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HomeMy WebLinkAboutC-2826 - Public Right-of-Way Encroachment Agreement (for 311 East Balboa)RECORDING REQUESTED AND WHEN RECORDED RETURN TO: PACIFIC BELL 177 E. Colorado Blvd. Room 938 Pasadena, CA 91105 Attn: Tim Ng Space Above Line for Recorder's Use Only PUBLIC RIGHT-OF-WAY ENCROACHMENT AGREEMENT THIS AREEMENT ("Agreement") is made and entered into this 9 ' day of %"(j4 yy , 1994, by and between PACIFIC BELL, a Califoiiiia corporation ("Owner"), and the CITY OF NEWPORT BEACH, a municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California ("City") . RECITALS A. Owner owns improved real property located in the City of Newport Beach, State of California, at 311 E. Balboa Boulevard, more particularly described in Exhibit A hereto ("Property") which Owner currently uses as a switching central office furnishing telecommunications services in the local area; B. City owns the public right-of-way easement adjacent to Property along the full length of the southerly border of the Property ("Alley"); C. Owner and City hereby acknowledge that Owner has an existing underground storage tank ("Existing Tank") encased in a concrete vault with associated piping to Owner's Property in, on, and under the Alley the approximate location of which is depicted on Exhibit B. Owner has been using the Existing Tank to store diesel fuel for an emergency generator that is available to provide emergency power to Owner's switching equipment at the Property; D. Owner desires to remove the Existing Tank, and construct and install a new double walled underground storage tank for its use in, on and under the Alley in a location approximately thirty feet west of the Existing Tank as depicted in Exhibit B; and E. The parties hereto acknowledge that in or about April 1994, Owner sampled the soil and groundwater at the proposed location for installation of the new underground storage tank referred to in Recital D; and that laboratory results showed "non -detect" for diesel fuel as more fully set forth in ATEC Associates, Inc. report dated April 28, 1994, described as "Report of Limited Soil and Groundwater Sampling Investigation, Pacific Bell, 311 East Balboa Boulevard, Newport Beach, California, ATEC Job No. 45-07-94-00028 Task 2." F. The parties hereto desire to execute an agreement providing for the right by Owner to encroach in, on and under the Alley and meet the conditions of the City. NOW, THEREFORE, in consideration of the foregoing recitals, the terms, conditions and covenants contained herein, the parties hereby agree as follows: AGREEMENT 1. City hereby grants Owner the right to construct, reconstruct, install, maintain, use, operate, repair, replace, remove and/or abandon an underground storage tank together with associated piping, fill port, sump, monitoring equipment, double -wall containment and other appurtenances incidental thereto (collectively, "New Tank"), in, on and under the Alley in the approximate location described on Exhibit B. 2. With regard to the rights granted as provided in Paragraph 1, Owner and City agree as follows: a. Owner shall construct and install the New Tank in substantial conformance with the plans and specifications submitted to the City's Public Works Department and within the area shown on the attached Exhibit "B". b. From and after the initial installation of the New Tank, Owner shall maintain the New Tank 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 Owner to maintain, replace, repair, test, relocate or rearrange any pipeline, utility, conduit, cable or other facilities located in, on or under the Alley. c. In the event, City exercises its rights and obligations in connection with the Alley, including but not limited to, the maintenance, removal, repair, renewal, replacement, enlargement, regrading, or resurfacing of the Alley and any existing or future public facilities or improvements thereon in such a way that such work would -2- affect or have an impact on the New Tank ("City's Work"), the parties agree as follows: (i) City shall notify Owner of its intention to perform City's Work, no less than sixty (60) days in advance thereof; or as soon as reasonably practical in the event of an emergency; (ii) City and Owner shall use their reasonable efforts to cooperate and coordinate with one another in the planning, designing, scheduling and execution of City's Work insofar as it affects the New Tank. City shall use its best efforts to minimize the impact that City's Work will have on the New Tank, and shall limit to the extent possible the need to relocate or remove the New Tank within or from the Alley. (iii) Owner shall pay its