City of San Clemente Engineering Division
910 CALLE NEGOCIO, SUITE 100, SAN CLEMENTE, CA 92673
Phone: (949) 361-6100
Fax: (949) 366-4741
E-mail: [email protected]
PERMIT NO.:
DATE ISSUED:
ADMINISTRATIVE ENCROACHMENT PERMIT
PRIVATE IMPROVEMENTS WITHIN PUBLIC RIGHTS-OF-WAY, EASEMENTS, ETC.
PROPERTY ADDRESS:
1202 Avenida De La Estrella
TRACT/PM:
795
BLOCK:
8 LOT(S):
1 and 2
CROSS STREETS:
La Placentia
and
Ease El Portal
PROPERTY OWNER:
Robert and Heather Watson
PHONE:
949-492-6154
ADDRESS:
1202 Avenida De La Estrella
EMAIL: __________________________________________________________________________________________________________________________ DESCRIPTION OF WORK:
Proposal for existing wall, fence, gate, steps, and drains to remain in the public right-of-way.
PERMIT ISSUANCE:
X WALL/FENCE/GATE $ ___ MACROBUTTON CheckIt MAILBOX (001-000-32340) MACROBUTTON CheckIt HARDSCAPE
MACROBUTTON CheckIt STAIRS
X OTHER
Special Conditions: The encroaching wall improvements shall not exceed a maximum height of 30 inches and the drain shall be removed or modified to properly drain to the street and not onto the sidewalk.
As a condition of the issuance of this encroachment permit, the Property Owner(s) hereby agrees to the special conditions or the conditions of approval attached hereto, agrees to comply with all City, local, state and federal requirements, standards, and policies applicable to the construction and maintenance of the encroaching structure/use, agrees to and agrees to the recording of that certain Agreement Containing Covenants Affecting Real Property attached hereto, agrees to maintain the encroachment in a safe and clean condition at its sole cost and expense, agrees to remove and to pay for the removal and reconstruction/installation of the encroaching structure or use if City concludes, in its sole and absolute discretion, that the encroaching structure or use fails to comply with all applicable requirements, and agrees to remove the encroaching structure/use at applicant’s sole cost and expense should City conclude in its sole and absolute discretion that such removal is appropriate or desirable. The Property Owner(s) agrees to defend (with counsel acceptable to City), indemnify and hold harmless the City of San Clemente and all its agencies, officers, elected and appointed officials, employees, volunteers and agents from and against all liabilities, claims, demands, judgments, damages, losses, costs and expenses, including attorney and expert fees and costs that may in any manner or form arise out of or in connection with the issuance of this permit, any work performed in consequence thereof, any injury to persons or property related to the encroachment or the property or any failure of the Property Owner(s) to comply with the conditions of this permit or to maintain the area of the encroachment in a safe and clean condition.
SIGNATURE:__________________________________________________DATE:______________________ PRINT NAME:_________________________________________________ Property Owner
PLANNING DIVISION ACTION: __________________________________________________________________________________________________________ PLANNING DIVISION STAFF:_____________________________________DATE:____________________ APPROVED BY:_________________________________________________DATE:____________________ City Engineer
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
City of San Clemente
910 Calle Negocio, Suite 100
San Clemente, CA 92673
Attn: City Clerk
Space above this line for Recorder’s Use
This Agreement is recorded at the request and for the benefit of the City of San Clemente, California, and is exempt from the requirement for payment of recording fees pursuant to Government Code Sections 6103 and 27383.
AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY (ADMINISTRATIVE ENCROACHMENT PERMIT) This AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY (ADMINISTRATIVE ENCROACHMENT PERMIT) (the “Agreement”) is dated for reference purposes only as of the ____ day of ____________, 2026 (the “Effective Date”), and is entered into by and between Robert and Heather Watson (“Owner”), and the CITY OF SAN CLEMENTE, a municipal corporation (“City”). Owner and City are sometimes hereinafter referred to individually as a “Party” and collectively as the “Parties.” R E C I T A L S:
Owner is the owner in fee of that certain real property located at _1202 Avenida De La Estrella in the City of San Clemente, County of Orange, State of California, and more particularly described in Exhibit “A” attached hereto and incorporated fully herein by this reference (“Owner’s Property”).
