HomeMy WebLinkAbout07 - EP99-348 - Ocean Boulevard Encroachment Agreement0
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September 13, 1999
CITY COUNCIL AGENDA
ITEM NO. 7
TO: Mayor and Members of the City Council
FROM: Public Works Department
SUBJECT: ENCROACHMENT AGREEMENTS FOR CONSTRUCTION AND
MAINTENANCE OF PRIVATE IMPROVEMENTS WITHIN THE OCEAN
BOULEVARD PUBLIC RIGHT -OF -WAY ADJACENT TO 3601 AND 3611
OCEAN BOULEVARD, CORONA DEL MAR (EP99 -348)
OWNERS: Augustine Nieto and Lynee Nieto (3601 Ocean Blvd.)
Diane Anderson (3611 Ocean Blvd.)
RECOMMENDATIONS:
Approve the application subject to:
Execution of Encroachment Agreements for non - standard improvements.
a. Authorize the Mayor and City Clerk to execute the Agreements.
b. Authorize and direct the City Clerk to have the agreements recorded with
the Orange County Recorder.
2. Encroachment Permits issued by the Public Works Department.
Building Permits issued by the Building Department.
4. Building Department, Fire Department, General Services Department, and Public
Works Department shall approve the plans and construction of improvements.
DISCUSSION:
Dee Berthiaume, representing the owners of the properties located at 3601 and 3611
Ocean Boulevard in Corona Del Mar, has requested that they be permitted to widen an
existing private/common driveway and construct non - standard improvements. The
proposed improvements will be to widen the existing common driveway and install a
variable (1 -foot to 15 -foot high) concrete retaining wall with a 42 -inch high guard railing,
variable (1 -foot to 5 -foot high) planter wall, grouted stone pavers over concrete pavement,
drainage improvements, irrigation, low voltage lighting, and landscaping. The proposed
improvements will encroach from 12' to 58' from the existing curb within the Ocean
Boulevard right -of -way (see attached letter, photos, exhibit). In addition, any City utilities
SUBJECT: ENCROACHMENT AGREEMENTS FOR CONSTRUCTION AND MAINTENANCE OF PRIVATE IMPROVEMENTS
WITHIN THE OCEAN BOULEVARD PUBLIC RIGHT -OF -WAY ADJACENT TO 3601 AND 3611 OCEAN
BOULEVARD, CORONA DEL MAR (EP99.348)
September 13, 1999
Page 2
shall be relocatedlmodified at the owner's expense. The house is designed with the main
and garage entrances off Ocean Boulevard via a private common driveway.
The proposed encroachments within the Ocean Boulevard right -of -way will be below
curb level and will not obstruct the view of adjacent residents and /or properties on the
other side of Ocean Boulevard. The proposed landscaping will be approved with a
conditioned height restriction to protect any views of the residents /non - residents along
the street/sidewalk of Ocean Boulevard, adjacent residents, and properties on the other
side of Ocean Boulevard.
The proposed encroachments within the Ocean Boulevard right -of -way are similar in
nature (with the exception of the highest portion of the retaining wall being 15' with 42"
high railing) to other existing encroachments along the ocean side of Ocean Boulevard.
The retaining wall will be constructed with concrete caissons and tie backs (anchors) for
stability. In addition, the retaining wall will be terraced with a landscaped planter in front
and the railing will be open in nature to help soften the appearance of the massive wall.
On August 23, 1999, City Council approved a similar request for the adjacent neighbor
(3619 Ocean Boulevard).
Council Policy L -6, "Private Encroachments in the Public Right -of -Way," requires the
prior approval of City Council for private structural improvements such as planters,
stairs, etc., in public easements or rights -of -way. An encroachment agreement will
allow construction of the driveway, wall, planter, drainage system, and landscape
improvements in the right -of -way as approved by the Public Works Department and
require the property owner to maintain the proposed and existing encroachments.
Proposed landscaping shall be maintained by the owner and approved by the General
Services Department with a maximum height restriction. The Encroachment
Agreement will include a hold harmless clause indemnifying the City of Newport Beach
against any liability of any manner connected with the proposed and existing
encroachments in the Ocean Boulevard right -of -away.
Respectfully submi d
..
