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HomeMy WebLinkAboutAGMT - Meyers,Frances K. (Wall Removal - 706 Ocean Avenue) IIP AGREEMENT FOR WALL REMOVAL AND RELEASE OF LIABILITY THIS AGREEMENT FOR WALL REMOVAL AND RELEASE OF LIABILITY ( "Agreement ") is made and entered into this I day of C rL 2006 by and between the CITY OF SEAL BEACH, a municipal corporation, hereinafter referred to as "City ", and FRANCES K. MEYERS, AS TRUSTEE FOR THE FRANCES K. MEYERS TRUST, hereinafter referred to as "Owner ". WHEREAS, the Owner is the owner of certain real property in the City of Seal Beach, County of Orange, State of California, commonly known as 706 Ocean Avenue, Seal Beach, and more particularly described in Exhibit "A" attached hereto and made a part hereof (the "Property "); WHEREAS, there exists on the Property a retaining wall (the "Retaining Wall "), and on top of the retaining wall there exists a privacy wall (the "Privacy Wall "); WHEREAS, the Privacy Wall is in a substandard condition and in need of removal and replacement; WHEREAS, the City wishes to remove the Privacy Wall at its own expense; and WHEREAS, Owner wishes to release City from potential liability associated with the removal of the Privacy Wall; NOW, THEREFORE, for good and valuable consideration, the parties agree as follows: 1. REMOVAL OF PRIVACY WALL. At its own expense, City agrees to remove the Privacy Wall from the Property. 2. EASEMENT. Owner agrees to execute and record a temporary construction easement for the benefit of City, in a form satisfactory to the City Attorney, so that City shall be able to conduct the removal of the Privacy Wall. 3. RELEASE OF LIABILITY FOR ENTERING PROPERTY. Owner hereby releases, waives, discharges, and relinquishes any action or causes of action which may hereafter arise related to the entry of City officers, agents, servants, or employees onto the Property in connection with the removal of the Privacy Wall, and agrees that under no circumstances will it prosecute, present any claim for personal injury, property damage, or wrongful death against City or any of its officers, agents, servants, or employees for any of said causes of action whether the same shall arise by the negligence of any of said persons or otherwise. It is the intention of Owner by this instrument to exempt and relieve the City from . ._._., liability for personal injury, property damage, or wrongful death, whether or not the same is caused by negligence. \\DATAFILE \Users\LWhittenberg\My Documents \Code Enforcement \706 Ocean . Agreement for Wall Removal.DOC \LW\04 -27 -06 • • Agreement for Wall Removal and Release of Liability 706 Ocean Avenue, Seal Beach April27, 2006 4. ACKNOWLEDGEMENT OF CHANGED CONDITION OF PROPERTY. Owner acknowledges that the security, privacy, and structural safety of the Property may be adversely impacted by the removal of the Privacy Wall. Owner acknowledges and agrees that it is Owner's sole responsibility to restore the property to a secure, private, and safe condition subsequent to the removal of the Privacy Wall. 5. RELEASE OF LIABILITY FOR CHANGED CONDITION OF PROPERTY. Owner hereby releases, waives, discharges, and relinquishes any action or causes of action which may hereafter arise related to the changed condition of the property and the risks associated with occupying or otherwise utilizing the property in its changed condition, and agrees that under no circumstances will it prosecute, present any claim for personal injury, property damage, or wrongful death against City or any of its officers, agents, servants, or employees for any of said causes of action whether the same shall arise by the negligence of any of said persons or otherwise. It is the intention of Owner by this instrument to exempt and relieve the City from liability for personal injury, property damage, or wrongful death, whether or not the same is caused by negligence. 6. ACKNOWLEDGEMENT OF CONDITION OF RETAINING WALL. Owner acknowledges that the Retaining Wall may also be in a substandard condition. Owner acknowledges and agrees that City's obligations under this agreement are limited to the removal of the Privacy Wall, and that City has no obligation with respect to the Retaining Wall, even if City's actions result in a degradation of the condition of the Retaining Wall. Owner acknowledges and agrees that the condition of the Retaining Wall may warrant that the Retaining Wall be removed and replaced, and that Owner remains subject to the provisions of the Seal Beach Municipal Code, including but not limited to the code enforcement provisions, as well as being subject to any other applicable laws. 7. CONSTRUCTION OF NEW PRIVACY WALL. Owner agrees to construct a new privacy wall of its choosing, upon the issuance of a building permit by the City. All costs of said construction and of all plan review and approvals, including but not limited to any necessary soils reports and compaction reports, shall be the sole responsibility and cost of Owner. 