APPROVED AS TO FORM AND LEGALITY
2022 OCT 18 PH 3= 06
n FILED OFFICE OF THE CITY aERK
OAKLAND
fv A, ,
C?lso Ortiz (Ocfi?2022 08:55 PDT)
CITY ATTORNEY’S OFFICE
OAKLAND CITY COUNCIL
8 9 4 1 5 *RESOLUTION NO. C.M.S.
RESOLUTION GRANTING A CONDITIONAL AND REVOCABLE
MAJOR ENCROACHMENT PERMIT ENMJ22051TO VIOREL BOGDAN,
TO ALLOW PORTIONS OF EARTH RETAINING STRUCTURES TO
ENCROACH INTO THE PUBLIC RIGHT OF WAY ALONG GIRVIN
DRIVE, ADJACENT TO 6570 GIRVIN DRIVE; AND ADOPTING
APPROPRIATE CALIFORNIA ENVIROMENTAL QUALITY ACT
FINDINGS
WHEREAS, Viorel Bogdan (Permittee), is the owner of the real property known as 6570 Girvin Drive and described in a Grant Deed recorded January 11, 2018, by the Alameda County Clerk-Recorder and identified by the Alameda County Assessor as APN: 048D-7302-061-03 commonly known as 6570 Girvin Drive hereto and incorporated herein (Property); and WHEREAS, Permittee proposes to construct a five-story single family residence on the Property (Project); and
WHEREAS, the Project is designed such that approximately eighteen feet, seven inches of the new earth retaining structures will encroach into the public right-of-way (currently controlled by the City) on Girvin Drive, the encroachment limits of which are delineated on Exhibit A hereto and incorporated herein (Encroachments); and WHEREAS, the City Planning Bureau has approved the development of the Project (PLN20020, RBC2003383), subject to a condition of approval that Permittee obtain a conditional and revocable major encroachment permit of the Encroachments; and WHEREAS, Permittee has filed an application with the Oakland Department of Transportation for such conditional and revocable major encroachment permit (ENMJ22051), hereinafter referred to as the “Permit”; and
WHEREAS, staff has determined, in accordance with the Oakland Municipal Code Chapter 12.08 and based on review of the plans and investigation of the Property and the area of the proposed Encroachments, that the Encroachments in the public right-of-way and their location will not interfere with the public use of the roadway, sidewalk, buried utilities, and will not endanger the public welfare and convenience during said public use; and WHEREAS, each as a separate and independent basis, this action is exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines sections 15303
(New Construction or Conversion of Small Structures), CEQA Guidelines section 15532 (In-Fill Development Projects), and CEQA Guidelines section 15183 (Projects Consistent with a Community Plan or Zoning); now, therefore, be it
RESOLVED: That the City Council has reviewed all relevant documents relating to its grant of this permit; and be it
FURTHER RESOLVED: That the City Council finds and determines that the decision made hereby is exempt from CEQA pursuant to CEQA since, on a separate and independent basis, this action is exempt from CEQA pursuant to CEQA Guidelines sections 15303 (New Construction or Conversion of Small Structures), CEQA Guidelines section 15332 (In-Fill Development Projects), and CEQA 15183 (Projects Consistent with a Community Plan or Zoning); and be it FURTHER RESOLVED: That the City Council hereby grants to the Permittee a conditional revocable Permit to allow the Encroachments, which Permit shall take effect only upon the City and Permittee entering into an Indenture Agreement in substantially the same form as attached hereto as Exhibit B (Indenture Agreement), the conditions therein being incorporated into the Permit; and be it
FURTHER RESOLVED: That the City Council, at its sole discretion and at a future date not yet determined, may impose additional and continuing fees for use and occupancy of the public right-of-way; and be it
FURTHER RESOLVED: That the Permit authorized by this Resolution shall take effect when all the conditions and obligations set forth in the Indenture Agreement shall have been complied with to the satisfaction of the City Attorney and the City Engineer of the City of Oakland and shall become null and void upon the failure of the Permittee to comply with the conditions and obligations set forth in the Indenture Agreement, subject to the notice and cure provisions set forth therein, or upon a termination by resolution of the City Council as being in the City’s best interest; and be it
2 FURTHER RESOLVED: That the City Engineer is hereby directed to file a certified copy of this Resolution for recordation with the Office of the Alameda County Clerk-Recorder as an encumbrance of the title of the Property identified above.
