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HomeMy WebLinkAbout2022-11-16 - Resolution No. 2022-33RESOLUTION NO. 2022-33 RESOLUTION OF THE BOARD OF DIRECTORS OF THE YORBA LINDA WATER DISTRICT ADOPTING AN ENCROACHMENTS POLICY WHEREAS, it is the policy of the Yorbo Linda Water District to protect its property and property rights from encroachments because such encroachments may (a) violate the constitutional prohibition against the 'gift of public funds' under article XIV, section 6, of the California Constitution, (b) be a trespass and/or public and private nuisance to District real and/or personal property, (c) expose the District to liability, and/or (d) threaten the integrity of District facilities and infrastructure that provide water and sewer service to District customers: and WHEREAS, it is the desire of the Board of Directors to establish a procedure to mitigate or eliminate encroachments on District property or property rights by adoption of on Encroachments Policy. NOW THEREFORE BE IT RESOLVED by the Board of Directors of the Yorbo Linda Water District hereby adopts the Encroachments Policy as attached hereto and by this reference incorporated herein. PASSED AND ADOPTED this 16"^ day of November 2022 by the following called vote: AYES: NOES: ABSTAIN: ABSENT: ATTEST: Directors DesRoches, Hawkins, Jones, Lindsey, and Miller None None None J. WoyneV^Ailler, PhD, President Yorbo Linda Water District Annie Alexander, Board Secretary Yorbo Linda Water District Reviewed as to form by General Counsel: Andrew B. Gogen^sq. Kidman Gagen Jraw LLP Resolution No. 2022-33 Adopting Encroachments Policy YORBA LINDA WATER DISTRICT 4010-002-POL Page 1 of 4 ENCROACHMENTS Dept/Div: Engineering Approved By: Resolution No. 2022-33 Effective Date: November 16, 2022 Applicability: District Wide Supersedes: N/A See Also: N/A 1.0 Policy Regarding Encroachments on District Property and Property Rights 1.1 It is the policy of the Yorba Linda Water District to protect its property and property rights (e.g. easements, licenses, etc.) from encroachments because such encroachments may (a) violate the constitutional prohibition against the ‘gift of public funds’ under article XIV, section 6, of the California Constitution, (b) be a trespass and/or public and private nuisance to District real and/or personal property, (c) expose the District to liability, and/or (d) threaten the integrity of District facilities and infrastructure that provide water and sewer service to District customers. 2.0 Purpose of This Policy 2.1. The purpose of this Policy is to establish the procedure to mitigate or eliminate an encroachment on District property or property rights. 3.0 Determining Whether an Encroachment Violates District Property Rights 3.1 When a potential encroachment is identified, District staff will obtain the documents that identify the District’s ownership of the property or District property rights in which there is a potential encroachment. 3.2 District staff, who may consult with District Counsel, will review the documents regarding the potential encroachment to determine if the potential encroachment violates the District’s property rights such as a trespass on District property or breach of a written easement. 3.3 District staff will keep a chronology of communications and attempted contacts described next with the encroachment owner and City. 4.0 Procedure to Mitigate or Eliminate the Encroachment 4.1. If the District determines that the encroachment is a violation of the District’s property rights, then District staff will contact the City where the property is located to determine whether the encroachment is a result of the encroachment owner’s failure to obtain a building permit required under the City’s municipal code. If so, District staff may ask the City to enforce its municipal code and remove the unpermitted encroachment. If not or the City chooses not to do so, then District staff will contact the encroaching owner of the property and/or owner of encroaching utilities where the encroachment is located and (a) advise the encroaching owner of the encroachment, and (b) in the District’s sole discretion, either request the encroaching owner remove the encroachment or sign a Declaration of Restrictive Covenants (“Declaration”), which is described immediately YORBA LINDA WATER DISTRICT 4010-002-POL Page 2 of 4 below. District staff will make at least five total attempts to contact the owner by a combination of the following, which should include at least two of the following: email, phone, certified mail, and in person. 