Loading...
HomeMy WebLinkAboutC-7829-1 - Encroachment Agreement EPN N2020-0070 for 15 Torrey Pines LaneBatch 5964273 Confirmation 1 ld Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder 11111 IlIlljI11Ill 111 11111 Jill49.00 *$ R 0 0 1 1 5 1 2 4 3 7$ RECORDING REQUESTED BY AND . 202000008233010:15 am 02126120 WHEN RECORDED RETURN TO: 63 SC5 Al2 14 0.00 0.00 0.00 0.00 39.00 0.00 0.000.000.00 3.00 Attn: City Clerk's Office City of-NewportBeach P.0. Box:1768 Newport Beach, CA 92658-8915 :Space above this.linelor Record'er's use only. ENCROACHMENT AGREEMENT.. (Encroachment Permit Number:N2020-0070) THIS ENCROACHMEN.T..AGREEMENT (''Agreement") is made and .entered into this: 20th day of.February, 2020; by and between: Linh Thi Diem: Dao; Trustee of the CTBD Trust. Dated October 3, 2017 ("Owner"):,and the City. -of Newport Beach; a:.California municipal corporation and charter city, organized=and existing under-andby virtue of`its Charter and the.Constitution; and.the laws of the State of California..("City'). < RECITALS -WHEREAS; Owner is -the vested owner ofproperty located at 15<Torrey-Pines Lane;: Newport Beach, California,: 92660:and:legally described:as Lot 31 of Tract 7638, in. the. City of Newport -Beach, Countyof Orange, State of -California; as per map. recorded in Book 306, Pages 1 to,9 Inclusive of. Miscellaneous Maps,. in Office of. the County Recorder of..Orange: County,: County Assessor's Parcel Number 442=221-33 -('`Property"); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ('Permitted within the Public Storm Drain Easement right-' of -way (hereinafter "Right -of -Way') that is located adjacent to Property; WHEREAS, said Permitted Improvements may interfere. inthe futurewith City's ability to -construct, operate,. maintain; and:replace.City and other public facilities and: improvements: within Right=of--Way; and WHEREAS,. the parties hereto desire to enter into this.Agreement. providing for fulfillment of.the conditions. -required by City to permit Owner to construct and maintain -said Pemitted Improvements. ; NOW, .THEREFORE, in..consideration...of the .mutual.. promises,. the `_parties hereto: agree as follows: . 1. City. and Owner acknowledge_ that. the above Recitals: are true .and correct :and are . hereby incorporated by reference. into this Agreement: 2. It is mutuallyagreed.that Permitted Improvements shall .be defined_as: CTBD Trust: Encroachment Agreement 1 https:Hgs.secure-recording.com/Batch/Confirmation/5964273 02/26/2020 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Attn: City Clerk's Office City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2020-0070) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 20th day of February, 2020, by and between Linh Thi Diem Dao, Trustee of the CTBD Trust Dated October 3, 2017 ("Owner"), and the City of Newport Beach, a California municipal corporation and charter city, organized and existing under and by virtue of its Charter and the Constitution, and the laws of the State of California ("City"). RECITALS WHEREAS, Owner is the vested owner of property located at 15 Torrey Pines Lane, Newport Beach, California, 92660 and legally described as Lot 31 of Tract 7638, in the City of Newport Beach, County of Orange, State of California, as per map recorded in Book 306, Pages 1 to 9 Inclusive of Miscellaneous Maps, in the Office of the County Recorder of Orange County, County Assessor's Parcel Number 442-221-33 ("Property"); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Public Storm Drain Easement right- of-way (hereinafter "Right -of -Way") that is located adjacent to Property; 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 Right -of -Way; and WHEREAS, the parties hereto desire to enter into this Agreement providing for fulfillment of the conditions required by City to permit Owner to construct and maintain said Permitted Improvements. NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: City and Owner acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 2. It is mutually agreed that Permitted Improvements shall be defined as: CTBD Trust Encroachment Agreement 1 a. A 5 -foot tall wrought iron fence, a 5 -foot tall concrete masonry unit back property line wall with a stucco finish