City is the owner of an easement and/or public right-of-way on, over, under, and across a portion of the Owner’s Property described generally as follows: Avenida De La Estrella and La Placentia- Lots 3 and 12, Block D, Tract 795 (the “City Property”).
Pursuant to San Clemente Municipal Code Sections 12.20.015-12.20.020, any person who desires to construct, install, or maintain any improvements on City property or within a City easement or right-of-way must apply for and obtain an administrative encroachment permit.
D. On July 25, 2006, the City Council of the City adopted Resolution No. 06-51 authorizing the City Manager or his/her designee to enter into written agreements with property owners to authorize encroachments granted pursuant to the City’s administrative encroachment permit process.
E. Pursuant to Municipal Code Sections 12.20.015-12.20.020 and Resolution No. 06-51, Owner has applied to City for an administrative encroachment permit to allow certain private improvements to be constructed, installed, and/or maintained within the City Property, as depicted or described in Exhibit “B” attached hereto and incorporated herein fully by this reference (the “Owner’s Improvements”).
F. On August 18, 2026, City approved said encroachment permit for the Owner’s Improvements (the “Encroachment Permit”) subject to the conditions set forth in adopted Resolution No. 26-XXX, including that Owner and City execute and record this Agreement against the Owner’s Property.
C O V E N A N T S:
Based upon the foregoing Recitals, which are incorporated into this Agreement by this reference, and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by both Parties, Owner and City agree as follows:
Owner’s Right to Construct, Install, and Maintain Owner’s Improvements on City Property. Subject to all of the other terms and conditions set forth in this Agreement, City hereby grants to Owner a revocable, non-exclusive license to enter onto the City Property to construct, install, repair and maintain the Owner’s Improvements. Owner shall at all times construct, install, repair and maintain the Owner’s Improvements in strict conformity with:
All applicable federal, state, and local laws, regulations, and official policies, including but not limited to the California Environmental Quality Act (Public Resources Code 21000 et seq.) and all applicable building, electrical, plumbing, and mechanical codes; Any and all conditions set forth in the Encroachment Permit (a copy of which is a public record available for inspection during normal business hours in the office of the City Clerk located at 910 Calle Negocio, San Clemente, California, 92673); The terms of this Agreement, including without limitation Exhibit “B” hereto; and Any applicable permits, licenses, or approvals from other governmental agencies having jurisdiction over the Owner’s Improvements or the City Property.
2. If any of the Owner’s Improvements are located within a public street right-of-way, Owner shall not allow any of the Owner’s Improvements or any persons constructing, installing, maintaining, repairing, replacing, or removing the Owner’s Improvements on Owner’s behalf to obstruct or impair in any way vehicular, pedestrian, or bicycle travel or visibility on and along such street and Owner shall comply with and cause all of its employees, independent contractors, and agents to comply with all safety rules and regulations and traffic control requirements as may be prescribed by the City’s Public Works Director or his/her designee.
3. Owner shall not in any way damage any City improvements on or adjacent to the City Property and, if any such damage occurs as a result of any acts or omissions of Owner or any employee, independent contractor, consultant, or agent of Owner, Owner shall promptly repair said damage to the satisfaction of the City’s Public Works Director or his/her designee and restore said City improvements as nearly as practicable to the condition existing immediately prior to such damage. All repairs and restoration work shall be completed within thirty (30) days of written notice from City, unless a longer period is approved in writing by the City’s Public Works Director or his/her designee.
Owner shall have no right to expand, enlarge, or otherwise alter the Owner’s Improvements in a manner inconsistent with or beyond the scope of City’s initial approval of same. If Owner desires to expand, enlarge, or otherwise alter the Owner’s Improvements in such manner, Owner shall first be required to obtain the written approval of City’s Public Works Director or his/her designee, which approval may be withheld in City’s sole and absolute discretion. In the event City’s approval for an expansion, enlargement, or alteration to the Owner’s Improvements is obtained, the Parties agree to execute an appropriate amendment to this Agreement to depict or describe the change and to record said amendment against the Owner’s Property, and at such time all references in this Agreement to the “Owner’s Improvements” shall be deemed to refer to the Owner’s Improvements as so expanded, enlarged, or altered.
