HomeMy WebLinkAboutC-4313(A) - Encroachment Agreement EPN N99-155 for 709 Jasmine AvenueRECORDING REQUESTEp ' ND
WHEN RECORDED RETURIJ TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in the C ;tyclerOk/RecordeCalifornia
Gary L. Granvi_
�1111\1IIII 111 II24I111 111 II 00m 05/24/99
19990379648 08 , 41 a
005 5147016 05 44
Al2 7 6.00 18.00 0.00 0.00 0.00 0.00
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EP99-155)
THIS AGREEMENT is made and entered into this .q/"kl day of /i/f
1999, by and between Michael McManus (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"),
"OWNER" is the owner of property located at 709 Jasmine Avenue, Newport Beach, California
and legally described as Corona Del Mar Tract, Lot 9, Block 736 (hereinafter "SUBJECT
PROPERTY"), as shown on a map recorded in Book 1, Page 88 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 a portion of an existing
10-foot Public Utility Easement (hereinafter "EASEMENT"), serving of Corona Del Mar Tract,
Lot 9, Block 736, as shown on a map recorded in Book 1, Page 88 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, California; and
WHEREAS, said PERMITTED IMPROVEMENTS may ir, -fere in the future with
CITY'S ability to construct, operate, maintain, and replace CITY and other public facilities and
improvements within EASEMENT; 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;
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NOW, THEREFORE consideration of the mutual prom, 3., the parties hereto agree
as follows:
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as
6'x10' tubular steel gates to enclose a garage and appurtenances in the 10-foot EASEMENT
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 EASEMENT, 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
EASEMENT, 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.
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d. That shop, CITY be required to enter onto saEASEMENT to exercise its
primary rights associated with said EASEMENT, 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 intentic,i 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
EASEMENT and remove all or part of the improvements installed 5y 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 shall accept the fact that surface drainage water may enter onto the
"SUBJECT PROPERTY" from "EASEMENT" located in the City of Newport Beach, County of
Orange, State of California, as depicted on Exhibit "A" attached her( to, whether naturally or as
a result of the development or improvement of the "EASEMENT".
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8. OWNER shall _:cept and waive any and all liak j for any damages to the
"SUBJECT PROPERTY" caused by the flow of such surface drainage water onto the
"SUBJECT PROPERTY". 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 to surface drainage water
entering the "SUBJECT PROPERTY" from the "EASEMENT".
9. 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.
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:
City Attorney
ATTEST:
By: ,, c, 6)1,,v:
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
OWNER:
By:
f:\users\pbw\shared\encroach\ROW_agmts\99\99_155MCMA.doc
4/26/99
Michael McManus
4
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On IV/o) 6 1 9 beforeA19, LanLPhG�
personally a peared 'C} !'A1C�[ %ifs !%?a ,2 s r, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name C are subscribed to the within instrument and acknowledged to me hat
she/they as executed the same ineg/her/their authorized capacitesi, and that by
Is her/their signatures) on the instrument the person(,) or the entity upon behalf of which the
erson acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and (or said Ste
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On U -°1 " I 1999, before me, _
personally appeared ' J 0.J.,00.�+ 4-- o(- (.... env. . ( V- VV) i , person
known to me iderice) to be the pers
whose nam subscribed to the within i trument and acknowledged to me that
he/sh_/the has executed the same in his/her/ heir uthorized capacit (ies' , and that by
his/her :ignatur (s n the instrument the perso (s) or the entity upon be if of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
SHAUNA LYN OYLER
$'• Commission # 1164149
Notary Public - California
: -j� Orange County
My Comm. Expires Dec 5, 2001
(This area for official notarial seal)
Notary Publican end for said State
i ,► era., ..4.1....,474., ,Wrdsss.drn.
p,i,,Y H.,HER
Commission 4 1 174329
Vl
. `'`,. Notary Publir. - California
. ji Orange County
My Comm. Exp es Feb 21, 2002
(This area for official notarial seal)
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