cost of modifying, altering, retrofitting, relocating or removing the New Tank to reasonably accommodate City's Work, provided that such costs shall not include the cost of relocation, removal or rearrangement of any utility, cable, conduit, pipeline or other facilities of the City's or a third party. In all other respects, City shall bear the costs which arise from City's Work. In the event City's Work forces the removal of the New Tank, the City will use its best efforts to provide Owner with a location to place a replacement tank in, on or under other City property or rights -of -way in a location reasonably satisfactory to Owner. This Agreement shall apply to any relocated tank within the Alley, should the New Tank be relocated as necessitated by City's Work. (iv) Owner shall indemnify and hold the City, its Council, boards and commissions, officers and employees harmless, from and against any and all loss, damage, liability, claim, action, cost or expense, including reasonable attorneys' fees, arising from the design, construction, maintenance, repair, operation, or removal of the New Tank, except for the negligence or willful misconduct of the City, its employees, agents, or contractors. 3. City hereby acknowledges the placement of the Existing Tank and grants Owner the right to remove the Existing Tank and abandon in place, if at all, the concrete vault which encases the Existing Tank, in compliance with current laws and regulations and with the approval of the regulatory and/or governmental agency having jurisdiction. In connection with the removal of the Existing Tank, Owner shall obtain document(s) evidencing closure satisfying the current requirements of the Orange County Health Care -3- (Revised page - 5/10/94) affect or have an impact on the New Tank ("City's Work"), the parties agree as follows: (i) City shall notify Owner of its intention to perform City's Work, no less than sixty (60) days in advance thereof; or as soon as reasonably practical in the event of an emergency; (ii) City and Owner shall use their reasonable efforts to cooperate and coordinate with one another in the planning, designing, scheduling and execution of City's Work insofar as it affects the New Tank. City shall use its best efforts to minimize the impact that City's Work will have on the New Tank, and shall limit to the extent possible the need to relocate or remove the New Tank within or from the Alley. (iii) Owner shall pay its cost of modifying, altering, retrofitting, relocating or removing the. New Tank to reasonably accommodate City's Work, provided that such costs shall not include the cost of relocation, removal or rearrangement of any utility, cable, conduit, pipeline or other facilities of the City's or a third party. In all other respects, City shall bear the costs which arise from City's Work. In the event City's Work forces the removal of the New Tank, the City will use its best efforts to provide Owner with a location to place a replacement tank in, on or under other City property or rights -of -way in a location reasonably satisfactory to Owner. Should the New Tank be relocated to a different location in the Alley, as necessitated by City's Work, the rights granted herein shall apply to the relocated tank. (iv) Owner shall indemnify and hold the City, its Council, boards and commissions, officers and employees harmless, from and against any and all loss, damage, liability, claim, action, cost or expense, including reasonable attorneys' fees, arising from the design, construction, maintenance, repair, operation, or removal of the New Tank, except for the negligence or willful misconduct of the City, its employees, agents, or contractors. 3. City hereby acknowledges the placement of the Existing Tank and grants Owner the right to remove the Existing Tank and abandon in place, if at all, the concrete vault which encases the Existing Tank, in compliance with current laws and regulations and with the approval of the regulatory and/or governmental agency having jurisdiction. In connection with the removal of the Existing Tank, Owner shall obtain document(s) evidencing closure satisfying the current requirements of the Orange County Health Care -3- Agency. If requested by the City, at the time the Existing Tank is removed, Owner will core the bottom of the concrete vault and backfill the vault with sand, or other materials approved by the City's Department of Public Works, in accordance with the specifications provided by the City. In addition, at the same time Owner shall take necessary steps to ensure that the uppermost portion of the abandoned vault shall be a minimum of three feet below the current surface of the Alley. 