Owner shall at all times maintain the Owner’s Improvements in good condition and repair (including without limitation repainting of any painted surfaces and removal of graffiti, if applicable) and Owner shall maintain the immediate area in a neat, tidy, and clean condition, free of any refuse and debris. In the event that any of the Owner’s Improvements consist of landscaping, Owner shall maintain said landscaping in a healthy condition, Owner shall promptly remove or replace any diseased or dead landscaping, and Owner shall prune or trim said landscaping in order to avoid or eliminate any potential traffic or safety hazards on adjacent roadways or sidewalks. Not by way of limitation of the foregoing, if any roots from any landscaping installed or maintained by Owner cause any damage to any City Street, curb, gutter, sidewalk, storm drain facility, pipeline, or other improvement, Owner shall promptly repair such damage and replace any damaged City improvement promptly upon City’s written demand. In addition, Owner at all times shall maintain any portion of the Owner’s Improvements consisting of irrigation lines, valves, and other equipment so as to conserve the use of water, comply with any applicable water conservation ordinances or regulations, prevent erosion, and contain runoff within the Owner’s Property (and to avoid runoff onto adjacent City streets and storm drains).
Owner shall maintain, or cause to be maintained, a homeowner’s liability policy or commercial general liability insurance covering the Owner’s Improvements and activities on the City Property within limits as specified by the City’s Risk Manager, naming the City, its elected and appointed officials, officers, employees, agents, and volunteers as additional insureds. Proof of insurance shall be provided to City prior to commencement of any work and maintained throughout the term of this Agreement. Owner shall provide City with at least thirty (30) days’ advance written notice of any cancellation, non-renewal, or material change in coverage. The foregoing requirements may be waived in writing by the City Engineer in appropriate cases.
City Right to Expand, Enlarge, or Alter City Improvements. Notwithstanding the rights granted to Owner hereunder, City reserves the right to expand, enlarge, alter, maintain, repair, replace, and relocate any City-owned improvement on, over, under, or across the City Property and any adjacent City easement or right-of-way at any time, without any obligation or liability to Owner to repair or restore any damage that may be caused to any of the Owner’s Improvements. City shall provide Owner with reasonable advance written notice of any such work where practicable, but City’s failure to provide such notice shall not create any liability to Owner or limit City’s rights under this Section.
No Property Interest. The Encroachment Permit and this Agreement are not intended to and do not convey to Owner or create any interest in the City Property. This Agreement is intended as a non-exclusive and revocable license only. Owner has no right, title or interest in the City Property except as expressly provided in this Agreement.
No License Fee. Owner’s rights set forth in this Agreement are conditional and contingent upon Owner having paid to City any and all fees required to obtain the Encroachment Permit. Otherwise, however, Owner shall not be required to pay any license fee or similar consideration to City except as expressly set forth herein.
Term; Termination and Revocation of Encroachment Permit and Agreement. This Agreement shall be of indefinite duration and shall be effective from the date this Agreement is fully executed and recorded against the Owner’s Property until the date this Agreement is terminated by either Party or revoked by the City pursuant to this Agreement.
10.1 Either Party shall have the right to terminate the Encroachment Permit and this Agreement, with or without cause, by delivery of written notice to the other Party. Prior to any termination by Owner becoming effective, Owner shall remove any Owner’s Improvements from the City Property, repair any damage caused by the Owner’s Improvements or removal of same to the City Property, and restore the City Property as nearly as practicable to the condition existing immediately prior to the installation of the Owner’s Improvements, all to the satisfaction of the City Public Works Director or his/her designee.
10.2 Subject to the next paragraph herein below, if City delivers written notice to Owner of City’s decision to terminate the Encroachment Permit and this Agreement, said termination shall be effective within thirty (30) days after the date of said notice unless the Parties mutually agree in writing to a different timeframe. Within said thirty (30) day period, Owner shall remove all of Owner’s Improvements from the City Property, repair any damage caused to the City Property by Owner’s Improvements and/or the removal of same, and restore the City Property as nearly as practicable to the condition existing before the installation of the Owner’s Improvements, all to the satisfaction of the City’s Public Works Director or his/her designee.
10.3. In addition to the foregoing, in the event Owner violates any of the terms or conditions set forth in the Encroachment Permit or this Agreement, City shall have the right upon delivery of written notice to Owner to revoke the Encroachment Permit and this Agreement on shorter notice than thirty (30) days or, in cases of imminent threat to public health, safety, or welfare, no notice at all. In such event, Owner shall immediately remove all of Owner’s Improvements from the City Property, repair any damage caused to the City Property by Owner’s Improvements and/or the removal of same, and restore the City Property as nearly as practicable to the condition existing before the installation of the Owner’s Improvements.
