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Home My WebLink AboutC-6799 - Encroachment Agreement EPN N2010-0167 for 57 Cambria Driver RECORDING REQUESTED AND WHEN RECORDED RETURN TO 1 Public Works Department City of Newport Beach Post Office Box 1768 Newport Beach, CA 92659-1768 Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 24.00 2010000361571 10.05 am 0 /29/10 62 417 Al2 7 0.00 0.00 0.00 0.00 18.00 0.00 0.00 0200 Space above this line for Recorder's use only. ENCROACHMENTAGREEMENT (EPN2010-0167) THIS AGREEMENT is made and entered into this 15th day of June, 2010, by and between Jin-Yuan Liu, Trustee of The Jin-Yuan Liu Trust established November 12, 1997 (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 57 Cambria Drive, Newport Beach, California 92625 and legally described as Lot 119 of Tract 7844, as shown on a map recorded in Book 314, Pages 27 through 38 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California Assessor Parcel Number 461-011-04. WITNESSETH: WHEREAS, OWNER desires to construct certain non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within the Cambria Drive right-of-way (hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot 119 of Tract 7844, as shown on a map recorded in Book 314, Pages 27 through 38 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; also known as 57 Cambria Drive, Newport Beach, California; and 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 execute an 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: 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as: a. A 12-foot wide carriage walkway constructed of beige pavers encroaching ten feet into the public right-of-way; b. One standard USPS-approved mailbox mounted in an 19-inch square pilaster constructed of CMU blocks with a beige stucco finish, metal trim, and pitched roof cap encroaching up to ten feet into the public right-of-way; C. Various private low -growing groundcover in the planting area measured a minimum of 18 inches from the curb face; d. Various private landscaping in the parkway not to exceed 30 inches in height encroaching up to ten feet in the Cambria Drive public right-of-way and appurtenances in the Cambria Drive right-of-way as shown on EXHIBIT "A" attached hereto and as approved by the Public Works Department. In addition, if any of the PERMITTED IMPROVEMENTS actually built or installed during the time of construction vary from the 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. 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 RIGHT-OF-WAY, if in substantial conformance with the 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 terminated by CITY at any time by giving 60-day 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 the plans and specifications on file in the CITY's Public Works Department, and as described on Exhibit "A" attached hereto. b. OWNER shall maintain the PERMITTED IMPROVEMENTS in accordance with generally prevailing standards of maintenance, and pay all costs and expenses incurred in doing so. However, Encroachment Agreement r 2 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. d. That 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 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 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 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 the 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 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) day 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 Encroachment Agreement f' a 3 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 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. 8. 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. 9. 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. 10. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 11. 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. 12. 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. 13. 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. Encroachment Agreement i 3 J 4 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: OFFICE OF THE CITY ATTORNEY yn tte . u hamp, ,r4Q Assis nt Cit torney ATTEST: By: aA� Leilani Brroownn, City Clerk H Q-1P0fvt ATTACHMENTS: CITY OF NEWPORT BEACH, a Municipal corporation B y.- Da i Kiff, City Manager B Jin- an , Trustee The Jin-Yuan Liu Trust [OWNERS MUST SIGN IN PRESENCE OF NOTARY PUBLIC] EXHIBIT A —Plans as approved by Public Works Encroachment Agreement a g e 15 CERTIFICATE OF ACKNOWLEDGEMENT State of California County of ORANGE On (�t � 1-Z t ZCotO before me, pj,4=CVG-k4 , Notary Public, personally appearedXI K-N r CA*4. U k , who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that heCrg�/they executed the same in his&their authorized capacity(j�, and that by his I�their signature on the instrument the person, or the entity upon behalf of which the person( cted, 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. M. I.00EY Commission #t 1864451 Signature '� Notary Public - California Orange County M Comm. Expires Oct 7, 2013 (Seal) CERTIFICATE OF ACKNOWLEDGEMENT State of California County of ORANGE On /2;i I I a before me, U , Notary Public, personally appeared Uamd �i , who proved to me on the liasis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/skle/ttay executed the same in his/h / authorized capacity(i-- j, and that by his/henlemir signature on the instrument the person, or the entity upon behalf of which the person fs--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. sHANA EusE sTANLEY Commission # 1861499 ae Notary Public - CaliforniaSignature ZOrange County M Comm. Expires Aug 16, 2013 (Seal) Encroachment Agreement F' 11:3 c 16 W ;o (y cg /A �, 0� TRAN5FOFIIEf , OWNER: Jin-Yuan Liu Tnist / 0' ADDRESS: 57 Cambria Dr Newport Beach, CA 92625 Or?� ® / 0) �� k STATE d PEA 0 01 s=io ii 3 — 00 CO ---� „� 0�/ ' 0 ro Q FINISH PIA WATER METER W Pl�tt� 0' SEUIER GLEAN -OUT oot Ctf') �0\0 PER STD. 4OC�-L FAN. --� ® i �� C ® EX I ST IN6s cal DRI VEW,4y 0 .. 0 ,� 00 p ^ �p QmONO k \p^'�0 0 0\0�0 �0 0 0 72 r� Q EXISTING 6 FT. WIDE - Q� S.C.E. / TELEPHONE O } I EASEMENT® i �.l% •833% GARAGE GF.lol.la � U o lio i PAVERS PER SYMOL B A MINI DEEP EXISTING PATC1- 0 51DEU)ALK ALONG CO �ry p LENGT SUkFE — PLACE �U EXISTING c<1 Q iGURB < GUTTER P/A + s" w =j% awale 3.� I 0YT age n4-) _�.P _,OVESSI[ 158.30' , Exhibit "A" i p C V^Sheet 1 of 1 ��p`� n0 N2010-0167