive any and all liability for any damages to the
"SUBJECT PROPERTY" caused by the flow of such surface drainage water onto the
"SUBJECT PROPERTY" from Ocean Boulevard. OWNER shall defend, indemnify, waive, 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 to surface
drainage water entering the "SUBJECT PROPERTY" from the "RIGHT-OF-WAY".
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 OWNERS' interest in the land whether fee or otherwise, and shall be recorded in
the Office of the County Recorder of Orange County, California.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first -above written.
CITY OF NEWPORT BEACH,
a Municipal corporation
APPROVED AS TO FORM:
By: By:
y Attorney City Man er
City Clerk
0
IER:
By:
Martin Cisek
STATE OF CALIFORNIA
COUNTY OF ORANGE
On
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personally&-topeared
personally known to me (or proved to me on the basis of satisfa
person whose nam "sis are subscribed to the within instrument
f 1e/
that" he/they has exe ted the same i Is er/their authorized
is her/their signature(non the instrument the person) or the entit
-person acted, executed the instrument.
WITN SImy hand and official seal.
SHAi,NA LYN OYLtR
b Comm;ss:on m 1164149
No -.cry Puolic California
Orange CoLnty
otary Public in_a r said t e My Comm. Expires Dec5,2oo1
.tory evidence) to be the
and acknow edged to me
capacityp ), and that by
y upon behalf of which the
(This area for official notarial seal)
STATE OF CALIFORNIA
) ss:
COUNTY OF ORANGE )
On JVJVE 15 , 2001, before me
personally appeared -�j �►? L. nwAbMi1
known to me
%--, personal
to be the persorl�
whose name(�is/ re ubscribed to the within rument and acknowle d to me that
he/she as executed the same in his/her �thei authorized capacity ies and that by
his/her h Ir ignatur (s), n the instrument the perso�r the entity upon behalf of which the
person acted, execute the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
LEILANI V. INES
Commission # 1170960Z
L a -
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No -cry Public - Califomial
Orange County
My Cornm. Expires Jan 25, 2002
(This area for official notarial seal)
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