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Home My WebLink AboutC-6921 - Encroachment Agreement EPN N2008-0000 for 2500 San Joaquin Hills Road (Harbor View Mobil Gas Station)This Document w, - electronically recorded by E. . Cert Mail A Recorded in Official Records, Orange County v Tom Daly, Clerk -Recorder RECORDING REQUESTED AND t WHEN RECORDED RETURN TO: IIIIIIIIIIIIIIIIII �� IIIIIIIIIIIII IIIIIIII IIIII IIIII NO FEE Public Works Department 2138A129 2008000210832 09:48am 05/05/08 City of Newport Beach 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Post Office Box 1768 Newport Beach, CA 92659-1768 Government Code 27383-Exempt From Filing Fees Space above this line Reserved for Use by Recorder ENCROACHMENT AGREEMENT FOR MONITORING WELL (EPN2008-0000) THIS ENCROACHMENT AGREEMENT is made and entered into this 1st day of April, 2008, ("Execution Date") by and between Exxon Mobil Corporation, a New Jersey Corporation doing business in the State of California, (hereinafter "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, (hereinafter "City"). RECITALS: WHEREAS, Owner is the owner of that certain real property located in the City of Newport Beach, County of Orange, State of California, commonly known as 2500 San Joaquin Hills Road, Corona del Mar, 92625, and legally described as Parcel 3 of a Parcel Map also known as Resubdivision 284, recorded in Book 35, Page 1 inclusively, of Miscellaneous Maps in the office of the County Recorder of Orange County, California (hereinafter the "Property"). The Property is currently operated as the Harbor View Mobil Gas Station. WHEREAS, City is the owner of certain fee and/or easement interests on the San Miguel Drive right-of-way adjacent to the Property, which interests are more particularly depicted on "Exhibit A" attached hereto and incorporated herein by reference (hereinafter "City Property"). WHEREAS, Owner desires to install one ground water monitoring well and appurtenances on the City Property in the location depicted on Exhibit A within the San Miguel Drive right-of-way (hereinafter "Right -of -Way"), adjacent to the Property. This monitoring well and appurtenances shall be collectively referred to as the "Encroachments." Owner desires to retain the Encroachments on the City Property for a period of approximately seven years. WHEREAS, City has agreed to grant Owner an encroachment permit ("Permit') for the Encroachments in accordance with Chapter 13 of the Newport Beach Municipal Code on the condition that Owner executes this Agreement. WHEREAS, the parties hereto desire to execute an agreement outlining the conditions required by City to permit Owner to install and maintain said Encroachments. NOW, THEREFORE, the parties hereto agree as follows: 1.0 License. The City hereby grants to Owner a license to construct and maintain the Encroachments for a term of seven years commencing on the Execution Date set forth above upon all of the terms and conditions of the Permit and this Agreement ("License"). This license is revocable with cause upon written notice in accordance with the notice and cure procedure set forth in Section 5.0 below. 2.0 Covenants. (a) In General. Owner hereby agrees to install, operate, inspect, monitor, maintain, relocate, and/or remove the Encroachments in accordance with this Agreement, the Public Works Department's Permit requirements, and all applicable provisions of the City of Newport Beach Municipal Code, as amended from time to time. (b) Maintenance. Owner shall install, operate, inspect, monitor, maintain, and repair the Encroachments and the City Property so as to keep the Encroachments and such area in a safe, clean and secure condition at all times. Owner shall maintain the Encroachments in accordance with generally prevailing standards of maintenance, and pay all costs incurred in doing so. In the event that Owner does not maintain the Encroachments and the City Property as required herein, the City may terminate this License as more particularly provided in Section 3 herein. (c) Permit Required for All Street Work. In the event that City streets must be closed in order to maintain the Encroachments or to take samples from the monitoring well, Owner must first obtain a permit from the City Public Works Department and comply with all conditions of the permit and all requirements of Chapter 13.20 of the Newport Beach Municipal Code. (d) Removal of Encroachments. Owner agrees to remove the Encroachments when the monitoring well is no longer required by the Orange County Health Care Agency or other public agency exercising jurisdiction over the environmental monitoring performed by Owner in connection with the Encroachments. At that time, Owner agrees to restore the City Property to as close to its former condition as is reasonably possible, at Owner's sole cost and expense. (e) Monitoring Well Final Report. Owner hereby agrees to submit the final report of the monitoring program to the City's Public Works Director. 