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Home My WebLink AboutC-6601 - Encroachment Agreement for Monitoring Wells EPN N2005-107 for 406 and 410 South Bay FrontRecorded in Official Records, Orange County RECORDING REQUESTED AND Tom Daly, Clerk -Recorder L� WHEN RECORDED RETURN TO: �� 10.00 -� 2005000302564 04:11 pm 04/20/05 Public Works Department 111 91 Al2 P14 10 City of Newport Beach 0.00 0.00 0.00 0.00 27.00 0.00 o.00 0.00 v Post Office Box 1768 Newport Beach, CA 92659-1768 Space above this lice Reserved for Use by Recorder ENCROACHMENT AGREEMENT FOR MONITORING WELLS (EPN2005-0107) THIS ENCROACHMENT AGREEMENT is made and entered into this 13th day of April , 2005, by and between Allan Beek, Seymour Beek, and the Barton Beek Trust I G (hereinafter "Owners"), and the City of Newport Beach, California, a municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of G California, (hereinafter "City"). RECITALS: WHEREAS, Owners are the owners of that certain real property located in the City of Newport Beach, County of Orange, State of California, commonly known as 406 & 410 South Bay Front, and legally described as Lots 4, 5 & 6, Block 7 of the Map of Resubdivision of Section One of Balboa Island, as shown on a map recorded in Book 6, Page 30, inclusively, of Miscellaneous Maps in the office of the County Recorder of Orange County, California (hereinafter the "Beek Property"). WHEREAS, City is the owner of certain fee and/or easement interests on the South Bay Front right-of-way adjacent to the Beek Property, as well as on the alley right-of-way at the rear of the Beek Property, which interests are more particularly depicted on "Exhibit A" attached hereto and incorporated herein by reference (hereinafter "City Property"). WHEREAS, Owners desire to install a ground water monitoring well and appurtenances on the City Property in the location depicted on Exhibit A within the South Bay Front right-of-way (hereinafter "Right -of -Way"), adjacent to the Beek Property. In addition, Owners have already installed a separate ground water monitoring well in the alley right-of-way adjacent to the Beek Property, as depicted on Exhibit A. These two monitoring wells shall be collectively referred to as the "Encroachments." Installation of the wells was directed by the Orange County Health Care Agency ("OCHCA"). WHEREAS, City has agreed to grant Owners an encroachment permit ("Permit") for the Encroachments in accordance with Chapter 13 of the Newport Beach Municipal Code on the condition that Owners executes this Agreement. WHEREAS, the parties hereto desire to execute an agreement outlining the conditions required by City to pen -nit Owners to install and maintain said Encroachments. NOW, THEREFORE, the parties hereto agree as follows: 1.0 License. The City hereby grants to Owners a license revocable with or without cause at any time by the City to construct and maintain the Encroachments upon all of the terms and conditions of the Pen -nit and this Agreement ("License"). 2.0 Covenants. (a) In General. Owners hereby agree to install, operate, inspect, monitor, maintain, relocate, and/or remove the Encroachments in accordance with this Agreement, the Public Works Department's Pen -nit requirements, and all applicable provisions of the City of Newport Beach Municipal Code, as amended from time to time. (b) Maintenance. Owners shall install, operate, inspect, monitor, maintain, and repair the Encroachments and the City Property so as to keep the Encroachments and such area in a safe, clean and secure condition at all times. Owners shall maintain the Encroachments in accordance with generally prevailing standards of maintenance, and pay all costs incurred in doing so. In the event that Owners do not maintain the Encroachments and the City Property as required herein, the City may tenninate the License as more particularly provided in Section 3 herein. (c) Removal of Encroachments. Owners agree to remove the Encroachments when the monitoring wells are no longer required by the Orange County Health Care Agency or any other public entity. At that time, Owners agrees to restore the City Property to its former condition, at Owners' sole cost and expense. (d) Monitoring Well Final Report. Owners hereby agree to submit the final report of the monitoring program to the City's Public Works Director. 