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HomeMy WebLinkAboutC-5631 - Encroachment Agreement EPN N2000-0020 for 218 Onyx AvenueRECORDING REQUESTED ;D Dly WHEN RECORDED RETURN TO: Recorded in the county of Orange, cal ifornia p, Gary L Granville, clerk/Recorder lI� Public Works Department IIIIIIIII�IIII��I�II��I�II�I�II��I 24.00 City of Newport Beach 20000102520 9:30M 02/28/00 �--� Post Office Box 1768004 00126634 118 04 003 07 0 0.00 6.00 18.00 0.00 0.00 0.00 3300 Newport Boulevard 0.00 0.00 Newport Beach, CA 92659-1768 Doc Types: 003 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT, 5 �� (EPN2000-0020) THIS AGREEMEPT is made and entered into this Ilyl�-- day of 2000, by and between Keith Swayne and Judy Swayne; hereinafter OWNER", and the City of Newport Beach, California, a municipal corporation organized and twx„sting under and by virtue ,J of its Charter and the Constitution and the laws of the State of Cal r, mia, (hereinafter "CITY"), "OWNER" is the owner of property located at 218 Onyx Avenue, ” 3wport Beach, California and legally described as Lot 8, Block 6, Map of Resubdivision Set 0k --n One of Balboa Island; as shown on a map reccrded in Book 6, Page 30 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; WITNESSETH: WHEREAS, OWNER desires to construct and maint;i i certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within :onyx Avenue right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to 218 Ony: ';venue, Newport Beach, California; WHEREAS, said PERMITTED IMPROVEMENTS may it fere in the future with CITY'S ability to construct, operate, maintain, and replace CITY a,-, ',• other public facilities and improvements within RIGHT-OF-WAY; and WHEREAS; the parties hereto desire to execute an agreerw} it providing for fulfillment of the conditions required by CITY to permit OWNER to reco,­; ,_�truct and maintain said PERMITTED IMPROVEMENTS; NOW, THEREFORE, in consideration of the mutual promiS&L the parties hereto agree as follows: 1 1. It is mutually ag..ad that PERMITTED IMPROVEME, _,'S shall be defined as 36 - inch high picket fence witn gate and appurtenances on Onyx Avenue right -of -away 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, instar, maintain, use, operate, repair and replace said PERMITTED IMPROVEMENTS and appuri:,.oances incidental thereto, within a portion of RIGHT-OF-WAY, all in substantial confon- lance 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 terminates, by CITY at any time by giving 60 days' notice, specifying in said notice the date of termin;-cion. 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 PERMITTEE_) 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 Ov,�NER to maintain, replace or repair any private -owned or CITY -owned pipeline, conduit or cabic located in or under said PERMITTED IMPROVEMENTS, except as otherwise provided herein. c. If private --owned, 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 the CITY be required to enter onfi-) said RIGHT-OF-WAY to exercise its primary rights associated with said RIGHT-OF-WAY, � tOuding but not limited to, the maintenance, removal, repair, renewal, replacement or enlarge,~lent of existing or future 2 public facilities or imp ovL ,ents, CITY may remove ports 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 arrn: wing 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 rei ewal 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 remedis available to it, terminate this Agreement, and, in the event the breaching party is OWNER, (ITY may enter upon the RIGHT-OF-WAY and remove all or part of the improvements installed by OWNER. Termination because of breach shall be upon a minimum of ten (" 0) 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 shah 'oe entitled to reasonable attorneys fees and costs incurred. 6. OWNER shall r4rifend, indemnify and hold harmless CITY. its City Council, boar',s and commissions, officers and employees from and against any an all loss, damage, liability, claims, suits, costs and expenses whatsoever, including reason; .ble 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, consiiuction, 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 *ha 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 causui this Agreement to be executed on the day and year first -above written. 3 APPROVED AS TO FORM.- By: ORM: By: 4)) ity Attorney City Clerk a] CITY OF NEWPOR ` EACH, a Municipal corpora,: ,,,,a- i OWNER: By: _ City Ma/ager By: Keith Swayne By:���ti�� _ J u wad e STATE OF CALIFORNIA ) COUNTY OF OftAtieEr) O n &�lCt personally appeared known to me kg -.w =-20007 before me personal c n-tW,G -basin=-of--s-atisfactory evidence) to be the person* whose name(* &E� e subscribed to the Within instrument and (tcnowledged to me that Ve has executed the same in �i h�r/t*r authorized ; apacity(i `, and that by signature(, on the instrument the person&j or the entixy upon behalf of which the son cted, execute tl' instrument. WITNESS my hand and official seal. BARBARA I RICHARDSON _Commission # 1233556 f Notary PWiic - Califarnia Riverside Camty Notary Publi and or said State �'' Cw-r"•5"WA"g3D� (This area for official notarial seal) STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) OnL z� -0%, before mel -416k, s 17DI&, 12udc personally appeare known --to- me -(or proved to a on the basis of satisfactory evil ,race) to be the person(s) whose name(s) is/are- subscribed to the within instrument and . :;knowledged to me that fie/she/they has executed the same in his/her/their authorized ,:. apacity(ies), and that by Fids/her/their signature(s) on the instrument the person(s) or the entity, upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. fjlic in -and for said State xk�li_ LYNNE ARMSTRONG 3 UCOMM. # 1224773 (� ti NOTARY PUBLIC -CALIFORNIA ORANGE COUNTY n LOCOMM. a � COMM. EXP. JUNE 1 . 2003'` (This area for official notarial seal) F:\USERS\PBW\GWONG\WP51 \AG\SWAYN EEPN2000-0020BI. DOC CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California OVA�D�y County of ss. On f*vein �before me, D to Na and andl Tit_le\o' Officer (e.g.,1"AJa/n�e Dole,, ,N.otary Public") personally appeared H9VYIf/i �- �� �� al�� !� `+9AVIii V`r `• i� Y'V_I cs-,- Name(s) of Signer(s) LE issio V. I11ES� )) � Commission # t 10960 Z z Fg No-ary Public - Colifomia Orange County My Comm. Expires Jan 25, 2002 [personally known to me ❑ proved to me on the basis of satisfactory evidence to be the person s) whose name /are subscribed subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authoriz capacity and that by his/her signatures n the instrument the perso or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. W�i V, jv,� Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: RIGHT THUMBPRINT OF SIGNER Top of thumb here © 1997 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827 141-0" R.O.W. w01 � w, V 0 IS m))-- NEW 50' 6ATi MATCH FENCE FAGE OF CURB ASSUMED DATUM ELEV. 00.0\ COPPER POST L 1644T NV ADDRESS W v Q 7 m Ci �� 81-4" PROVIDED FRONT YARD SETBACK 21-6" NEW 366A MATCH FENG NEW FENCE T.01v, +Sb T.0 W PFCE.KET T.011. +56' 41—.III L EXST'S WL LOCATION PUBLIC SIDEWALK PLANTER it N 3.00 REMOVE TAP. • , FENCE E T.O.W. +-12 (RICK PAVING DA5KET WEAVE PTRN. EXISTING 1 - STORY RESIDENCE r.r. ELv. 03 NEW FENCE t.ON. +56 REQUIRED FRONT YARD SETBACK 1 EXISTING FIRE;PLAGE CHIM. BRICK HEADER N NEW FENCE T.O.W. +12 EXH/Bl i 1A"