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HomeMy WebLinkAboutCity Council Agenda Item No. 06CITY OF LADE 9 LSIIYOKE DREAM EXTREME, REPORT TO CITY COUNCIL TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: THOMAS P EVANS CITY MANAGER DATE: SEPTEMBER 25, 2012 SUBJECT: CONDITIONAL IMPROVEMENT AGREEMENT WITH LONG TERM ENCROACHMENT ONTO PUBLIC PROPERTY Recommendations 1. Approve the Encroachment Agreement 2. Authorize the City Manager to execute the document 3. Record the Encroachment Agreement with Riverside County Background NearCal Corporation and their business partners are in the process of developing property located on Collier Avenue adjacent to the southern end of the Outlet Center. A portion of the developable land abuts a drainage area that is owned by the City. NearCal and their development partners wish to take the shallow drainage channel underground and utilize the area for additional parking. Discussion While processing the development of industrial property located on Collier Avenue just south of the Outlet Center, NearCal Corporation and their business partners requested that the City review a proposal to allow the use of City property as supplemental parking for the project. This property currently serves to convey drainage across the southerly edge of the parcel into a formal drainage channel adjacent to Collier Avenue. Staff has reviewed the proposal and placed conditions within the agreement including the requirement that drainage improvements to accommodate underground conveyance be maintained. This is a long term interim condition that will be reconciled with an exchange of equivalent value property when the development constructs a drive -isle access to Collier Avenue. AGENDA ITEM NO. 6 Page 1 of 19 Encroachment Agreement September 25, 2012 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. Prepared by: Ken A. Seumalo Director of Public orks Approved by: Thomas Evans G 2 % ,' G Interim City Manag r Attachment: Vicinity Map Agreement Page 2 of 19 Recording Requested by and when Recorded Mail to: Michael J Hillstrom Joyce Hess Hillstrom 29033 El Toro Road Lake Elsinore, CA 92530 CONDITIONAL IMPROVEMENT AGREEMENT WITH LONG TERM ENCROACHMENT ONTO PUBLIC PROPERTY THIS CONDITIONAL IMPROVEMENT AGREEMENT WITH LONG -TERM ENCROACHMENT ONTO THE PUBLIC RIGHT -OF -WAY (this "Agreement') is made and entered into this n, day of , 2012, by and between the City of Lake Elsinore, a municipal corporation, (the "City ") and Michael J Hillstrom and Joyce Hess Hillstrom (the "Grantee') pursuant to the following: RECITALS WHEREAS, the City is the owner of certain real property in the City of Lake Elsinore legally described as set forth in Exhibit "A" attached hereto and incorporated herein (the "City Property ") WHEREAS, the Grantee is the owner of certain real property in the City of Lake Elsinore legally described as set forth in Exhibit "B" attached hereto and incorporated herein (the "Grantee Property ") WHEREAS, Grantee wishes to utilize that certain portion of the City Property for the purpose particularly described in Exhibit "C attached hereto and incorporated herein (the "Encroachment'). WHEREAS, Grantee requests from the City a long -term encroachment permit (the "Encroachment Permit') to allow for the Encroachment upon the City Property. WHEREAS, the City wishes grant such the Encroachment Permit to Grantee on the terms and conditions set forth herein. