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Home My WebLink AboutC-6371(D) - Encroachment Agreement (2723 Ocean Boulevard)RECORDING REQUESTED JD A WHEN RECORDED RETUR,, TO- Public Works Department 115 City of Newport Beach Post Office Box 1768 j 3300 Newport Boulevard Newport Beach, CA 92659-1768 Recorded in the County of Orange, California Gary L. Granville, Clerk/Recorder IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 24.00 19990610169 'b3 ; 04pm 07/09/99 005 656512 19 04 IB26 Al2 7 6.00 18.00 0.00 0.00 0.00 0.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT THIS AGREEMENT is made and entered into this 30 f r) day of 'J n 1999, 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, (hereiro�: iter "CITY"). "OWNER" is the owner of property locaJad at 2723 Ocean Boulevard, Newport B3 .ach, 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 legal!;/ 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 inl.;rfere in the future with CITY'S ability to construct, operate, maintain, and replace CITY a,,.6 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 1. It is mutually a red that PERMITTED IMPROVE, ITS shall be defined as a non -conforming colored concrete driveway/approach, retaining walls, and appurtenances in the Ocean Boulevard right -of -away as shown on EXHIBIT "A" attached hereto and as approved by the City Engineer. In addition, the proposed PERMITTED IMPROVEMENTS may vary at the time of construction. Hence, any changes mu:=i be approved by the City Engineer and shall be sho'Nn 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 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 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. b. OWNER shall agree that all vehicles exiting throigh the driveway adjacent to Ocean Boulevard shall oe facing forward (i.e. front of vehicle facing street traffic). 2 C. If City other public facilities or improvE ants 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 intentioi 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, .'ITY 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. 3 7. OWNER shall cept the fact that surface drainak �-,,ater may enter onto the "SUBJECT PROPERTY" from the Ocean Boulevard "RIGHT-OF-1P, AY" located in the City of Newport Beach, County of Orange, State of California, as depictwl on Exhibit "A" attached hereto, whether naturally c)r 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 fall force and effect from execution thereof; shall run with the land; shall be binding upon �. ie 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: f� i y ttorney City Manager ATTEST: City Clerk 2 OWNER: r By: �t,-- Martin Cisek STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On 1 9 q 1999, before me,&'uW , 0Y1UfC'h K V personally appeared - 0 - , personally known to me (or proved to me on the basis of satisfact y evidence) to be the person(-E�) whose name is/a-re- subscribed to the within instrument and acknowledged to me that he/sue has executed the same in his/fair authorized capacity(ieI5), and that by his/he4tKeir signature,() on the instrument the person(ss or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand arid official seal.oj) j SARAH C. CHURCHWELL (�- wl 1V T 0 COMM. #1188582 mA NOTARY PUBLIC - CALIFORNIA Notary Public in and for said State ORANGE COUNTY vn My Comm. Expires June 29, 2002 (This area for official notarial seal) STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On LAI, 1999, fore me,_. lh6 personally appeare 1IgVYK( �• D(Akltl dO.j �-AWVk� M. -I OY91055 personally known to me to be the person(s) whose name(s) -Ware subscribed to the within instrument anc; acknowledged to me that ^, they has executed the same in ta+s-1�their authorized capacity(ies), and that by their signature(s) on the instrument the person(s) or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. LEILANI V, INES Commission �( V ' Z .pri # 7170960 No ary Pualic - California Orange County Notary Public in and for said State wtyC mm.ExpiresJonzs,20D2 (This area for official notarial seal) F:\USERS\W P51 \GILBERT\AG\CISEK9DRIV EWAYCDM. DOC 5 p1� (!1 � 1 1 �• IL � `' BAN ,��, ��, H rl � :.;.. t :� _ *,� ; .• _h kN FfG t55.91 F-t� )�+E►9tw- -_ _ e! 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