and 3 -foot wood lattice, three (3) 5 -foot high stucco concrete masonry unit walls 3 -feet, 7 -feet, and 12 -feet in length, six (6) catch basins and 4 -inch SDR35 PVC drain, one (1) driveway trench drain, synthetic turf, one (1) olive tree, one (1) dwarf date palm, five (5) dwarf citrus trees, and a 3 -foot tall concrete masonry property line wall with a stucco finish encroaching up to 12 -feet into the Right -of -Way, as approved by the Public Works Department and as shown on Exhibit A, attached hereto and incorporated herein by reference. b. In addition, if any improvements actually built or installed during the time of construction vary from Permitted Improvements approved herein, such variations or changes must be approved in advance by the Public Works Department and shall be shown on the "As Built" plans. 3. 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 Right -of -Way, if in substantial conformance with the plans and specifications on file in City. City will further allow Owner to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 4. Rights granted under this Agreement may be terminated by City with or without cause and at any time without notice. City shall make good faith efforts to provide sixty (60) calendar days' notice in advance of termination, 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. 5. Owner and City further agree as follows.- a. ollows: a. Owner may construct and install Permitted Improvements and appurtenances incidental thereto in substantial conformance with the plans and specifications on file in City's Public Works Department, and as described on Exhibit A. b. Owner shall maintain Permitted Improvements in accordance with generally 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 repairs and restoration of these public facilities or improvements to their condition at the time of entry into this Agreement. d. Should City be required to enter onto said Right -of -Way to exercise its primary rights associated with said Right -of -Way, including but not limited to, the maintenance, removal, repair, renewal, replacement or enlargement of existing CTBD Trust Encroachment Agreement 2 or future public facilities or improvements, City may remove portions of Permitted Improvements, as required, and in such event: (i) City shall notify Owner in advance of its intention to accomplish such work, provided that an emergency situation does not exist. (ii) Owner shall be responsible for arranging for any renewal, replacement, or restoration of Permitted Improvements affected by such work by City. (iii) City agrees to bear only the cost of any removal of Permitted Improvements affected by such work by City. (iv) Owner agrees to pay all costs for the renewal, replacement, or restoration of Permitted Improvements. 6. 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 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 (10) calendar days' notice, with the notice specifying the date of termination. 7. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 8. 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 Permitted Improvements. 9. 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 Owner's interest in the land, whether fee or otherwise; and shall be recorded in the Office of the County Recorder of Orange County, California. 10. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, California. 11. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 12. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and CTBD Trust Encroachment Agreement 3 agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 13. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 14. Owner shall, at Owner's own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 15. