HomeMy WebLinkAboutC-8956-1 - Encroachment Remediation Agreement and Permit to Enter for 1514 East OceanfrontENCROACHMENT REMEDIATiON AGREEMENT
AND PERMIT TO ENTER
This Encroachment Remediation Agreement AND Permit to Enter ("Agreement")
is made and entered into as of September 1, 2022, ("Effective Date") by and between
the CITY OF NEWPORT BEACH, a California municipal corporation and charter city
("City"), and Wylie A. Aitken and Elizabeth L. Aitken, Trustees of The Aitken Family
Trust under Revocable Trust Agreement dated September 10, 1982 ("Owner").
RECITALS
A. Owner is the owner of certain property in the City of Newport Beach, County of
Orange, State of California, with Assessor's Parcel Number 048-202-34, commonly
known as 1514 E. Oceanfront, Newport Beach, California 92661, as legally described
on Exhibit "A" attached hereto and incorporated herein by this reference ("Property").
B. Pursuant to the California Coastal Commission Consent Orders CCC-20-CD-02,
CCC-20-RO-01, and CC-20-AP-02 ("Consent Orders"), City and Owner are obligated to
remove all encroachments, including but not limited to, hardscaping, walls, fences, and
non-native plants, and perform designated remediation (collectively, "Remediation"), in
the area outside the boundary of the Property, as depicted on Exhibit "B" attached
hereto and incorporated herein by this reference ("Subject Area").
C. City has retained SGD Enterprises, doing business as Four Seasons
Landscaping ("Contractor"), to perform the Remediation in order to fulfil the obligations
of the Consent Orders.
D. Owner desires City utilize Contractor to carry out Remediation in the Subject
Area, to authorize City and Contractor to enter areas of the Property bordering the
Subject Area to carry out the Remediation, and to reimburse City a commensurate
amount of the cost.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Term. The term of this Agreement shall commence on the Effective Date, and
shall terminate July 31, 2023, unless terminated earlier as set forth herein.
2. Consideration. By or before September 5, 2022, or within seven (7) days of the
execution of this Agreement, whichever shall be later, Owner shall pay City a fixed sum
of Seven Thousand Five Hundred Dollars and No Cents ($7,500.00). Payment shall be
made in lawful currency of the United States in a form acceptable to City.
3. Remediation. City shall cause the Remediation of the Subject Area on behalf of
Owner in accordance with the terms and conditions of the Consent Orders and this
Agreement. All work shall be performed in a manner commensurate with community
professional standards and with the ordinary degree of skill and care that would be used
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by other reasonably competent practitioners of the same discipline under similar
circumstances.
4. Work Plan. Owner agrees to meet with City and/or its agents at the Property to
establish, in good faith, a work plan to accomplish the Remediation including the nature,
extent, and location of improvements to be removed, which shall be attached hereto as
Exhibit "C" and incorporated herein by this reference ("Work Plan"). Creation and mutual
agreement to a Work Plan is a condition precedent of this Agreement. Notwithstanding
the Work Plan, Owner agrees that the Remediation shall, at a minimum, satisfy the
Consent Orders, and additionally, Owner agrees that the nature, extent, and location of
improvements removed may be within the boundary of the Property.
5. Removal of Personal Property. By or before September 5, 2022, or within seven
(7) days of the execution of this Agreement, whichever shall be later, Owner shall cause
the removal of any and all of Owner's personal property from within five (5) feet of the
Subject Area and all areas identified in the Work Plan. Owner acknowledges that any
personal property not removed may be removed and disposed of by the City or its
agents in any manner without any compensation due to Owner..
6. Permit to Enter Property. Owner hereby grants City and its agents, including but
not limited to Contractor, a nonexclusive license to enter upon, over, under, and through
the Property to accommodate the performance of this Agreement. City shall not permit
any other party, except City's duly authorized agents, to enter or use those portions of
the Property pursuant to this Agreement without Owner's prior written consent.
7. Use and Enioyment. During performance of this Agreement, City and its agents
shall employ reasonable efforts not to unduly interfere with the use and enjoyment of
the Property by Owner
8. No Interest in Property. Nothing herein shall be deemed to create a lease,
easement, or conveyance of any property right, or to grant any possessory or other
interest in the Property, other than a right to enter upon the Property to perform the
Remediation.
9. No Recording. Neither this Agreement, nor any memorandum hereof, shall be
recorded with a county recorder.
10. Government Permits. City shall be responsible to obtain at its sole cost and
expense all governmental permits and authorizations of whatever nature as may be
required by any and all applicable governmental agencies required to perform the
Remediation, to the extent City is reasonably able to do so.
11. Further Assurances. In the event a permit, authorization, or other document or
performance is required that City is reasonably unable to obtain, Owner agrees to
execute documents and take further action as may be reasonably necessary to fulfill
such requirement. Any fee imposed by a government agency for issuance of a permit
or authorization required for the Remediation shall be borne by City.