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties aqree as follows: Page 3 of 19 TERMS AND CONDITIONS ARTICLE I. ENCROACHMENT 1. For valuable consideration, the receipt of which is hereby acknowledged, City for itself and its grantees, successors and assigns, hereby grants to and for the use and benefit of Grantee and its grantees, successors and assigns, a perpetual and non - exclusive Encroachment Permit to enter upon and use the City Property for the purpose of constructing and maintaining the Encroachment on that portion of the City Property in the manner and location herein described The Encroachment Permit is granted by City to Grantee upon the following express conditions: 1.1 Construction of Drainage Improvement In partial consideration of the benefits Grantee derives from having been granted this Encroachment Permit, at Grantee's sole cost and expense, Grantee shall replace the "v- ditch" drainage improvements with a underground drainage pipeline along with suitable in -flow and outfall structures for general public drainage purposes in the area described in Exhibit "C" attached hereto and incorporated by reference (the "Drainage Improvement "). The Drainage Improvement shall be subject to the prior review and approval of the City Engineer and shall meet or exceed all applicable laws, regulations and governmental requirements. Upon completion of the Drainage Improvement and its approval by the City Engineer, Grantee shall dedicate the Drainage Improvement in a manner required by the City Engineer. Upon compliance with the City Engineer's requirement for dedication, City shall accept Grantee's dedication of the Drainage Improvements. Until such time as the City accepts the dedication of the Drainage Improvements, the Drainage Improvements shall be the sole property and legal responsibility of the Grantee. Further, until such acceptance, the Drainage Improvement shall be included within the term Encroachment and Encroachment Permit for purposes of Section 1.5. 1.2 Maintenance of Drainage Improvements. In partial consideration of the benefits Grantee derives from having been granted this Encroachment Permit, Grantee hereby irrevocably agrees to the following: a. Grantee understands and acknowledges that City may, at some future time, need to work on the City Property under or /around the area occupied by the Encroachment, including but not limited to, the purpose of maintaining, operating, repairing and reconstruct the Drainage Improvement underground storm water drain pipe and outfall structure in good condition and repair; and b. Such work may cause damage to the Encroachment and /or may require removal (by City or Grantee) of all or part of the Encroachment; and N Page 4 of 19 C. if time and circumstances permit, in the sole judgment of City, City shall consult with Grantee as to whether or not such work should be performed, or attempted to be performed, without removal of all or part of the Encroachment. provided that the decision whether to work around the Encroachment or require the removal of all or part of the Encroachment shall be made solely by City; and d. Grantee hereby agrees to be responsible for and bear all expenses related to demolishing, repairing and replacing the Encroachment, and under no circumstances shall City be required to replace or repair the Encroachment or to compensate Grantee for any expenses related to the demolition, repair, or replacement of the Encroachment; and e. should City attempt to work around the Encroachment instead of requiring removal of the Encroachment. Grantee shall release, hold harmless, and covenant not to sue City, or anyone working on City's behalf, for any damage that may be caused to the Encroachment by such work; and f. in the event that, after consultation with Grantee, Grantee prefers that the work be attempted without removing the Encroachment (i.e., attempt to work around the Encroachment), Grantee agrees to reimburse City, for any additional costs City may reasonably incur to enable the work to be attempted, and damage to the Encroachment to be minimized, without removal of the Encroachment; provided that such costs shall not include any costs, including but not limited to labor, equipment, materials, contractors, or subcontractors, which City would have incurred to perform the necessary work in the absence of the Encroachment; and 1.3 Maintenance of Encroachment Grantee shall maintain, repair and replace the surface of the Encroachment in a safe condition. Such maintenance, repair, and replacement obligations shall include, but are not limited to keeping the Encroachment free from trash and debris, removing any obstruction, and repairing damage due to ordinary wear. Grantee's maintenance obligations hereunder shall be performed at Grantee's sole cost and expense. 