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HomeMy WebLinkAbout11 - Private Improvements in ROW at 303 Driftwoodo� W PpRr CITY OF u a�' NEWPORT BEACH gutty Co uncH Staff Report Agenda Item No. 11 July 9, 2013 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department David Webb, Public Works Director 949-644-3328, dawebb@newportbeachca.gov PREPARED BY: Rodi Almendralo, Associate Civil Engineer 949-644-3334, ralmendralo@newportbeachca.gov APPROVED:, o, TITLE: Request to Install Private Improvements Within the Public Right -of - Way at 303 Driftwood Road ABSTRACT: The property owners of 303 Driftwood Road request to install private improvements within the Seaward Road right-of-way frontage consisting of a meandering block wall with a maximum height of 18 -inches encroaching up to 3 -feet into the public right-of- way. RECOMMENDATIONS: 1. Waive City Council Policy L-6, Private Encroachments in the Public Rights -of -Way, to allow for an 18 -inch block wall to encroach up to 3 -feet into the Seaward Road right-of-way, contingent upon all conditions of the Encroachment Permit process being met. 2. Direct staff to prepare an Encroachment Agreement for the proposed private improvements within the Seaward Road right-of-way and authorize the City Manager and City Clerk to execute the Encroachment Agreement. FUNDING REQUIREMENTS: There is no fiscal impact related to this item. DISCUSSION: The property owners are requesting to install a meandering block wall with a maximum height of 18 -inches within the Seaward Road right-of-way frontage of the property. The block wall will have a stone face finish and a "fieldstone" cap. This block wall will I of 5 Request to Install Private Improvements Within Public Right -of -Way at 303 Driftwood Road July 09, 2013 Page 2 encroach up to 3 -feet into the public right-of-way. The property owners are requesting approval for the meandering block wall in order to "level -off' their side -yard because Seaward Road has a slight slope in the parkway area. Planting will also be installed to soften the look of the proposed block wall. City Council Policy L-6 prohibits structural encroachments including walls and raised planters in excess of 1 -foot into the public right-of-way. This City Council Policy will need to be waived in order to allow for the proposed block wall to encroach up to 3 -feet into the Seaward Road right-of-way. The proposed meandering block wall will not diminish the rights of the public, present and future. The property owner will need to obtain an Encroachment Permit and enter into an Encroachment Agreement with the City which would permit the City to terminate rights granted at any time in the future and could require the removal of the proposed block wall. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Submitted by: Public Works Director/City Engineer Attachments: A. Area Map B. Site Plan C. Letter from Property Owner 2 of I f I i \ ,fes � � - �.� _ �t '�;f b..•-l_\.�` \�. ' 4 L W y T z E Y. F' ll�iENT „P„ SITE PLAN ATTACHMENT C Mrarh 21')013 Public. Works Depnrtrnerit 13013o)(1,763 Newport: Beach, CA 92658 RI . 303 f dRuvood Road, Corona Del Mar, CA 92625 Request for encroachment loevmit ro whom It May Concern I am writing to request approval of a minor landscaping improvement in the public right of way that abuts our property at 303 Driftwood Road. Our property is on a corner lot with frontage on both Driftwood Road and Seaward Road where there are large property line setbacks from the curb that limit the usable area of our yard. The addition of this improvement will both enhance the aesthetic appearance of the public right of way and allow our family to enjoy our property on the uphill side. The small meandering retaining wall will be constructed in a first class manner using a tight stacked bocci canyon stone face and fieldstone cap. The exposed height of the wall will only be 18" tall and at no point will it be closer than 48" from the inside face of the curb. Drought resistant plants will be planted along the wall to soften its exposure and we will be responsibility for all maintenance. This landscaping plan has been approved by the Shore Cliffs Nome Owners Association. Additionally, all of our neighbors have signed the plan to approve It as part of the Shore Cliffs neighborhood awareness plan. In the construction of our new home, we have asked for no other variances from either our HOA or the city. Our new home and landscape design is a drastic improvement over the former dwelling which was built in 1946 and poorly maintained. The Shore Cliffs community has numerous examples of similar improvements that have been constructed in the public right of way. We hope that the planning commission will view our request as a positive and harmonious with the community. Thank you for your consideration. Sincerely, Stephen Carlton 5 of RECORDING REQUESTED BY AND Recorded In Official Records, orange County 'ugh Nguyen, Clerk-Recordor WHEN RECORDED RETURN TO:� NO