LIC WORKS DEPARTMENT
Don Webb, Director
By: "P-
Gilbert Wong
Associate Engineer
Attachments: Letters dated June 18, 1999 and August 25, 1999,
Encroachment Agreement, Exhibit, and Photos
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3�t 8. 1990
City of Newport Beach
Community and Economic Development
Public Works Department
3300 Newport Blvd
Newport Beach. Ca 92658
PAR ERS
RE: Ocean Blvd. Access Road Widening at Lots 13, 14,&15 of Tract 1257.
To Whom It May Concern:
We, the aforementioned property owners, agree to the submittal of plans to the City of Newport Beach for
the purpose of obtaining an encroachment permit.
Any further submittals required by the City of Newport Beach will require adaitional letters of agreement
by the property owners for each submittal.
We are currently preparing a feasibility study to determine the cost of the access road widening and will
commit only to the submittal of plans at this time.
. Thank you.
o V s• a!eE+�✓
D. Diane Anderson Lot 14
891 to9mo Canyon RooB • Laguna Beach. CA 92651
Ph: 714.494.7313 • Fox: 714.494.8063
E•maa: mkn"i@ix.netco .C"
mono
date: 25 august 1999
to: gilbertwong
city of newport beach
encroadlinent permit department
project: ocean blvd. access rd.
36018 3611 ocean blvd.
corona del mar, ca. 92625
re: widening of ocean blvd. access rd.
from: dee berNaume
dee berthiaume
residential 6 ememial dm p
220 el camino del mar
lWa beach, ca. 92651.
949-494 -5797 ten
949-494 -5586 fax
remarks:. we have recently submitted plans for the widening of the ocean blvd. access ri. in
front of the aforementioned properties. aswehave discussed, the property owners
are requesting the widening of the access due to the problems with ingress and
egress due to the current width of the access road. the proposed development of the
property at the end of the access road will make ingress and egress enrenmore
difficult due to the creation of a two -way traffic situation. in addition, the
slope of the existing driveway makes it very difficult to maneuver vehicles onto
the access road. we believe that the widening of the access road will greatly relieve
this difficulty. also, currently it is diff icult formotorists, who have inadvertently
drive down the access road, to tannaromd. the widening of the access road will also
alleviate this difficulty.
we are also proposing to provide new landscaping, irrigation 8 lighting to the slope
above the access road. currently the existing slope is sparsely landscaped and not
adequately irrigated. the property owners are willing to maintain and irrigate the
slope above the access road directly in front of their properties.
we are also proposing the addition of several trench drains and improving the
current storm drain tomitigate the storm run -off that occurs rs during the rainy
season.
thank you for your assistance. please contactmewith any further questions at
(949)-463-4861.
distribution: file
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RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
City Clerk
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659 -1768
Attention: Public Works Department
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EP99 -348)
This Agreement is made and entered into this day of , 1999, by
and between Augustine Nieto and Lynee B. Nieto (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 "),
"OWNER" is the owner of property located at 3601 Ocean Boulevard, Newport Beach,
California and legally described as lot 13, Tract 1257, (hereinafter ( "SUBJECT PROPERTY ")
as shown on a map recorded in Book 38, Page 25 inclusively of Miscellaneous Maps in the
office of the County Recorder of Orange County, California;
0 WITNESSETH:
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WHEREAS, OWNER desires to construct and maintain certain non - standard
improvements and existing non - standard improvements (hereinafter "PERMITTED
IMPROVEMENTS ") within the 10' sewer easement as shown on Official Record 13022/796
and Ocean Boulevard right -of -way (hereinafter "RIGHT -OF- WAY ") serving of lot 13, Tract
1257, as shown on a map recorded in Book 38, Page 25, inclusively of Miscellaneous Maps in
the office of the County Recorder of Orange County, California; and
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 execute an agreement providing for fulfillment
of the conditions required by CITY to permit OWNER to reconstruct and maintain said
PERMITTED IMPROVEMENTS;
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NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree
as follows:
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as a
retaining walls with 30 -inch diameter caissons, planter walls, drains, stone driveway, concrete
stairway, irrigation, landscaping, and appurtenances in the Ocean Boulevard) right -of -away and
in the 10' sewer easement as shown on EXHIBIT "A" attached hereto and as approved by the
City Engineer.
