HomeMy WebLinkAboutC-1841(A) - Encroachment Agreement EPN N2000-488 for 637 St. James RoadRECORDING REQUESTED AND
VVHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659-1768
Recorded in Official Records, County of Orange
Gary Granville, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(EPN2000-488)
THIS AGREEMENT is made
c
of Lt t , , 2000, by and between David Paine (hereinafter "OWNER"), and the City of
Newport BeA h, 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 637 St. James Road, Newport Beach, California
and legally described as Lot 8, Tract 1218, as recorded in Book 37, Page 47, 48, and 49
inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County,
California;
61?0
and entered into this day
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within a portion of an existing 20-foot drainage
easement serving Lot 8, Tract 1218 (also known as 637 St. James Road, Newport Beach,
California) hereinafter "EASEMENT", as legally described in Official Record No. 9532/300
(Book 9532, Page 300) recorded on January 29, 1971 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 OWNER to construct, reconstruct and maintain
said PERMITTED IMPROVEMENTS;
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NOW, THEREFORE, 111 consideration of the mutual promis, the parties hereto agree
as follows:
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as a
5-foot high stone face/cap wall, 5-foot wrought iron fence, and appurtenances as shown on
EXHIBIT "A" attached hereto and as approved by the City Engineer. In addition, the proposed
PERMITTED IMPROVEMENTS may vary at the time of construction. Hence, any changes
must be approved by the City Engineer and shall be on shown on the "As Built" plans.
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.
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 all repairs.
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d. That shou.0 CITY be required to enter onto sale 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
EASEMENT and remove all or part of the improvements 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.
3
7. OWNER agrees ,nat this Agreement shall remain I, 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/' )t. nk l%. )(74. X 64,--)
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
OWNER:
City Manag
David Paine
4
STATE OF CALIFORNIA )
) ss:
COUNTY OF
ORANGE )
, 2000, before me, �`/ // 2 �?a e 44-- personal) a eared
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and �a�� 9 personally known/to m- (or proved to me on
the basis of satisfactory evidence) to be the pers whose name le: re subscribed to the
within instrument and acknowledged to me th er/they executed e same i er/their
authorized capacity ' s), and that byer/their signatureson the instrument the person(s)/
or the entity upon behalf of which the persons acted, executed the instrument.
hand and officia eal.
Notary Public in and for sa 'd State
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On
appeared
subscribed to th
same in his/he
instrument the perso
instrument.
SHAUNA LYN OYLER
Commission # 1164149
Notary Public - California
Orange County
My Comm. Expires Dec 5, 2001
(This area for official notarial seal)
, before me,
hin instrument and
authorized capacit
r the entity upon
WITNESS my hand and official seal.
Notary Public p anal for said State
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to be the perso
owledged to me that his/her
, and that by his/he
ehalf of which the person
personally
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hose nam:
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acted, executed the
CATHY FISHER
Commission # 1174329
Notary Public - California
Orange County
My Comm. r i'es Feb 21, 2002
(This area for official notarial seal)
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EXHIBIT "A"