HomeMy WebLinkAbout24 - Encroachment Agreement 2804 Broad StreetJuly 25, 2000
CITY COUNCIL AGENDA
ITEM NO. 24
TO: Mayor and Members of the City Council
FROM: Public Works Department
SUBJECT: ENCROACHMENT AGREEMENT FOR CONSTRUCTION AND MAINTENANCE
OF PRIVATE IMPROVEMENTS WITHIN THE PUBLIC RIGHT -OF -WAY
ADJACENT TO 2804 BROAD STREET, NEWPORT HEIGHTS (N2000 -240)
OWNER: Robert Malanga
RECOMMENDATIONS:
1. Deny the Request
or
2. Approve the application subject to:
A. Execution of an Encroachment Agreement for non - standard improvements.
1. Authorize the Mayor and the City Clerk to execute the Agreement.
2. Authorize and direct the City Clerk to have the agreement recorded with the
Orange County Recorder.
B. An Encroachment Permit issued by the Public Works Department.
C. A Building Permit issued by the Building Department.
D. Modification Committee approval.
3. Revise City Council Policy L -6 to omit L- 6.D.1.b. for Broad Street.
DISCUSSION:
Bob Malanga, the owner of the property located at 2804 Broad Street in Newport Heights, has
requested that he be permitted to keep the existing non - standard improvements within the
public right -of -way (see attached letter, photos, and exhibits). The existing non - standard
improvements measured from the top of the existing curb are a 43 -inch high and 14 -inch thick
grouted brick wall with a 49 -inch high wrought iron gate, 43 -inch high grouted 18 -inch square
brick pilasters with 18 -inch lights, and landscaping located between 2 -feet behind the existing
curb face and 12 -feet behind the existing curb face (property line). The house is designed with
the main entrance off Broad Street and garage entrance off the alley. Per the owner's letter
dated June 14, 2000 and exhibit; the brick wall and gate was a replacement of an existing fence
and gate, and the brick pilasters with lights were existing. The owner has obtained some
support in the neighborhood and stated that there are other non - standard improvements similar
in nature in the neighborhood (see attached letters of support and photos).
SUBJECT: Encroachment Agreement for Construction and Maintenance of Private Improvements Within the Public Right -of -Way
Adjacent to 2804 Broad Street, Newport Heights (N2000 -240)
July 25, 2000
Page 2
Although currently there is no existing concrete sidewalk, the existing non - standard
improvements and landscaping prevent pedestrian access behind the curb. In addition, the
improvements do not provide the minimum 4 -foot requirement for handicap access or any
future minimum 5 -foot wide public sidewalk behind the curb. Hence, these encroachments
force the pedestrians to walk in the street shared by motor vehicles. Other encroachments in
the area are not to the extent of 2804 Broad Street. Many of the existing encroachments are a
combination of wooden fencing /landscaping with pilasters and wrought iron gates. Hence,
these encroachments are less permanent and can be more easily removed. Staff does not
support the wall and gate encroachment that extends the entire width of the property of 45 -feet.
Even though other similar non - standard improvements exist in the neighborhood, when existing
non - standard improvements are reconstructed /modified they will be required to meet current
City Council Policy L -6 so that the City can restore the right -of -way for public access.
City Council Policy L- 6.D.1.b. specifically applies to Broad Street from Santa Ana Avenue to
Redlands Avenue, allowing a 3 -foot maximum height structural encroachment to be located no
closer than 8 feet behind the face of curb. The subject property (2804 Broad Street) is located
between the Santa Ana Avenue and Redlands Avenue limits. The Broad Street right -of -way
was 22 -feet behind the existing face of curb, when the Council Policy was originally adopted.
However in 1998, City Council approved a Broad Street right -of -way vacation per Resolution
98 -36 reducing Broad Street right -of -way to 12 -feet behind the existing face of curb, which is
consistant with parkway widths in the area. Therefore, the encroachment per City Council
Policy L- 6.D.1.b. no longer applies.