10.4. Upon termination or revocation of the Encroachment Permit and this Agreement, neither Party shall have any further rights or obligations under this Agreement, subject to the following exceptions:
(i) Owner’s obligation to remove the Owner’s Improvements and repair and restore any damage to the City Property, as set forth hereinabove, shall survive the effective date of any such termination or revocation; (ii) In the event Owner fails to timely remove any of the Owner’s Improvements and/or repair and restore any damage to the City Property, City reserves its legal remedies as set forth herein, including the right to recover from Owner City’s actual out-of-pocket costs, plus administrative charges and interest, to effectuate said work; and (iii) Owner’s release of liability and the rights of the City Indemnitees as set forth in herein shall survive any such termination or revocation.
City Remedies. If City determines that Owner is not maintaining any of the Owner’s Improvements in accordance with the Encroachment Permit or this Agreement or if City determines that Owner has not timely removed any Owner’s Improvements or unauthorized improvements or repaired any damage to the City Property and restored the City Property in accordance with the Encroachment Permit or this Agreement, City shall have the right to deliver written notice to Owner stating in reasonable detail what maintenance, repair, or improvement work is required. If Owner thereafter fails to perform such work within a reasonable period, not to exceed thirty (30) days from the date of City’s notice unless a different timeframe is specified in the notice based on the nature and urgency of the work, City reserves the right, in addition to any other rights and remedies it may have hereunder or pursuant to applicable law, to enter onto the City Property, and if necessary the Owner’s Property, to perform said maintenance, repair, improvement, or removal work itself, in which event Owner shall be responsible for reimbursing City for all of City’s actual out-of-pocket costs (including payroll costs for work performed by City employees) plus an administrative charge of fifteen percent (15%). In addition, if Owner fails to pay any City invoice for said work within thirty (30) days after written demand from City, Owner shall additionally be liable to pay City interest on the delinquent payment at the rate of ten percent (10%) per annum or the maximum interest rate permitted by law, whichever is less. City’s rights set forth in this Section shall survive a termination or revocation of the Encroachment Permit and this Agreement. City may also pursue any other legal or equitable remedies available under law, including but not limited to, seeking injunctive relief or recording a notice of noncompliance against the Owner’s Property.
As-Is Condition; No City Representations and Warranties Regarding Condition of City Property; Release and Indemnity.
Owner acknowledges and agrees that City is making no representations or warranties to Owner regarding the physical condition of the City Property, the existence of any patent or latent defects in the City Property or the location, condition, or other characteristics of any improvements situated on, over, or under the City Property, or the suitability of the City Property for Owner’s intended use or any of the Owner’s Improvements to be located thereon, and Owner assumes the full risk with respect thereto. Owner hereby releases City from any and all claims, liabilities, and losses that may be incurred by Owner with respect to the construction, installation, maintenance, repair, improvement, replacement, and removal of the Owner’s Improvements, including any personal injury or death, property damage, or economic loss arising therefrom, and City shall have no liability therefor.
12.2 In addition to the foregoing, Owner agrees to indemnify, defend (with counsel acceptable to City), and hold harmless City and City’s elected and appointed officials, officers, employees, contractors, volunteers and agents (collectively, the “City Indemnitees”) from and against any and all claims, demands, liabilities, judgments and losses arising out of or in connection with Owner’s construction, installation, maintenance, repair, improvement, replacement, existence or removal of any of the Owner’s Improvements, the use of the City Property or the Owner’s Property, or the issuance of the Administrative Encroachment Permit or this Agreement, including without limitation claims for personal injury or death, property damage, and economic loss, and including without limitation fines and penalties imposed by any governmental agency and attorney and expert fees and costs.
12.3 In the event that any claim is made by any third party against any of the City Indemnitees, City agrees to promptly tender said claim to Owner and thereafter Owner shall defend said claim with counsel reasonably acceptable to City. Owner shall keep City fully informed of the status of any such claim and shall not settle any claim without the prior written consent of City, which consent shall not be unreasonably withheld. City agrees to cooperate reasonably in the defense of any said claim, provided that Owner shall promptly reimburse City for any City out-of-pocket costs incurred with respect thereto, including without limitation payroll costs at the applicable City rates for any time reasonably expended by City employees in assisting with said defense.
