1. Recording Requested By and
When Recorded Return To:
APN: 558-012-021 [SPACE ABOVE FOR RECORDER’S USE ONLY] Exempt from filing/recording fees, per Govt. Code § 27383
ENCROACHMENT AGREEMENT
This ENCROACHMENT AGREEMENT (“Agreement”) is entered into by and between Anna Ortiz and James Ortiz (collectively, the “Ortizes” or “Owners”), whose address is 8 Western Drive, Richmond, California, 94801 and the City of Richmond (“City”), a municipal corporation, whose address is 450 Civic Center Plaza, Richmond, California, 94804. The Owners and City are referred to as a “Party” in the singular, or collectively as the “Parties.” Owners also includes any successors and assigns of the Ortizes.
RECITALS
A. The Ortizes are owners of that certain real property located in the City of Richmond, County of Contra Costa, State of California commonly known as 8 Western Drive (Assessor’s Parcel Number 558-012-021), more particularly described in the “Legal Descriptio n Owners’ Property” (“Owners’ Property”), set forth in Exhibit A which is attached hereto and incorporated herein by reference. City is the owner of certain fee simple and/or easement interests in that certain real property (the “City Property”) located in the City of Richmond, County of Contra Costa, State of California consisting of the streets and roadways that adjoin the Owners’ Property and is shown in the “Map of City Property” attached as Exhibit B and incorporated herein by this reference. The portion of the City Property subject to the encroachment shall be known as the “Encroachment Area,” more particularly shown in Exhibit C, which is attached hereto and incorporated herein by reference.
B. Owners wish to construct and maintain certain improvement (s) within the Encroachment Area. Owners have requested that the City allow them to make such improvement(s) (the “Encroachment”), improvements are also shown in Exhibit C. City agrees to grant Owners the permission to construct and maintain the Encroachment pursuant to this recorded, revocable Agreement . The Agreement shall be governed by a ll applicable laws, ordinances, and regulations of any governmental body applicable thereto.
C. The City Council passed and adopted Ordinance No. 09-22 N.S. (the “Ordinance”) on June 28, 2022 , amending Richmond Municipal Code (“RMC”) to address encroachments on City Property, including public rights of way (“ROW”) . The Ordinance amended Article XII (“Public Works”), Chapter 12.30 (“Encroachments and Easements in the Public Rights-of-Way”), Part 3 (“Private Landowner Encroachment(s) Into Unimproved Portions of Public ROW”), Section
12.30.170, et seq., which incorporated provisions to codify the City’s long -standing practice of
2. allowing private landowner encroachments into public land, including the public ROW, subject to certain conditions.
D. RMC 12.30.180, et seq. requires private landowners (i) to submit an Encroachment Agreement Application (“Application”) to the Public Works Department’s Engineering Division (“PW-Engineering”) for encroachments placed within the public ROW; (ii) RMC 12.30.200 grants City Council authority to approve such an Application following a public hearing and its determination that an Application and proposed encroachment meet the required findings, pursuant to RMC 12.30.190 (i)(1)(A-G); and then (iii) authorizes City to enter into an Encroachment Agreement between the City and the private lando wners. The Encroachment Agreement is recorded on the property’s title and binds successive owners in perpetuit y but is revocable by City with or without cause .
E. On or about July 6, 2022 , the Ortizes submitted an Application to the City Engineer, which was thereafter corrected and revised . Pursuant to RMC 12.30.180(a)(8), PW - Engineering sent a “Notice of Encroachment Agreement Application” to properties within 300 feet of Owners Property; and, to the local Neighborhood Council as per RMC 12.30.110(a)(1). The City Clerk’s Office, pursuant to RMC 12.30.200(d), noticed a Public Hearing for February 7, 2023, which was later continued to February 21, 2023, and then continued a second time and held on March 7, 2023, at which time the City Council took public comment. Pursuant to RMC
12.30.200(d), the Clerk’s Office sent a Public Hearing notice by U.S. Mail to neighbors within 300 feet of Subject Property on January 25, 2023; and, as a courtesy, simultaneously noticed the Neighborhood Council. The notice was also published in West County Times on January 27, 2023.
