HomeMy WebLinkAboutC-8989-1 - Encroachment Agreement for Monitoring Well Epn N2008-0172 for 829 Production PlaceThis Document v electronically recorded by
L. _ Cert Mail F
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
d)
:.—
Public Works Department
CSC
City of Newport Beach
Post Office Box 1768
V
Newport Beach, CA 92659-1768
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
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ENCROACHMENT AGREEMENT FOR
MONITORING WELL
(EPN2008-0172)
THIS ENCROACHMENT AGREEMENT is made and entered into this 13th day of May,
2008, by and between Hixson Metal Finishing, Incorporated, (hereinafter "Owner"), 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 California, (hereinafter
"City").
RECITALS:
WHEREAS, Owner is the owner of that certain real property located in the City of
Newport Beach, County of Orange, State of California, commonly known as 829 Production
Place, and legally described as Lots 28 and 29 of Tract 3145, inclusively, of Miscellaneous
Maps in the office of the County Recorder of Orange County, California (hereinafter the
"Property"). The Property is currently operated as Hixon Metal Finishing.
WHEREAS, City is the owner of certain fee and/or easement interests on the
Production Place right-of-way adjacent to the Property, which interests are more particularly
depicted on "Exhibit A" attached hereto and incorporated herein by reference (hereinafter "City
Property").
WHEREAS, Owner desires to install a ground water monitoring well and appurtenances
on the City Property in the location depicted on Exhibit A within the Production Place right-of-
way (hereinafter "Right -of -Way"), adjacent to the Property. This monitoring well as described
and depicted on the Well Construction Detail, which is attached hereto as Exhibit B shall be
hereinafter referred to as the "Encroachments." Owner desire to retain the Encroachments on
the City Property for a period of approximately two (2) years.
WHEREAS, City has agreed to grant Owner an encroachment permit ("Permit") for the
Encroachments, provided that Owner executes and abides by the term of this Agreement and
fully complies with the provisions of Title 13 of the Newport Beach Municipal Code and other
applicable rules, laws, statutes, regulations, and laws.
WHEREAS,' parties hereto desire to execute an agreement outlining the conditions
required by City tr it Owner to install and maintain said Encroachments.
NOW, THEREFORE, the parties hereto agree as follows:
1.0 License. The City hereby grants to Owner 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 Permit and this Agreement (`License").
2.0 Covenants.
(a) In General. Owner hereby agree to install, operate, inspect, monitor,
maintain, relocate, and/or remove the Encroachments in accordance with
this Agreement, the Public Works Department's Permit requirements, and
all applicable provisions of the City of Newport Beach Municipal Code, as
amended from time to time.
(b) Maintenance. Owner 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. Owner shall maintain the Encroachments in accordance with
generally prevailing standards of maintenance, and pay all costs incurred
in doing so. In the event that Owner does not maintain the Encroachments
and the City Property as required herein, the City may terminate this
License as more particularly provided in Section 3 herein.
(c) Permit Required for All Street Work. In the event that City streets must be
closed in order to maintain the Encroachments or to take samples from
the monitoring well, Owner must first obtain a permit from the City Public
Works Department and comply with all conditions of the permit and all
requirements of Chapter 13.20 of the Newport Beach Municipal Code.
(d) Removal of Encroachments. Owner agrees to remove the
Encroachments when the Encroachments are no longer required by the
Orange County Health Care Agency, the California Department of Toxic
Substances or any other public entity. At that time, Owner agrees to
restore the City Property to its former condition, at Owner's sole cost and
expense.
(e) Monitoring Well Final Report. Owner hereby agrees to submit the final
report of the monitoring program to the City's Public Works Director.
3.0 Termination. This License is terminable with or without cause by the City at any
time. Owner shall remove the Encroachments and restore the City Property to
its former condition, at Owner's sole cost and expense, within thirty (30) days of
written notice from the City. In the event Owner fails to remove the
Encroachments and restore the City Property within said time period, City shall
have the right to do so without notice. Owner shall immediately reimburse the
City for all out-of-pocket expenses expended to remove the Encroachments and
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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. Owner and City further agree as follows:
(a) Owner may construct and install the Encroachments provided they are in
substantial conformance with the plans and specifications on file in the
City's Public Works Department, Exhibit B, 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/private facilities or improvements are damaged by
the installation or presence of the Encroachments, Owner shall be
responsible for the cost of repairs and restoration.
