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HomeMy WebLinkAboutC-5896 - Encroachment Agreement EP98-261 for 2140 East Balboa BlvdRecorded in Official Records, County of Orange Gary Granville, Clerk -Recorder REE p IV E 91111111111111111111111111111111111111111111111111111111157.00 F 20000245298 11: 00am 05110100 ' '60 1"AY 17 4110A01 02 .009 0(!' 0'0010.00 0.00 24.00 0.00 0.00 27.00 0 .V Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EP98-261)��/ay THIS AGREEMENT is made and entered into this of 2000, by and between Robert Voit (hereinafter "OWNER"), and the City of New rt 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"), "OWNER" is the owner of property located at 2140 E. Balboa Boulevard, Newport Beach, California and legally described as Lot 39, Tract 756 (hereinafter "SUBJECT PROPERTY"), as shown on a 1 map recorded in Book 23, Pages 7 and 8 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; WITNESSETH: WHEREAS, OWNER desires to construct and maintain certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the City -owned beach property (hereinafter "RIGHT-OF-WAY") serving of Lot 40 and 41, Tract 756, (as legally described in Official Record No. 518/151, Book 518, Page 151) as shown on a map recorded in Book 23, Pages 7 and 8, inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; and 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 execute an agreement providing for fulfillment of the conditions required by CITY to permit OWNER to construct, reconstruct and maintain said PERMITTED IMPROVEMENTS; NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1 RECORDING REQUESTED,.. 4D WHEN RECORDED RETURN TO: City Clerk City of Newport Beach U Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 Recorded in Official Records, County of Orange Gary Granville, Clerk -Recorder REE p IV E 91111111111111111111111111111111111111111111111111111111157.00 F 20000245298 11: 00am 05110100 ' '60 1"AY 17 4110A01 02 .009 0(!' 0'0010.00 0.00 24.00 0.00 0.00 27.00 0 .V Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (EP98-261)��/ay THIS AGREEMENT is made and entered into this of 2000, by and between Robert Voit (hereinafter "OWNER"), and the City of New rt 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"), "OWNER" is the owner of property located at 2140 E. Balboa Boulevard, Newport Beach, California and legally described as Lot 39, Tract 756 (hereinafter "SUBJECT PROPERTY"), as shown on a 1 map recorded in Book 23, Pages 7 and 8 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; WITNESSETH: WHEREAS, OWNER desires to construct and maintain certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the City -owned beach property (hereinafter "RIGHT-OF-WAY") serving of Lot 40 and 41, Tract 756, (as legally described in Official Record No. 518/151, Book 518, Page 151) as shown on a map recorded in Book 23, Pages 7 and 8, inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; and 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 execute an agreement providing for fulfillment of the conditions required by CITY to permit OWNER to construct, reconstruct and maintain said PERMITTED IMPROVEMENTS; NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1 1. It is mutually ac�aed that PERMITTED IMPROVEMLTS shall be defined as a concrete seawall and appurtenances in the City -owned beach as shown on EXHIBIT "A" attached hereto and as approved by the City Engineer. 2. 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, all in substantial conformance with plans and specifications on file in the CITY. CITY will further allow OWNER to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 3. If permitted improvements 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, then the 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 event of the termination of this Agreement, or subsequent removal of improvements by CITY. 4. OWNER and CITY further agree as follows: a. OWNER may construct and install PERMITTED IMPROVEMENTS and appurtenances incidental thereto, in substantial conformance with plans and specifications therefor on file in the CITY's Public Works Department, and as described on Exhibit "A" hereto attached. b. 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. 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 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: 2 (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. 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 improvements installed by OWNER. Termination because of breach shall be upon a minimum of ten (10) days' notice, unless the breach is cured within such 10 day period, 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 defend, indemnify, waive, 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 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 OWNERS' interest in the land whether fee or otherwise, and shall be recorded in the Office of the County Recorder of Orange County, California. 3 IN WITNESS WHEREVF, 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 Clerk City Attorney CITY OF NEWPORT BEACH, a Municipal corporation OWNER: Bv. 4 Robert Voit 4 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT S%.