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HomeMy WebLinkAboutCC item No. 10CITY OF LADE LLSIAORE ~ ` DREAM EXTREME. REPORT TO CITY COUNCIL TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: ROBERT A. BRADY CITY MANAGER DATE: NOVEMBER 23, 2010 SUBJECT: ENCROACHMENT AGREEMENT Background On August 4, 2010, Mr. Ted Thompson was issued a permit for grading and building to construct a new garage, retaining wall and perimeter fencing on his property on Ontario Way. The permit issued to Mr. Thompson allows construction of a retaining wall outside the boundaries of a drainage easement located at the north east end of his property. Upon inspection of the retaining wall construction, staff identified the wall to be located approximately 2-feet beyond the limits of his approved plans, violating the drainage easement. Staff ordered the construction to stop until the violation of the easement was resolved. Discussion In order to resolve the encroachment into the City's drainage easement Staff identified and communicated two alternatives to Mr. Thompson: 1) Relocate the subject retaining wall so that it complies with the approved plans outside the drainage easement. 2) Enter into an Encroachment Agreement that indemnifies and holds the City harmless in the event maintenance or construction in the drainage easement affects Mr. Thompson's property. Mr. Thompson determined that option (1) was cost prohibitive and declared his preference to exercise option (2). The attached Encroachment Agreement identifies Mr. Thompson's construction as being within the City's drainage easement and holds the City harmless in the event his property is damaged as a result of maintenance or construction within the easement. AGENDA ITEM NO. 10 Page 1 Encroachment Agreement November 23, 2010 Page 2 This agreement, if approved, will be recorded with Riverside County to run with the land in the event of sale or transfer. Fiscal Impact There is no fiscal impact to the City of Lake Elsinore. Cost associated with the processing of the agreement has been paid through a deposit made by Mr. Thompson. Staff time to review and process the agreement was approximately $400. Recommendations 1. Approve the Encroachment Agreement 2. Authorize the City Manager to execute the document 3. Record the Easement Agreement with Riverside County Prepared by: Ken A. Seumalo 06 orks Director of Publit Approved by: Robert A. BradyCity Manager Attachment: Vicinity Map Location Map Agreement Page 2 32375 Ontario Way Retaining Wall Long Term Encroachment Permit Agreement ~Q•- col, , < ; ~ ~ , ~ ~ ~ q spy Project Location s °o yt 0 ' F< ~ i y l LF City Council Meeting November 23, 2010 Page 3 32375 Ontario Way Retaining Wall Long Term Encroachment Permit Agreement I b' naarwaaF FasEMFNT AREA of # ENGROAGNM~ . ~ t.: ? y 115 .a 65e~'4~-.~R N 58•22'42`Y 120.29 I f 74 a- ^ 67 1 108.98 N 59'22'42"W w 1 mg N 59122.42'u 134.00 A$ 1 73 1 N 59.22'42"4 115.00 t. 66 N59'22.42"U t34.00 y 8 72 g 52.90 0 72.00 D qPq 4 O n N $9.22.42"N 115.000 g w ~ =O P 70 69 W. g- 71- r° a, z -I - 100.00 82.00. 57.00 =wl N 53.22' 42"W 219.00 9 • WAY alp I v 1 1 f / / . 1 I r 1 1 ^ I v- 0) W t 1 V to I N- , I CU ~ I m L - ca - - - . I ~ I I ~ I O I I Z I O l I I City Council Meeting November 23, 2010 Page 4 RECORDING REQUESTED BY CITY OF LAKE ELSINORE AND WHEN RECORDED MAIL TO: r- 1 City of Lake Elsinore Attn: City Clerk 130 S. Main Lake Elsinore, CA 92530 L- J MAIL TAX STATEMENTS TO: r ~ L EXEMPT per GC6103 J SPACE ABOVE THIS LINE FOR RECORDER'S USE AGREEMENT FOR LONG TERM ENCROACHMENT INTO THE PUBLIC DRAINAGE EASEMENT THIS AGREEMENT FOR LONG-TERM ENCROACHMENT INTO THE PUBLIC DRAINAGE EASEMENT (this "Agreement") is dated for identification purposes only as of November 1, 2010, by and between the City of Lake Elsinore, a municipal corporation, (the "City") and James Ted Thompson, an individual (the "Property Owner") pursuant to the following: RECITALS WHEREAS, Property Owner is the owner of the property located at 32375 Ontario Way, Lake Elsinore, California 92530 which is more particularly described as follows: Lot 68, of Tract 26142 as shown by map on file in Book 241, Pages 89 through 95 inclusive of Maps in the office of the County Recorder Assessor Parcel No. 370-511-054 ((hereinafter "the Property"); and WHEREAS, a drainage easement through the Property was dedicated and recorded as described