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, walls, etc., in
public easements or rights -of -way. Should City Council approve the encroachments, an
Encroachment Agreement would require the property owner to maintain the existing
encroachments and landscape improvements in the right -of -way as approved by the Public
Works Department and General Services Department.
The attached Encroachment Agreement includes a hold harmless clause indemnifying the City
of Newport Beach against any liability connected with the proposed /existing encroachments in
the Broad Street right -of -way.
Ros?ectfully submitted,
PUBLIC WORKS DEPARTMENT
Don Webb, Director
By: -t
Gilbert Wong
Associate Civil Engineer
Attachments: Letter dated June 14, 2000
Neighborhood letters of support/against
Photos
Encroachment Agreement
Exhibit
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
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
(EPN2000 -263)
THIS AGREEMENT is made and entered into this day of
2000, by and between Robert Malanga (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 2804 Broad Street, Newport Beach, California
and legally described as Lot 5, Block 23, First Addition to Newport Heights Tract, as shown on
a map recorded in Book 4, Page 94 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 Broad Street right -of -way (hereinafter "RIGHT -
OF- WAY ") that is located adjacent to Lot 5, Block 23, First Addition to Newport Heights Tract,
as shown on a map recorded in Book 4, Page 94 inclusively of Miscellaneous Maps in the
office of the County Recorder of Orange County, California; also known as 2804 Broad Street,
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;
3
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 43-
inch high wall with lights, 49 -inch high wrought iron gate, landscaping, and appurtenances in
the Broad Street right -of -way as shown on EXHIBIT "A" attached hereto and as approved by
the City Engineer. All landscaping behind the wall within the public right -of -way shall be
maintained no higher than the wall. No landscaping will be allowed between the wall and
existing curb that prevents pedestrian access. 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 on 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.
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, all landscaping behind the wall within the public right -of -way shall be
maintained no higher than the wall. No landscaping will be allowed between the wall and
existing curb that prevents pedestrian access. 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.
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 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 agree 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:
LJ2
ATTEST:
5�
City Attorney
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
OWNER:
0
M-
City Manager
Robert Malanga
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On , 2000, 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 his 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 , 2000, 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 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 persons(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(This area for official notarial seal)
F:%WP51 % GILBERT%AGWCMALANGAEPN2000 -NHNH
2 -14 -00
TO: GINA GARCIA
FROM: BOB MALANGA
2804 BROAD STREET
ENCLOSED PLEASE FIND THE HEIGHT MEASUREMENTS THAT
YOU REQUESTED. PLEASE NOTE THAT THE PILASTERS WITH THE
LIGHTS AND THE LIGHTS THEMSELVES WERE EXISTING FOR
FIFTEEN YEARS.
IF YOU HAVE ANY QUESTIONS, GINA, PLEASE GIVE ME A CALL.
CELL # 466 -0410
TOP OF WALL
43"
. TOP OF LIGHTS
64"
TOP OF GATE
49"
IF-X11`Fj \
I'
I10
IU
r
p
Q
0
C(-
CO
X
111
F;
^S Jo- 3J p rue "v4
^YJ v
e?4t, .'Y,` 'i .4,� -�'4"- rn. .KV{y?4F "�, i�bM1�:
r
V "Y ft+ - Pxfpk'T+ti`6kf :Ti°'+ E'4 Y}' t ".yw'f-'u�
3, e
{..
, y -.d ^'
kIg
*1 ��� �"� b F {va
tJ y e
A�
PC Y
.
s
`
u,.
Mw
e ,
s
4
1
c
Hw^yy
r
n.
YY
4N a ^
s
e.q." .
d
F
p
f F
fy, a i
; b
JSpw t 3r t s of
d
. M AT
s w
s s
j
Y°n
'yam", 4 S"
"Ji SS
wY b i t i lx VV �{ j1(
$'
; d
}aW
IT-
ik
P3 i
�ryFi 44t'(V .5f1$r � •�\ ♦ ' ye. ��
,, .tea r" � �ti v � -, s ' 1 e ? �.. e. w� Y � }I� •,1 � `,.n�14 � 1
ll' *S1M"G
� .. 1 _ a �" � � "� � x(xf ,: = 1 ii > �j /pp� -" ♦ 9 x ,y.
