HomeMy WebLinkAboutC-8050-1 - Encroachment Agreement EPN N2016-0106 for 23rd Street and Irvine AvenueDocument -137861 0 -Page -1
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Page 1 of 1
Recorded in official Records, Orange County
Hugh Nguyen, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2016-0106)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
11th day of April, 2016, by and between the Costa Mesa Sanitary District, as a California
independent special district formed pursuant to California Health and Safety Code Section
6400 et seg. ("District"), 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, City is the vested owner of the public right-of-way known as 23rd Street,
generally located at the northwest corner of 23rd Street and Irvine Avenue, Newport Beach,
California ("Right -of -Way") and more particularly depicted in Exhibit A;
WHEREAS, District desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the "Right -of -Way';
WHEREAS, District has expended approximately $250,000 to improve the backup
electricity for District's generator at what is known as the District's "23`d Street Pump
Station" which will serve to protect the public health, safety and welfare of the residents of
City and the State of California in protecting against sewer system overflows that might
otherwise flow to the waters of the United States, and in particular to the Santa Isabella
Channel and then to the Back Bay and Pacific Ocean; and
WHEREAS, said Permitted Improvements are necessary to implement District's
Sewer System Management Plan, and in particular, the System Evaluation and Capacity
Assurance Plan, required by the State Water Resources Control Board Waste Discharge
Order currently in effect; ,
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
Costa Mesa Sanitary District Encroachment Agreement 1
about:blank 06/16/2016
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
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 N2016-0106)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
11th day of April, 2016, by and between the Costa Mesa Sanitary District, as a California
independent special district formed pursuant to California Health and Safety Code Section
6400 et seq. ("District"), 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, City is the vested owner of the public right-of-way known as 23rd Street,
generally located at the northwest corner of 23rd Street and Irvine Avenue, Newport Beach,
California ("Right -of -Way") and more particularly depicted in Exhibit A;
WHEREAS, District desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the "Right -of -Way";
WHEREAS, District has expended approximately $250,000 to improve the backup
electricity for District's generator at what is known as the District's "23rd Street Pump
Station" which will serve to protect the public health, safety and welfare of the residents of
City and the State of California in protecting against sewer system overflows that might
otherwise flow to the waters of the United States, and in particular to the Santa Isabella
Channel and then to the Back Bay and Pacific Ocean; and
WHEREAS, said Permitted Improvements are necessary to implement District's
Sewer System Management Plan, and in particular, the System Evaluation and Capacity
Assurance Plan, required by the State Water Resources Control Board Waste Discharge
Order currently in effect;
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
Costa Mesa Sanitary District Encroachment Agreement 1
WHEREAS, the parties hereto desire to enter into this Agreement providing for
fulfillment of the conditions required by City to permit District to construct and maintain said
Permitted Improvements.
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto
agree as follows:
1. City and District 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 the following
and depicted on Exhibit A, attached hereto and incorporated herein by reference:
a. An 8.17 -ft x 3.33 -ft x 5.33 -ft 60 -Hertz emergency generator and
appurtenances encroaching up to 7 -ft into the Right -of -Way;
b. A 16.08 -ft x 8 -ft x 8.67 -ft generator enclosure with foundation constructed of
concrete masonry units ("CMU") split face finish encroaching up to 8 -ft into
the Right -of -Way;
C. A 12.33 -ft x 7 -ft green colored automatic roll up door with mechanism
encroaching up to 8 -ft into the Right -of -Way;
d. A metal grate roof constructed of 6 -inch x 12 -inch by 1.5 -inch grating planks
encroaching up to 7.33 -ft into Right -of -Way, as approved by the Public Works
Department;
e. 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 District 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 District to take all reasonable
measures necessary or convenient in accomplishing the aforesaid activities.
4. City shall incur no liability whatsoever in the event of the termination of this
Agreement or subsequent removal of improvements by City consistent with the
terms of this Agreement. In addition to the other rights of the Parties pursuant to this
Agreement, rights granted under this Agreement may be terminated by City in any of
the below circumstances.
a. If the City reasonably determines that relocation of the Permitted
Improvements is necessary because of any change in street grade or
alignment or any other needed change to City's property, as reasonably
determined by City in its sole discretion, the City may terminate this
Costa Mesa Sanitary District Encroachment Agreement 2
Agreement. In such event, City may require that District remove and/or
relocate the Permitted Improvements at District's sole expense. City shall
use reasonable efforts to accommodate relocation of the Permitted
Improvements to a different location upon the Right -of -Way if possible and, if
not possible, City will assist the District in determining an appropriate area for
the relocation of the Permitted Improvements to property other than the Right -
of -Way. District agrees to remove and/or relocate the Permitted
Improvements promptly, according to the complexity of the operation. City
agrees to provide advance notice, commensurate with the knowledge it has
that termination, removal, and/or relocation is required.
b. If City has reasonably determined that District has abandoned the Permitted
Improvements, the City may terminate any rights of District under this
Agreement.
C. If a public emergency occurs affecting the health or safety of residents or the
environment, District's right to use the Permitted Improvements may be
suspended or, if reasonably necessary, terminated by City.
5. District and City further agree as follows:
a. District 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. District 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 District 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, District shall be
responsible for the cost of repairs.
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 or future public facilities or improvements, City may remove portions
of Permitted Improvements, as required, and in such event:
(i) City shall notify District in advance of its intention to accomplish such
work, provided that an emergency situation does not exist.
(ii) District shall be responsible for arranging for any renewal,
replacement, or restoration of Permitted Improvements affected by
such work by City.
Costa Mesa Sanitary District Encroachment Agreement 3
(iii) City agrees to bear only the cost of any removal of Permitted
Improvements affected by such work by City.
(iv) District agrees to pay all costs for the renewal, replacement, or
restoration of Permitted Improvements.
6. In addition to the provisions of Section 4 of this Agreement, 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 District, City may enter upon Right -of -Way and
remove all or part of the improvements installed by District. Termination because of
breach shall be upon a minimum of ten (10) calendar days' notice, with the notice
specifying the date of termination. The breaching party shall have 10 days after
notice to cure the breach.
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. District 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. District 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 District'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
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
Costa Mesa Sanitary District Encroachment Agreement 4
any other term, covenant or condition contained herein, whether of the same or a
different character.
14. District shall, at District'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]
Costa Mesa Sanitary District Encroachment Agreement 5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a California municipal corporation
Date: %? /l( Date:
By: By:
Aaron C. Harp -Av Dave
City Attorney °`1 City Manager
Date:
2-f
DISTRICT(S): Costa Mesa Sanitary
District, as a California independent
special district formed pursuant to
California Health and Safety Code
Section 6400 et seq.
Date: �9-1 7-,e /(t-5,
By: t By:
Leilani I. Brown Micael Schea
City Clerk President
.•
Date:
.r
•
t
Robert O• -
Secretary
P0 vgk
[END OF SIGNATURES]
District must sign in the presence of notary public
ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by
Public Works
Costa Mesa Sanitary District Encroachment Agreement 6
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 RYTI i 9 j } ss.
On �� e 1\n , 20 Iu before me, K�
Public) personally appearedn\Ctk-N'E%Fg/1 ,; r
me on the basis of satisfactory evidence to be the person
within instrument and acknowledged to me that -he/"
authorized capacity i
EXHIBIT A
PERMITTED IMPROVEMENTS PLAN
Costa Mesa Sanitary District Encroachment Agreement A-1
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