HomeMy WebLinkAboutC-4112 - Encroachment Agreement (for 432 Westminster Avenue)RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
City Clerk
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
DOC # 93-0637600
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ENCROACHMENT AGREEMENT
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THIS AGREEMENT is made and entered into this /3616i day of
L- , 1993, by and between Charles C. Bailey, Jr. and Sharon
Bailey (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");
W I T N E S S E T H:
WHEREAS, OWNER has constructed a property line wall along the
Westminster Avenue frontage which is constructed approximately three
(3) feet above street grade adjacent to the Westminster Avenue right-
of-way located adjacent to Lot 25, Tract No. 1136 as shown on a map
recorded in Book 37, Pages 18 & 19 of Miscellaneous Maps in the
office of the County Recorder of Orange County, California; also known
as 432 Westminster Avenue, Newport Beach, California; and
WHEREAS, Westminster Avenue (hereinafter "RIGHT-OF-WAY) is a
Significant Link Highway, where future sidewalk construction is
required as a part of the CITY"S masterplan of sidewalks; and
WHEREAS, property line wall may interfere with the CITY'S ability
to construct and maintain sidewalk within RIGHT-OF-WAY; and
WHEREAS, the parties hereto desire to execute an agreement
providing for fulfillment of conditions required by CITY with the
approval of Modification No. 4086 to permit the existing property line
wall to remain;
NOW, THEREFORE, in consideration of the mutual promises, the
parties hereto agree as follows:
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be
defined as a two to three (2 to 3) foot high retaining wall located
within RIGHT-OF-WAY as approved by the City Engineer to prevent
sloughing of soil onto a proposed CITY sidewalk or undermining of the
footing of the existing masonry property line wall (3 feet, 6 inches
high) located approximately three (3) feet above street grade as shown
on EXHIBIT "A" attached hereto.
2. CITY will permit OWNER to construct, reconstruct, install,
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maintain, use, operate repair and replace said PF 1ITTED IMPROVEMENTS
and appurtenances incidental thereto, all in substantial conformance
with city specifications as approved by the Public Works Department.
CITY will further allow OWNER to take all reasonable measures
necessary or convenient in accomplishing the aforesaid activities.
3. OWNER and CITY further agree as follows:
a. OWNER will construct a low retaining wall within RIGHT-
OF-WAY as approved by the Public Works Department to prevent
undercutting of the property line wall footing or sloughing of soil
onto the proposed sidewalk.
b. OWNER shall obtain permits and construct retaining wall
adjacent to proposed sidewalk upon 90 days notice from the CITY that
sidewalk will be constructed along RIGHT-OF-WAY.
c. OWNER shall maintain the PERMITTED IMPROVEMENTS in
accordance with general 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.
d. 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.
e. 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.
(v) CITY shall not be responsible or liable for any
damage to or undermining of property line masonry wall footings during
the course of maintaining public facilities within RIGHT-OF-WAY.
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4. Rights grantea 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.
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 PERMITTED 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 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.
7. OWNER agree 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.
APPROVED AS TO FORM:
By:
ATTEST:
City Attnrney
CITY OF NEWPORT BEACH,
a Municipal corporation
OWNER:
By:
By:
3
arles C. Bailey, Jr.
Sharon Bailey
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE
On
Notary Public in an
Clarence J. Turner ,
City of Newport Beach
the City Clerk of the
persons whose names are subscribe
acknowledged to me that they
WITNESS my hand
1993, before me, the un•- signed, a
or the State, personnally a•- ared
sonally known to me -• be the Mayor of the
and anda E. Rag•= , known to me to be
City of -wport :-ach, known to me to be the
o the within instrument, and
e same.
official seal.
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE
Notary Public in and for sa State
On _2.-t-4-C. 6.2. C. , 1993, before me, 1.--y IV p r2% 0 c t
M►rR7- I N C52—
G. g A r1-14 it D id J1 Al L E y
(or proved to me on tale basis of
satisfactory evidence) to be the person(s) whose name(s) Ware
subscribed to the within instrument and acknowledged to m that
hWhoiytheir executed the same in his/hr/their authorized
capacity(ies), and that by hilts/h4r/their signature(s) on the
instrument the person(s) or the entity upon behalf of which the
persons(s) acted, executed the instrument.
Not
ag\bailey
personally appeared C. NA it 1. 8.5
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Public in and fo aid St/
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LYNDASUE MARTINEZ
COMM. #955610
Notary Public — California ='
ORANGE COUNTY
My Comm. Expires FES 09,1996
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WESTMINSTER AVENUE
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EXISTING MASONRY WALL
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SECTION A -A
EXHIBIT "A"