HomeMy WebLinkAbout06 - EP99-353 - Carnation Avenue Encroachment AgreementSeptember 13, 1999
CITY COUNCIL AGENDA
ITEM NO. 6
TO: Mayor and Members of the City Council
FROM: Public Works Department
SUBJECT: ENCROACHMENT AGREEMENT FOR CONSTRUCTION AND
MAINTENANCE OF PRIVATE IMPROVEMENTS WITHIN THE BAYSIDE
DRIVE PUBLIC RIGHT -OF -WAY ADJACENT TO 319 CARNATION
AVENUE, CORONA DEL MAR (EP99 -353)
OWNER: Robert Losey
RECOMMENDATIONS:
Approve the application subject to:
Execution of an Encroachment Agreement for non - standard improvements.
. a. Authorize the Mayor and City Clerk to execute the Agreement.
b. Authorize and direct the City Clerk to have the agreement recorded with
the Orange County Recorder.
2. An Encroachment Permit issued by the Public Works Department.
3. A Building Permit issued by the Building Department.
4. The Building Department, General Services Department, and Public Works
Department shall approve all improvements.
DISCUSSION:
Bill Barton, representing the owner of the property located at 319 Carnation Avenue in
Corona Del Mar, has requested that they be permitted to install an exterior stairway and
landscape improvements (see Exhibit A). The proposed improvements will be to
construct a concrete stairway with retaining walls and railing, a steel staircase with railing,
a gate (opens inwardly), and landscaping. The proposed improvements will encroach
from 7' to 21' from the existing curb within the Bayside Drive right -of -way (see attached
letter, photos, exhibit). The existing retaining walls have been previously approved by the
City Council. The house is designed with the main and garage entrances off Carnation
Avenue.
SUBJECT: ENCROACHMENT AGREEMENT FOR CONSTRUCTION AND MAINTENANCE OF PRIVATE IMPROVEMENTS
WITHIN THE BAYSIDE DRIVE PUBLIC RIGHT -OF -WAY ADJACENT TO 319 CARNATION AVENUE, CORONA DEL
MAR (EP99 -353)
September 13, 1999
Page 2
The proposed encroachments within the Bayside Drive right -of -way will not obstruct any
views of adjacent residents. The proposed landscaping will be maintained by the
property owner and conditioned with a height restriction to protect any views of the
adjacent residents. In addition, the proposed landscaping and railing will be open in
nature to help soften the appearance of the stairway and retaining walls. A stone
veneer will be added to the existing /new retaining walls to improve the aesthetic
appearance. The proposed stairway encroachment within the Bayside Drive right -of-
way is similar in nature to other existing rear yard encroachments along Bayside Drive
(see photos of 2209 and 2219 Bayside Drive), but they are not to the same extent. The
stairway encroachment at 2209\2219 Pacific Drive encroaches approximately 4'
(unconfirmed), whereas 319 Carnation Avenue encroaches 14' along Bayside Drive
(the back of the property). Bayside Drive right -of -way is approximately 80' wide
adjacent to 319 Carnation Avenue compared to 40' wide adjacent to 2209 \2219 Pacific
Drive.
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 stairway, wall, gate, 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 General Services 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 Bayside Drive right -of -way.
Respectfully submitted,
�l�i�
PUBLIC WORKS DEPARTMENT
Don Webb, Director
By:
Gilbert Wong
Associate Civil Engineer
Attachment: Letter, exhibits, photos, and Encroachment Agreement
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EXTERIOR STAIRWAY FOR 319 CARNATION AVE.
Mr.& Mrs.Losey request approval to install an exterior stairway to access a sidewalk on Bayside
Drive. The configuration of this stairway would be similar to stairways at other homes in the
immediate area. Two new homes (recently completed) have stairway access from the residence
to Bayside Drive. These homes are located at 2219 Pacific Drive and 2209 Pacific Drive. A
sketch showing the proximity of these homes to the Losey residence (approximately 330 ft. away)
is attached. Photos are also attached.
The proposed Losey stairway is to be constructed of steel and concrete. The upper section is
steel and engineered to be supported by existing retaining walls. The lower section is concrete
and would include two new retaining walls.
The Losey stairway encroaches approximately 14 feet into public property. A review of City of
Newport Beach records indicates that 2219 Pacific Drive and 2209 Pacific Drive both encroach
approximately 4 feet into public property. In both cases the stairway leads to a public sidewalk on
Bayside Drive.
The Losey stairway design would not interfere with any neighbors' view. The steel design is an
open plan providing unobstructed view of the hillside landscaping and trees. The concrete stairs
(closes to Bayside Drive) is to be recessed into the landscaped hillside thus minimizing visual
impact of the structure.
The two existing retaining walls that extend from the East property line to the West property line
will be finished with a cultured stone veneer. The stone veneer and steel stair finish will be color
coordinated to match the house.
0 Attached is a detailed set of plans for the stairs.
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New house at 2209 Pacific Drive with exterior stairway access to Bayside Drive. Photo from Bayside Drive
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New house at 2219 Pacific Drive with exterior stairway access to Bayside Drive. Photo taken from Bayside Drive
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Office of the City Clerk
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92659 -1768
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EP99 -353)
This Encroachment Agreement supersedes the Encroachment Agreement executed on
April 9, 1996 and recorded on April 19, 1996 as Official Record No.19960194851 and; the
Encroachment Agreement executed on February 21, 1997 and recorded on April 7, 1997 as
Official Record No.19970158434 in the Office of the County Recorder of Orange County,
California. THIS AGREEMENT is made and entered into this day
of , 1999, by and between Robert Losey (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 319 Carnation Avenue, Newport Beach,
California and legally described as portion of Block "D" and a portion of Carnation Avenue
(vacated); southerly of Bayside Drive and westerly of the midline of the vacated extension of
Carnation Avenue, Corona Del Mar Map, as shown on a map recorded in Book 3, Pages 41
and 42 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange
County, California;
WITNESSETH:
WHEREAS, OWNER desires to construct certain non - standard improvements
(hereinafter "PERMITTED IMPROVEMENTS ") within the Bayside Drive right -of -way
(hereinafter "RIGHT -OF -WAY") that is located adjacent to 319 Carnation Avenue, Newport.
Beach, 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; and
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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
3 -foot high block retaining walls with 1 -inch thick stone veneer adjacent to the public sidewalk,
a 3 -foot high block retaining walls with stone veneer and caissons, drains, concrete \steel
stairway with railing (opened), gate (open inwardly), landscaping, and appurtenances in the
Bayside Drive right -of -away as shown on EXHIBIT "A" attached hereto and as approved by
the City Engineer. In addition, the proposed PERMITTED IMPROVEMENTS may vary at the
time of construction. Hence, any changes must be approved by the CITY Engineer and shall
be shown on the "As Built' plans.
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. 0
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. With general prevailing standards of maintenance, and pay all costs and
expenses incurred in doing so. In addition, any trees, shrubs, and landscaping that are on the
CITY property shall be maintained at a maximum height as approved by General Services not
to block adjacent property owner's view at all times. However, nothing herein shall be •
construed to require OWNER to maintain, replace or repair any CITY -owned pipeline,
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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.
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 an 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 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
attorney's fees and costs incurred.
6. 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
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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 is
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 ".
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.
CITY OF NEWPORT BEACH,
a Municipal corporation
APPROVED AS TO FORM:
By: By:
City Attorney Mayor
ATTEST: OWNER:
By:
City Clerk Robert Losey
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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 name(s) istare 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
F. lWP51 1GILBERNIGLLOSEYCDMEP88-353DOC
(This area for official notarial seal)