1.4 No Obstruction of Encroachment. Except as may be required to maintain the City Property as provided in Section 1.2, City shall not block, obstruct or in any way interfere with Grantee's use of the Encroachment. No permanent fences, walls or other barriers will be constructed in such a manner as to interfere with Grantee's use of the Encroachment pursuant to the terms set forth herein. City shall not construct buildings, above - ground improvements, fences and /or landscape across the Encroachment. 191 Page 5 of 19 1.5 Indemnification Grantee shall defend, indemnify and hold free and harmless the City, and its respective officials, officers, employees, volunteers, agents, and contractors from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions or willful misconduct of Grantee, and its officials, officers, employees, volunteers, agents, and /or contractors arising out of or in connection with the Encroachment Permit or the performance of any right granted under this Encroachment Permit, including without limitation the payment of all consequential damages and attorneys' fees and other related costs and expenses. Grantee shall defend at its own cost, expense, and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against either the Grantee or the City, and its officials, officers, employees, volunteers, agents, and /or contractors. Grantee shall pay and satisfy any judgment, award or decree that may be rendered against either itself or City, and its officials, officers, employees, volunteers, agents, and /or contractors, in any such suit, action or other legal proceeding. Grantee shall reimburse the City, and its respective officials, officers, employees, volunteers, agents, and /or contractors, for any and all legal expenses and costs incurred by the City in connection therewith or in enforcing the indemnity herein provided. Grantee's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, and its officials, officers, employees, volunteers, agents and contractors. ARTICLE H. GENERAL TERMS 2.1 No Additional Rights Grantee agrees that the use of the portion of City Property for the Encroachment will in no way create any right whatsoever in Grantee which is adverse to any rights of City, and that the rights of Grantee are the rights given by this Agreement and no other rights in the City Property whatsoever accrue hereunder. 2.2 Binding on Successors The Encroachment Permit and the rights and obligations hereunder will be binding upon and will inure to the benefit of the assignees and successors in interest of each of the parties so long as such assignees or parties own all or any portion of the respective property interests. This Encroachment Permit may not be separately assigned or conveyed, and the rights and obligations described herein and the Encroachment Permit created hereunder are specifically appurtenant to and for the benefit of each of the property interests of the parties. Upon the conveyance of fee title to any portion of the City Property, the City shall be released from any obligations under this Encroachment Permit with regard to, or arising by virtue of the ownership of, that portion of the City Property so conveyed which may arise at any time after the date of such conveyance, and the person, firm or entity acquiring either the City Property shall be conclusively deemed to have assumed, for the benefit of the other Parties and without any further agreement, all such obligations. CI Page 6 of 19 2.3 Amendments No provision of this Encroachment Permit may be amended or added to except by an agreement in writing signed by the parties hereto or their respective permitted successors in interest, which expressly states that it is an amendment of this Encroachment Permit, and that is recorded in the Recorders Office of Riverside County, California. 