3.0 Termination. The License is terminable with or without cause by the City at any time. Owners shall remove the Encroachments and restore the City Property to its former condition, at Owners' sole cost and expense, within thirty (30) days of written notice from the City. In the event Owners fail to remove the Encroachinents and restore the City Property within said time period, City shall have the right to do so without notice. Owners shall immediately reimburse the City for all out-of-pocket expenses expended to remove the Encroachments and restore the property. Said amounts shall accrue interest from the date expended by the City at the maximum non -usurious interest rate permitted by law. 4.0 Other Terms. Owners and City further agree as follows: (a) Owners may construct and install the Encroachinents and appurtenances incidental thereto, provided they are in substantial conformance with the plans and specifications on file in the City's Public Works Department, and as described on Exhibit "A" attached hereto. If the Encroachments as actually built or installed during the time of construction vary from the Encroachments approved herein, such variations or changes must be approved in advance by the Public Works Department and shall be shown on the "As Built" plans. (b) If City or other public facilities or improvements are damaged by the installation or presence of the Encroachments, Owners shall be responsible for the cost of repairs and restoration. 2 (c) Should City be required to enter onto said Right -of -Way to exercise its primary rights associated with the Right -of -Way, including but not limited to, the maintenance, removal, repair, renewal, replacement or enlargement of existing or future public facilities or improvements, City may remove all or a portion of the Encroachments, as required, and in such event: (i) City shall notify Owners of its intention to accomplish such work, provided that an emergency situation does not exist. (ii) Owners shall be responsible for arranging for any renewal, replacement, or restoration of the Encroachments affected by such work by City. (iii) Owners agree to bear the cost of any removal of the Encroachments or appurtenances affected by such work by City. (iv) Owners agree to pay all costs for renewal, replacement, or restoration of the Encroachments. 5.0 Material Breach. In the event any party breaches any material provision of this Agreement, the other party at its option may, in addition to the other legal remedies available to it, terminate this Agreement. In the event the breaching party is the Owners, City may enter upon the Right -of -Way and remove all or part of the improvements or Encroachments installed by Owners. Termination because of breach shall be upon a minimum of ten (10) days notice, with the notice specifying the date of termination. 6.0 Indemnity. Owners hereby agree to indemnify and defend the City, its City Council, boards, commissions, officers, agents and employees, from and against, any and all actions, suits, claims, damages to persons or property, losses, costs, expenses, penalties, obligations, errors, omissions or liabilities, including reasonable attorneys' fees, regardless of the merit or outcome of any such claim or suit, which may arise in consequence of the granting of this pennit, or in any way connected with or related to the design, construction, operation, maintenance or continued existence of the Encroachments. 