12. Waiver and Release. Owner acknowledges that performance of this Agreement
may entail cutting, sawing, chipping, breaking, digging, and/or removal of existing
improvements, including but not limited to, hardscape, walls, tile, blocks, concrete,
awnings, or other improvements. Notwithstanding anything to contrary, Owner hereby
waives and releases City and its agents, including but not limited to Contractor, from
any and all claims or damage of every kind or nature whatsoever, either in law or in
equity, foreseen or unforeseen, known or unknown, which arise or may hereafter arise
out of or relate to the performance of this Agreement, and includes but is not limited to,
waiver of the provisions of the California Civil Code §1542, which states:
A general release does not extend to claims that the creditor or releasing
party does not know or suspect to exist in his or her favor at the time of
executing the release and that, if known by him or her, would have
materially affected his or her settlement with the debtor or released party.
13. Maintenance and Control of Owner's Property. Upon completion of the
Remediation, Owner agrees that the City shall have no responsibility for maintenance,
ownership, or control of the Property, and that all maintenance, ownership, and control
of the Property shall be the sole responsibility and expense of Owner. Additionally,
Owner agrees that City shall not be responsible for, or required to, replace, refinish,
repair, smooth the surface or edge, or complete any portion of any improvement that
remains upon the Property after completion of the Remediation, and that any and all
such work that may be required shall be the sole responsibility and expense of Owner.
14. Maintenance and Control of Subject Area. Upon completion of the Remediation,
maintenance and control of the Subject Area shall be governed by and subject to all
applicable law.
15. Signs. Owner authorizes City to place signs as required by the Consent Orders,
and as the City deems reasonably necessary, to notify the public of the work, for safety
purposes, or other such lawful purpose.
16. Indemnity.
16.1 City shall indemnify, defend, and hold harmless Owner, its agents,
officials, employees, and volunteers (collectively, the "Owner Indemnitees") from
and against any and all claims (including, without limitation, claims for bodily
injury, death or damage to property), demands, obligations, damages, actions,
causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including, without limitation, attorneys' fees, disbursements and court
costs) of every kind and nature whatsoever (individually, a Claim; collectively,
"Claims"), which may arise out of the sole negligence, recklessness, or willful
misconduct by City or its agents in the performance of the Remediation pursuant
to this Agreement or City's presence or activities conducted (including the sole
negligence, reckless, and/or willful acts, errors and/or omissions of City, its
principals, officers, agents, employees, vendors, suppliers, consultants,
subconsultants, contractors, subcontractors, anyone employed directly or
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indirectly by any of them or for whose acts they may be liable for any or all of
them). Notwithstanding the foregoing, nothing herein shall be construed to
require City to indemnify the Owner Indemnitees from any Claim arising from the
negligence or willful misconduct of the Owner Indemnitees.
16.2 Owner shall indemnify, defend, and hold harmless City, its agents,
officials, employees, and volunteers (collectively, the "City Indemnitees") from
and against any and all claims (including, without limitation, claims for bodily
injury, death or damage to property), demands, obligations, damages, actions,
causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including, without limitation, attorneys' fees, disbursements and court
costs) of every kind and nature whatsoever (individually, a Claim; collectively,
"Claims"), which may arise from or in any manner relate (directly or indirectly) to
the negligence, recklessness, or willful misconduct of Owner or its agents or
Owner's presence or activities conducted (including the negligent, reckless,
and/or willful acts, errors and/or omissions of Owner, its principals, officers,
agents, employees, vendors, suppliers, consultants, subconsultants, contractors,
subcontractors, anyone employed directly or indirectly by any of them or for
whose acts they may be liable for any or all of them). Notwithstanding the
foregoing, nothing herein shall be construed to require Owner to indemnify the
City Indemnitees from any Claim arising from the sole negligence or willful
misconduct of the City Indemnitees.
16.3 Nothing in this indemnity shall be construed as authorizing any award of
attorneys' fees in any action on or to enforce the terms of this Agreement. The
indemnity obligations set forth in this Agreement shall apply to all claims and
liability regardless of whether any insurance policies are applicable. Insurance
policy limits do not act as a limitation upon the amount of indemnification to be
provided.
16.4 The rights and obligations set forth in this Section shall survive the
termination of this Agreement.
17. Insurance.
17.1 City shall maintain, or cause to be acquired and maintained, insurance, or
self-insurance, as follows: (a) Workers' Compensation that equals or exceeds
statutory minimum requirements; (b) Commercial General Liability that equals or
exceeds $1,000,000 per occurrence and $2,000,000 aggregate for bodily injury,
personal injury and property damage; (c) Automobile Liability that equals or
exceeds $1,000,000 per accident for bodily injury and property damage.
Additionally, City shall require its contractors, subcontractors and consultants
who perform the Remediation pursuant to this Agreement to maintain the same
types and limits of insurance as required of City by this Agreement.
17.2 Owner shall maintain, or cause to be acquired and maintained,
homeowners insurance (including coverage for both property damage and
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liability coverage) covering the Property in an amount that equals or exceeds
$1,000,000 per occurrence, and including but not limited to, third party claims,
actions, and lawsuits for bodily injury, personal injury and property damage.
