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HomeMy WebLinkAboutC-6158 - Encroachment Agreement EPN N2015-0147 for 110 Grand Canal COPY CCC? NOT OFR RE,CORDING RDING laeEtTUE ED BY ANC Recorded tie Official RrecardS,Orange County WHEN RECORDEI) RETURN TO: Eiu ti Nr uy�n,Cl ark-.Recordor I' IIIA IIINII6I �I�11111111V� 118, lfll130.Oo Public Works Departrnent R o 1) 0 7 6 0 7 2 9 3 1 � City of Newport Beach 201508031114810:49 am 06116/15 P.O. Box 1768 66414A1211"13 s Newport Beach, CA 92658-8915 0.00 0.00 0.00 0.00 71.00 0.00 0.00 4.00 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2015-0040) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 11th day of May, 2015, by and between Robert Jan Ctvrtlik and Cosette Vinje Ctvrtlik, Trustees of The Ctvrtiik Family Trust dated May 22 1998 and amended January 2.2, 2008 as Trust ("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 110 Grand Canal, Newport Beach, California 92662 and legally described as Lot 25, Block 1 of Section Five of Balboa Island, as shown on a map recorded in Book 8, Page 9 of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 050-181-09("Property"); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Grand Canal 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. Ctvrtlik Family Trust Encroachment Agreement 1 :�. It is mutnally agreod tImI I'ennitte d Improve tnonts, shall he defined ris: a. A pl.nnter 1-foot height, located within 3-feet of the hack of the existing sidewalk within the Grand Cs,„tnal right-ofaway; ansa b. A 4-foot high wall measured from existing grade of Grand Canal sidewalk setback 3-feet from the back of the sidewalk within the Grand Canal right-of- way and with at least 40% visibility, as approved by the Public Works Department and as shown on Exhibit A, attached hereto and incorporated herein by reference. C. 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 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. 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 Ctvrtlik Family Trust Encroachment Agreement 2 existing of future public or irnprovc�nvmts, City may remove, portion.. ' of Pearmill ;d irripruvemonto, as regUi ed, ,and ina'=,uch 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. 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. Ctvrtlik Family Trust Encroachment Agreement 3 V. this / gwornent roprosents the full and completo understanding of evoly kind or nature wh,'Asoevw botwoon the pr.rrtic s h(-roto, and all ptolirnin ary negotrzilions land agreements of whatsoever kind or, nature rare merged herein. No v;rhal 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 Owners 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] Ctvrtlik Family Trust Encroachment Agreement 4 IN WlTN9,',S WHEREOF, the pantie,,; h€oto havo cau_,se;d this A(Ireoinent to he executed on this daficF writtewi holow. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATTQRNEY'S OFFICE a California municipal corporation Date: "''r >+ Date:__...-- Aaron C p Am Dave Kiff City Attorney City Manager ATTEST: r'°" OWNER(S): Robert Jan Ctvrtlik and Date: ' Cosette Vinje Ctvrtlik, Trustees of The Ctvrtlik Family Trust dated May 22 1998 and amended Jan ary 22, 2008 Date: S 7/3 4t s, By I `v, t,.nil n, " a ° .,,.. By: ( � I_eiiani I. Brown Robert Jan Ct Iik City Clerk Trustee of The Ctvrtlik Family Trust Dat e:rxp'OBy:Cette VinjefC q , o � �. . Trustee of The Ctvrtlik Family Trust [END OF SIGNATURES] Owners must sign in the presence of notary public ATTACHMENTS: Exhibit A— Permitted Improvements Plan as Approved by Public Works Ctvrtlik Family Trust Encroachment Agreement 5 AC KNOWI.E;)GIViErtN'T A not ai y m 1tublic or other oflrrcxr c:onipleting pnthi 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 t (ate_.� � ss. On _May. 20_L�._ before me, _ 1�• ",APoGz Notary Public, personally appeared oa -Alk7 /K who proved to me on the basis of satisfactory evidence to be the person whose namex,islare-subscribed to the within instrument and acknowledged to me that he/s executed the same in his/herftelr., authorized capacity(je6), and that by his/herftne-ir-signaturesK on the instrument the person), or the entity upon behalf of which the persooKacted, executed the instrument. I certify under PENALTY OF PERJURY under the taws of the State of California that the foregoing paragraph is true and correct. ���®neccnnca�cccacaeeccenancneea MATt R CRANDALL WITNESS my hand and official seal. ,. COMM•#2060267 if IWARYK)SIX-MFOWU .> s _- � ..:, • a ter+ s MyCam ftptw803I2612018 a _,,-�' �csecueee®®oe®ccecacee®c®®nnn®nae 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—OAAm645 � ss. On Mire J" , 20 If_ before me, Notary Public, personally appeared ._6& 11jAin+"ir, C^cU ike proved to me on the basis of satisfactory evidence to be the personp'whose name(s) is/ara subscribed to the within instrument and acknowledged to me that kre/she/thdy executed the same in-•kris/her/the"uthorized capacity(ie , and that by t�is(her/tkreir signatures on the instrument the personX, or the entity upon behalf o which the personA<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. aencoetancanee$eeeenncaence ace it, WITNESS my hand and official seal. MArlD 1111D111a.214„ COMM.02060267 53 WMAYPUBUO-CAUFOR :R OmMouffly z�� m My Co @kpire943l2ffii264R s Sigma nature (seal) �necceecesacneennceeeecceenceceea Ctvrtlik Family Trust Encroachment Agreement 6 TAX."...0^\.9"4CBI f"ERMITYE U IMPROVEMENTS PLAN Ctvrtlik Family Trust Encroachment Agreement A-1 •,,� w 4; mzi ,u sr c t zi zan6lMi�m."w Tl"��t '. y l3 ( 1 ` ill,) ,' (�„) 4 N 9'S£i !$ W 8497 M T _ 73 6_ 77 i �i;c t �,^' /r�. �;...�v$ �� � �� r�� ��� r—i���•. NU UUr r) 6 r, 8,3, , r' Fcl o ' LO � ?> J °)H �.✓f a Tr BLOCK 1ro d BAL BOA ISLANDI*fit II ,S ” t� CrION 1 %p( 'I ` ! ' ,i�•' i /� . ! � I I i ' i Tf t7,iflrfUN �11 �=7 _.,•..,.m ;; SITE OIL ALL r SEE ADDITIONAL NOTE '#2 \ I4` ,' 'I rk`• 1 � L C ?I N b rt. v t r 3 S ET.Cl OO�NSPOUT h r o q - 1GP F ra ,`�• �� �JFr{ --=rr f' °.,._.e .�.., ��/1� 9.a r � G' ,ir '` ! !f �/1 ' � "L)y ..� i " R rr earn PL=& ,e,�.. - i ' .'• t '� FS i �o, . {:'.i...w.., 1... .;?O Z' a 9DIt O f J L'IMITS'. mow' Flour ( Y n . LOT 24 p M , 1 � S. Exhibit"A" Sheet 1 of 1