2. 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, all in substantial conformance with plans and
specifications on file in the CITY. CITY will further allow OWNER to take all reasonable
measures necessary or convenient in accomplishing the aforesaid activities.
3. Rights granted under this Agreement may be terminated by CITY at any time by
giving 60 days' notice, 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.
4. OWNER and CITY further agree as follows:
a. OWNER may construct and install PERMITTED IMPROVEMENTS and
appurtenances incidental thereto, in substantial conformance with plans and specifications
therefor on file in the CITY's Public Works Department, and as described on Exhibit "A" hereto
attached.
b. OWNER shall maintain the PERMITTED IMPROVEMENTS in accordance
with general prevailing standards of maintenance, and pay all costs and expenses incurred in
doing so. In addition, any new and existing trees, shrubs, and landscaping that are on the
adjacent City property shall be maintained at the roof line of the existing structures at all times.
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.
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d. That should CITY be required to enter onto said RIGHT -OF -WAY to exercise
its primary rights associated with said 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 portions of the PERMITTED IMPROVEMENTS,
as required, and in such event:
(i) CITY shall notify OWNER of its intention to accomplish such work,
if any emergency situation does not exist.
(ii) OWNER shall be responsible for arranging for any renewal or
restoration of the PERMITTED IMPROVEMENTS affected by such work by CITY;
(iii) CITY agrees to bear only the cost of any removal of the
PERMITTED IMPROVEMENTS affected by such work by CITY;
(iv) OWNER agrees to pay all costs for renewal or restoration of the
PERMITTED IMPROVEMENTS.
5. 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 the
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) days' notice, with the
notice specifying the date of termination. In the event of litigation commenced with respect to
any term of condition of this Agreement, the prevailing party shall be entitled to reasonable
attorneys fees and costs incurred.
6. OWNER shall defend, indemnify, waive, 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 the PERMITTED IMPROVEMENTS.
7. OWNER shall accept the fact that surface drainage water may enter onto the
"SUBJECT PROPERTY" from "RIGHT -OF -WAY" located in the City of Newport Beach,
County of Orange, State of California, as depicted on Exhibit "A" attached hereto, whether
• naturally or as a result of the development or improvement of the "RIGHT -OF- WAY ".
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8. OWNER shall accept and waive any and all liability for any damages to the
"SUBJECT PROPERTY" caused by the flow of such surface drainage water onto the
"SUBJECT PROPERTY". OWNER shall defend, indemnify, waive, 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 to surface drainage water
entering the "SUBJECT PROPERTY" from the "RIGHT -OF- WAY ".
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 OWNERS' interest in the land whether fee or otherwise, and shall be recorded in
the Office of the County Recorder of Orange County, Calif omia.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first -above written.
APPROVED AS TO FORM:
0
ATTEST:
City Attorney
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation •
By:
Mayor
OWNERS:
By:
Lynee Nieto
By:
Augustine Nieto
4
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On 1999, before me,
• personally appeared , personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is /are subscribed to the within instrument and acknowledged to me that
he /she /they has executed the same in his/her /their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(This area for official notarial seal)
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On 1999, before me,_,
personally appeared personally
known to me (or proved'to me on the basis of satisfactory evidence) to be the person(s)
whose names) is/are subscribed to the within instrument and acknowledged to me that
he /she/they has executed the same in his/her/their authorized capaciry(ies), and that by
his/her /theirsignature(s) on the instrument the person(s) or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(This area for official notarial seal)
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RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
City Clerk
City of Newport Beach
•Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659 -1768
Attention: Public Works Department
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EP99 -348)
This Encroachment Agreement supersedes the Encroachment Agreement executed on
June 9, 1998 and recorded on July 24, 1998 as Official Record No.19980478251 in the Office
of the County Recorder of Orange County, California. This Encroachment Agreement is made
and entered into this day of 1999, by and between Diane Anderson
(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 "), "OWNER" is the owner of property located at
3611 Ocean Boulevard, Newport Beach, California and legally described as lot 14, Tract 1257,
(hereinafter ( "SUBJECT PROPERTY") as shown on a map recorded in Book 38, Page 25
. inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County,
California;
•
WITNESSETH:
WHEREAS, OWNER desires to construct and maintain certain non - standard
improvements and existing non - standard improvements (hereinafter "PERMITTED
IMPROVEMENTS ") within the 10' sewer easement as shown on Official Record 13022/796
and Ocean Boulevard right -of -way (hereinafter "RIGHT -OF- WAY ") serving of lot 14, Tract
1257, as shown on a map recorded in Book 38, Page 25, inclusively of Miscellaneous Maps in
the office of the County Recorder of Orange County, California; and
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
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WHEREAS; the parties hereto desire to execute an agreement providing for fulfillment
of the conditions required by CITY to permit OWNER to reconstruct and maintain said
PERMITTED IMPROVEMENTS;
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree •
as follows:
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as a
retaining walls with 30 -inch diameter caissons, planter walls, grade beams, drains, storage
room, stone driveway, irrigation, landscaping, and appurtenances in the Ocean Boulevard
right -of -away and in the 10' sewer easement as shown on EXHIBIT "A" attached hereto and
as approved by the City Engineer.
