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HomeMy WebLinkAboutC-8956-3 - Encroachment Remediation Agreement and Permit to Enter for 1324 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 Margo E. Bahan, Trustee, or the successor Trustee(s) fbo Margo E. Bahan, Margo E. Bahan Trust, UDT July 7, 2011 ("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 048-170-21, commonly known as 1324 E. Ocean Front, Newport Beach, California 92661, and additionally, commonly known as 111 F St., Newport Beach, California, 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 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 Enjoyment. 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. 2 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 iiot 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 Subiect Area. Upon completion of the Remediation, maintenance and control of the Subject Area shall be governed by and subject to all applicable law. 15. Sims. 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 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 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 Contract 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: Margo E. Bahan 1324 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 tern, 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. 5 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. 20.13 No Attorneys 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] 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: By:y _ Aaron C. Harpy City Attorney - ATTEST: Date: Leilani I. Brown City Clerk LICENSOR: CITY OF NEWPORT BEACH, a California municipal corporation and charter ci , Date:..._ Grace eung City IiaKager OWNER: Margo E. Bahan, Trustee, or the successor Trustee(s) fbo Margo E. Bahan, Margo E. Bahan Trust, UDT July 7, 2011 Date: < I ;t / Z Z_. By:�,-.. Margo E. qhan Trustee [END OF SIGNATURES] Attachments: Exhibit A — Legal Description of Property Exhibit B — Depiction of Subject Area Exhibit C — Work Plan 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. APPROVED AS TO FORM LICENSOR: CITY OF NEWPORT CITY ATTORNEY'S OFFICE BEACH, a California municipal corporation Date: 916 A on .Harp Cit ttorney ATTEST: and charrpty /� Date: __11 (p 7/Z By: Grace ung City M ager OWNER: Margo E. Bahan, Trustee, or the successor Trustee(s) fbo Margo E. Bahan, Margo E. Bahan Trust, UDT July 7, 2011 Date: S % 5C /z L BYA-e'zj(7-t Margo E. Ohan Trustee [END OF SIGNATURES] Attachments: Exhibit A — Legal Description of Property Exhibit B — Depiction of Subject Area Exhibit C — Work Plan 0 Exhibit A THU 'l0t.t'l*tlEA1 T141?1,Y 45,00 FRET OF `iEUVrI PORTION OF FRACTTON L SECTION 2, T:?WNSH I P 7 SOUTH, R..ANGR j 1.0 W13ST, OF THE :�AV 13JjJ,NAIWlNO MERIDIAN, IN '1'TTic CX':T'Y OF NE' PORT BRAUJI, COUNTY L)F 1)RAN[3R, ISTA.'IT, OF CALIFORNIA, AC(-!(wj)TKC TO AN €7V I CI AT, PLAT or SAID LAND FILED IN I -HE DISTRICT L7U,11:) 19f)rj, DP.SCR TT3ED AS FOLLOWS: BE'V7:I:NNIN'i; AT A POINT ON A LINE 1?14RALLE7 WITH AND „0TrrTIFA.STETlLY 35.00 FEET 9� ROM '111ff 1`FC)Wl'HWESTERLY I,TN13� 0V L4 T S IN BLOCK 2 Z OF THE EAST SIDE 1"'s DITI€ N TO TiIE EAL13(.'A TRACT, As PER MAP RP(..!C1JtiDVl) IN E;UOIC 4 PAGrE 20 OF KISCE'sLLr'4P,'[ OTIS MAPS, IN TIl"E, OFFICE OF THE (l[,?