"6 �`9y F S ♦ F � .a j�? 4
- s
r�.r., -.
ILI
i � p
a
( i� P 4 iTTT
J 1 mpi ix { ; V It
�7 t P' d
q
( ta��% kj� p� p�l.,,t✓�r'�i3 dl�+° p'�'4� t ��""?'q� i
"'t r�Jr,{� Y }E'tP,?"'t xx
i f ]- fry' n t s,
( 4
d Z ✓ .. s ♦ u � f � a4��x�'n i � ��� r� s
rNh
i�,
ivy r
tw L-i
1 1 Z
iu�
�llv
ME
5 m
-Jif A,
�4 i,
IN
1A
ri
a ff JW
oil OUR 4951 "Y'Ka, t v
ill,'
t r
Lc -
u
S4 4 !`w^t 3R.
n. 1 4 Y A: E t 4
L k >T f e TOOK 1& 7
too AROMAT 1, el . IJ 4
yr r i g S"aI
t
£
6
a Zia"' ay Nun f h ✓:
Yl Y !
t
SIX l��,!erort x
�Y
eo
H � l � � L 4
Fee
4 l
y
+. ........ fad V�
t ., �� a e . • � l j5 - ft j�
�t
z
alit �¢
p. A
.� t. . l 1: } Y t
4 j3Y a� � 1y � �1,. 1 � 5..i ♦5t l� v �?.
o � art � i x`' 4 a s } °i'•.}! °S }�,� � . - ? �£
IS
> 1 ,
1 �l l i 1i k
r L l Y R
14m;
J� £££ a4 wo
a {
( Y } J a
\ s r st — £
a L S ♦ ..r � � � 5 � } _ t.
. , T# +
:k `rte'
MIA
�^ s 4 3,
loop is S
1 5
U � ) t i t
£ f r L
vitalist, �'. a .. p Rk J
,,
^
t s^
1
A,It. f t d a x. x! + r +� a x±
Y f x 4
WI
yy '.apg..
xyr : + 7 �' a ^b ai �, 414 F t "yS tic L
vivo
toy ay, h
June 14, 2000
Gilbert Wong
Project Engineer
Public Works Department
City of Newport Beach
Subject: 2804 Broad Street Replacement Fence
Encroachment Permit
Dear Gilbert:
Attached is my encroachment permit application for a replacement fence that has stood for
sixteen years. In addition, I am submitting letters from my neighbors together with photos
of the wall as well as other walls and fences on Broad Street.
Please note that the wall is a replacement for a fence that has stood for sixteen years. The
fight standards and the light fixtures have been there for sixteen years as well. The gate is
also a replacement item. The replacement fence became a necessity when the existing
materials warped and became structurally unsound
I would encourage an on -site meeting and tour of the neighborhood at Broad street,
where your committee will have a better visualization of the homes that have fences
encroaching in the exact identical parameters that seem to be of issue here.
This replacement wall has greatly enhanced this neighborhood ast4tically, and has not
obstructed anything, as it has not been an issue or of any concerns over the past sixteen
years.
I anticipate the approval of my permit, and I am sure that all will be in agreement.
I greatly appreciate the time and efforts of all staff members pertaining to this matter
ANTHONY K. ELLSWORTH
Attorney at Law
2429 West Coast Highway, Suite 200
Newport Beach, California 92663
(949) 642 -8505
Fax(949)642 -8595
T0: Newport Beach City Council
RM 2604 Broad Street
Wall Variance
This particular used brick wall is not offensive at all, and most certainly is a real "plus"
for the neighborhood...
I would ask that the property owner be allowed to retain it, as built...
Thank you.
