HomeMy WebLinkAboutPrivate Imp Encroach Agreement (storm laterals) clean updated 08272021RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of San Luis Obispo
Community Development Department
919 Palm Street
San Luis Obispo, CA 93401-3249
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PRIVATE IMPROVEMENT ENCROACHMENT AGREEMENT
This Private Improvement Encroachment Agreement (“Agreement”) is made and entered into this ___ day of ___________, 2021, by and between the City of San Luis Obispo, a municipal corporation
and charter city (“Grantor” or “City”) and Avila Ranch Developers, Inc., a California Corporation (“Grantee”).
RECITALS
WHEREAS, Grantee is the owner of Lots 1 through 29, inclusive, 31 through 86, inclusive, 88 through 182, inclusive, and 191, all as shown on the Subdivision Map of Tract Map No. 3089
Phase 1, Filed for Record on ______________, 2021, in Book of Maps ___, at Pages ___ through ___, inclusive, in the office of the County Recorder of the County of San Luis Obispo (“Grantee’s
Property”); and,
WHEREAS, Grantee’s Property constitutes a portion of said Tract 3089 Phase 1 and Grantee developing Grantee’s Property as a single-family residential subdivision, referred to herein
as “Avila Ranch Phase 1”; and,
WHEREAS, there are certain private improvements of Avila Ranch Phase 1, specifically “stormwater lateral connections” located within the public right-of-way, installed in conjunction
with the those improvements described as the Private Portion of the System, in that certain document entitled Private Storm Water Conveyance Agreement, recorded concurrently herewith
that are required to be privately maintained by the Avila Ranch Community Association, a nonprofit mutual benefit corporation (“Association”). These Laterals are shown on the approved
plans, referenced in the Private Storm Water Conveyance Agreement and the Operations & Maintenance Manual for the Project (collectively, the “Approved Plans”) on file at the City which
are incorporated herein by this reference, including any modifications thereto, and are collectively referred to as “the “Laterals”; and
WHEREAS, Grantee, as owner of the Tract 3089 Phase 1 and the individual lots, or its successor in interest thereto, is required to maintain the Laterals in good condition; and
WHEREAS, both Grantor and Grantee desire to establish the terms and conditions for Grantee’s use of the public right-of-way for the Laterals; and
WHEREAS, subject to the terms and conditions hereof, Grantor is willing to allow a temporary encroachment within the public right-of-way so Grantee can construct and maintain the Laterals.
NOW THEREFORE, in consideration of the above recitals and mutual covenants, terms, conditions and restrictions contained herein, Grantee hereby declares that the Property shall be held,
transferred, encumbered, used, sold, conveyed, leased, and occupied subject to this Private Improvement Encroachment Agreement (and incorporating the above recitals herein by this reference)
which shall run with the land and shall be binding upon Grantee’s heirs, successors in interest (including, but not limited to the Association), legal representatives, administrators,
grantees, assigns, lessees, or any other occupiers and users of the Property, or any portion of it, as follows:
Recitals. The above recitals are true and correct and are incorporated herein by this reference.
Term of Agreement. This Agreement shall continue in full force and effect from the date of recordation of this Agreement until terminated as set forth in Section 5 below.