2.4 Authority to Execute Each party warrants that the individual(s) signing this Encroachment Permit have the legal power, right, and authority to make this Encroachment Permit and bind each respective party. 2.5 Notices All notices, requests, demands, and other communication given or required to be given hereunder shall be in writing and personally delivered or sent by United States registered or certified mail, return receipt requested, or sent by nationally recognized courier service such as Federal Express, duly addressed to the parties as follows: If to Grantee: Michael J. Hillstrom and Joyce Hess Hillstrom c/o Carl Johnson 512 Chaney Street Lake Elsinore, CA 92530 If to City: City of Lake Elsinore Attn: City Manager 130 South Main Street Lake Elsinore, CA 92530 With Copy to: Leibold McClendon & Mann Barbara Zeid Leibold, City Attorney 23422 Mill Creek Drive, Suite 105 Laguna Hills, California 92653 Delivery of any notice or other communication hereunder shall be deemed made on the date of actual delivery thereof to the address of the addressee, if personally delivered, and on the date indicated in the return receipt records as the date of delivery or as the date of first attempted delivery to the address of the addressee, if sent by mail. Any party may change its address for purposes of this section by giving notice to the other party. 2.6 Governing Law The parties hereto acknowledge that this Encroachment Permit has been negotiated and entered into in the State of California. The parties hereto expressly agree that this Encroachment Permit shall be governed by, interpreted under, and construed and enforced in accordance with the laws of the State of California. 2.7 No Additional Encroachment Permits City agrees that during the term of this Encroachment Permit no other additional Encroachment Permit or Encroachment Permits shall be granted on, under, or over the City Property. 5 Page 7 of 19 2.8 Effect of Waiver Waiver by either party in whole or in part, expressly or by acquiescence, of any portion of this Encroachment Permit shall not constitute a waiver of any other portion of this Encroachment Permit. A party's failure to insist upon strict compliance with any provision of this Encroachment Permit or to exercise any right or privilege provided herein, or a party's waiver of any breach hereunder, shall not relieve the other party of any of its obligations hereunder, whether of the same or similar type. The foregoing shall be true whether the party's actions are intentional or unintentional. 2.9 Severability Each provision, condition, covenant, and restriction in this Encroachment Permit shall be considered severable. In the event any provision, condition, covenant, and restriction in this Encroachment Permit is declared invalid or void for any reason, such provision shall not affect any other provision, condition, covenant, and restriction herein. The void or invalid provision, condition, covenant, and restriction will be deemed not a part of this Encroachment Permit, and the remainder hereof shall continue in full force and effect. 