Loading...
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 +Z rz F. 4 isr%-� .r e's . ,_ +� r Recorde,i in Official Records n__.___ . i.. r•_t:b_._._ i� L�j..0 County, t.91i!JHLL. Lee A. Branch, uv..r+s Recorder Tax:$ V,VV Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT poste 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, 1 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. 2 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 t Public in and fo aid St/ 1-- Q z LYNDASUE MARTINEZ COMM. #955610 Notary Public — California =' ORANGE COUNTY My Comm. Expires FES 09,1996 4 i WESTMINSTER AVENUE FUTURE SIDEWALK 4G �4 210� -err" U I-1 EXISTING MASONRY WALL RESIDENCE 432 WESTMINSTER EXISTING MASONRY WALL 11k FUTURE SIDEWALK Ao SECTION A -A EXHIBIT "A"