8. COSTS OF ENFORCEMENT. If any legal or equitable action or proceeding is instituted by one party against the other to enforce or interpret any provision of this Agreement, then the prevailing party in such action shall be entitled to recover from the losing party all of the prevailing party's costs of suit, including, but not limited to, reasonable attorneys' fees awarded by the court. 9. GOVERNING LAW. This Agreement shall be interpreted, enforced and governed by the laws of the State of California. 706 Ocean. Agreement for Wall Removal S7296.0001.888166 - 2 • • Agreement for Wall Removal and Release of Liability 706 Ocean Avenue, Seal Beach April27, 2006 10. ENTIRE AGREEMENT. This Agreement constitutes the sole and entire agreement between City and Owner with respect to the Property, and supersedes all negotiations or previous agreements between the parties or their predecessors in interest to all or any part of the subject matter hereof. 11. SEVERABILITY. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect. WITNESS THE SIGNATURES of City and Owner as of the above date. CITY OF S' L BEACH, a mu "I / Ti : City Manager FRANCES K. MEYERS, AS TRUSTEE FOR THE FRANCES K. MEYERS TRUST c:›<_10-/./e --- M-ti-tte--- 706 Ocean . Agreement for Wall Removal S7296.0001.888166 3 • • Agreement for Wall Removal and Release of Liability 706 Ocean Avenue, Seal Beach April27, 2006 State of California } ss. County of Orange } On RP Art, a7 ?O©[, , 2006, before me, IAmEl„�t P MORALS , a Notary Public, personally appeared 2tiFt4j &- & )Notts K1' personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s1 whose name(4f is/arC'subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/jWeir authorized capacity(ijs), and that by hisailtheir signature(g) on the instrument the person(/), or the entity upon behalf of which the person( acted, executed the instrument. PAMELA A.MORRIS r!r.∎. Commission 1 1'301791 WITNESS my hand and official seal. t •. Noi r rNDt-Ca t V."'" Cranes Courtly - Cann//�� OpYSSMay27, Signature ,GQ/ (1S,) l( - l l.z:D^ i (seal) 1 , ,,! y N IrR , y • State of California } } ss. County of Orange } On Ann, 7g1 , 2006, before me, MILK IS141CNETT , a Notary Public, personally appeared rt$NC.FS K . MEVEt5 personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(„s5 whose name( is/are-subscribed to the within instrument and acknowledged to me that he/she/they. executed the same in'his/her/theif authorized capacity(-ies), and that by his/her/tkeif signature(%) on the instrument the person•(s,), or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. MARK BURNETT I!t'. Commission s 1074146 Signature 1.. % Osan county lets Comm.Expires Apr 29, (seal) 706 Ocean.Agreement for Wall Removal S7296 0001.888166 4 • • Agreement for Wall Removal and Release of Liability 706 Ocean Avenue, Seal Beach April27, 2006 EXHIBIT"A" LEGAL DESCRIPTION OF PROPERTY Lots 4, 5, 16, 17; the easterly 20 feet of lots 3 and 18; and the westerly 5 feet of Lots 6 and 15, including the "Abandoned Alley" between said Lots 3, 4, 5 and 6 and Lots 16, 16, 17, and 18, Tract 2, Miscellaneous Maps, Book 9, Page 3 in the office of the County Recorder, County of Orange. • 706 Ocean Agreement for Wall Removal 57296.0001 888166 5 • • Recorded in Official Records, Orange County Tom Daly, Clerk-Recorder RECORDING REQUESTED BY: IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII NO fEE CITY OF SEAL BEACH 200600029341108:07am 05102/06 116 11 E01 Al2 5 AND WHEN RECORDED RETURN TO: 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Linda Devine, City Clerk City of Seal Beach 211 8th Street Seal Beach, California 90740 Exempt from Recording Fees per Government Code § 6103 SPACE ABOVE THIS LINE IS FOR RECORDER'S USE GRANT OF TEMPORARY CONSTRUCTION EASEMENT/4 C,Cti 99: ( This GRANT OF TEMPORARY CONSTRUCTION EASEMENT (this "Easement") is made and entered into effective as of '' v 7 , 2006 (the "Effective Date") by and between the CITY OF SEAL BEACH, a municipal corporation, hereinafter referred to as "Grantee", and FRANCES K. MEYERS, AS TRUSTEE FOR THE FRANCES K. MEYERS TRUST, hereinafter referred to as "Grantor". RECITALS WHEREAS, Grantor is the owner of certain real property in the City of Seal Beach, County of Orange, State of California, commonly known as 706 Ocean Avenue, Seal Beach, and more particularly described in Exhibit "A" attached hereto and made a part hereof(the "Burdened Property"); WHEREAS, there exists on the Burdened Property a retaining wall (the "Retaining Wall"), and on top of the retaining wall there exists a privacy wall (the "Privacy Wall"); WHEREAS, the Privacy Wall is in a substandard condition and in need of removal and replacement; WHEREAS, Grantee wishes to remove the Privacy Wall; and WHEREAS, Grantor desires to grant Grantee a temporary construction easement as provided for herein. \\DATAFILE\Users\LWhittenberg\My Documents\Code Enforcement\706 Ocean Grant of Temporary Construction Easement.DOC\L W\04-27-06 • • Grant of Temporary Construction Easement 706 Ocean Avenue, Seal Beach April27, 2006 AGREEMENT NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein by this reference, the parties hereto agree as follows: 1. Temporary Construction Easement. a. Grant of Easement. For valuable consideration, receipt and sufficiency of which are hereby