2.10 Exhibits The Exhibits attached hereto are hereby incorporated herein by this reference for all purposes. IN WITNESS WHEREOF, the parties hereto have caused this Encroachment Permit to be executed as of the date first above written. "GRANTOR" CITY OF LAKE ELSINORE, a municipal corporation 0 Brian Tisdale, Mayor ATTEST: Virginia Bloom, City Clerk City of Lake Elsinore APPROVED AS TO FORM: Barbara Leibold, City Attorney 0 Page 8 of 19 "GRANTEE" Michael J. Hillstrom Joyce Hess Hillstrom I:\ LCommon \My Clients \Lake Sssinore\General\Misc AgreemeMsWeaiCAL Agreement 081712.do Page 9 of 19 Page 10 of 19 EXHIBIT "A" LEGAL DESCRIPTION OF CITY PROPERTY [Attach Legal Description] EXHIBIT "A" Page 11 of 19 L U.1 F.VQ - -iTv & F.T lllw EXHIBIT "A" ORDER NO.: 5267611-00 PARCEL 1: ALL THAT PORTION OF THE NORTHEAST 1/4 OF FRACTIONAL SECTION 36, TOWNSHIP 5 SOUTH, RANGE 5 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF LAKE ELSINORE, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY, DESCRIBED BED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE NORTH LINE OF SAID SECTION 36 AND THE NORTHEASTERLY LINE OF RANCHO LA LAGUNA, THENCE SOUTH 46 30' EAST, ALONG SAID NORTHEASTERLY LINE OF RANCHO LA LAGUNA, 603.46 FEET; THENCE NORTH 43 30' EAST, 227.32 FEET; THENCE NORTH 36° 58' 16" EAST, 317.71 FEET, MORE OR LESS, TO A POINT ON THE NORTH LINE OF SAID SECTION 36, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE EASTERLY ALONG THE NORTH LINE OF SAID SECTION 36, A DISTANCE OF 293.31 FEET TO THE NORTHEAST CORNER OF SAID SECTION 36; THENCE SOUTH ALONG THE EASTERLY LINE OF SAID SECTION 36, A DISTANCE OF 195.18 FEET, THENCE NORTH 89 45 40" WEST, TO A POINT WHICH BEARS SOUTH 36 58' 16" WEST, FROM THE TRUE POINT OF BEGINNING; THENCE NORTH 36 S8' 16" EAST, A DISTANCE OF 243.54 FEET TO THE TRUE POINT OF BEGINNING. EXCEPTING THAT PORTION CONVEYED TO THE STATE OF CALIFORNIA, BY DEED RECORDED APRIL 15, 1955 IN BOOK 1723, PAGE 537 OF OFFICIAL RECORDS. ALSO EXCEPTING THAT PORTION CONVEYED TO THE COUNTY OF RIVERSIDE BY DEED RECORDED DECEMBER 9, 1963 AS INSTRUMENT NO. 129506. PARCEL 2: THAT PORTION OF THE NORTHEAST 114 OF FRACTIONAL SECTION 36, TOWNSHIP 5 SOUTH, RANGE 5 WEST, SAN BERNARDINO MERIDIAN, ACCORDING TO THE OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE NORTH LINE OF SAID SECTION 36 AND THE NORTHEASTERLY LINE OF RANCHO LA LAGUNA; THENCE SOUTH 46 30' DO" EAST, ALONG SAID NORTHEASTERLY LINE OF RANCHO LA LAGUNA, 603.46 FEET, THENCE NORTH 43 30' 00" EAST, 227.22 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 46 30' 00" EAST, 290.00 FEET; THENCE NORTH 43 30' 00" EAST, TO A POINT ON THE SOUTHWESTERLY LINE OF THE PROPERTY CONVEYED TO THE COUNTY OF RIVERSIDE BY DEED RECORDED DECEMBER 9, 1963 AS INSTRUMENT NO. 129506, SAID POINT BEING ON A CURVE CONCAVE NORTHWESTERLY WITH A RADIUS OF 4730.00 FEET, A CENTRAL ANGLE OF 42 50' 45' AND AN ARC DISTANCE OF 321.55 FEET, THENCE NORTHWESTERLY ALONG SAID SOUTHWESTERLY LINE OF THE CONVEYANCE TO THE COUNTY OF RIVERSIDE, A DISTANCE OF 60.00 FEET TO A POINT OF INTERSECTION WITH A LINE THAT IS NORTH 36 58' 16" EAST, 74.14 FEET, AND SOUTH 89 4540 EAST FROM THE TRUE POINT OF BEGINNING; THENCE NORTH 89 115'40" WEST, TO A POINT THAT IS NORTH 36 58' 16" EAST, 74.14 FEET FROM THE TRUE POINT OF BEGINNING; THENCE SOUTH 36 58' 16" WEST, 74.14 FEET TO THE TRUE POINT OF BEGINNING. PARCEL 3: ALL THAT PORTION OF THE NORTHEAST 1/4 OF FRACTIONAL SECTION 36, TOWNSHIP 5 SOUTH, RANGE 5 WEST, SAN BERNARDINO BASE AND MERIDIAN, AS SHOWN BY MAP OF UNITED STATES GOVERNMENT SURVEY, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE NORTH LINE OF SAID SECTION 36 AND THE NORTHEASTERLY LINE OF RANCHO IA LAGUNA; THENCE SOUTH 46 30' EAST, ALONG SAID NORTHEASTERLY LINE OF RANCHO LA LAGUNA, 603.46 FEET, THENCE NORTH 43 30' EAST, 227.22 FEED THENCE SOUTH 46 30' FAST, 290 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 43 30' EAST TO THE SOUTHWESTERLY LINE OF THE LAND CONVEYED TO THE COUNTY OF RIVERSIDE, BY DEED RECORDED DECEMBER 9, 1963 AS INSTRUMENT NO. 1295063; THENCE SOUTHEASTERLY ALONG SAID SOUTHWESTERLY LINE TO THE EASTERLY LINE OF SAID SECTION 36; THENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID SECTION TO A LINE THAT BEARS SOUTH 46 30' EAST FROM THE TRUE POINT OF BEGINNING; THENCE NORTH 46 30' WEST, IN A DIRECT LINE TO THE TRUE POINT OF BEGINNING. SAID LAND IS SITUATED IN THE CITY OF LAKE ELSINORE. PARCEL 4: Page 12 of 19 YOUR REFERENCE: HILLSTROM ORDER NO.: 5267611-00 EXHIBIT A (conemueo THAT PORTION OF THE NORTHEAST QUARTER OF FRACTIONAL SECTION 36, TOWNSHIP 5 SOUTH, RANGE 5 WEST, SAN BERNARDINO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE NORTHERLY LINE OF SAID SECTION WITH THE NORTHEASTERLY LINE OF RANCHO LA LAGUNA; THENCE SOUTH 46° 30' EA5T, ON THE NORTHEASTERLY LINE OF RANCHO LA LAGUNA, 603.46 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 43° 30' EAST, 227.22 FEET TO THE MOST WESTERLY CORNER OF THAT CERTAIN PARCEL CONVEYED, TO CHARLES E. BICKER AND WIFE, BY DEED FILED FOR RECORD JANUARY 17, 1962 AS INSTRUMENT NO. 4864; THENCE SOUTH 46° 30' EAST ON THE SOUTHWESTERLY LINE OF SAID PARCEL, 660.69 FEET MORE OR LESS, TO THE EAST LINE OF SAID FRACTIONAL SECTION 36; THENCE SOUTH ON THE EAST LINE OF SAID SECTION 310.91 FEET, MORE OR LESS, TO THE MOST SOUTHERLY CORNER OF SAID FRACTIONAL SECTION 36; THENCE NORTH 43 30' WEST ON THE NORTHEASTERLY LINE OF RANCHO LA LAGUNA, 872.49 FEET TO THE TRUE POINT OF BEGINNING. Page 4 Page 13 of 19 ORDER NO.: aD6_ORDERNUM* N 7 I � � C 8 Q 0 i ` p2 R x d e F x sm c d d y rZ � r r w i m_ S C i 2 I � I y j + a 1 i, � bC3 j _ EXHIBIT "B" LEGAL DESCRIPTION OF GRANTEE PROPERTY [Attach Legal Description] Exhibit "B" Page 15 of 19 LEGAL DESCRIPTION OF PROPOSED LAND TO BE SWAPPED WITH CITY OF LAKE ELSINORE ALL THAT PORTION OF THE NORTHEAST 1/4 OF FRACTIONAL SECTION 36, TOWNSHIP 5 SOUTH, RANGE 5 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF LAKE ELSINORE, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY UNITED STATES GOVERNMENT SURVEY, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE NORTH LINE OF SAID SECTION 36 AND THE NORTHEASTERLY LINE OF RANCHO LA LAGUNA; THENCE SOUTH 46 30' EAST, ALONG SAID NORTHEASTERLY LINE OF RANCHO LA LAGUNA, 603.46 FEET; THENCE NORTH 43 30' EAST, 227.32 FEET, TO THE TRUE POINT OF BEGINNING; THENCE NORTH 36° 56'31" EAST, 316.94 FEET, MORE OR LESS, TO A POINT ON THE NORTH LINE OF SAID SECTION 36; THENCE EASTERLY ALONG THE NORTH LINE OF SAID SECTION 36, A DISTANCE OF 179.42 FEET TO THE INTERSECTION OF SAID NORTH LINE WITH THE WEST LINE OF STATE HIGHWAY 71 (I- 15); THENCE SOUTH 00 1 06'06" EAST ALONG THE SAID WEST LINE OF SAID STATE HIGHWAY, A DISTANCE OF 83.80 FEET; THENCE NORTH 46 1 35'55" WEST; THENCE SOUTH 89 0 46'21" WEST, 110.44 FEET TO THE BEGINNING OF A TANGENT CURVE TO THE LEFT; SAID CURVE HAS A RADIUS OF 120.00 FEET AND IS CONCAVE TO THE EAST; THENCE 96.97 FEET SOUTHWESTERLY ALONG SAID CURVE; THENCE SOUTH 43 1 28'15" WEST, 215.03 FEET, BACK TO THE TRUE PLACE OF BEGINNING Page 16 of 19 Page 17 of 19 Exhibit "C — Drainage Improvement Drainage improvement for the purposes of this agreement shall include installation of drainage pipe(s) with an equivalent hydraulic performance as the existing v- ditch. Equivalent hydraulic performance shall mean equivalent capacity to convey drainage waters while the pipe remains in an 'open channel flow' condition. Pressure flow shall not be allowed. Inlet and outlet conditions shall accommodate the 100 -year flood condition as described by Riverside County Flood Control standards. Inlet and outlet conditions shall include any mitigation necessary to alleviate erosive velocities and control the outlet flow so that it remains within the receiving drainage structure. Drainage improvement shall also include a route for water to be conveyed overland in the event the pipe system is impeded or fails. Page 18 of 19 VICINITY MAP CONDITIONAL IMPROVEMENT AGREEMENT WITH LONG TERM ENCROACHMENT EXHIBIT D CITY COUNCIL SEPTEMBER 25, 2012 Page 19 of 19