Temporary Encroachment. Subject to the terms and conditions herein, Grantor hereby grants to Grantee a license to encroach upon, use and/or occupy portions of the public right-of-way
in the area specified in the Approved Plans to access, construct, maintain, repair, replace and remove the Laterals in a manner approved by the City. Grantee shall, at Grantee’s sole
cost and expense, maintain and repair the Laterals within the public right of-way in good and clean condition and working order at all times. Grantee agrees to obtain the necessary
encroachment permits from the City prior to performing any work within the public right-of-way. Grantee agrees that no activity or activities shall be allowed within the public right-of-way
which are inconsistent with the purpose and intent of this Agreement, and which would otherwise change, alter or impair the public right-of-way, without prior approval of the City’s
Public Works Director. Within one hundred and twenty (120) days’ notice from the City, Grantee agrees to remove the Laterals within the public right-of-way and restore the street, sidewalk,
slopes, and other public Laterals to a condition acceptable to the Public Works Director, without cost to City. If Grantee does not remove the encroachment authorized herein and restore
the street, sidewalk, slopes, and other public Laterals when requested by City, City may remove the Laterals at Grantee’s cost and expense. Notwithstanding the foregoing, in the event
of an emergency, City may, without the prior notice to Grantee, remove the Laterals at Grantee’s sole cost and expense. Grantee further acknowledges that, in the event of any such removal
of the Laterals by City, City shall not be liable for any damages to the Laterals or to any adjacent real or personal property unless due to City’s proven gross negligence or willful
misconduct.
With regard to the specialty paving, the parties understand that these Laterals were required by the City as a condition of approval Vesting Tentative Tract Map 3089.
Breach and Cure Rights. In the event of any breach of any provision of this Agreement, including, but not limited to, Grantee’s failure to maintain or repair the Laterals, City shall
give written notice to Grantee of such violation and demand corrective action reasonably sufficient to cure the violation and, where the violation involves injury to the street or public
right-of-way resulting from any use or activity inconsistent with the terms and provisions of this Agreement, to restore the portion of the street or public right-of-way so injured.
If Grantee fails to cure the violation within thirty (30) days after receipt of notice thereof from City, or under circumstances where the violation cannot reasonably be cured within
a thirty (30)-day period, fail to begin curing such violation within the thirty (30)-day period, or fail to continue diligently to cure such violation until finally cured, City may
perform such work at Grantee’s cost and expense, bring an action at law or in equity in a court of competent jurisdiction to enforce the terms of this Agreement, to enjoin the violation
by temporary or permanent injunction, to recover actual damages to which it may be entitled for violation of the terms of this Agreement or injury to any street or public right-of-way
protected by this Agreement as a direct result of such breach, and to require the prompt restoration of the street or public right-of-way to the condition that existed prior to any
such injury (if reasonably possible). Without limiting Grantee’s liability therefore, City, in its sole discretion, may apply any damages recovered to the cost of undertaking any corrective
action on the street or public right-of-way. If City, in its reasonable discretion, determines that circumstances require immediate action to prevent or mitigate significant damage,
City may pursue its remedies under this paragraph without waiting for the period provided herein for cure to expire; provided, however, City shall provide Grantee with notice (verbal
or written) of any such breach. The remedies permitted or available pursuant to the provisions of this Agreement shall be cumulative and in addition to any rights or remedies available
at law or in equity.
Termination. This Agreement shall terminate in the event of:
Grantee’s breach of any term or condition hereof, subject to the notice and cure rights set forth in Section 4 above;
Mutual consent of City and Grantee;
Or one hundred twenty (120) days prior written notice of termination by City.
In the event of termination, Grantee shall remove the Laterals and restore the street, sidewalk, slopes, and other public improvements affected by such
removal to a condition acceptable to the Public Works Director, without cost to City.
Rights Personal to Grantee. Grantor and Grantee acknowledge and agree that the rights and obligations granted to Grantee pursuant to this Agreement are personal in nature and may be
assigned by Grantee to the Association without further approval from the Grantor or to another party upon prior written approval of Grantor. Such approval may not be unreasonably withheld.
Indemnification. To the fullest extent provided by law, Grantee, its successors and assigns, agrees to indemnify, defend and hold harmless the City, its officials, managers, directors,
employees and agents from and against any and all claims, costs, expenses and liability (including reasonable attorney’s fees and costs) arising from or related to Grantee’s rights,
obligations and performance under this Agreement including, but not limited to, the maintenance and repair or failure to maintain and repair the Laterals, Grantee’s access and use of
the right-of-way, and the authorized or unauthorized access or use of the right-of-way or Laterals by third parties. Grantee’s obligation to indemnify City pursuant to the terms hereof
shall survive termination.