7.0 Insurance. Owners represent that they have and shall maintain for the duration of this License, a general liability policy in the amount of $1,000,000 per occurrence for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by Owners, their agents, representatives, employees or subcontractors, or which may arise from or in connection with the design, construction, operation, maintenance or continued existence of the Encroachments. 8.0 Covenants Running With the Land. The covenants and restrictions by Owners set forth in this Agreement: (a) are made for the direct benefit of the City Property; (b) will constitute covenants running with the land and equitable servitudes; (c) 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 (d) 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. 9.0 Miscellaneous. (a) Successors and Assigns. Owners agree that this Agreement shall remain in full force and effect from execution thereof and shall be binding upon the heirs, successors, and assigns of Owners' interest in the land, whether fee or otherwise. (b) Amendment or Modification. This Agreement may not be modified or amended except by written agreement executed by the then -owner of the Applicant's property and the City Property and recorded in the Office of the County Recorder, County of Orange, California. (c) Governing. This Agreement shall be governed by and construed in accordance with the laws of the State of California. (d) 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. (e) Recordation. This Agreement shall be recorded in the Office of the County Recorder, County of Orange, California, and it shall serve as notice to all parties succeeding to the interest of Owners or the City that their use of the Beek Property and the City Property shall be benefited and/or restricted in the manner herein described. 0 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. APPROVED AS TO FORM: By: � Aaron C. Harp, Assistant City Attorney ATTEST: BV LaVonne Harkless, City Clerk 5 CITY OF NEWPORT BEACH, A Municipal corporation omer BludA, City Manager OWNER: Seymour Beek OWNER: Allan Beek By: OWNER: Barton Beek Trust r-tso"Z By: _ PL [Signatures Must be Notarized] CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of l/rz(1nq-�l ss. y On P� (r I �1 210 015 before me, 1 eltName �blic") Date W�„�1 and =Title =Officer "Jane =Doe, , personally appeared �ey + cy LEI LNl I. BROWN Commi3sion # 1336673 Z Z Notary Public - California i Z Orange County My Comm. Expires San 25, 2DO6 Name(s) of Signer(s) ❑ personally known to me .J proved to me on the basis of satisfactory evidence to be the person( whose name is are subscribed to th wit instrum n and acknowledged to me hZshe/they executed the same in hi er/their horized capacity s), an that by is er/their signature on the instrument the person *1 or the entity on behalf of which the person(, acted, executed the instrument. //ll WIIT��NES y hand and � official seal. (J L _ � o, Signature of NotaNkublic 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: �/ L,20U 0� O ` Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: VICIRWIM ❑ Individual Top of thumb here ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney -in -Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 9 1999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 - www.nationalnotary.org Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827 VAULT #2 VAULT #4 VAULT #5 PARK AND 5,000 -GAL COMMUNITY CENTER a 7,500 -GAL DIESEL 4,250 -GAL � GASOLINE GASOLINE o VAULT #1 VAULT #3 VAULT #5 5,000 -GAL 5,000 -GAL 1,000 -GAL DIESEL DIESEL WASTE OIL MW4 ALLEY I I I ALSNRI . (MW5) MW1 RISER CONNECTION TO THE UNDERGROUND VAULT WELL V31 1 RESIDENTIAL I STORAGE VES UNIT BUILDING L�fL�V21 (V3 bV4 ( Vdj MW1 RISER CONNECTION TO THE UNDERGROUND VAULT WELL V31 1 RESIDENTIAL I STORAGE VES UNIT BUILDING z LOCATION I COMPRESSOR I LOCATION OF C w CANISTERS Y Q Q U' � a CONDENSATE EXHAUST STAC 0 STORAGE I 1 -INCH BY 6 -INCH BY 8 -FOOT TACKLE WOOD FENCING MATERIAL, SHOP PAINTED TO MATCH EXISTING BUILDING MW7 I SHED �y FENCE MW6 0 ft. 12 