12.4 City’s rights set forth herein shall survive a termination or revocation of the Encroachment Permit and this Agreement.
Miscellaneous.
Notices. Any notices required to be delivered by one Party to the other Party pursuant to the terms of this Agreement shall be in writing. Notices shall be deemed effective if personally served in the manner authorized in the California Code of Civil Procedure for the service of lawsuits or by mail delivered by United States mail, first class, postage prepaid, or by email to the email address provided by the Parties, to the following addresses: (i) for Owner, the address and email address of Owner’s Property as set forth on the cover page of this Agreement or as subsequently updated by written notice to City; and (ii) for City, the City Hall address (with notices directed to the attention of the City Manager and the City Clerk), and to the email addresses designated by City from time to time.
No Third Party Beneficiaries; Successors and Assigns. Notwithstanding any other provision set forth in this Agreement to the contrary, nothing herein is intended to create any third party beneficiaries to this Agreement (with the exception of the rights set forth in herein benefiting the City Indemnitees), and no person or entity other than Owner, City, and the City Indemnitees, and the permitted successors and assignees of any of them, shall be authorized to enforce the provisions set forth in this Agreement. This Agreement is intended to benefit and be binding upon Owner and any successor or assignee of Owner’s fee title to the Owner’s Property.
This Agreement shall constitute a covenant running with the land and shall be binding upon all future owners, heirs, successors, and assigns of the Owner’s Property.
Modification. No termination, amendment or other modification of any provision of this Agreement shall be effective unless set forth in writing and executed by both Parties.
Governing Law and Venue. This Agreement shall be governed by the internal laws of the State of California and any question arising hereunder shall be construed or determined according to such law. The Superior Court of the State of California in and for the County of Orange, or such other appropriate court in such county, shall have exclusive jurisdiction of any litigation concerning this Agreement. Owner waives any right to removal under Code of Civil Procedure section 394.
Counterparts. This Agreement may be executed in counterparts, each of which, after all the Parties hereto have signed this Agreement, shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
Attorney Fees and Costs. In the event a Party hereto brings suit to enforce the terms of this Agreement or on account of breach hereof, the Party not prevailing in such suit shall pay all reasonable costs and expenses incurred by the other Party in such suit, including, without limitation, court costs, attorneys’ fees, and expert witness fees.
Entire Agreement. This Agreement constitutes the complete, integrated, and final agreement between the Parties with respect to the subject matter set forth herein and supersedes any prior discussions, negotiations, or agreements between the Parties on the same subject.
Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision shall be deemed modified to the extent necessary to make it valid and enforceable, and the remainder of this Agreement shall remain in full force and effect.
Waiver. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision, nor shall any waiver constitute a continuing waiver unless otherwise expressly provided. No waiver shall be binding unless executed in writing by the party making the waiver.
Interpretation. This Agreement has been negotiated by the Parties and shall be interpreted fairly in accordance with its terms and not strictly for or against either Party. The captions and headings used herein are for convenience only and shall not be used to interpret the substantive provisions of this Agreement.
Signatory Authority. Each person signing on behalf of a Party represents and warrants to the other Party that it has full power and authority to enter into and bind such Party to this Agreement, and that he/she will indemnify the other Party should such representation prove false.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
Date: _________________, 20___
“Owner”
___________________________________,
a ____________________________
By:
Its:
Date: _________________, 20___
Date: _________________, 20___
Owner”
___________________________________,
a ____________________________
By:
Its:
“City”
CITY OF SAN CLEMENTE,
a municipal corporation
By:
City Engineer
ATTEST:
City Clerk
ALL CAPACITY ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On , before me, ,
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_____________________________________
Signature of Notary Public (Notary Seal)
EXHIBIT “A”
LEGAL DESCRIPTION OF OWNER’S PROPERTY
Lots 1 and 2, Block 8, Tract 795
EXHIBIT “B”
DESCRIPTION/DEPICTION OF OWNER’S IMPROVEMENTS
Improvements include: masonry wall, fencing, gate, stairway, light fixtures, drainage, and landscaping. 4936-9546-6423 v2
- PAGE 9-
4936-9546-6423 v2
4936-9546-6423 v2
Attachment 4
Attachment 5
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.