acknowledged, Grantor hereby grants to Grantee a temporary construction easement (the "Temporary Construction Easement") over the Burdened Property. b. Scope of Temporary Construction Easement. The Temporary Construction Easement shall be for the temporary, non-exclusive rights of access, ingress, egress and control by Grantee and its employees, agents, representatives, contractors and subcontractors over, on, under, in, along and through the Burdened Property for the express purpose of allowing construction, reconstruction, maintenance, repair, use, operation, removal, installation, digging, and any other activities reasonably necessary in connection with the removal of the Private Wall. c. Rights Retained By Grantor. Subject to the Temporary Construction Easement, Grantor retains the right to use, develop, and maintain the Burdened Property. 2. Maintenance Of Burdened Property. Unless otherwise provided herein, Grantor shall maintain the Burdened Property at Grantor's expense. 3. Termination. Grantee's right to the Temporary Construction Easement shall automatically terminate upon Grantee's completion of the removal of the Privacy Wall. 4. Costs of Enforcement. If any legal or equitable action or proceeding is instituted to enforce or interpret any provision of this Easement, the prevailing party in such action shall be entitled to recover from the losing party all of the prevailing party's costs of suit, including but not limited to reasonable attorneys' fees awarded by the court. 5. Amendment. This Easement may be amended or modified only by a written instrument executed and acknowledged by the parties hereto or their respective successors in interest and recorded in the Official Records of Orange County, California. 6. Captions. The captions used in this Easement are for convenience only and therefore do not constitute a part of this Easement and do not amplify or limit the meaning of the provisions of this Easement. 706 Ocean.Grant of Temporary Construction Easement S7296.0001.888211 2 0 0 Grant of Temporary Construction Easement 706 Ocean Avenue, Seal Beach April27, 2006 7. Severability. Any provision of this Easement adjudicated by a court of competent jurisdiction to be invalid or unenforceable for any reason shall be ineffective to the extent that such prohibition or invalidity shall not invalidate or otherwise render invalid or unenforceable any remaining provisions of this Easement. 8. Integration. This Easement sets forth the entire agreement of the parties with . respect to the subject matter addressed, and all prior negotiations, representations, agreements warranties and discussions are superseded by the provisions of this Easement. 9. California Law. This Easement shall be construed in accordance with the laws of the State of California. IN WITNESS WHEREOF, the Grantor and Grantee have executed this Easement as of the Effective Date. "Grantor" f NOES K. MEY2,' , r AS TRUSTEE FOR THE FRANCES K. MEYERS TRUST "Grantee" CITY OF SE• . BEACH, a municipal •'•oration By: ljãfr, •T ty anager / 706 Ocean.Grant of Temporary Construction Easement 37296.0001.888211 3 • • - - Grant of Temporary Construction Easement 706 Ocean Avenue, Seal Beach April27, 2006 State of California } } ss. County of Orange } On P,211ti, 27 , 2006, before me, fa pt<f/t A 1 M igair5 , a Notary Public, personally appeared -jopt) -,-13,A K-6-12 personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name(f) is/0 subscribed to the within instrument and acknowledged to me that he/sl{e/tliey executed the same in his/hdr/th6ir authorized capacity(ig), and that by his/htr/tl it signatureO on the instrument the person(a), or the entity upon behalf of which the person(7) acted, executed the instrument. • WITNESS my hand and official seal. • _ ! � PAMELA A.mama Signature (Fcke-ce c : O - 7vr c1� �Orn^tt+sbn Signature � �%ii 1381 *comm. cunry (seal) • MaY27' State of California } } ss. County of Orange }A On - a-ic Z 1 , 2006, before me, 'vVrt 13 �, a Notary Public, personally appeared f52/h\tes !t<• ,t4e 61z- personally personally known to me (or proved to me on the basis of satisfactory evidence) to be the person( ) whose name(7) is/ve subscribed to the within instrument and acknowledged to me that heshe‘they executed the same in 1k/her/their authorized capacity(aesq), and that by Jaieher/th r signature(re) on the instrument the person(,tr), or the entity upon behalf of which the person(s)'acted, executed the instrument. WITNESS my hand and official seal. _ MARK BURNETr .' � Commission#7574946 Signature N? n%mv County omla E ms Apr 29,2 (seal) 706 Ocean Grant of Temporary Construction Easement 57296.0001.888211 4 • • Grant of Temporary Construction Easement 706 Ocean Avenue, Seal Beach April27, 2006 EXHIBIT "A" LEGAL DESCRIPTION OF BURDENED PROPERTY Lots 4, 5, 16, 17; the easterly 20 feet of lots 3 and 18; and the westerly 5 feet of Lots 6 and 15, including the "Abandoned Alley" between said Lots 3, 4, 5 and 6 and Lots 16, 16, 17, and 18, Tract 2, Miscellaneous Maps, Book 9, Page 3 in the office of the County Recorder, County of Orange. 706 Ocean.Grant of Temporary Construction Easement 57296.0001.888211 5