OCT 0 4 2022IN COUNCIL, OAKLAND, CALIFORNIA,
PASSED BY THE FOLLOWING VOTE:
AYES - FIFE,KALB, KAPLAN, REID, TAYLOR, THAO AND
PRESIDENT FORTUNATO BAS
NOES-
'J*ABSEN
0ABSTENTION -JQ
l OAt^A b
ATTEST:
:edCity Clerk and Clerk on the Council of the
City of Oakland'California
Exhibit A . 6570 Girvin Drive Encroachments (2 pages)
Exhibit B: Indenture Agreement (14 pages)
3 EXHIBIT A: 6570 GIRVIN DRIVE ENCROACHMENTS
Retaining Walls Encroaching into the Public Right of
Way
4 EXHIBIT A (Continued)
Architectural Rendering of Encroachment
5 EXHIBIT B: INDENTURE AGREEMENT
(Attached Separately)
i
6 3. Resolution - Major Encroachment_6570
Girvin Drive 9.23
Final Audit Report 2022-10-05
2022-10-04
Adriana Mitchell ([email protected])
status: Signed
isaction ID. CBJCHBCAABAA-aBcoUg4NWWj0n!
Cre. Jate
By:iy:
qb_qOy-K5VdrTra
"3. Resolution - Major Encroachment_6570 Girvin Drive 9.23" Hi story
Q Document created by Adriana Mitchell ([email protected]) 2022-10-04 - 9:09:39 PM GMT- IP address: 209.232.103.117 E* Document emailed to Celso Ortiz ([email protected]) for signature 2022-10-04 - 9:10:03 PM GMT
Q Email viewed by Celso Ortiz ([email protected]) 2022-10-04 - 9:16:42 PM GMT- IP address: 104.28.123.109 ^3 Document e-signed by Celso Ortiz ([email protected]) Signature Date: 2022-10-05 - 3:55:17 PM GMT - Time Source: server- IP address: 64.169.80.36 O Agreement completed.
2022-10-05 - 3:55:17 PM GMT
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No Fee Document Pursuant To Government Code Section 27383 Recording requested by:
CITY OF OAKLAND
When recorded mail to:
City of Oakland
Public Works Department
Dalziel Admin Building
250 Ogawa Plaza - 4th Floor
Oakland, CA 94612
Attn: Director, DOT
space above for Recorder’s use only
INDENTURE AGREEMENT
Address 6570 Girvin Drive Permit no. ENMJ22051
Parcel no. 048D-7302-061-03 Authorities Municipal Code Section 12.08.080 Description Portions of earth retaining structures encroaching into the Public Right of Wav along Girvin Drive, adjacent to 6570 Girvin Drive.
RECITAL
The owner subscribed below of fee simple interest in the property referenced above and described in Exhibit B, attached hereto (“Property”), is hereby granted the revocable permit referenced above allowing the temporary encroachment described above and delineated in Exhibit C, attached hereto, and limiting the use, exercise, and operation of the encroachment with the requirements and restrictions set forth in Exhibit A, attached hereto, and the associated Major Encroachment Permit (“Permit”). The owner (“Permittee”) agrees by and between themselves to be bound by the general and special conditions in Exhibit A and to comply with these conditions faithfully and fully at all times. The conditions of this Indenture Agreement and associated Permit shall equally bind all agents, heirs, successors, and assigns of the owner.
ACKNOWLEDGEMENT OF PROPERTY OWNER
(Notarization of signature required)
Viorel Bogdan
Signature Date
Viorel Bogdan
ATTACHMENTS
Exhibit A - Conditions of encroachment
Exhibit B - Description of privately owned parcel
Exhibit C - Limits of encroachment
Exhibit D - Oakland City Council Resolution XXXXX C.M.S.
Exhibit E - Form of notice to prospective purchasers and/or tenants
CITY OF OAKLAND
a municipal corporation
FRED KELLY
Director
Department of Transportation
by date
ARIEL ESPIRITU SANTO
Assistant Director
Department of Transportation
EXHIBIT A
Conditions for the Encroachments in the Public Right-Of-Way Address 6570 Girvin Drive Parcel no. 048D-7302-061-03
Permittee Viorel Bogdan Permit no. ENMJ 22051
1. This Indenture Agreement will be automatically voided should (a) the associated Permit be revoked at any time and for any reason, at the sole discretion of the City Council, expressed by resolution, or (b) the associated Permit be suspended at any time, upon failure of the Permittee to comply fully and continuously with each and all of the general and special conditions set forth herein and in the associated Permit, as may be determined by the City Engineer in his or her sole discretion.
2. Upon revocation of the Permit, the Permittee shall immediately, completely, and permanently remove the Encroachments from the public right-of-way and restore the public right-of-way to its original conditions existing before the construction or installation of the encroachment, to the satisfaction of the City Engineer and all at the sole expense,of the Permittee.
