HomeMy WebLinkAboutC-4896 - Encroachment Agreement (for 1730 Port Manleigh Circle)RECORDING REQUESTED ID
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Ee
Recorded in the County of Orange, California
Gary L. Granville,III lII I i IIII llI Clerk/Recorder
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
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THIS AGREEMENT is made and entered into this '7 day
of,/ , , , 1997, by and between Robert M. McClellan and Stephanie
McClellan (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 1730 Port Manleigh Circle, Newport Beach,
California and legally described as Lot 56, Tract No. 6938, as shown
on a map recorded in Book 280, Pages 5 to 8 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange
County, California;
W I T N E S S E T H:
WHEREAS, OWNER desires to construct certain non-standard
improvements (hereinafter "PERMITTED IMPROVEMENTS") within a portion
of an existing 15-foot public utility easement (for sewer purposes)
serving lot 56, Tract 6938 (also known as 1730 Port Manleigh Circle,
Newport Beach, California) hereinafter "EASEMENT", recorded on October
28, 1971 as legally described in Official Record No. 9866/852 (Book
9866, Page 852) 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 the Easement; and
WHEREAS; the parties hereto desire to execute an agreement
providing for fulfillment of the conditions required by CITY to permit
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OWNER to construct, reconstruct and mainL:ain said PERMITTED
IMPROVEMENTS;
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 a jacuzzi, pool equipment with a 6-foot high masonry wall
enclosure, 6-foot maximum high masonry fireplace on piles, colored
concrete, limestone pavers, 24" high garden wall, 8-foot high wrought
iron trellis (patio cover), wall with wrought iron fencing, and
appurtenances 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 the
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. Rights granted under this Agreement may be terminated by CITY
at any time by giving 60 days' written notice, with prior City Council
approval, 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 as a
result of exercising it's easement rights to maintain, repair, or
replace it's sewer line.
4. OWNER and CITY further agree as follows:
a. OWNER may, at owner's cost and expenses, 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.
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b. OWNLA shall maintain the PEPJ TTED 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 all repairs.
d. That should CITY be required to enter onto said
Easement 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 reasonably 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,
restoration, or replacement of the PERMITTED IMPROVEMENTS.
e. This agreement does not extend the OWNERS' any rights to
construct any additional improvements at a later time.
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
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EASEMENT and remove all or part of the impz,,vements installed by
OWNER. Either party that is alleged to have breached any material
provision of this agreement shall be given 30 days written notice of
the breach and the opportunity to cure with the date of breach and the
date of termination, if cure is not made. 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 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed on the day and year first -above written.
APPROVED p.
By:
City torney
ATTEST:
CITY OF NEWPORT BEACH,
a Municipal corporation
OWNER:
By:
(% A /0 i�ddi By:
Y
Robert M. McClellan
By: ,G�G
St phanie McClellan
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STATE OF CALIFORNIA )
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COUNTY OF ORANGE
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of which the persons(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Pub14in and for said State
STATE OF CALIFORNIA
COUNTY OF ORANGE
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