on Tract Map 26142, Page 2 of 7 and Page 5 of 7, Dated 1991, and is incorporated herein by reference (the "Drainage Easement"); and WHEREAS, Property Owner desires to construct a concrete block retaining wall described as four and one-half feet high by 22 feet long, which will encroach by approximately two and one-half feet into the boundary of the Drainage Easement (the "Retaining Wall"); and Encroachment Agmt with Thompson 111210.doc Page 5 < WHEREAS, the Property Owner requests from the City a Long-Term Encroachment Permit (the "Permit") to permit Property Owner to construct and maintain the Retaining Wall in the Drainage Easement. NOW, THEREFORE, IT IS AGREED between the parties hereto as follows: Section 1. City's Grant of Long-Term Encroachment Permit. That City agrees to permit the long-term encroachment of the Property Owner's Retaining Wall in the Drainage Easement subject to Property Owner's compliance with the terms and conditions set forth in this Agreement. Section 2. Property Owner's Covenants. Property Owner shall do all of the following as conditions to the issuance and retention of the Permit granted under this Agreement: 1. Property Owner shall obtain all necessary permits to construct the Retaining Wall which shall comply with the development standards and California Building Code standards as required under the Lake Elsinore Municipal Code. 2. Property Owner shall maintain the Retaining Wall and an area one-foot on each side of the Retaining Wall in good repair and free from all rubbish, weeds, garbage, graffiti and other refuse at the Property Owner's expense. If, in the City's discretion the Property Owner has failed to uphold its obligations set forth in the preceding sentence, the City shall give the Property Owner ten (10) days written notice to correct the substandard maintenance. If the substandard maintenance is not thereafter corrected, the Director of Public Works may cause the necessary maintenance to be conducted and the cost of that maintenance shall be borne by the Property Owner. 3. Property Owner shall release and hold the City, its agents, employees, officials, and representatives harmless from any and all claims, liability, responsibility, or damages of any description or kind resulting from the Retaining Wall or its encroachment into the Drainage Easement. The hold harmless and indemnity agreement set forth in this paragraph shall be construed to be the broadest possible indemnification and hold harmless agreement and shall include any claims, damages, or other liabilities or responsibilities which Property Owner may have against the City, or any claims, damages, responsibilities, or liabilities which any third party may have or allege against the City in connection with the Retaining Wall. The indemnification and hold harmless provision set forth in this paragraph is declared to include any costs the City may incur for defending any claims against the City, including but not limited to reasonable attorneys' fees expended in defending these claims, whether said claims result in actual liability on behalf of the City or not. Notwithstanding anything contained herein to the contrary, the indemnity and hold harmless provisions herein in favor of the City shall not apply to any losses or damages suffered by the City due to its own gross negligence. Encroachment Agmt with Thompson -2- 11121o.doc Page 6 r 4. Property Owner has been and is fully advised by the City and acknowledges that any future construction or other activity needed to maintain, repair, or improve the Drainage Easement could result in possible damage to or destruction of the Retaining Wall. The City cannot and will not be responsible for any injuries, damages, destruction or removal of the Retaining Wall as a result of any future use, maintenance, repair or improvement of the Drainage Easement. Property Owner agrees to be solely responsible for any injuries, damages, claims, destruction or removal of the Retaining Wall and any costs to replace, repair or reconstruct the Retaining Wall for any reason whatsoever. Property Owner further agrees to be solely responsible for any damage or injury to the storm water drain pipe located in the Drainage Easement caused by Property Owner in the installation, maintenance, repair, or removal of the Retaining Wall. Section 5. Recordation of This Agreement. Within five (5) business days after the execution of this Agreement by all necessary parties, the City shall cause this Agreement and the Permit to be recorded against the Property. This Agreement and the covenants contained herein shall be binding upon and inure to the benefit of the successors, heirs, assigns and transferees of Property Owner thereby creating an equitable servitude upon the Property. Section 6. Notices. Any notice required to be given under this Agreement shall be in writing and either served personally or sent prepaid, first class mail. Any such notice shall be addressed to the other party at the address set forth below. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section. If to City: City of Lake Elsinore Attn: Director of Public Works 130 South Main Street Lake Elsinore, CA 92530 If to Property Owner: 32375 Ontario Way Lake Elsinore, CA 92530 Attn: Property Owner Section 7. Entire Agreement. This Agreement constitute the complete and exclusive statement of Agreement between the City and Property Owner. All prior written and oral communications, including correspondence, drafts, memoranda, and representations, are superseded in total by this Agreement. Encroachment Agmt with Thompson -3- 11121 O.doc - - Page 7 Section 8. Amendments. This Agreement may be modified or amended only by a written document executed by both Property Owner and City and approved as to form by the City Attorney. Section 9. Severability. 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. Section 10. Controlling Law Venue. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this Agreement shall be held exclusively in a state court in the County of Riverside. Section 11. Litigation Expenses and Attorneys' Fees. If either party to this Agreement commences any legal action against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees. Section 12. Mediation. The parties agree to make a good faith attempt to resolve any disputes arising out of this Agreement through mediation prior to commencing litigation. The parties shall mutually agree upon the mediator and share the costs of mediation equally. If the parties are unable to agree upon a mediator, the dispute shall be submitted to JAMS/ENDISPUTE ("JAMS") or its successor in interest. JAMS shall provide the parties with the names of five qualified mediators. Each party shall have the option to strike two of the five mediators selected by JAMS and thereafter the mediator remaining shall hear the dispute. If the dispute remains unresolved after mediation, either party may commence litigation. Section 13. Counterparts. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart. Encroachment Agmt with Thompson _4_ 111210.doc Page 8 Section 14. Authority to Enter Agreement. Property Owner has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party. Section 15. Agreement Not Applicable to Other Public Easements. This Agreement only pertains to the Drainage Easement located within the Property. Any encroachment into Elsinore Valley Municipal Water District's sanitary sewer easement, or any other easement, will require written approval from the easement holder. IN WITNESS WHEREOF the parties have caused this Agreement to be executed on the dates written below. "CITY" Date: ATTEST: CITY OF LAKE ELSINORE, a municipal corporation Robert A. Brady, City Manager Carol Cowley, City Clerk APPROVED AS TO FORM: Barbara Zeid Leibold, City Attorney Date: "PROPERTY OWNER" James Ted Thompson Encroachment Agmt with Thompson 111210.doc Page 9 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of who 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 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(s) acted, executed the instrument. I certify under PENALT Y OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Plats Notarv Seal Above Signature Signature of Notary Public OPTIONAL 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 Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer-Title(s): ❑ Partner - ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Top of thumb here Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer - Title(s): _ ❑ Partner - ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Top of thumb here 02007 National Notary Association- 9350 De Soto Ave., P.O. eorc2402= Chatsworth, CA 91313-2402= www.NationalNoaryorg Item 05907 Reortler: Call Toll-Free 1-8068766827 Page 10 '