3. The Permittee does hereby disclaim any right, title, or interest in or to any portion of the public right-of- way, including the sidewalk and street, and agree that the use and occupancy by the Permittee of the public right-of-way is temporary and does not constitute an abandonment, whether expressed or implied, by the City of Oakland of any of its rights associated with the statutory and customary purpose and use of and operations in the public right-of-way.
4. The Permittee agrees to indemnify and save harmless the City of Oakland, its officers, agents, employees, and volunteers, and each of them, from any suits, claims, or actions brought by any person or persons, corporations, or other entities on account of (a) any bodily injury, disease, or illness, including death, damage to property, real or personal, or damages of any nature, however caused, and regardless of responsibility for negligence, arising in any manner out of the construction or installation of a private improvement itself or resulting from the Permittee’s failure to maintain, repair, remove and/or reconstruct the private improvement, or (b) any title, ownership or authority issues arising from the existence of the Encroachments in the public right of way.
5. The Permittee shall maintain fully, in force and effect at all times that the Encroachments occupy the public right-of-way good and sufficient public liability insurance in a face amount not less than $300,000.00 for each occurrence, and property damage insurance in a face amount not less than $50,000.00 for each occurrence, both including contractual liability, insuring the City of Oakland, its officers, agents, employees, and volunteers against any and all claims arising out of the existence of the encroachment in the public right-of-way, as respects liabilities assume under this Permit, and that a certificate of such insurance and subsequent notices of the renewal thereof, shall be filed with the City Engineer of the City of Oakland, and that such certificate shall state that the insurance coverage shall not be canceled or be permitted to lapse without thirty calendar (30) days written notice to the City Engineer.
The Permittee also agree that the City of Oakland may review the type and amount of insurance required of the Permittee annually and may require the Permittee to increase the amount of and/or change the type of insurance coverage required.
6. The Permittee shall be solely and fully liable and responsible for the repair, replacement, removal, reconstruction, and maintenance of any portion or all of the private improvements constructed or installed in the public right-of-way, whether by the cause, neglect, or negligence of the Permittee or others and for the associated costs and expenses necessary to restore or remove the encroachment to the satisfaction of the City Engineer and shall not allow the Encroachments to become a blight or a menace or a hazard to the health and safety of the general public.
7. The Permittee acknowledges and agrees that the Encroachments are out of the ordinary and do not Major Encroachment Agreement
Conditions of Indenture
page 2 of 9
ENMJ 22051
comply with City of Oakland standard installations. The Permittee further acknowledges and agrees that the City of Oakland and public utility agencies will periodically conduct work in the public right-of-way, including excavation, trenching, and relocation of its facilities, all of which may damage the encroachment. Permittee further acknowledges and agrees that the City and public utility agencies take no responsibility for repair or replacement of the Encroachments, which may be damaged by the City or its contractors or public utility agencies or their contractors. Permittee further acknowledge and agree that upon notification by and to the satisfaction of the City Engineer, Permittee shall immediately repair, replace, or remove, at the sole expense of the Permittee, all damages to the encroachment that are directly or indirectly attributable to work by the City or its contractors or public utility agencies or their contractors.
8. Permittee shall remain liable for and shall immediately reimburse the City of Oakland for all costs, fee assessments, penalties, and accruing interest associated with the City’s notification and subsequent abatement action for required maintenance, repairs, or removal, whether in whole or in part, of the encroachment or of damaged City infrastructure made necessary by the failure, whether direct or indirect, of the Permittees to monitor the encroachment effectively and accomplish preventative, remedial, or restorative work expeditiously. The City reserves the unqualified right to collect all monies unpaid through any combination of available statutory remedies, including recordation of Prospective Liens and Priority Liens/ Special Assessments with the Alameda County Recorder, inclusion of non reimbursed amounts by the Alameda County Assessor with the annual assessment of the general levy, and awards of judgments by a court of competent jurisdiction.
9. The Permittee shall provide written notice, in the form attached hereto as Exhibit E, to all prospective purchasers and/or tenants of any enclosed habitable space subject to this Encroachment Permit, that the City may revoke or suspend this Permit and require the removal of such encroachments (the “Notice”).
10. The Permittee shall file this Indenture Agreement and the Notice to prospective purchasers and/or tenants with the Alameda County Recorder for recordation as encumbrances of the property and its title.