FEE Public Works Department * a R a o o b 1 3 n 2 5 9 a* City of Newport Beach 2013000493119 2:47 pm 08120113 P.O. Box 1768 983 409 Al2 7 Newport Beach, CA 92658-8915 0.00 0.00 0,00 0.0018.00 0.00 a.0a 0.00 } I t Exempt from recording fees pursuant to Govt. Code section 27383 t Space above this fine for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2013.0271) ,r THIS ENCROACHMENT AGREEMENT ("Agreement') is made and entered into this 31st day of July, 2013, by and between Stephen J. Carlton and Ashley B. Carlton, a husband and wife as Joint Tenants ("Owner"), and the City of Newport Beach, a California municipal corporation and charter city, organized and existing under and by virtue of its Charter and the Constitution, and the laws of the State of California ("City"). RECITALS WHEREAS, Owner is the vested owner of property located at 303 Driftwood Road, Newport Beach, California 92625 and legally described as Lot 36 of Tract 1116, as shown on a map recorded in Book 36, Pages 19 through 20 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, County Assessor's Parcel Number 052-202-01 ("Propertr); WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the Driftwood Road and Seward Road right-of-way (hereinafter "Right -of -Way") that is located adjacent to Property; WHEREAS, said Permitted Improvements may interfere in the future with City's ability to construct, operate, maintain, and replace City and other public facilities and improvements within Right -of -Way; and WHEREAS, the parties hereto desire to enter into this Agreement providing for fulfillment of the conditions required by City to permit Owner to construct and maintain said Permitted Improvements, NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows; City and Owner acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. It is mutually agreed that Permitted Improvements shall be defined as: a. A variable height meandering block wall with a maximum height of 18 - inches encroaching up to 3 -feet into the Seaward Road right-of-way; and a 6 -foot wide entry walkway constructed with smooth sand finish Davis Mesa Bluff colored concrete encroaching up to 10 -feet into the Driftwood Road right-of-way, as approved by the City Council on July 9, 2013 and the Public Works Department and as shown on Exhibit A, attached hereto and incorporated herein by reference. b. In addition, if any improvements actually built or installed during the time of construction vary from Permitted Improvements 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. 3. City will permit Owner to construct, reconstruct, install, maintain, use, operate, repair and replace said Permitted Improvements and appurtenances incidental thereto, within a portion of Right -of -Way, if in substantial conformance with the plans and specifications on file in City. City will further allow Owner to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 4. Rights granted under this Agreement may be terminated by City with or without cause and at any time without notice. City shall make good faith efforts to provide sixty (60) calendar days' notice in advance of termination, specifying in said notice the date of termination. City shall incur no liability whatsoever in the event of the termination of this Agreement or subsequent removal of improvements by City. 5. Owner and City further agree as follows: a. Owner may construct and install Permitted Improvements and appurtenances incidental thereto in substantial conformance with the plans and specifications on file in City's Public Works Department, and as described on Exhibit A. b. Owner shall maintain Permitted Improvements in accordance with generally prevailing standards of maintenance and pay all costs and expenses incurred in doing so. However, nothing herein shall be construed to require Owner to maintain, replace or repair any City -owned pipeline, conduit or cable located in or under said Permitted Improvements, except as otherwise provided herein. C. If City or other public facilities or improvements are damaged by the installation or presence of Permitted Improvements, Owner shall be responsible for the cost of repairs. Stephen J. and Ashley B. Carlton Encroachment Agreement 2 to, the maintenance, removal, repair, renewal, r(,aplacement of, enlargement of existing or future public facilities or improvements, City may remove portions of Permitted Improvements, as required, and in such event: (1) City shall notify Owner in advance of its intention to accomplish such work, provided that an emergency situation does not exist. (i1) Owner shall be responsible for arranging for any renewal, replacement, or restoration of Permitted Improvements affected by such work by City. (iii) City agrees to bear only the cost of any removal of Permitted Improvements affected by such work by City. (iv) Owner agrees to pay all costs for the renewal, replacement, or restoration of Permitted Improvements, 6. In the event either 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 and, in the event the breaching party is Owner, City may enter upon Right -of -Way and remove all or part of the improvements installed by Owner. Termination because of breach shall be upon a minimum of ten (10) calendar days' notice, with the notice specifying the date of termination. 7. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. & Owner shall defend, indemnify and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees (when outside attorneys are so utilized), regardless of the merit or outcome of any such claim or suit arising from or in any manner connected with the design, construction, maintenance, or continued existence of Permitted Improvements. 9. Owner agrees that this Agreement shall remain in full force and effect from execution thereof; shall run with the land; shall be binding upon the heirs, successors, and assigns of Owner's interest in the land, whether fee or otherwise; and shall be recorded in the Office of the County Recorder of Orange County, California. 10. 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, California. Stephen J. and Ashley S. Carlton Encroachment Agreement 3 M 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. 12. 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. 13. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 14. Owner shall, at Owners 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. 15. 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. [SIGNATURES ON NEXT PAGE] Stephen J. and Ashley B. Carlton Encroachment Agreement 4 IN WITNESS WHEREOF, the parties hereto havo caused this Agreement to he executed on the dates written below, APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE fi Y Y ' Aaroh-G. Harp City Attorney ATTEST: �=f By Leilani I` Brown City Clerk ATTACHMENT: CITY OF NEWPORT BEACH, a California mu icipaj. corporation Date. � I ,;,, 1", Dave KF' City Manager OWNER(S): Stephen J. Carlton and Ashley B. Carlton, husband and wife as joint tenants Date:..sf j B { J r✓�^ ,✓ k�2 Ste .. en J, Carlton Joint Tenant [END OF SIGNATURES] Owners must sign in the presence of notary pubfic Exhibit A—Permitted Improvements Plan as Approved by Public Works Stephen J. and Ashley B. Carlton Encroachment Agreement 5 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On�tr4it rS(12j HT1„� before me, 't aace personally appeared Place Nolary Seal Above Ova, cone. q I 40o who proved to me on the basis of satisfactory evidence to be the person(sy whose name(sr istare subscribed to the within instrument and acknowledged to me that helsheiihoy executed the same in histhen'their authorized capacry(iesj, and that by hisilharitheir signature(s) on the instrument the person(s); or the entity upon behalf of which the persons)'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. WITNESS my hand and official seal. Signature: �.r�s.,�. ` rw<'' ®A IO r n ` Signature of Nolary P.t*�` Though the information below is not required by law,IIttPomaay prove valuable to persons retying on the document and could prevent fraudulent removal and reattachment of this forrrr to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(fes) Claimed by Signer(s) Signer's Name: V Corporate Officer — Title(s): F, Individual NNEM n Partner — ❑ Limited Ll General Top of Thumb hero O Attorney in Fact F Trustee C' Guardian or Conservator Other: Signer Is Representing: NatonalNotemom Number of Pages: Signer's Name; _ ❑ Corporate Officer — Title(s): FI Individual ;. 7 Partner — ❑ Limited General Top of thumb In we Attorney in Fact +Trustee G Guardian or Conservator ❑ Other: Signer Is Representing: It.. #1907 State of C County of W proved to me on the basis subscribed to the within im same in his/her/their autho1 instrument the person(s), or instrument. ACKNOWLEDGMENT ss. 20 U_, before me, �A•), Notary Public, personally appeared who !t actdry evidence to be the person(s) whose name(s) is/are Ier)f `a d acknowledged to me that he/shelthey executed the capac (ies), and that by his/herltheir signatures(s) on the entity upo behalf of which the person(s) acted, executed the I certify under PENgTY OF PERJURY under foregoing paragrapKis true and correct. WITNESS aWhand and official seal. laws of the State of California that the ACKNOWLEDGMENT State of California County of tY:gH01 )ss. On 3'h rn Z 3 t?p 20—/ -3 before me, L ltvvf GN . yw i f j Notary Public, personally appeared 5 LrTitt-,�✓ li n!{ 4SIi LC4 CA Rt Imo t who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)-ietare subscribed to the within instrument and acknowledged to me that hefshe/they executed the same in {Ther/their authorized capacity(ies), and that by hie/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person($) 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. WITNESS my hand and official seal. .! gnature QlAUtiEN R. 6tlRdXAIES Cummisslon tB94720 Notary PuWlc - California Orange county wwvM Oemm. Exg}raa Au i 2Q14 VW (seal) Stephen J. and Ashley B. Carlton Encroachment Agreement 6 n�M1 ��.