A courtesy notice of the Public Hearing’s continuation was sent to neighbors and the Neighborhood Council on February 10, 2023. A second courtesy not ice of the Public Hearing’s continuation was sent to neighbors and the Neighborhood Council on February 17, 2023. Pursuant to 12.30.200(b), a copy of the Application was made available for review in the City Clerk’s Office on February 17, 2023.
F. On March 7, 2023, the City Council held a Public Hearing. At the con clusion of said hearing, the City Council determined that the findings required by RMC 12.30.190(a) (1)(A) through (G) had been made. The City Council adopted Resolution 27-23 (the “Resolution”), which directed the Parties to enter into this Agreement , subject to the Resolution’s condition(s).
Thereafter, this Agreement was approved by the City Council at its meeting on April 4, 2023.
NOW, THEREFORE, in consideration of the City granting this Agreement, Owners covenant and agree as follows:
1. Incorporation of Recitals. The foregoing Recitals are incorporated herein by reference.
2. Effective Date and Duration. This Agreement shall be effective on the date of its recordation in the Office of the County Recorder, County of Contra Costa, California (the “Official Records”) and shall continue in full force and effect until terminated as provided in Section 6.
3. License. The City hereby grants to Owners a non-exclusive, revocable license to construct and maintain the Encroachment within the Encroachment Area upon all of the terms and conditions
3. of this Agreement, which shall run with the Owners Property . The City consents to automatic assignment to any successor owner of Owners Property.
4. Installation of Encroachment . Owners shall construct and maintain the Encroachment in accordance with applicable laws and regulations at the Owners’ sole cost, risk, and responsibility.
Owners shall obtain all applicable City building permits prior to the Encroachment’s installation (the “Installation”). The Installation shall be compl eted within one (1) year of this Agreement’s date of approval. The Installation shall be inspected and approved by the City, or this Agreement shall expire and terminate.
5. Covenants.
5.1 Generally. Owners hereby agree to construct, maintain, relocate, and/or remove the Encroachment in accordance with all applicable laws, ordinances, and regulations of any governmental body applicable thereto and in accordance with this Agreement and the City Council Resolution(s) adopted March 7, 2023, and April 4, 2023 (all collectively the “Approvals”).
5.2 Maintenance. Owners shall maintain, repair, and/or replace the Encroachment and the City Property in accordance with the Approvals, and such that the Encroachment and the Encroachment Area remain at all times in a neat, clean, and first-class condition, as well as in good order and repair, including being weed -, trash-, and debris-free. In the event that Owners do not maintain the Encroachment, the Encroachment Area, and City Property as required herein, the City may terminate this Agreement as more particularly provided in Section 6.0.
6. Termination.
6.1 Notice by Either Party. This Agreement may be terminated by either Party upon written notice to the other Party (“Termination Notice”). This Agreement acts as a license and does not require either Party to provide a reason for the Termination Notice.
6.2 Reasons for Termination. Reasons for termination may include, but are not limited to, (i) Owners failure to comply with th e conditions of this Agreement or the Resolution as related to this Agreement; (ii) Owners failure to maintain the Encroachment in accordance with Section 5.2; (iii) the Encroachment is determined to be a h azard to safety, health , or public welfare ; (iv) the Encroachment Area is needed for other public purpose ; or (v) any other cause , or no cause, and the City shall not be liable for any damage or expense to Owners resulting therefrom.
6.3 Removal of Encroachment. At their sole cost and expense, Owner s shall remove the Encroachment within ninety (90) days following the date of the Termination Notice; or, in the event of urgent necessity, such earlier date as may be directed by the City Engineer in the Notice. Should Owners fail to remove the Encroachment, or any specified part thereof, within the Termination Notice’s stated time period, or within any written extension the City grants, the City may cause such work to be
4. done, and the costs thereof shall be a charge to , and may become a lien upon , Owners Property.