11. That said Permittee acknowledges that the City makes no representations or warranties as to the conditions beneath said encroachment. By accepting this revocable Permit, Permittee agrees that it will use the encroachment area at its own risk, is responsible for the proper coordination of its activities with all other Permittee, underground utilities, contractors, or workmen operating, within the encroachment area and for the safety of itself and any of its personnel in connection with its entry under this revocable Permit.
12. That said Permittee acknowledges that the City is unaware of the existence of any hazardous substances beneath the encroachment area, and Permittee hereby waives and hilly releases and forever discharges the City and its officers, directors, employees, agents, servants, representatives, assigns and successors from any and all claims, demands, liabilities, damages, actions, causes of action, penalties, fines, liens, judgments, costs, or expenses whatsoever (including, without limitation, attorneys' fees and costs), whether direct or indirect, known or unknown, foreseen or unforeseen, that may arise out of or in any way connected with the physical condition or required remediation of the excavation area of any law or regulation applicable thereto, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections 9601 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 466 et seq.), the Safe Drinking Water Act (14 U.S.C. Sections 1401, 1450), the Hazardous Waste Control Law (California Health and Safety Code Sections 25100 et seq.), the Porter- Cologne Water Quality Control Act (California Health and Safety Code Section 13000 et seq.), the Hazardous Substance Account Act (California Health and Safety Code Sections 253000 et seq.), and the Safe Drinking Water and Toxic Enforcement Act (California Health and Safety Code Section 25249.5 et seq.).
13. That said Permittee further acknowledges that it understands and agrees that it hereby expressly waives all rights and benefits which it now has or in the future may have, under and by virtue of the terms of California Civil Code Section 1542, which reads as follows: "A GENERAL RELEASE DOES NOT EXTEND TO Major Encroachment Agreement
Conditions of Indenture
page 3 of 9
ENMJ 22051
CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
14. That said Permittee recognizes that by waiving the provisions of this section, Permittee will not be able to make any claims for damages that may exist, and to which, if known, would materially affect its decision to agree to these encroachment terms and conditions, regardless of whether Permittee's lack of knowledge is the result of ignorance, oversight, error, negligence, or any other cause.
15. That said Permittee, by the acceptance of this revocable Permit, agrees and promises:
(a) To indemnify, defend, and hold harmless the City of Oakland, its officers, agents, and employees, to the maximum extent permitted by law, from any and all claims, demands, liabilities damages, actions, causes of action, penalties, fines, liens, judgments, costs, or expenses whatsoever (including, without limitation, attorneys' fees and costs; collectively referred to as "claims", whether direct or indirect, known or unknown, foreseen or unforeseen, to the extent that such claims were either (1) caused by the Permittee, its agents, employees, contractors or representatives, or, (2) in the case of environmental contamination, the claim is a result of environmental contamination that emanates or emanated from the 6570 Girvin Drive, Oakland, California site, or was otherwise caused by the Permittee, its agents, employees, contractors or representatives.
(b) That, if any contamination is discovered below or in the immediate vicinity of the encroachment, and the contaminants found are of the type used, housed, stored, processed or sold on or from 6570 Girvin Drive, Oakland, California site, such shall amount to a rebuttable presumption that the contamination below, or in the immediate vicinity of, the encroachment was caused by the Permittee, its agents, employees, contractors or representatives.
(c) That said Permittee shall comply with all applicable federal, state, county and local laws, rules, and regulations governing the installation, maintenance, operation and abatement of the encroachment.
16. That this Indenture Agreement and associated Permit shall take effect when all the conditions hereinabove set forth shall have been complied with to the satisfaction of the City Engineer.
17. That this Indenture Agreement alone does not allow work to be done which requires permitting and/or inspection. The Permittee must obtain any and all required permits before beginning work.
18. The City, at its sole discretion and at future date not yet determined, may impose additional and continuing fees for use and occupancy of the public right-of-way.
19. Additional or continuing fees will apply in accordance with the City’s Municipal Code, City standards, future plans for the right of way, and City practices to regulate the right of way for the public interest.
20. The rights and obligations of this Indenture Agreement shall be binding upon the Permittee, all successive owners and assigns thereof, and shall be automatically assigned to and assumed by any and all successive persons or entities with a fee interest in all or any portion of the Property.