2. 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, all in substantial conformance with plans and
specifications on file in the CITY. CITY will further allow OWNER to take all reasonable
measures necessary or convenient in accomplishing the aforesaid activities.
3. Rights granted under this Agreement may be terminated by CITY at any time by
giving 60 days' notice, 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.
4. OWNER and CITY further agree as follows:
a. OWNER may construct and install PERMITTED IMPROVEMENTS and
appurtenances incidental thereto, in substantial conformance with plans and specifications
therefor on file in the CITY's Public Works Department, and as described on Exhibit "A" hereto
attached.
b. OWNER shall maintain the PERMITTED IMPROVEMENTS in accordance
with general prevailing standards of maintenance, and pay all costs and expenses incurred in
doing so. In addition, any new and existing trees, shrubs, and landscaping that are on the
adjacent City property shall be maintained at the roof line of the existing structures at all times.
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.
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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.
d. That should CITY be required to enter onto said RIGHT -OF -WAY to exercise
its primary rights associated with said 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 portions of the PERMITTED IMPROVEMENTS,
as required, and in such event:
(i) CITY shall notify OWNER of its intention to accomplish such work,
if any emergency situation does not exist.
(ii) OWNER shall be responsible for arranging for any renewal or
restoration of the PERMITTED IMPROVEMENTS affected by such work by CITY;
(iii) CITY agrees to bear only the cost of any removal of the
PERMITTED IMPROVEMENTS affected by such work by CITY;
(iv) OWNER agrees to pay all costs for renewal or restoration of the
PERMITTED IMPROVEMENTS.
5. In the event either parry 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 the
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) days' notice, with the
notice specifying the date of termination. to the event of litigation commenced with respect to
any term of condition of this Agreement, the prevailing party shall be entitled to reasonable
attorneys fees and costs incurred.
6. OWNER shall defend, indemnify, waive, 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 the PERMITTED IMPROVEMENTS.
3
7. OWNER shall accept the fact that surface drainage water may enter onto the
"SUBJECT PROPERTY" from "RIGHT -OF -WAY" located in the City of Newport Beach,
County of Orange, State of California, as depicted on Exhibit "A" attached hereto, whether
naturally or as a result of the development or improvement of the "RIGHT -OF- WAY ".
8. OWNER shall accept and waive any and all liability for any damages to the
"SUBJECT PROPERTY" caused by the flow of such surface drainage water onto the
"SUBJECT PROPERTY". OWNER shall defend, indemnify, waive, 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 to surface drainage water
entering the "SUBJECT PROPERTY" from the "RIGHT -OF- WAY ".
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 OWNERS' interest in the land whether fee or otherwise, and shall be recorded in
the Office of the County Recorder of Orange County, California.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first -above written.
APPROVED AS TO FORM:
By:
City Attorney
ATTEST:
City Clerk
4
CITY OF NEWPORT BEACH,
a Municipal corporation
OWNER:
IN
By:
Mayor
Diane Anderson.
Is
0
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On 1999, before me,
. personally appeared , personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he /she /they has executed the same in his/her /their authorized capacity(ies), and that by
his/her /their signature(s) on the instrument the person.(s) or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
(This area for official notarial seal)
1999, before
personally appeared , personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he /she /they has executed the same in his/her /their authorized capacity(ies), and that by
his/her /their signature(s) on the instrument the person(s) or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(This area for official notarial seal)
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