6.4 Restoration. Upon removal of the Encroachment, at their sole expense, Owners shall restore the public ROW to a condition that, in the City Engineer’s reasonable judgment, approximates the condition of the public ROW prior to the Encroachment’s installation.
6.5 Execution of Termination Documents. Pursuant to Section 6.3, if Owners removed the Encroachment, they may provide written notice to the City requesting that the City draft an appropriate termination document, whose form shall be approved by the City Attorney, and which may be executed by the City Manager or their designee, to be executed and acknowledged by the City and recorded in Official Records of Contra Costa County.
7. Repair of Public Facility. If the Owners, during installation or repair of the improvements, cause damage to City Property or that of another public agency or landowner, City Engineers may order repairs to be made or restitution to be paid by Owners.
8. Covenants Running with the Land. Owners’ covenants and conditions, as set forth in this Agreement, (i) are made for the direct benefit of City Property; ( ii) will constitute covenants running with the land and equitable servitudes; (iii) will bind Owners and every person having any fee, leasehold, or other interest in any portion of the Owners Property at any time or from time to time; and (iv) will inure to the benefit of the City and every person having any fee, leasehold , or other interest in the City Property, at any time or from time to time.
9. Release. The City shall bear no responsibility, or liability, for, and Owners agree to hold the City harmless from, any damage to the Encroachment from any cause, including, but not limited to, damage resulting from the construction, maintenance, use, repair, or presence of City facilities on City’s Property or the Encroachment’s removal pursuant to Section 6.
10. Indemnity. Owners hereby agree to indemnify and defend the City, its officers, agents and employees against, and to hold and save each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities (collectively “claims or liabilities”) that may be asserted or claimed by any person, firm, or entity arising out of , or in connection with , the Encroachment’s location, construction, maintenance, relocation, or removal. Said claims and liabilities shall exclude those arising from the sole negligence of, or willful misconduct of, the City, its officers, agents , or employees, who are directly responsible to City, and in connection therewith: (i) Owners will defend any action or actions filed in connection with any of said claims or liabilities and Owners will pay all costs and expenses, including legal costs and attorneys’ fees, incurred in connection therewith; (ii) Owners will promptly pay any judgment rendered against the City, its officers, agents , or employees for any such claims or liabilities and agree to save and hold the City, its officers, agents, and employees harmless therefrom; (iii) in the event the City, its officers, agents, or employees is made a party to any action or proceeding filed or prosecuted against Owners for such damages , or other claims arising out of the location, construction, maintenance, relocation, or removal of the Encroachment, Owners agree to pay the City, its officers, agents , or employees, any and all costs and expenses
5. incurred by the City, its officers, agents, or employees in such action or proceeding, including, but not limited to, legal costs and attorneys’ fees.1
11. Insurance. Owners agree to provide the City with certificates of general liability insurance satisfactory to the City Attorney and Risk Manager. Certificates of liability insurance must be provided to the City annually. Owners must notify City thirty (30) days prior to cancellation or change in said insurance.
(a) General Liability insurance with minimum limits of $1 million per occurrence and $2 million in the aggregate shall be maintained at all times during the term of this Encroachment Agreement. These limits may be increased by the Risk Manager based on changes in the insurance marketplace.
(b) The City, its officers, officials, employees, agents, and volunteers are to be named as additional insureds for all liability arising out of ownership, maintenance, or use of the part of the premises located within the Encroachment Area. An additional insured form CG 2012, or equivalent, is required. Owners shall provide a Certificate of Insurance naming the City as a dditional insured; with the liability insurance limits of $1 million for each occurrence and $2 million in the aggregate. (c) The Owners’ insurance coverage must be primary as it pertains to the City, and the City’s insurance, or self-insurance, shall not be called upon to contribute to any loss or claim.
(d) Owners’ insurance will provide a waiver of subrogation in favor of the City by virtue of payment of loss by Owners’ insurance coverage. (e) Owners shall maintain continuous coverage for the life of this Agreement. Should Owners fail to maintain insurance as required, the City may take such action as it deems necessary to protect its interests. Such action may include, but is not limited to, termination of this Agreement or other action as the City deems appropriate.
