HomeMy WebLinkAboutC-4912 - Encroachment Agreement EPN N2003-0076 for 734 Saint James PlaceRECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in Official Records, County of Orange
Tom Daly, Clerk -Recorder
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2003-0076)
THIS AGREEMENT is made and entered into this ;.--tut> day of
, 2003, by and between Joseph I and Marjorie Y. McCarthy Trustees of
The Joseph I and Marjorie Y. McCarthy Trust u/t/d dated August 4, 1998 (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 734 Saint James
Place, Newport Beach, California 92663 and legally described as lot 18, tract 1218, as shown
on a map recorded in Book 37, Pages 47-49, inclusively of Miscellaneous Maps in the office of
the County Recorder of Orange County, California.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the 10 feet wide sanitary sewer
easement, as recorded in book 3237, page 584 and within the 20 feet wide storm drain
easement as recorded in O.R. 10228, page 757 of Official Records of Orange County
(hereinafter "STORM AND SEWER EASEMENT"), that is located within lot 18, tract 1218, as
shown on a map recorded in Book 37, Pages 47-49, inclusively of Miscellaneous Maps in the
office of the County Recorder of Orange County said, also known as 734 Saint James Place,
Newport Beach, California;
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 said easements; and
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WHEREAS, the parties hereto desire to execute an agreement providing for fulfillment
of the conditions required by CITY to permit OWNER to reconstruct and maintain 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 6 feet high chain link/wood fence, 30 feet by 60 feet concrete pad and appurtenances in
the "STORM AND SEWER EASEMENT" as shown on EXHIBIT "A" attached hereto and as
approved by the Public Works Department. In addition, the proposed PERMITTED
IMPROVEMENTS may vary at the time of construction. Hence, any changes must be
approved by the Public Works Department and shall be 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 "STORM AND SEWER 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.
2. 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
therefore 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
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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 "STORM AND SEWER
EASEMENT" to exercise its primary rights associated with said "STORM AND SEWER
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 intention to accomplish such work,
if any emergency situation does not exist.
(ii) OWNER shall be responsible for arranging for any renewal,
replacement, 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, replacement, 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
"STORM AND SEWER EASEMENT" 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,
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 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
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(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 AS TO FORM:
By:
City Attorney
ATTEST:
By:
CITY OF NEWPORT BEACH,
a Municipal corporation
CitManager
OWNER: Joseph I. McCarthy and Marjorie Y. McCarthy
Trust u/t/d dated August 4, 1998.
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STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE )
On Marl/ 1 , 2003, before me, Lei 1011( l . MOM) ?ki c
personally appeared Mt rj MC \I. M Car'-i / 1'C'Di4 1, r cl..ltr � p --
to-me_ (or proved to me on the basis of satisfactory evidence) to be the person
whose namo(s) - subscribed to the within instrument and acknowledged to me that
he/she/ ' -, has executed the same in his/he /their authorized capacit (, and that by
his/hersignatur (s on the instrument the perso
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
or the entity upon behalf of which the
-12146,
LEILANI I. BROWN
Commission # 1336873
Notary Public - California
Orange County
My Comm. Expires ,Jan 25, 2006
z
(This area for official notarial seal)
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On April , 2003, before me, Lei taint 1' Oroon M-jr H bijc1
personally appeared ¥DVY J 1-. 'JVO L1 AVIA LAVOV►vt ,M• 1-161t S , personally
known to me (or proved to me on the basis of satisfactory evidence) to be the perso
whose nam i fare ) subscribed to the within instrument and acknowledged to me that
he/she/7 has executed the same in his/he
his/her signature(bn the instrument the person
person acted, executed the instrument.
WITNESS my hand and official seal.
Detati GQ-
Notary Public in and for said State
authorized capacity lest' and that by
or the entity upon behalf of which the
LEILANI I. BROWN
• Commission # 1336673 z
re) 0 nge County
Notary Public - California
My Comm. Expires Jan 25, 2008
AP... a r ® a .a. .an+ ,pro,... .a a i
(This area for official notarial seal)
F:\Users\PBW\Shared\ENCROACH\ROW Agreements\2002\2003-076 734 st james.doc
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Exhibit A
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