Additionally, in the event Owner or Owner's agents conduct any work in or near
the Subject Area during the course of the Remediation, Owner and Owner's
agents shall maintain, or cause to be acquired and maintained, insurance that
equals or exceeds the insurance required of City by this Agreement covering
any and all claims, actions, and lawsuits arising out of or related to Owner and
Owner's agents' work. Upon request, Owner shall furnish City with certificates of
insurance and copies of policies and declarations as requested.
18. Termination. Either Party may terminate this agreement upon written notice
delivered at least seven (7) days prior to the commencement of the Remediation
pursuant to this Agreement.
19. Notices. All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the second
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
All notices, demands, requests or approvals from Owner to City shall be
addressed to City at:
Attention: Public Works Department
Public Works Director
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
All notices, demands, requests or approvals from City to Owner shall be
addressed to Owner at:
Attention: Wylie A. Aitken and Elizabeth L. Aitken
1514 E. Ocean Front
Newport Beach, CA 92661
20. Standard Provisions.
20.1 Recitals. The parties acknowledge that the above Recitals are true and
correct and are hereby incorporated by reference into this Agreement.
20.2 Waiver. A waiver of any term, covenant, or condition shall not be deemed
to be a waiver of any subsequent breach of the same or any other term,
covenant or condition.
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20.3 Assignability. This Agreement may not be assigned without the prior
written approval of City.
20.4 Compliance with all Laws. Each party shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all
governmental entities, including federal, state, county or municipal, whether now
in force or hereinafter enacted.
20.5 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto,
and all preliminary negotiations and agreements of whatsoever kind or nature
are merged herein. No verbal agreement or implied covenant shall be held to
vary the provisions herein.
20.6 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and any other attachments attached
hereto, the terms of this Agreement shall govern.
20.7 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed
for or against either party by reason of the authorship of the Agreement or any
other rule of construction which might otherwise apply.
20.8 Amendments. This Agreement may be modified or amended only by a
written document executed by both parties and approved as to form by the City
Attorney.
20.9 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions of this Agreement shall continue in full force and effect.
20.10 Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought
relating to this Agreement shall be adjudicated in a court of competent
jurisdiction in the County of Orange, State of California.
20.11 Equal Opportunity Employment. To the extent applicable, each party
represents that it is an equal opportunity employer and shall not discriminate
against any contractor, subcontractor, employee or applicant for employment
because of race, religious creed, color, national origin, ancestry, physical
handicap, medical condition, marital status, sex, sexual orientation, age or any
other impermissible basis under law.
20.12 Multiple Owners. If more than one person executes this Agreement on
behalf of Owner, then the obligations and liabilities of all such persons shall be
joint and several.
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20.13 No Attorney's Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
20.14 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
APPROVED AS TO FORM
CITY ATTORNEY'S OFFICE
Date: 9�6�Zz
,B
Air C. Ma p
Ci y Attorney
ATTEST:
..
.6016, NEW ON-
-
LICENSOR. CITY OF NEWPORT
BEACH, a California municipal corporation
and charter city
Date: �1 I 24 2Z
By:
Grace KXong
City M er
OWNER: Wylie A. Aitken and Elizabeth L.
Aitken, Trustees of The Aitken Family
Trust under Revocable Trust Agreement
dated September 10, 1982
Date: 4 e-?, a OR
By. 6�'
Wylie Aitken
Trustee
Date: 6.a- ao'i2Q
By. it. � C-161 �i s 14—�-�
Elizabeth L. Aitken
Trustee
[END OF SIGNATURES]
Attachments: Exhibit A — Legal Description of Property
Exhibit B — Depiction of Subject Area
Exhibit C— Work Plan
Exhibit A
Lot 4 Block B of Tract No. 618, in the City of Newport Reach, County of Orange, date of
California, as per Map recorded in Book 17, Pages 33 to 36 inclusive of Miscellaneous Maps,
in the Off Ice of the County Recorder of said County,
A-1
Exhibit B
B-1
Parcel Boundary
Phase 1 - Encroachment Removal
Hardscape/Stepping Stones
I
Lawn
Ornamental Shrub/Groundcover
Ornamental Tree
}tr Wildland Weeds/Escaped Ornamental
QCity Restoration Area'
*Areas labelled "City Restoration Area" are not
associated with any private residence address,
but will be subject to removal and restoration
activity by the City
Phase 2 - Iceplant Removal
Iceplant
N
V 1-1 2`.; ::la
.1 won = 15 rent
PENINSULA POINT ENCROACHMENT
REMOVAL AND REPLACEMENT PLAN
East of G Street
GLENN LLIKOS ASSOCIATES
DRAWING 4 - PAGE 3
VEGETATION DETAIL
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Exhibit C
C-1
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Contractor will survey and set property corner markers outside patio
Property owner will remove gate and other items prior to work.S�0
Contractor to sawcut just inside the property line.Z
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Contractor will strive to execute a'straight vertical cut,
however, irregularities in the material may prevent a smooth cut.
Contractor shall remove patio, walls and planters on beach side of sawcut line. r 7S?6
Sand will be installed to fill low areas to match adjacent grade. 'tZ
it �,(, O� . �tC-K/ 07 •�0�� _„ O" 3
Property owner's signature Date
x Bob Stein
- August 24, 2022
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