Redlands Avenue
Newport Beach, CA 92663
P.S.: I might not feel this way about other neighborhood incursioX-
435
CNH- PLANNING DEPT. ID :949- 644 -3229 JUN 14'00 8:16 No.001 P.06
Dear City Council,
This letter concerns Mr Malanga at 2804 Broad Street. We think
his fence is an asset to the neighborhood and we find it very
attractive. Others along Broad Street and Redlands have not set
their fences back fifteen feet and the height of the brick
pilasters look the same as those across the street from us.
Please allow Mr Malanga to have his fence so his little dog can
have access to the front lawn. Names below are neighbors in the
area.
Thank you,
Respectfully
i1
ZdC3g ��D4� Sf
�1.�YVrY fAw��
IIIIIIIII'I III III 1P
VAN
�00 I M
CNH- PLANNING DEPT. ID :949- 644 -3229
JUN 14'00 8 :15 No.001 P.04
*416 a°?/ of OOU
goy X-r. �,-' 0,-�
4- .-IlVk Yee fi«c. a;�u�e, fv @Bic..ru.�.ei Av
4_ / &VA.e, C
4e. 7P
524,
,b
CNH- PLANNING DEPT. ID:949- 644 -3229 JUN 14'00 8 :15 No.001 P.03
��z`�L
./,nw
/ i I
j�4/-
zz
• jr�£ �,L� -n� `��, Gf�l9�����
CNB- PLANNING DEPT. ID:949- 644 -3229 JUN 14'00 8 :15 No.001 P.02
NEWPORT BEACH PLANNING DEPARTMENT
CITY HALL
3300 NEWPORT BLVD.
NEWPORT BEACH, CA 92656-5915
RE: MODIFICATION NO. 5043
TO WHOM IT MAY CONCERN:
1 HAVE READ THE PUBLIC NOTICE REGARDING THE PROPERTY AT 2804
BROAD STREET, NEWPORT BEACH.
1 BELIEVE THAT THE REPLACEMENT FENCE AT 2804 BROAD STREET IS AN
ENHANCEMENT TO OUR NEIGHBORHOOD. ITS APPEARANCE IS NEAT AND
IT DOES NOT INTERFERE WITH SIGHT OF TRAFFIC OR COASTAL VIEWS.
ADDITIONS LIKE THIS SHOW PRIDE OF OWNERSHIP AND HELP MAKE OUR
NEIGHBORHOOD NICER.
THANK YOU,
[`JN'+
� / r
OWE! � ,
ADDRESS
�
. »_
\< �
\
� �.
.. �
� /�»
� �
� �
/..
� �
�� \�
� �
� � zs, � «
� ��
� � � �
y? ^^
[ ». �
� � ..
% �\
� \
ADDRESS CORNER BROAD/HOLMWOOD
DISTANCE FROM CURB 7'
HEIGHT 7'
f7--.
ww��>
'£k
.
s rr`
Z000
APP � L z`Fs TZ-� o 0
CONS Cs-t-- Eb 1 \IE IG1i �3o�
Cl Ty c- w pc, ?,-7
�c�VEr\ \1P1 GRRC\A , 1"t_A NNIh1��E�'t_
L 'b 1N "l`.
�tL�3fp-rR'T WotdG ,�� l-\C LJo-r-K tE7
F1 lv\ P� CoNL E}Z (� \En NEw�aR�T` NE�c>t�TS
ldE\�H���Z Rh,� ��s��Eh\T o-g TwEhTY -oti�
WITHIN
o-F M6bl� "�caTdh��5a43\Z8d�-�Ro�n�T.
1 H -7K 1 T ry I I� b F
�1\L` --NRT \S FN
Gay 1ouS E ra�TtoRC-fA NAAJ- Ti{ \S
E�l�- RoT�CHIh�V �ALC AYPE�\les �o- T -Ai_.L
`�V�T \ii-E AnIO�E�LE\tSpS T' \�lEl� \`lE Artta G��
N� \c,t-1�oR 1hlC��Ro�'ErTtES _
�F�� cT tltin ESTr�t'3�1s� -1 FI�RE�EOENcE
I n\ cE-� ELY
Cor\\CER�IEQ �EIG��-Pc��
z-I