(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 Owner of its intention to accomplish such work,
provided that an emergency situation does not exist.
(ii) Owner shall be responsible for arranging for any renewal,
replacement, or restoration of the Encroachments affected by such
work by City.
(iii) Owner agrees to bear the cost of any removal of the
Encroachments or appurtenances affected by such work by City.
(iv) Owner agrees 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 Owner, City may enter upon the Right -of -Way and remove all or part
of the improvements or Encroachments installed by Owner. 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. Owner hereby agrees 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
3
such claim or suit, which may arise in consequence of the granting of this permit,
or in any way connected with or related to the design, construction, operation,
maintenance or continued existence of the Encroachments.
7.0 Insurance. Owner 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 Owner, its 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. The policy shall carry a general liability special endorsement
naming the City of Newport Beach, its elected or appointed officers, employees,
agents and volunteers as additionally insured in the amount of $1,000,000 per
occurrence. Said endorsement shall be made available to the City's Risk
Manager prior to installation of the Encroachments. In addition, said policy must
also provide a written 30-day notice of cancellation (10-day written notice of non-
payment of premium) to the City of Newport Beach Risk Manager (3300 Newport
Boulevard, Newport Beach, CA, 92663).
8.0 Covenants Running With the Land. The covenants and restrictions by Owner
set forth in this Agreement: (a) are made for the direct benefit of the Property; (b)
will constitute covenants running with the land and equitable servitudes; (c) will
bind Owner and every person having any fee, leasehold, or other interest in any
portion of the Owner's 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 Property at any time or from time to time.
9.0 Miscellaneous.
(a) Successors and Assigns. Owner agrees that this Agreement shall remain
in full force and effect from execution thereof and shall be binding upon
the heirs, successors, and assigns of Owner's 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
Owner's property and the City Property and recorded in the Office of the
County Recorder, County of Orange, California.
(c) Governing Law. 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
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notice to all parties succeeding to the interest of Owner or the City that
their use of The Property and the City Property shall be benefited and/or
restricted in the manner herein described.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year first written above.
APPROVED AS TO FORM.-
C' By: av-_
Aaron 6. Harp, Asst. City Attorney
ATTEST:
By 0�gL a -
LaVonne Harkless,
City Clerk
CITY OF NEWPORT BEACH,
A Municipal corporation
By:
Homer BludEfu, City Manager
OWNER: Doug Greene, President
Hixson Metal Finishing
By: /aAel'l�_
Corporate Officer)
Title:RZ,&,S/C)dM7-
Print Name:
By:
(Financial Officer)
Title: U- P- —
Print Name: 'Dm\e, �iot,k�q �rzv' .
�-
[Signatures must be notarized]
F:\USERS\Cat\Shared\AG\Encroachment Agreements\Monitoring Well Encroachment Agreement.doc
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF ORANGE )
On 101-Z0106
before me,
x4 (,c,;,C-c-4
Notary Public,
personally appeared
"pqLq C-ivee-K e
t "t)ca1c yyLAKej
, 3Y. who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) Ware
subscribed to the within instrument and acknowledged to me that hez4o a/they executed the
same in hirer/their authorized capacity(ies), and that by h4s/fter/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.
M. LOCEY
Commission # 1611564
WITNESS my hand and official seal. OMy
NotaryPublic-California
orange county
Comm. Expires Oct 7.2
(SEAL)
Notary Public in and for s tate
OPTIONAL INFORMATION
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WELL CONSTRUCTION DETAIL
Drilling Method q01L Uj sk. 2tm
A.
Total Boring Depth 5 ft.
B.
Boring Diameter in.
C.
Casing Diameter In.
Air
Material. SJ 140 Pic
D.
Total Casing Length ft.
7
E.
Screened Interval ),0 ft.
Screen Type_ 1Vk4J,,1Je slot
F.
Screen Size 0 ;t-inch
G.
Surface Seal ft.
Seal Material 60 tic re +e—
H.
Backfill 30 ft.
Backfill Material Voic la
I.
Seal ft.
Seal Material
011111111JINNIQ - J. Filter Pack— a), ft.
B --V Pack Material .3 'S a, - A
I Ultwy-Uhu PROJECT NAME 4-()l:Sa,-PK4W
lq� enmnlrip.Anor .0 'P 1.
Jill 1-:11% i WELL ID /V —PERMIT #
INSTALLATION DATE _ o- e