*+aN..at!�a.N,.•+,.tat!v,.t/,4%t..nR!Tt�vaN,t!�� .iat!v;.N,<n.t!�aYsid, v:t�vi<i:�t��<C��N,.s�<rs� . s State of California i County of .s�...�n...v,. ..c,.,,.v,.<..vn •..v,.t�v..' y a ss. OnDale WOO personally appeared V� before me, Name and Title of Officer (e.g., "Jane Doe, Notary Public") . NQ & AtJ 'JoN Signer(s) z LEILANI V. INES Commission # 1170960 No ary Puolic - California Orange Counfy My Cornm. Expires Jan 25, 2002 Place Notary Seal Above ($'personally known to me ❑ proved to me on the basis of satisfactory evidence to be the persor " whose namtj )) subscribed to the within instrument and acknowledged to me that he/she t(i`i�-xecuted the same in his/her41 authorize capacit lam) and that by his/her signatur: I n the instrument the perso the entity upon behalf of which the persor acted, executed the instrument. is • t� s WITNESS my hand and official seal. '1 _ U 01 s OPTIONAL Signature of Notary Public Though the information be/'ow is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here © 1997 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827 STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On / j2 'L I /, ZQQd , 2000, before me, Qklyy�T l • hu4, IJ Jz PUbh personally appeared £() bey- l/a 14 , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person((s'f whose name( is/2fe subscribed to the within instrument and acknowledged to me that he/stj /tt-y has executed the same in his/h�r/their authorized capacity(ies'j, and that by his/h jr/tt it signature( on the instrument the person) or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State (This area for official notarial seal) CITY OF NEWPORT BEACH CITY OF HEWPORT BEACH VICINITY I1RP Ioer gar. auroami I T �Z 6L /CU L /NL U, S. /'2l-/ 7 L /AJ -� I 5. _ '. tom_.:: 9_ _ .T -_ - R t 7sgc7 3LK D PROFILE 1' = 40' SOWDINGS FIDE DPRESSED IN FEET AND DENOTE ELEVATIONS BASED ON hEFt1 LONER LOH HATER. 48.9 37 ri — — = L_ — _ CX/ST. DOCK 1 /1 E '. p/L2H 4o L/Ng • FIRE & MARINE DEPT. CITY OF NEWQORT BEACH P/OPOS' D BIJLK,UtAD u. s: St'c.,�1�1�=,40 4G .G4' \ 4s.�g —/.vac J 9/ 4G' 42 yuc�L Le 11 1 PLAN VIEW 1' = 40' RF'PIICANT'S NFI<1E VOIT RESIDENCE 308 RDDRESS 2/4o L . ,Q4L $ 2 4 aL ✓D DATE G/27/9R gMJ1IBi7' ,A" August 10, 1998 CITY COUNCIL AGENDA ITEM NO. 16 TO: MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: PUBLIC WORKS DEPARTMENT SUBJECT: PROPOSED SEAWALL ADJACENT TO 2140 E. BALBOA BOULEVARD OWNER: Robert Voit RECOMMENDATIONS: Approve the application subject to: 1. Execution of an Encroachment Agreement for non-standard improvements. a. Authorize the Mayor and City Clerk to execute the Agreement; b. Authorize and direct the City Clerk to have the agreement recorded with the Orange County Recorder. x h i 2. An Encroachment Permit issued by the Public Works Department. 3. General Services Department approval. 4. Approval from all affected/adjacent property owners. 5. A Harbor Permit issued by the Fire and Marine Department. 6. A Building Permit issued by the Building Department. 7. Coastal Commission approval. DISCUSSION: Paul Tennyson, the contractor representing the owner of the property located at 2140 E. Balboa Boulevard, has requested that he be permitted to install a new concrete seawall along the outside of the existing seawall (see attached letter, photo, and exhibit). The existing seawall has deteriorated and it would be very difficult to .replace- the existing seawall without damaging/demolishing the house. Currently, the existing seawall is leaking and undermining the foundation of the house. The proposed concrete seawall will stop the leakage and support the old seawall and have new tie -back supports located on private property. APPROVED BY CITY COUNCIL nnTr R-in-qa SUBJECT: PROPOSED SEAWALL ADJACENT TO 2140 E. BALBOA BOULEVARD August 10, 1998 Page: 2 The proposed concrete seawall encroachment will have minimal impact on view, affecting the adjacent and immediate surrounding property owners. The Fire and Marine Department has reviewed the proposed seawall and issued a preliminary "Approval In Concept" (attached). The proposed concrete seawall will encroach 3 feet into the bayfront and City -owned beach property (ending at the existing beach retaining wall). Hence, the wall will only impact the tidal area and not the existing beach area used by the public. Council Policy L-6, "Private Encroachment in the Public Right -of -Way", requires the prior approval of City Council for private structural improvements such as walls in public easements or rights -of -way. The encroachment agreement allows construction of the seawall in the City - owned property as approved by the Public Works Department and requires the property owner to maintain the proposed and existing encroachments and hold the City harmless from all liability resulting from the private encroachments within the public -owned property. Respectfj11 submi d Publid Works Department Don Webb, Director Gilbert Wong Associate Civil Engineer Attachment: "Approval In Concept" Letter Photos Exhibit Encroachment Agreement f:kjroups\pubworks\council\fy98-9g�august-1 olseawall.doc