HomeMy WebLinkAboutC-7756-1 - Encroachment Agreement EPN N2018-0496 for 3725 Ocean BoulevardBatch 5291612 Confirmation
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
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RECORDING REQUESTED BY AND 201900040123512:14 pm 10115119
WHEN RECORDED RETURN TO: 47 422 Al2 10
0.00 0.00 0.00 0.00 27.00 0.00 0.000.000.00 3.00
Attn: City Clerk's Office
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Space above this line:for Recorders use only.
ENCROACHMENT AGREEMENT.
.
(Encroachment Permit Number N2018-0496)
THIS ENCROACHMENT AGREEMENT.("Agreement")- is made and entered .into this
27th - day .of March, 2019, by and between Desmond Lawrence Fischer, a single man
("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 3725 Ocean Boulevard,
Newport. Beach, .California, 92625; Orange County, County Assessor's Parcel Number 052-
150-15 and as legally described on Exhibit A, attached hereto and .incorporated herein by
reference.("Property„);
WHEREAS, Owner desires to construct certaiin non=standard improvements as further
described . herein -,("Permitted Improvements") within the Ocean Boulevard right-of-way
(hereinafter "Right=of.--Way") that is located adjacent to Property; .
WHEREAS, said Permitted. Improvements:may interfere in 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.
WHEREAS, on January 17, 2019, Item No. 3 went before the. Planning Commission
as. a Public Hearing item, and the Planning Commission found the -project exempt.from the:
California ,Environmental Quality.Act (CEQA) pursuant to Section 15303(a). of the CEQA
Guidelines; waived:City Council Policy L-6, Encroachments in Public Rights=of-Way; and
adopted Resolution NO. PC2019=001, waived City. Council Policy L-6 and approved
Encroachment Permit No. N2018-0496:
Desmond Lawrence Fisher Encroachment Agreement 1
https:Hgs.secure-recording.com/Batch/Confirmation/5291612 10/15/2019
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
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2018-0496)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
27th day of March, 2019, by and between Desmond Lawrence Fischer, a single man
("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 3725 Ocean Boulevard,
Newport Beach, California, 92625, Orange County, County Assessor's Parcel Number 052-
150-15 and as legally described on Exhibit A, attached hereto and incorporated herein by
reference(" Property");
WHEREAS, Owner desires to construct certain non-standard improvements as further
described herein ("Permitted Improvements") within the Ocean Boulevard 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.
WHEREAS, on January 17, 2019, Item No. 3 went before the Planning Commission
as a Public Hearing item, and the Planning Commission found the project exempt from the
California Environmental Quality Act (CEQA) pursuant to Section 15303(a) of the CEQA
Guidelines; waived City Council Policy L-6, Encroachments in Public Rights -of -Way; and
adopted Resolution NO. PC2019-001, waived City Council Policy L-6 and approved
Encroachment Permit No. N2018-0496.
Desmond Lawrence Fisher Encroachment Agreement 1
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 retaining wall that encroaches up to 14 -feet into the Ocean Boulevard public
right-of-way;
b. planter walls and pilasters not exceeding 36 -inches in height that encroach up
to 35 -feet into the Ocean Boulevard public right-of-way; and,
C. stairs that encroach up to 35 -feet into the Ocean Boulevard public right-of-way,
as approved by the Public Works Department and as shown on Exhibit B,
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
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 B.
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.
Desmond Lawrence Fisher Encroachment Agreement 2
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.
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.
Desmond Lawrence Fisher Encroachment Agreement 3
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]
Desmond Lawrence Fisher 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: �/ZS /Zo1ci
By: d�3�_ 4-1-11
.Fcf : Aaron C. Harp Q3�ti
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 2 -gyp--iq
By:
Gra e . Leung
Cit anager
OWNER(S): Desmond Lawrence
Fisher, a single man
Date: ///—,aozg
By.
D mond Law c F sher
Owner
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENTS: Exhibit A — Legal Description of Property
Exhibit B - Permitted Improvements Plan as Approved by Public
Works
Desmond Lawrence Fisher 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 QM44 Iss.
On V ev— 17 20 1 q before me, Notary
Public, personally appeared IiwS tv Or%dy7p ee_ 9h.< -r- who proved to
me on the basis of satisfactory evidence to be the personal whose nameW is/arm subscribed to the within
instrument and acknowledged to me that he/sbe/tl-lpy executed the same in his/fuer/tbsir authorized
capacityfts}, and that by his/huer/therif signatures4&I on the instrument the personos , or the entity upon
behalf of which the person( 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. KIM RIEFF
Commission 4E 2138649
Notary Public - California D
Orange County
My Comm. Ex ires is 26, 2020
Signature (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 I 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)
Desmond Lawrence Fisher Encroachment Agreement 6
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Desmond Lawrence Fisher Encroachment Agreement A-1
EXHIBIT 'A'
The Northwesterly 55.89 feet of that portion of Block A, of Corona del Mar, in the City of Newport
Beach, County of Orange, State of California, as per Map recorded in book 3, pages 41 and 42 of
Miscellaneous Maps, in the office of the County Recorder of said County, lying Southerly of the
following described line:
Beginning at a point on the Southwesterly line of Ocean Boulevard as shown on said Map,
Northwesterly 155.39 feet from the most Easterly corner of said Block A; thence Southwesterly at
right angles to the Southwesterly line of Ocean Boulevard.
Except therefrom those portions, if any of said Block A of heretofore or now lying below or
seaward of the line of mean high tide of the Pacific Ocean.
EXHIBIT B
PERMITTED IMPROVEMENTS PLAN
Desmond Lawrence Fisher Encroachment Agreement B-1
EXHIBIT B
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