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Yang, Peter and Joyce - 2115 Mantelli DriveRECORDING REQUESTED BY: City of Gilroy WHEN RECORDED, MAIL TO: ) Shawna Freels City Clerk ) City of Gilroy ) 7351 Rosanna Street ) Gilroy, CA 95020 ) DOCUMENT: 21910371 illl'VIIIWillll�l�llllll�llll� , e: '° a� Pages: REGINA ALCOMENDRAS SANTA CLARA COUNTY RECORDER Recorded at the request of Owner (SPACE ABOVE THIS LINE FOR RECORDER'S USE) ENCROACHMENT AGREEMENT Between the City of Gilroy and Peter Yang and Joyce L. Yang 2115 Mantelli Drive, Gilroy, CA. APN 783 -46 -014 RIDE # 008 10/22/2012 12 :31 PM RECORDING REQUESTED BY: City of Gilroy WHEN RECORDED, MAIL TO: Shawna Freels City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 (SPACE ABOVE THIS LINE FOR RECORDER'S USE) ENCROACHMENT AGREEMENT 2115 Mantelli Drive, Gilroy, CA A.P.N. 783 -46 -014 This Agreement is made effective between: PETER YANG and JOYCE L. YANG, who hold title as husband and wife as joint tenants, (collectively "Owner "), and the CITY OF GILROY ( "City "), as follows: A. Owner holds fee title to the real property located at and commonly known as 2115 Mantelli Drive, Gilroy CA, A.P.N. 783 -46 -014, and more specifically described on the attached Exhibit A. B. City holds a right of way and certain public service easement areas depicted in that certain map of Gilroy Country Club Estates — Tract Map No. 8136,filed in Book 605, at Pages 8 -16 in the Office of the County Assessor /Recorder in the County of Santa Clara, State of California (collectively "City Right of Way ") C. Owners acknowledge that a low retaining wall constructed by the Owner ( "Encroachments ") will exist adjacent to the Property, and within the City Right of Way, and that it constitutes a "structure ". NOW, THEREFORE, in consideration of the mutual promises herein, the parties agree as follows: 1. City grants Owner a non - exclusive easement allowing the Encroachments to be constructed at this time and maintained within the Right of Way ( "Easement "). In so doing, and notwithstanding anything to the contrary in this Agreement, or pursuant to the course of dealings between the parties, City expressly does not and shall not abandon the Right of Way or waive any rights thereunder, and Owner, their heirs, successors and assigns, derive no basis for a claim of prescriptive, contractual, or other rights to maintain the Retaining Wall or otherwise utilize the Right of Way. 2. Term of Easement. City may terminate the Easement at any time. Should the City terminate the Easement, upon the request of City, Owner will remove the Encroachments and execute, acknowledge and deliver to City a Quitclaim Deed in favor of City, describing the Easement or the portion of the Easement which has terminated, as the case may be. 3. Recording. Upon full execution by the parties hereto, this Agreement shall be recorded in the Office of the County Recorder of Santa Clara County. 4. Covenants. It is the express intent of the parties hereto that this Agreement shall be a covenant running with the land and shall bind their respective heirs, successors and assigns. 5. Indemnification. Owner, for itself and its successors in interest, shall defend, indemnify and hold City harmless from any and all loss, cost, liability or expense, and from any judgments or damages to any person or property arising out, either directly or indirectly, or in connection with, the maintenance or presence of the Encroachments. 6. Insurance. Owner shall obtain and maintain throughout the term hereof, public liability and property damage insurance in a minimum amount of One Million Dollars ($1,000,000) combined single limit per occurrence for bodily and personal injury, and for property damage liability. Owner shall present a certificate of insurance or other acceptable written evidence of such insurance at the request of City. 7. Attorneys' Fees. In the event suit is brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover as an element of his costs of suit, and not as damages, a reasonable attorneys' fee to be fixed by the court. The "prevailing party" shall be the party who is entitled to recover his costs of suit, whether or not the suit proceeds to final judgment. A party not entitled to recover his costs shall not recover attorneys' fees. 8. Notices. All notices and other communications under this Agreement shall be in writing, addressed to the parties at the addresses set forth below, and delivered by personal service, or by Federal Express or other overnight delivery service, or by facsimile transmission, or by registered or certified mail, postage prepaid, return receipt requested: City of Gilroy Attention: Rick Smelser, City Engineer 7351 Rosanna Street Gilroy, California 95020 Fax: (408) 846 -0500 Peter Yang 2115 Mantelli Drive, Gilroy, California 95020 Fax: (408) 842 -1368 2 9. Binding Upon. This Agreement shall bind and inure to the benefit of the respective heirs, personal representatives, assigns and successors in interest of each of the parties. 