Insurance. For the term of this Agreement, Grantee shall maintain and furnish commercial liability insurance in an amount not less than $1,000,000 per occurrence. City shall be named
as an additional insured under said policy. Grantee shall furnish a Certificate of Insurance to City upon request.
Miscellaneous.
If any provision is found to be ambiguous, an interpretation consistent with the purposes of this Agreement that would render the provision valid shall be favored over any interpretation
that would render it invalid.
If a court of competent jurisdiction voids or invalidates on its face any provision of this Agreement, such action shall not affect the remainder of this Agreement. If a court of competent
jurisdiction voids or invalidates the application of any provision of this Agreement to a person or circumstance, such action shall not affect the application of the provision to any
other persons or circumstances.
The terms and conditions contained herein shall run with the land and shall be binding on the parties hereto and their heirs, successors and assigns.
No change or modification of this Agreement shall be valid unless the same is in writing and signed by the parties hereto. No waiver of any of the provisions of this Agreement shall
be valid unless in writing and signed by the party against whom it is sought to be enforced. This Agreement contains the entire agreement between the parties relating to the subject
matter hereof and supersedes all prior understandings and agreements between the parties. There are no promises, agreements, conditions, undertakings, warranties or
representations, oral or written, express or implied, between the parties other than as herein set forth.
This Agreement shall be construed and enforced in accordance with the laws of the State of California.
All notices, demands or other communications required or permitted to be given hereunder shall be in writing and any and all such items shall be deemed to have been duly delivered upon
personal delivery; or as of the immediately following business day after deposit for overnight delivery with Federal Express or a similar overnight courier service, or if by First Class
mail, three days after the mailing, postage prepaid, addressed as follows:
If to City:
City of San Luis Obispo
Attn: Director of Public Works
919 Palm Street
San Luis Obispo, CA 93401
With copy to:
City of San Luis Obispo
Attn: City Attorney
990 Palm Street
San Luis Obispo, CA 93401
If to Grantee
Avila Ranch Developers, Inc.
2505 Alluvial Avenue
Clovis, CA 93611
Any address fixed pursuant to the foregoing may be changed by the addressee by notice given pursuant to this Section.
The section headings which appear in some of the sections of this Agreement are for purposes of convenience and reference and are not in any sense to be construed as modifying the sections
in which they appear. The recitals set forth above are incorporated into and made a part of this Agreement.
The parties acknowledge that they have reviewed and revised this Agreement, and their counsel has done or has had the opportunity to do the same and agree that the normal rule of construction
to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any exhibits or amendments hereto.
This Agreement may be executed in counterparts, all of which together shall constitute one and the same instrument.
In any action brought by City or Grantee to enforce the terms and conditions of this Agreement, the prevailing party shall recover its attorney’s fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above.
GRANTOR
City of San Luis Obispo,
a municipal corporation and charter city
By _________________________________
Matt Horn, City Engineer
City of San Luis Obispo
(Authorization – Resolution No. 3897, 1979 Series)
GRANTEE
AVILA RANCH DEVELOPERS, INC,
a California corporation
By: ________________________________
Joshua E. Peterson, President
ACKNOWLEDGMENT
State of ____________________}
County of __________________}
On______________________20__, before me, ____________________, Notary Public, personally appeared ______________________________________ 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 (s)he executed the same in his/her capacity, and that by his/her 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.
WITNESS my hand and official seal.
_______________________________
Signature of Notary Public Place Notary Seal Above
ACKNOWLEDGMENT
State of ____________________}
County of __________________}
On______________________20__, before me, ____________________, Notary Public, personally appeared ______________________________________ 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 (s)he executed the same in his/her capacity, and that by his/her 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.
WITNESS my hand and official seal.
_______________________________
Signature of Notary Public Place Notary Seal Above