Loading...
HomeMy WebLinkAboutC-4106 - Encroachment Agreement (for 463 Westminster Avenue)4 _CORDING REQUESTED AND WHEN RECORDED RETURN TO: City Clerk City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 Fet ar n7 rir 7.�r4f• liri{I_°3G11111_1 MCI-' 1 "i = �} LP i 4 ! ,P : 1 _ _F 1 1 _ 5- -•'� 1_� nas_ _: _i Records J 1! U! ! U_i.i: PaL Jr nv..,._ .J r ;; 4:i U!91i�C County, L•71/ L'''i~ia Lee A. Branch- Coi!nty Roc nfder 7i f //:/G f/k/e)T Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT pas7-6-17 THIS AGREEMENT is made and entered into this /O- 7.4J day of /4 , 1993, by apd between C \ c cam+ e fri`rt5 4- f„IS (herein fter "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 ITNESSET H: WHEREAS, OWNER has constructed entry stairs and accompanying two (2) high brick planter at back of existing sidewalk within the Westminster Avenue right-of-way and constructed concrete landscape retaining blocks at back of existing sidewalk which supports a property line wall and footing constructed approximately 2 feet above street grade within the Westminster Avenue and Broad Street rights -of - way (hereinafter RIGHTS -OF -WAY) located adjacent to Lot 15, Block 7, Tract No. 27 as shown on a map recorded in Book 9, Page 26 of Miscellaneous Maps in the office of the County Recorder of Orange County, California; also known as 463 Westminster Avenue, California; and WHEREAS, entry stairs, brick planter, retaining landscape blocks and property line wall may interfere with the CITY'S ability to construct and maintain sidewalk within RIGHTS -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. 4104 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 entry stairs and accompanying brick planter, and concrete landscape retaining blocks constructed to an approximate height of 18 inches within RIGHTS -OF -WAY as approved by the City Engineer as shown on EXHIBIT "A" attached hereto. 2. CITY will permit OWNER to construct, reconstruct, install, maintain, use, operate, repair and replace said PERMITTED IMPROVEMENTS 1 _appurtenances incide a1 thereto, all in substantial conformance ith city specifications as approved by the Public w_rks 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 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. b. OWNER shall maintain landscape planting between the property line wall and the public sidewalk at a maximum height of two (2) feet above sidewalk grade within the sight distance plane as defined in City Standard 110-L. 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. That should CITY be required to enter onto said RIGHTS - OF -WAY to exercise its primary rights associated with said RIGHTS -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 or PERMITTED IMPROVEMENTS during the course of maintaining public facilities within RIGHTS -OF -WAY. 4. 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 i 2 ,1t of the termination of this Agreement, or subsequent removal of _mprovements 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 RIGHTS -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 OF NEWPORT BEACH, a Municipal corporation OWNER: 3 ) STATE OF CALIFORNIA )ss. COUNTY OF ORANGE ) On �/ G4�-C/-� g / 77,3, of ore me, �� ,� ��/I ‘--i2personally appeared �tarez-iC�- �ir,s/.e.a ,-�' d _ o yy personally known to me (or proved to me on the basis oVd 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 signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and officiaseal. X? iC/ Notary Public in an-/ for sad State STATE OF CALIFORNIA ) COUNTY OF ORANGE ss: A A A A A A Shauna Lyn Oyler Comm #1002681 NOTARY PUBLIC CALIFORNI ORANGE COUNTY COmm Eapwr.% Aug. 22. 1997 �+ 6V Ov V vvv-v� On Oc-T, 1993, before me, fqc\R kAf No-rpczy Pvc3-tc personally appeared 6c,El;-1=R,_y , known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) /are subscribed to the within instrument and acknowledged to me that he'Ober/their executed the same in i/their authorized capacity(ies), and that by hi-ef}i3 /their signature(s) on the instrument the person(s) or the entity upon behalf of which the persons(s) acted, executed the instrument. WITNESS my hand and official seal. Signature VA/\._ ag\e-simpki (This area for official notarial seal) 4