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
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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