3.0 Termination. This License is terminable with cause by the City, in accordance with the notice and cure procedure set forth in Section 5.0 below. Owner shall remove the Encroachments and restore the City Property to as close to its former condition as is reasonably possible, at Owner's sole cost and expense, within thirty (30) days after such termination is effective under Section 5.0 below. In the event Owner fails to remove the Encroachments and restore the City Property within said time period, City shall have the right to do so upon ten (10) days' written notice. Owner shall immediately reimburse the City for all reasonable out-of-pocket expenses expended by City to remove the Encroachments and restore the property. Said amounts shall accrue interest from the date expended by the City at the maximum non -usurious interest rate permitted by law. 4.0 Other Terms. Owner and City further agree as follows: (a) Owner may construct and install the Encroachments and appurtenances incidental thereto, provided they are 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. If the Encroachments as actually built or installed during the time of construction vary from the Encroachments 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. (b) If City or other public facilities or improvements are damaged by the installation or presence of the Encroachments, Owner shall be responsible for the reasonable cost of repairs and restoration. (c) Should City be required to enter onto said Right -of -Way to exercise its primary rights associated with the 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 all or a portion of the Encroachments, as required, provided that the Orange County Health Care Agency or other public agency exercising jurisdiction over the environmental monitoring performed by Owner in connection with the Encroachments consents to such removal. In such event: (i) City shall notify Owner of its intention to accomplish such work by giving thirty (30) days prior written notice, provided that an emergency situation does not exist. (ii) Owner shall be responsible for arranging for any renewal, replacement, or restoration of the Encroachments affected by such work by City. (iii) Owner agrees to bear the reasonable cost of any removal of the Encroachments or appurtenances affected by such work by City. 5.0 Material Breach. In the event any party breaches any material provision of this Agreement, and such material breach remains uncured thirty (30) days after delivery by the nonbreaching party of written notice of such material breach (the "Cure Period"), the other party at its option may, in addition to the other legal remedies available to it, terminate this Agreement upon written notice to the breaching party. Such termination shall not be effective any sooner than ten (10) 3 days after expiration of the Cure Period, and only if the breaching party has not cured the material breach. In the event the breaching party is the Owner, and if the Owner fails to cure a material breach within the Cure Period, City may then enter upon the Right -of -Way and remove all or part of the improvements or Encroachments installed by Owner once the termination is effective. For purposes of this Section 5.0, if a material breach is not reasonably capable of being cured within thirty (30) days, it shall be sufficient performance for the breaching party to commence a cure within the Cure Period and diligently pursue such cure to its completion. 6.0 Indemnity. Owner hereby agrees to indemnify and defend the City, its City Council, boards, commissions, officers, agents and employees, from and against, any and all actions, suits, claims, damages to persons or property, losses, costs, expenses, penalties, obligations, errors, omissions or liabilities, including reasonable attorneys' fees, which may arise in consequence of the granting of this license, or in any way connected with or related to the design, construction, operation, maintenance or continued existence of the Encroachments. 