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
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ENCROACHMENT AGREEMENT
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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
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_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
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,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:
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)
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)
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