4.1.1 The Declaration conditionally permits, among other terms and conditions, the encroachment as follows: (a) the encroachment owner may continue to encroach, but the District has the right to request removal in the event of necessary repairs to District facilities or other actions, (b) no further encroachments may be installed by the encroachment owner, (c) the encroachment owner assumes full responsibility and liability, and shall pay, for any costs or damages to District’s property or facilities arising from encroachment, and (d) the encroachment cannot be repaired or replaced for any reason, unless approved by the District. The template for the District’s Declaration, which may be amended from time to time, is attached hereto as Exhibit A. 4.2. If District staff receives a response from the owner, then District staff will either (a) schedule a site inspection, if necessary, to prepare the Declaration and/or confirm the scope of the encroachment, or (b) establish a date for when the encroachment must be removed. Under (a), if a site inspection is not necessary, or after the site inspection is concluded, District staff will prepare a Declaration and transmit it to the encroachment owner for the owner’s signature. In addition to the initial transmission of the Declaration, District staff will make at least four additional attempts to receive a signed Declaration from the owner by a combination of the following, which should include at least two of the following: email, phone, certified mail, and in person. 4.3. If (a) District staff does not receive a response from the encroachment owner under Sections 4.1 and 4.2, or (b) the encroachment owner rejects the District’s request to remove the encroachment or sign the Declaration, then District staff will advise the Board of Directors of (a) or (b) and, unless the Board directs staff differently, refer the matter to District Counsel. 4.3.1 District Counsel will prepare at least three letters to the owner. The first and second letter will include a copy of the Declaration and provide the owner with approximately two weeks to respond. The third or final letter will include a copy of a draft complaint and provide the owner with approximately two weeks to respond. Each letter will be transmitted via email and U.S. mail. 4.3.2 If (a) the owner (i) does not respond to the final letter or (ii) rejects the District’s request to remove the encroachment or sign the Declaration, and (b) the District Board of Directors has authorized District counsel to initiate litigation against the owner, then District Counsel will file and serve the complaint against the encroachment owner. 4.4. Attached as Exhibit B is a flow chart that summarizes the above-described procedure to mitigate or eliminate the encroachment. If there is any conflict between the flow chart and language in this Policy, the Policy shall prevail and control. YORBA LINDA WATER DISTRICT 4010-002-POL Page 3 of 4 EXHIBIT A DECLARATION OF RESTRICTIVE COVENANTS YLWD DoRC Rev. 11/08/22 1 RECORDING REQUESTED BY and when recorded return to: Yorba Linda Water District PO Box 309 Yorba Linda, California 92885-0309 This is to certify that this Declaration of Restrictive Covenants is presented for recording under the provisions of Gov. Code Sec. 27383 by the Yorba Linda Water District in performance of an official service thereof. ____________________________________ Richard Mark To y General Manager Space Above This Line for Recorder’s Use DECLARATION OF RESTRICTIVE COVENANTS (ENCROACHMENT ON YLWD EASEMENT) THIS DECLARATION OF RESTRICTIVE COVENANTS (“Declaration”) is made and effective on [DATE] by and between YORBA LINDA WATER DISTRICT (“YLWD”), a public agency, created and operating under the authority of Division 12 of the California Water Code, and [NAME(S)] (“Owner”). YLWD and Owner are sometimes referred to herein individually as “Party” and collectively as “Parties”. RECITALS A. The Owner is the legal owner of that certain real property located at [ADDRESS] (“Subject Property”), which is more particularly described as follows: PARCEL X IN THE CITY OF YORBA LINDA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON MAP FILED IN BOOK XX, PAGE X OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. B. YLWD owns an Easement, as identified on a Deed of Easement, recorded on Month Day, Year, in Book XXXX, Page XXX, Official Records of Orange County, California (“Easement”), across a portion of the Subject Property. The Easement is attached as Exhibit “A”. Within the Easement, YLWD owns and maintains an X-inch water/sewer main pipeline and appurtenant structures (“YLWD Facilities”). C. The Owner desires to (collectively herein referred to as “Improvements”) within and along the Easement area. This Declaration prohibits Owner, without YLWD’s authorization and a recorded amendment to this Declaration, from constructing and/or retaining any improvements (“Unauthorized Improvements”) other than the Improvements. YLWD DoRC Rev. 11/08/22 2 D. The construction, existence, and/or use of the Improvements within and along the Easement area is hereinafter referred to as the “Encroachment”, which is illustrated in Exhibit “B” attached hereto. E. YLWD conditionally consents to the Encroachment as stipulated in this Declaration. The Owner is aware and hereby acknowledges that the Encroachment may lead to problems affecting and/or interfering with YLWD’s use of the Easement and access to YLWD Facilities. F. Although the construction and subsequent existence of the Improvements within and along the Easement area may interfere or restrict YLWD’s Easement rights, which may cause the Improvements to be damaged or demolished as authorized under this Declaration, the Owner wishes to proceed with the Encroachment. DECLARATION NOW, THEREFORE, in consideration of the mutual promises, covenants, and terms and conditions herein, the Parties declare as follows: 1. Covenant Running with Land. This Declaration constitutes a covenant running with the land as provided by the California Civil Code Section 1468 and shall benefit, burden, and bind the successive owners of the Subject Property and the Easement. 2. Successors and Assigns Obligation. Since the Owner wishes to retain the Encroachment, this Declaration obligates the current and future owners of the Subject Property to remedy any current and future adverse events and to fund any necessary maintenance and repair costs on the Easement and/or Subject Property that may arise in full or in part due to the existence, construction, or damages to the Easement and/or YLWD Facilities caused by the Encroachment. 3. Damages to YLWD Facilities. The Owner assumes full responsibility and liability and shall pay for any cost(s) or damage(s) to the YLWD Facilities, arising from the Encroachment. YLWD shall not be responsible for any cost(s) or damage(s) to the YLWD Facilities that arise from the Encroachment. 4. Damages to Third Parties. The Owner, its successors or assigns, agrees to defend, indemnify and hold YLWD, its officers, directors, employees, agents, and consultants, harmless against any third-party claims arising out of the Encroachment. 5. Damages to Improvements. The Owner acknowledges that the Improvements may be damaged or demolished to permit access to, or work within and under, the Easement area and YLWD Facilities. YLWD, its officers, directors, employees, agents, and consultants, shall not be responsible or liable for any damage(s) to, or demolition of, the Improvements which result from YLWD’s exercise of rights under the Easement. The Owner, its successors or assigns, waives all known, unknown, and future claims, liabilities, causes of action, and expenses (including, but not limited to, attorneys’ fees) against YLWD, its officers, directors, employees, agents, and consultants, for losses and damages to the Improvements and from any obligation to protect, preserve, repair, or replace the Improvements. YLWD DoRC Rev. 11/08/22 3 6. Unauthorized Improvements. Unless approved in writing by the District, Owner shall not construct and/or retain any improvements other than the Improvements. If Owner constructs and/or retains any improvement other than the Improvements without District approval, YLWD may (a) require the improvement to be removed promptly at the Owner’s expense, (b) revoke the Encroachment, and/or (c) exercise any other legal remedy available to YLWD. Such Unauthorized Improvements shall be treated as Improvements and subject to this Declaration until YLWD makes it election under (a), (b), and/or (c) of this provision. GENERAL PROVISIONS 7. Recitals. The above recitals are true and correct. 8. Entire Agreement. This Declaration represents the entire and integrated agreement between the Parties and supersedes all prior negotiations, representations, or agreements, either written or oral. 9. Amendment to this Declaration. This Declaration may be amended only by written instrument signed by the Parties. 10. No Implied Waivers. If any term, condition, or provision of this Declaration is breached by either Party and thereafter waived by the other Party, that waiver will be limited to the specific breach so waived, and will not be deemed either to be a continual waiver or to waive any other breach under this Declaration. 