10. Captions. All captions and headings in this Agreement are for the purpose of reference and convenience only and shall not limit or expand the meanings of the provisions of this Agreement. 11. Jurisdiction. This Agreement shall be interpreted and enforced pursuant to the laws of the State of California. 12. Counterparts Clause. This Agreement and any subsequent amendments may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. Facsimile signatures shall be deemed originals. 13. Construction. The parties mutually acknowledge that each has had a full and fair opportunity to review and comment upon the terms of this Agreement and to obtain the advice of legal counsel. This Agreement shall not be construed against any party by virtue of the fact that such party, its counsel or any other party was responsible for its preparation. 14. Exhibits. Exhibit A attached hereto is incorporated herein by this reference. 15. Merger Clause. This Agreement contains the sole and entire agreement of the parties relating to the Encroachments, and correctly sets forth the rights, duties and obligations of each to the other; any prior agreements, encroachment permits, promises, negotiations, or representations not expressly set forth in this Agreement are hereby superseded and of no force or effect. [signatures on following pages] IN WITNESS WHEREOF, City has executed this agreement as of CITY CLERK APPROVED AS TO FORM: City Attorney F GILROY Thomas Haglund CITY ADMINISTRATOR IN WITNESS WHEREOF, Owner has executed this agreement as of /a S-- I L OWNER (2L Peter Yang Qt.'4 CA Joyc . Yang E EXHIBIT "A" DESCRIPTION: THE LAND REFERRED TO HEREIN IS SITUATED IN THE CITY OF GILROY, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: LOT 57, AS DELINEATED UPON THAT CERTAIN MAP ENTITLED "TRACT NO. 8136 GILROY COUNTRY CLUB ESTATES", IN THE CITY OF GILROY, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, ON SEPTEMBER 6,1989 IN BOOK 605 AT PAGES 8 TO 16 INCLUSIVE OF MAPS. EXCEPTING THEREFROM A ONE HALF INTEREST IN ANY AND ALL MINERALS RIGHTS IN AND TO SUBJECT PROPERTY, LYING BELOW 500 FEET FROM THESURFACE OF SAID LAND WITHOUT RIGHT OF SURFACE ENTRY FOR THE DEVELOPMENT OF SAID RESERVED SUBSTANCES, AS RESERVED BY ALBERTJ. RUFFO AND MARIANNE RUFFO, HIS WIFE, IN THE DEED RECORDED APRIL 22,1980 IN BOOK F285 PAGE 39 OF OFFICIAL RECORDS. A.P.N. NO.: 783-46 -014 CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California ii County of 9')tCA C 1C.t>'Q CIVIL CODE § 1189 On ()c �Dbe c 1 � 2O12before me, a ✓\A r � • P�(xyQ Mokav^y Date Here Insert Name and Title of the Officer personally appeared irk SANDRA E. NAVA ArtCommission # 1908181 Notary Public - California Santa clua cou* my Comm. E res Nov 11 2014 C of who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) j67are subscribed to the within instrument and acknowledged to me that W,-Xe /they executed the same in Wig)` W/their authorized capacity(ies), and that by W/bar /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:��ti Place Notary Seal Above OPTIONAL Signature of Notary Public 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 A nn ' Title or Type of Document: � P1 C) a r � 'v1 e im - e P aM !e "t- Document Date: zT A�:a r S 01 ? Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: © 2010 National Notary Association • NationalNotary.org • 1- 130u -uZ5 NV IAMY I I RIGHT THUMBPRINT OF SIGNER .p of State of California County of-III T , �'j CA V-0.— i On V Y before me, 1 Zv u j n �1A L Date Here In ert Na a and Title of the Office personally appeared u.� Name(s) of Sioner(s) INGA Commission n # 19 1931989 Notary Public - California Santa Clara County Comm. Ez resApr15,2015t who proved to me on the basis of satisfactory evidence to be the person(A whose namA)(s)ff subscribed to the within instrument and acknowledged to me that e7 hem -tey executed the same in Oeffteir authorized capacity(ie, and that by is eOflvir signatureio on the instrument the person* or the entity upon behalf of which the persono yacted, 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 m and and offici seal. Signature Place Notary Seal Above Signature of Notary Public OPTIONAL 4 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 Title or Type of C Document Date: Signer(s) Other Than Named Above: IV Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact • ❑ Trustee Top of thumb here ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER 02007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313 -2402 • www.NationalNotaryorg Item #5907 Reorder: Call Toll -Free 1- 800 -876 -6827