4. The rights granted under this Agreement shall run to the benefit of the land; and shall be binding upon the heirs, successors, and assigns of the Owners' interest in the Property whether fee or otherwise. This Agreement shall be recorded in the Office of the County Recorder of Orange County, California. 5. In the event either party hereto reasonably initiates litigation with respect to any term or condition of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs. 6. The parties hereto represent and warrant to the other that it has the full power and authority to enter into this Agreement and perform under it without further authorization or action. 7. This Agreement 'constitutes the entire agreement between the parties concerning matters discussed herein, and replaces and terminates any prior and or written agreements, promises, or representations made with respect to the subject matter hereof. All future modifications, amendments, corrections, or changes to this Agreement shall be made in writing and executed by the parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first -above written. "City" Approv CITY OF NEWPORT BEACH, CALIFORNIA, a municipal corporation By orm: Attested by: ity Attrney -4- City Clerk \.1g-W PaR "Owner" PACIFIC BELL, corpoor ti i By Gi a California Title 40//1t-Gro/Z -5- } STATE OF CJTFORNIA } ss COUNTY OF a/37 O2JL Y a 8 / `19c/ before m -O I/ ? (L/r/10-4'� ', /1/ , personaily appeared AI. 5, W iLL» mS - Di/t c rof2 �4ciric Gib/ / , personaily known to me (er- r ved t rye tte-14elcis nf cntinfortary c'eininnr,r) to be the persont`ss whose named isictry subscribed to - the within instrument and acknowledged to me thatc/shc/they executed the same irdi13119efitheir authorized capacitys , and that by(t - = signatures on the instrument the person or entity upon behalf of which the personE 'acted, executed the instrument. WITNESS my hand and official seal. Signatureeif� UNDA S. RANKIN COMM. *965390 Notary PublicCaAlprnia LOS ANGELES COUNTY My comm. expires APR 27,1996 Z Z (This area tor official notarial Seat) #f#### 4#,PA# iAfk#if4-### ## 4############4441 1#4## GOVERNMENT CODE 27361. 7 I certify under penalty of perjury that the Notary Seal on the document to which this statement is attached reads as follows: NAME OF THE NOTARY: DATE COMMISSION EXPIRES: COUNTY WHERE BOND IS FILED: COMMISSION NUMBER: MANUFACTURER/VENDOR NUMBER: PLACE OF EXECUTION: DATE: SIGNATURE: ############################################################ I certify under penalty of perjury and the laws of the State of California that the illegible portion of this document to which this statement Is attached reads as follows: Place of Execution Date Signature: CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No. 5907 (././Jl../ll./„/!IlllllJ✓lllJ./Illlllfllr111lltlll✓lJ„rlllJ1,,,/!!�ltlllJlltl/llr-. 11 } State of (rfy7U_ 1) oCount of 1 On L-D602� qqi( before me, e�.�t I► �� l DATE NAME, TITLE OF OFFICER - E.G., " ANE DOE, NOTAR PUBLIC" g personally appeared e.f n T - Myr I) to 1NA 1E ) OF SIGNER(S) '} LVi ersonally known to me - OR - Li proved to me on the basis of satisfactory evidence o o to be the person(s) whose name(s) is/are o o subscribed to the within instrument and aco - knowledged to me that he/she/they executed othe same in his/her/their authorized o capacity(ies), and that by his/her/their a o o o o o person(s) acted, executed the instrument. g signature(s) on the instrument the person(s), o or the entity upon behalf of which the S o o o to r ,� , Monica S. Kutz i WITNESS my hand and official seal. o ORANGE COUNTY l) c1 mr�'v�� Comm. #1013469 ; _ ( 1 t 1NOTARY PUBLIC CALIFORNIA= SIGNATURE OF NOTARY L\ 0 tl 0 1. 1 j o OPTIONAL g tl Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent 1fraudulent reattachment of this form. k0 o 8 1 1 PARTNER(S) LIMITED 0I GENERAL 0 lllllll 0 E CAPACITY CLAIMED BY SIGNER INDIVIDUAL CORPORATE OFFICER anti: er TITLE S) ATTORNEY -IN -FACT TRUSTEE(S) GUARDIAN/CONSERVATOR OTHER: DESCRIPTION OF ATTACHED DOCUMENT Pub) cC m_N '% �J �1 ll tll ll tl DATE OF DOCUMENT 11 SIGNER IS REPRES ENTING: NAME OF PERSON(S) OR ENTITY(IES) SIGNER(S) OTHER THAN NAMED ABOVE t1 �l./!ll!!lIl!J!l1.rl!/J1.rllllllllllJl./11111,/!!l./!l!Jl!./.11.Cl!!J.11llrl.�l!!!, fl`lll TITLE TYPE OF DOC NUMBER OF PAGES ©1993 NATIONAL NOTARY ASSOCIATION • 8236 Remmet Ave., P.O. Box 7184 • Canoga Park, CA 91309-7184 LEGAL DESCRIPTION OF "PROPERTY" Tract 510, Block 2, Lot #13 of the Newport Bay Tract which is on Miscellaneous Map 4-15 at Orange County Assessor's. EXHIBIT A -7- 5'- 8" 6'1-0" rn x �^ c 5 °1 z o ( ,� "III A. _..i._ IY2.. LfII 1'-0" • • , n ZZ rnz> nOOo r-z4 9 K 2 EXHIBIT B a IIHIHX3