12. Amendment or Modification by the Parties . This Agreement may not be modified or amended except by written agreement . Any such modification shall be recorded in the Office of the County Recorder, County of Contra Costa, California.
13. Miscellaneous.
13.1 Notices. Any notices, demands, or communications pursuant to this Agreement shall be in writing, and may be given either by (i) personal service, (ii) overnight delivery, or (iii) mailing via United States mail, certified mail, postage prepaid, return service requested, addressed (a) to the City at City Hall, 450 C ivic Center Plaza, Richmond, CA 94804 , and (b) to the Owners Property’s Owners at the address(es) shown on the Contra Costa County Tax Assessor’s latest equalized roll for Owners Property . Such notice or communication shall, if properly addressed,
1 The Parties will be reviewing this section further.
6. be deemed to have been given as of the date so delivered, or three (3) business days after deposit into the United States mail.
13.2 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.
13.3 Governing Law and Venue. This Agreement shall be construed and en forced in accordance with the laws of the State of California and any legal action shall be brought in a court of competent jurisdiction in Contra Costa County.
13.4 Attorneys’ Fees. In the event of any litigation or other legal proceeding arising from this Agreement, the prevailing party will be entitled to recover, in addition to any other relief awarded or granted, its reasonable costs and expenses, including attorneys’ fees, incurred in the proceeding.
13.5 Interest. Any amounts not paid when due pursuant to th is Agreement shall bear interest until paid in full at the rate of five percent (5%) per annum but not in excess of the maximum amount permitted by law.
13.6 Construction. This Agreement shall be construed according to its fair meaning as if prepared by all Parties to this Agreement . Owners acknowledge that this Agreement is being provided as an accommodation to Owners and, therefore, agree this Agreement shall be interpreted by a court to enforce all terms.
13.7 Waiver. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision thereafter.
13.8 Qualification and Authority. Each individual executing this Agreement on behalf of Owners represents, warrants, and covenants that (i) such entity is duly formed and authorized to do business in the state of its incorporation, (ii) such person is duly authorized to execute and deliver this Agreement on behalf of such entity in accordance with authority granted under the organizational documents of such entity, and (iii) such entity is bound under the terms of this Agreement.
13.9 Incorporation of Exhibit(s). Exhibit A, Exhibit B, and Exhibit C attached hereto are incorporated herein by reference.
[Signatures on Following Page]
7. IN WITNESS WHEREOF, this Agreement has been executed as of the date first above written.
OWNERS:
____________________________
Anna Ortiz
____________________________
James Ortiz
CITY:
CITY OF RICHMOND,
a municipal corporation
____________________________
Eduardo Martinez, Mayor
ATTEST:
__________________________________
Pamela Christian, City Clerk
APPROVED AS TO FORM:
__________________________________
David J. Aleshire, City Attorney
8 EXHIBIT A
LEGAL DESCRIPTION OF OWNER’S PROPERTY
9 EXHIBIT B
10. EXHIBIT C
DEPICTION OF ENCROACHMENT AREA
STATE OF CALIFORNIA )
) ss.
COUNTY OF ____________ )
On _________________, 202_ before me, ___________________________, a notary public, personally appeared _______________________________________________ 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 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.
_________________________________________
Notary Public
SEAL:
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 )
) ss.
COUNTY OF ____________ )
On _________________, 202_ before me, ___________________________, a notary public, personally appeared _______________________________________________ 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 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.
_________________________________________
Notary Public
SEAL:
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, accurac y or validity of that document.
01337.0027/868449.3
STATE OF CALIFORNIA )
) ss.
COUNTY OF ____________ )
On _________________, 202_ before me, ___________________________, a notary public, personally appeared _______________________________________________ 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 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.
_________________________________________
Notary Public
SEAL:
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which t his certificate is attached, and not the truthfulness, accuracy or validity of that document.