(_€NTY RECORDER OF S',AJ D '(1UN77f, SAID P(l tNr BEING 8011TH 19 DEGREES 50 M'l.NI TES WEST 100,00 FEET FROM THR NORTHEPUSTIUZLY 1, INR OF SAID LOT 9 THENCE CE3 SOUTIi 1 c# DEGREES 50 M't.NIJ''I"]f,S WEST 102.42 FENT AT.,+.1NG3 SAID PARALLEL LINE; THENCE SO[_I"11i 69 DEGREES 59 MINITrES 2 S I' 35 .00 F X.13T TO A I, I:NL PA.RALLEt WITH AND SOUTHEAITE?'12LY 170.G0 V[i'13'T' FROM "111H 1SiC7E1TH101.13TERLY. LINE OF 'SIA I:T] LOT 9 1- TH13" C H NORTH 19 CIIi€ REgS 5C MINUTES EAST 102 . M, F•ET3'I' TO A PO I: r ON SAID PARALLEL LINH >>€ 01'11 1.9 DEGREES 50 MINI-FrE5 WEST : 00.00 FEET FRC1M SAID NORTTTRASTBR'LY LINK OF LOT 9 r 'IERTvC. NORTH 70 DEGREEF, F, (II'r MTPZLTTES WEST 1 3S , 00 FRET TO THE PC.INT OLD E ROrTNITING. AN BASEMENT FOR INGRE2S ANn EGRESS OVIIR THE NOR-1' 1EASTERLY 29.00 FEET 01.E , 'A°FIr' r PORTTCIN OF I-eRA.(TT0lgAL SECTION 2, TOWN. HTP 7 SOUTH, RANGE 1.0 WEST, OIL "1HU AIAN BEralA DINO MERIDIAN, IN TILE CITY CIE 141Eb"Rit�(.1�RT BEACH, C:[)I N-.'Y OF ORANG STATE OF, 4_`A,LIr,CiREd.trA, ACCCIRIJING TO ,AN OFFICIAL ".�l,A'"r OF SAID LAND FILI1'I7 IN THE 1]TSTRICT LANI.) C)F�I�IC�B, SEPTEMTIF,14, 11, 19CS D8,'C'.I?IE3FD h:; FOLLOWS: I113(C7INNING AT A PO7:NT ON A LINN PARALLEL WVVIJ AND SO'[TI'EIVASTERLY 35.00 F'I"sRT FROM THE DNC31 T73WESTER.LY 1,.L[JT:'OF LOT 9 IN 13LOCK 22 OF TIjE RA23 1' SIDE ADDITION TO THR II L13OA TRACT, AS Pli.- P. MA2 RE OII7.T_ ED IN 110010, 4 PAGE 20 OF NIS("'!`I,1.AT' EOUS MAPS, IN �T11G: OFFICE OTT `T'ltli COUNTY RE3("l'}12"ER OF SAID C'CTJTj 'Y :1All) POINT BEINts SOUTH 19 DEGREE'S' "no MINUTES WT;ST "l,ll) . (;t) FSr:I' I+ROhl THE NO R TR13ASTEIaLY Lj.TNE. OF SAID LOT 9; THENCE SOTTT'H 11) & IVIIR.EES ! [o M TNT,T B.S WE .ST 102,42 FEET ArA-)N SAID PARALLEL L 1"TTI? ; THENC'C: SOUTH 69 VW-',RRES 59 M11TUTEyS EAST 135.00 VXRT TO A I,T.N9 PARALLEL WITH AND SOUTHEASTV'RLY 170.00 FEET FROM THE NOWN[WES'TERLY LINE (:71+ SiAID LC)'T' 9, THE C E NORTH ]:5 D RGREES 50 MTNUTES EAST 102.8G FEW[' TO A }f01'N'T' OIL SAII3 PARALLEL i1TN13 SOUTH 19 DEGREES till MIN[TI`ES W9.13T_ ' 01; , (II} FEET I?R()M SAID NORTHEASTRTZLY LINK OF LOT 9. THENCn NORTH 70 I?I?[,RELS 00 MINC.T1."'US WEST 135.00 FEET TO THR POII-Fl" 101+ BEGIE+II+TTNG EXC8171.' TUR S€ UT[IRASTRIZLY 45.00 FEET TIiF•.-RECIF, A-1 Parcel Boundary Phase 1 - Encroachment Removal ® Hardscape/Stepping Stones Lawn ® Ornamental Shrub/Groundcover - Ornamental Tree 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 0 12.5 25 50 Feet 1 inch = 25 feet PENINSULA POINT ENCROACHMENT REMOVAL• REPLACEMENT PLAN West of F Street GLENN LUKOS ASSOCIATES DRAWING 4 - PAGE 1 VEGETATION DETAIL XA0361THE RESTI0560-20R�.�560-20_GIS�Resla�al�on GISWui I\ G6 20 . IS 1 _ 06, Y �, ran �rr r_i � �.: - ,, , �r `_ -• �4. Exhibit C C-1 Or y tF knN 44 ' 3RO = 1322 Property me t r, City Contractor Responsibilities Survey and set property corner markers outside patio area )354 Property owner to call Gas Company to locate line and shut 04. Sawcut along grout line just inside property line. _ t1358 Remove patio, wall and planters beach side of Sawcut line. Bob Stein, City of Newport Beach Contractor will strive to execute a straight vertical cut, 8/23/22 however, some irregularities in the material may prevent a smooth cut. Sand will be installed to fill low areas to adjacent grade. rz -A P� Y>k, Disclaimer: Property owner signatures Date^ D 0 20 40 Every reasonable effort h- been made to assure the accuracy of the data provided however The City of Newport Beach and its '�C( �_ , ` employ \ees and agents disaaim any and all responsibility from or l `,•�" �" 0 Feet relating to any results obtained in its use. 3/23/2022