7.0 Insurance. Owner shall require that the contractor who it hires to install the Encroachments shall maintain for the duration of this License, a general liability policy in the amount of $1,000,000 per occurrence for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by Owner, its agents, representatives, employees or subcontractors, or which may arise from or in connection with the design, construction, operation, maintenance or continued existence of the Encroachments. The policy shall carry a general liability special endorsement naming the City of Newport Beach, its elected or appointed officers, employees, agents and volunteers as additionally insured in the amount of $1,000,000 per occurrence. Said endorsement shall be made available to the City's Risk Manager prior to installation of the Encroachments. In addition, said policy must also provide a written 30-day notice of cancellation (10-day written notice of non- payment of premium) to the City of Newport Beach Risk Manager (3300 Newport Boulevard, Newport Beach, CA, 92663). 8.0 Covenants Running With the Land. So long as this Agreement is in effect, the covenants and restrictions by Owner set forth herein: (a) are made for the direct benefit of the Property; (b) will constitute covenants running with the land and equitable servitudes; (c) will bind Owner and every person having any fee, leasehold, or other interest in any portion of the Owner's property at any time or from time to time; and (d) will inure to the benefit of the City and every person having any fee, leasehold or other interest in the Property at any time or from time to time. 9.0 Miscellaneous. (a) Successors and Assiqns. Owner agrees that this Agreement shall remain in full force and effect from execution thereof and shall be binding upon the heirs, successors, and assigns of Owner's interest in the land, whether fee or otherwise. IM (b) Amendment or Modification. This Agreement may not be modified or amended except by written agreement executed by the then -owner of the Owner's property and the City Property and recorded in the Office of the County Recorder, County of Orange, California. (c) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. (d) Severability. The invalidity or unenforceability of any provision of this Agreement with respect to a particular party or set of circumstances shall not in any way affect the validity and enforceability of any other provision hereof or the same provision when applied to another party or to a different set of circumstances. (e) Recordation. This Agreement shall be recorded in the Office of the County Recorder, County of Orange, California, and it shall serve as notice to all parties succeeding to the interest the City that their use of the City Property shall be benefited and/or restricted in the manner herein described. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. APPROVED AS TO FORM: By: Robin Clawson City Attorney u ATTEST: LaVonne Harkless, City Clerk M CITY OF NEWPORT BEACH, A Municipal corporation By: Homer ludau City Manager OWNER: EXXON MOBIL CORPORATION wNA By: — Thomas KTaldonato Its: Agent and Attorney in Fact [Signature must be notarized] f:users/CAT/Shared/AG/dbigi/Exxon Monitoring Well Encroachment AgreementFINAL.doc STATE OF VIRGINIA ss: COUNTY OF� On 2008, before mew dGvr1 c�.�O��w� personally appeared Thomas Maldonato, per Ily known to me (or 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 has executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. CicX/l�� otary Public in and for said State I OPN.......!4C0 i� O REG it�k' n 298402 n 4 C COMMISSION : ? '.'•. EXPIRES r C? 2/28/2012 �gLTH D (This area for official notarial seal) EXHIBIT A - SITE MAP ,Y '` % •� > 1, � \�\.. f w LL ►-- -ILf. d OD 00 0 <NZ J U_ a p w>Vw �w�Q O0)20 Z Z 0 O < 5 a�02 .. O oo w =wzQ �OoO af N O W m H 0 N z Z O 0 w UID WW CITY CLERK'S ACKNOWLEDGEMENT State of California County of Orange On April 17 '2008, before me, LAVONNE M. HARKLESS, CITY CLERK OF THE CITY OF NEWPORT BEACH, personally appeared Homer Bludau , 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 he executed the same in his authorized capacity, and that by his signature on the instrument, the person or the entity upon behalf of which the person 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. Dated this 17th day of April 2008. WITNESS my hand and official seal. o/ Gl- u P }, LAVONNE M. HARKLESS, CITY CLERK CITY OF NEWPORT BEACH, CALIFORNIA CAPACITY OF SIGNER DESCRIPTION OF ATTACHED DOCUMENT: Municipal Corporation Officer Encroachment Agreement City Manager EPN2008-0000 SIGNER IS REPRESENTING: City of Newport Beach # of pages 9 Document Date: April 1, 2008 Signer(s) other than named: Thomas Maldonato Robin Clauson