11. Governing Law and Interpretation. This Declaration is to be governed under the laws of the State of California and interpreted according to its plain meaning as if drafted by both YLWD and Owner. 12. Relationship of Parties. Nothing in this Declaration shall be deemed to create any form of business organization between the Parties, including, without limitation, a joint venture or partnership. 13. Resolution of Disputes. Pursuant to California Code of Civil Procedure Sections 638 et seq., any dispute arising out of this Declaration shall be resolved by judicial reference, in Orange County, by one judicial referee to determine all issues in dispute, whether of fact or of law, and to report a statement of decision. This is a waiver of any right that may exist to a jury trial, but the right to appeal is preserved. The Parties shall meet to select the referee no later than thirty (30) days after service of the initial complaint on all defendants named in the complaint. The referee must have substantial experience in the type of matter in dispute and without any relationship to either Party, unless the Parties agree otherwise. All costs incurred in connection with the judicial reference proceeding, including the cost of the stenographic record, shall be advanced equally by the Parties. However, the referee shall have the power to reallocate such costs among the Parties in the referee’s statement of decision. 14. Attorney’s Fees. In the event of any claim or legal action arising out of this Declaration, the prevailing party shall be entitled to reasonable costs and expenses, including attorney’s fees. YLWD DoRC Rev. 11/08/22 4 15. Severability. If any provision, right, or covenant of this Declaration is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the voided provision, right, or covenant shall be deemed severed from the remaining provisions of this Declaration, which shall remain valid and enforceable as permitted by law, and the Parties shall negotiate in good faith to replace the unenforceable provision(s) in accordance with the original purpose and intent of this Declaration so stated in the above Recitals. 16. Counterparts. This Declaration may be signed in multiple counterpart copies (signatures may be by facsimile or electronic mail), each of which shall be deemed an original. 17. Capacity of Signatory. The undersigned executing this Declaration on behalf of YLWD and Owner hereby personally warrant by signing this Declaration that they are authorized to bind such Party in executing this Declaration and are acting within the course and scope of that authority. 18. Recording of Declaration. This Declaration shall be recorded in the Office of the Recorder of the County of Orange, California, and shall constitute notice to all successors and assigns of the title to the Subject Property of the rights and obligations in this Declaration. Approved as to Form: YORBA LINDA WATER DISTRICT Kidman Gagen Law, LLP _____________________________ General Counsel President _____________________________ Engineering Manager General Manager OWNER: Name of Signer Name of Signer YORBA LINDA WATER DISTRICT 4010-002-POL Page 4 of 4 EXHIBIT B FLOW CHART PROCEDURE TO MITIGATE OR ELIMINATE THE ENCROACHMENT EXHIBIT "B" DATE: 11/2022 ENCROACHMENTS POLICY FLOW CHART LEGEND: (ENCROACHMENT IDENTIFIED ) ( START/END 1 I START COMMUNICATIONS LOG / 1 DECISION I CONTAC lT CITY 1 ACTIVITY CITY PERMIT? NO CITY TO ENFORCE AYES MUNICIPAL CODE? DOCUMENT YES CITY & YLWD TO COORDINATE ACTION MIN. 5 ATTEMPTS TO CONTACT r OWNER VIA 2 OF THE FOLLOWING: EMAIL, PHONE, CERTIFIED MAIL OR NO IN PERSON SITE INSPECTION PREPARE & SEND LETTER PREPARE & SEND TO INFORM OWNER OF DRAFT DORC TO INFORM ENCROACHMENT REMOVAL DECISION = OWNER DATE \/ TT DRAFT DORC ACCEPTANCE - LTO OWNER SENT REFUSAL SENT TO OWNER ACCEPTANCE REMOVED & FINAL INSPECTION NO RESPONSE NO RESPONSE MIN. 5 ATTEMPTS TO MIN. 5 ATTEMPTS TO ACCEPTANCE CONTACT OWNER VIA 2 NO , ADVISEBOARD �� NO CONTACT OWNER VIA 2 ACCEPTANCE OF THE FOLLOWING: RESPONSE RESPONSE OF THE FOLLOWING: EMAIL, PHONE, CERTIFIED EMAIL, PHONE, CERTIFIED MAIL OR IN PERSON MAIL OR IN PERSON STAFF CONTACTS lDISTRICT COUNSEL 1 SEND LETTER TO OWNER (IF APPLICABLE, ATTACH DORC) VIA EMAIL & U.S. MAIL REFUSAL- ALLOW 2 WEEKS TO = ACCEPTANCE RESPOND NO REPONSE 1 2ND LETTER TO OWNER VIA EMAIL & U.S. MAIL I REFUSAL ALLOW 2 WEEKS TO ACCEPTANCE RESPOND NO REPONSE 1 3RD LETTER & DRAFT COMPLAINT VIA EMAIL & U.S. MAIL ALLOW 2 WEEKS TO RESPOND NO RESPONSE r r BOARD TO CONSIDER AUTHORIZING DISTRICT COUNSEL TO INITIATE LITIGATION r � r ( COMPLAINT DTOEOWNER ) (TAKE OTONBOARD FOR OAPPROVAL)