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. [SIGNATURES ON NEXT PAGE] CTBD Trust Encroachment Agreement 4 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: UZ $ Zo Zo By: Aaron C. Harp ruw z•�q•� City Attorney ATTEST: „ Date: By: J'm4w)' Leilani I. Brown City Clerk 0RNIP* ATTACHMENTS: CITY OF NEWPORT BEACH, a California municipal corporation Date: �2 -a I -d 0a0 By: Gr c K. Leung it anager OWNER(S): Linh Thi Diem Dao, Trustee of the CTBD T ust Dated October 3, 2017 Date: -;L020 By: Linh Thi Diem Dao Trustee [END OF SIGNATURES] Owners must sign in the presence of notary public Exhibit A — Permitted Improvements Plan as Approved by Public Works CTBD Trust Encroachment Agreement 5 ACKNOWLEDGMENT 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. State of Calirnia Count f bra&id ss. �� On h , 207-0 before me, J - t'rU (M (` Notary Public, personal) appeared fm Dolo , 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 signatures(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. RENEE J. M1MilLER Notary Public - Cworni& Z �� OrmOt County • Commill'ion #► 2179574 Sinature (seal) MComm. E in: D#c 22, 2020 r ACKNOWLEDGMENT 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. State of California County of On Public, personally appeared the basis of satisfactory evidence instrument and acknowledged to capacity(ies), and that by his/he behalf of which the person(s)4ctec ss. 20 befor e, Notary proved to me on to be person(s) whose name(s) is/are subscribed to the within "at he/she/they executed the same in his/her/their authorized eir signatures(s) on the instrument the person(s), or the entity upon executed the instrument. I certify under PE TY OF PERJURY under the laws of the State of California that the foregoing paragraph is tEperand correct. my hand and official seal. Signature (seal) CTBD Trust Encroachment Agreement 6 EXHIBIT A PERMITTED IMPROVEMENTS PLAN CTBD Trust Encroachment Agreement A-1 I 2 -of 7 ,4 2 -of 7 b LU dowo kX, 4 25 13 5 25 4 25 19 14 4 25 19 7 9 1 11 3 25 9 25 7 7 19 19 7 19 7 TURF 10 - - - - - - - - - - - - - - - - -- - - - - - .9 16 ril 19 Pi, 44, ru Al =11M. A I f9 119 7 9 7 7 PWAXC VATC PAL-( N 1---) 1 bi �' eAV I U-7 � � t/ / 4 18 18/ 2 1 4 7 / ---I----i------- / 18 4 q 4 25 is 7 / 4 I / 4 7 / i ii 7 L-JL��L_� / /7 ) 4 4 7 �. A 4 7 4 7 /t 4 J 7 4 / 4 J 16 I 25 J 4 6 S ) _---- ---- --� 4 I / 6 25 /J (/ 16 6 , 6 F� X10"4 4 t ( � it OT PLANT LEGEND SYMBOL NP.ME SIZE QTY, WIDTH X HEIGH' GROWTH O DRACAENA DRACO 36" DRAGON TREE BOX 10' X 14' O I ARCTOSTAPHYLOS MANZANITA 15 MANZANITA ' DR, HURD' GAL 10' X 12' O OLEA EUROPAEA 36" MANZANILLO OLIVE BOX 12'X 14' ARCTOSTAPHYLOS LVA-URSI 'POINT 36" REYES' - BEARBERRY, KINNIKINNICK BOX I 15' X 1' O AGAVE AMERICANA 15 CENTURY PLANT GAL 6'X 6' 6jAGAVE PARRYI 1 �- RRY'S AGAVE GAL 2'X 2' EANOTHUS GRESEUS O I HORIZONTALIS 'YANKEE POINT' S `L WILD LILAC GAL 4' X 4' Q NOT USED I FEST UCA'ELIJA BLUE' 1 9 i BLUE FESCUE GAL 1.5'X 1.5' _ S ! ECHEVERIA'AFTERGLOW' 1 _ I GAL 1.5'X 1.5' 11 ACACIA COGNATA COUSIN ITT 5 LITTLE RIVER WATTLE GAL 4'X 3' 12 DASYLIRION WHEELERI 5 T i DESERT SPOON GAL TX 3' _! 13 i JUNCUS PATENS ' ELK BLUE' S CALIFORNIA GRAY RUSHGAL 2'X 2' PEROVSKIA ATRIPLICIFOLIA BLUE 14 SPIRES - BLUE SPIRES RUSSIAN 1 SAGE GAL 4'X 4' 15 SEDUM KAMTSCHATICUM STONE CROP GAL I 1' X 1' 16 SPRUCE STONECROP SEDUM 5 BLUE SPRUCE GAL I 3'X 3' FICUS NITIDA COLUMNS 15 INDIAN LAUREL COLUMNS GAL 4'X 14' LEUCOPHYLLUM CANDIDUM 5 SILVER CLOUD SAGE GAL 5' X 5' 19 CASSIA NEMOPHYLLA 5 GREEN CASSIA GAL 5'X 5' 20 WASHINGTON NAVEL ORANGE TREE 15 �A I � 8'X 14' /HUHVt I'HKKYI 6 PARRY'S AGAVE I GAL I /- n O7 CEANOTHUS GRE EUS HORIZONTALIS 'YANKEE POINT' WILD LILAC 5 GAL 4'X 4' O8 I NOT USED O FESTUCA 'ELIJA BLUE' BLUE FESCUE 1 GAL 1.5'X 1.5' 10 ECHEVERIA'AFTERGLOW' 1 GAL 1.5' X 1.5' 11 ACACIA COGNATA COUSIN ITT LITTLE RIVER WATTLE 5 GAL 4'X 3' DASYLIRION WHEELERI 12 j DESERT SPOON GL i� 3'X 3' 13 I JUNCUS PATENS' ELK BLUE' CALIFORNIA GRAY RUSH 5 GAL 2'X 2' PEROVSKIA ATRIPLICIFOLIA BLUE 14 SPIRES - BLUE SPIRES RUSSIAN 1 GAL 4'X 4' SAGE SEDUM KAMTSCHATICUM 1 1' X 1' 15 ; STONE CROP GAL j �^ 16 SPRUCE STONECROP SEDUM! BLUE SPRUCE 5 GAL 3' X 3' 4'X 14' FICUS NITIDA COLUMNS j 17 INDIAN LAUREL COLUMNS 15 GAL a18 LEUCOPHYLLUM CANDIDUM I SILVER CLOUD SAGE 5 GAL I 5'X 5' CASSIA NEMOPHYLLA 5 5'X 5' 19 GREEN CASSIA GAL 20 WASHINGTON NAVEL ORANGE TREE 15 GAL j 8'X 14' CITRUS HYSTRIX 21 KAFFIR LIME 15 GAL I 5'X 5' 22 CITRUS LIMON'DWARF LISBON' DWARF LISBON LEMON 15 GAL 12'X 14' 23 FORTUNELLA MARGARITA'NAGAMI' NAGAMI KUMQUAT 15 GAL 7'X 9' 24 PODOCARPUS GRACILIOR 5 10'X 20'GAL OPITTOSPORUM CRASSIFOLIUM 25 'NANA' DWARF KARO 5 GAL 3' X 3' 26 SUPER RED HYBRID ALOE ALOE HYBRID'LEO 3711' 5 GAL 3'X 5' `r, try��a YEX p,UIF I s_ It