ft. 20 ft. 40 ft. SCALE: 1" = 20' KEY MW3 EXISTING MONITORING WELLS MW6 PROPOSED MONITORING WELL RELOCATION MW6 APPROVED MONITQRING Wf�1,14Cf�j Q c� f r, 4„ u r BELOW GRADE AIR SPARGE RGE LI••N--EttS' CjjONN1IN�ECTEb TO HORIZONTAL VAULT WELLS AND ALSNR BELOW GRADE VAPOR EXTRACTION LINES CONNECTED TO VERTICAL VAULT WELLS AND ALSNR ASWR1 AIR-LIFT SPARGENAPOR RECOVERY WELL HARBOR FERRY MAINTENANCE BUILDING SPARGE& EXTRACTION MANIFOLDS SOUTH BAY FRONT (SIDEWALK) MONITORING WELL LOCATION PLAN ISLAND MARINE FUEL 406 & 410 SOUTH BAY FRONT BALBOA ISLAND, CALIFORNIA REVISED BY: ERIK FELDMAN FIGURE 2 1 DATE: 6/25/03 w z w w Y Q Q U' � a w 0 U) SOUTH BAY FRONT (SIDEWALK) MONITORING WELL LOCATION PLAN ISLAND MARINE FUEL 406 & 410 SOUTH BAY FRONT BALBOA ISLAND, CALIFORNIA REVISED BY: ERIK FELDMAN FIGURE 2 1 DATE: 6/25/03 City of Newport Beach Phone: 949-644-3311 Public Works Department Fax: 949-6"-3318 APPLICATION;FOR TEMPORARY STREET OR SIDEWALK CLOSURE APPLICANT INFORMATION VAME: Barton, Allan & Seymour Beek ADDRESS: 410 South Bay Front CITY: Balboa Island STATE: CA ZIP: 92662 PHONE (Day): (949)673-1070 (Night): , CONTRACTOR, OR EMERGENCY NAME: PW Environmental IBusiness License No. BT30005927 ADDRESS: 230 Dove Ct. CITY: Santa Paula STATE: CA Zip: 93060 PHONE (Day): (805) 656-4677 (Night): EXACT LOCATION OF ENCROACHMENT: 410 South Bay Front Use street address or approximate number of feet from nearest intersection) Reason for Encroachment: installation of a monitoring well as directed by OCHCA IDUMPSTER / HAULER COMPANY: Date Closure to Begin: April 1, 2005 Date Closure to End: April 1, 2005 Maximum 14 Days Time of Closure: 7:30 to 12:30 7.111 BELOW: TACKLE BALBOA FERRY SHOP MAINTENANCE FENCE BUILDING Approx. 85 ft. SOUTH BAY FRONT — _ — _ �SIDEwALK — — — — — KEY Proposed well NEWPORT BAY location 0 Proposed L—, encroached area L,Unui t JUNb Ut At's'KUVAL: Lu Z W Q H a t7 a BALBOA FERRY DOCK CITY RESERVES THE RIGHT TO REVOKE OR MODIFY CONDITIONS AT ANY TIME—] I (Permittee) hereby certify the information provided is true and correct, and I agree comply with the terms and conditions on the front and back of this permit. Permits guarantees to indemnify and hold the City of Newport Beach harmless against a claims, li bilin or judgments for damages arising out of permitee's,activities. X , Date: Reviewed by: Approved by:. Permit Fee: $ streetdosurepermitVnasters\slreetdosureapplication.xls Date: Date: Receipt No.: _ N5-blo-1 POWER OF ATTORNEY Dated April 8, 2005 The Undersigned, Allan Beek, and Barton Beek in his capacity as Trustee of the Beek family trust dated October 14, 1998, do hereby appoint Seymour Beek as their agent and attorney-in- fact, and the attorney-in-fact of each of them, for the purpose of executing on their behalf any and all documents including an Agreement with the City of Newport Beach entitled "Encroachment Agreement for Monitoring Wells" relating to the establishment or maintenance of pollution control or testing facilities of any kind on or about the property commonly known as 406 South Bay Front, on Balboa Island in the City of Newport Beach. WITNESS our signatures as of the date first above written. 11's,Qa —TA4 t& Allan Beek C L*� 4 a,",. S�� Beek, as Trustee of The family trust dated 10/14/98 CITY CLERK'S ACKNOWLEDGMENT State of California County of Orange On April 13 , 2005, before me, LAVONNE M. HARKLESS, CITY CLERK OF THE CITY OF NEWPORT BEACH, personally appeared Homer L. Bludau , personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. Dated this 13th day of April 2005. CAPACITY OF SIGNER Municipal Corporation Officer City Manager SIGNER IS REPRESENTING: City of Newport Beach WITNESS my hand and official seal. Y2- il�z //V - R - LA ONNE M. HARKLESS, CITY CLERK CITY OF NEWPORT BEACH, CALIFORNIA DESCRIPTION OF ATTACHED DOCUMENT: Encroachment Aqreement for Monitoring Wells (EPN2005-0107) # of Pages 10 Document Date: 04/13/2005 Signer(s) other than named: Seymour Beek Aaron C. Harp