Major Encroachment Agreement
Conditions of Indenture
page 4 of 9
ENMJ 22051
EXHIBIT B
Description of the Private Property Abutting the Encroachment Address 6570 Girvin Drive Parcel no. 048D-7302-061-03
Deed no. 2018-006607 Recorded January 11. 2018
LEGAL DESCRIPTION
PORTION OF LOTS 2376 AND 2377 AS SAID LOTS ARE SHOWN ON THE MAP OF FORESTLAND MANOR, RECORDED JANUARY 28, 1928 IN MAP BOOK 18, PAGE 54, ALAMEDA COUNTY RECORDS MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERN CORNER OF THE ABOVEMENTIONED LOT 2376, THENCE ALONG THE SOUTHERLY UNE THERE OF NORTH 85° 10' 00" WEST
45.00 FEET; THENCE LEAVING LAST LINE NORTH 03° 12' 50" EAST 26.73 FEET; THENCE NORTH 40° 48' 08" WEST 51.79 FEET; THENCE NORTH 03° 12' 50" EAST 44.55
FEET TO THE SOUTHERLY LINE OF GIRVIN DRIVE RIGHT OF WAY, AS SAID DRIVE IS SHOWN ON SAID MAP OF FORESTLAND MANOR (18 M 54), BEING A POINT ON A CURVE OF A CIRCLE HAVING A RADIUS OF 65.00 FEET THE CENTER OF WHICH BEARS NORTH 12° 15' 49" WEST FROM SAID POINT; THENCE EASTERLY AND
NORTHEASTERLY ALONG SAID CURVE TO THE LEFT, THROUGH A CENTRAL ANGLE OF 25° 34' 57", AN ARC DISTANCE OF 29.02 FEET; THENCE ALONG A REVERSED TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 65.00 FEET THROUGH A CENTRAL ANGLE OF 42° 05' 25", AN ARC DISTANCE OF 47.75 FEET TO THE EASTERLY LINE OF SAID LOT 2376; THENCE ALONG THE LAST LINE SOUTH 01° 36’ 20" EAST 139.90 FEET TO THE POINT OF BEGINNING.
PURSUANT TO PARCEL MAP WAIVER NO. PMW06-014, RECORDED JUNE 25, 2007, INSTRUMENT NO. 2007235583, OFFICIAL RECORDS.
Major Encroachment Agreement
Conditions of Indenture
page 5 of 9
ENMJ 22051
EXHIBIT B (CONTINUED)
A more legible copy is available at the Office of
the Director, DOT, City of Oakland, 250 Frank H.
Ogawa Plaza, 4th floor.
Major Encroachment Agreement
Conditions of Indenture
page 6 of 9
ENMJ 22051
EXHIBIT C
Limits of the Encroachment in the Public Right-Of-Way
Address 6570 Girvin Drive Parcel no. 048D-7302-061-03
, 250 Frank H.
Ogawa Plaza, 4th floor.
Major Encroachment Agreement
Conditions of Indenture
page 7 of 9
ENMJ 22051
EXHIBIT D
Oakland City Council Resolution XXXXX C.M.S. (page 1 reference) Major Encroachment Agreement
Conditions of Indenture
page 8 of 9
ENMJ 22051
EXHIBIT E:
FORM OF NOTICE TO PROSPECTIVE PURCHASERS AND/OR TENANTS OF EARTH RETAINING STRUCTURES IN RIGHT-OF-WAY AT 6570 GIRVIN DRIVE Recording requested by:
CITY OF OAKLAND
When recorded mail to:
City of Oakland
Public Works Department
Dalziel Admin Building
250 Ogawa Plaza - 4th Floor
Oakland, CA 94612
Attn: Director, DOT
space above for Recorder’s use only
Address 6570 Girvin Drive Permit no. ENMJ 22051
Parcel no. 048D-7302-061-03 Authorities Municipal Code Section 12,08,080 Description Portions of earth retaining structures encroaching into the Public Right of Wav along Girvin Drive, adjacent to 6570 Girvin Drive.
This property is subject to a conditional and revocable Major Encroachment Permit No.
ENMJ22051 for portions of two earth retaining structures in the public right-of-way (“Encroachment Property”), authorized by City Council Resolution C.M.S. XXXXX on DATE, and effective upon recordation of the accompanying Indenture Agreement between the City of Oakland and 6500 San Pablo, LLC ("Permittee") and satisfaction of all conditions therein.
The conditional and revocable Major Encroachment Permit and accompanying Indenture Agreement are binding on the Permittee, successive owners and assigns thereof, and on all successive persons or entities with a fee interest in all or any portion of the Encroachment Property.
The conditions and requirements of said Major Encroachment Permit and accompanying Indenture Agreement are recorded with the Alameda County Recorder as encumbrances of the Encroachment Property and its title.
Prospective purchasers and tenants are hereby given notice that the City may revoke this Major Encroachment Permit and require removal of said Encroachments upon the terms and conditions set forth in the Indenture Agreement.
Major Encroachment Agreement
Conditions of Indenture
page 9 of 9
ENMJ 22051