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HomeMy WebLinkAbout12 - Private Improvements at 233 Milford DriveCITY OF F NEWPORT REACH City Council Staff Report November 12, 2014 Agenda Item No. 12 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: David A. Webb, Public Works Director- (949) 644 -3330, dawebb @newportbeachca.gov PREPARED BY: David Keely, Senior Civil Engineer PHONE: (949) 644 -3349 TITLE: Request to Retain Existing Private Improvements within a City Easement Reserved for a Future Sewage Force Main at 233 Milford Drive ABSTRACT The property owners of 233 Milford Drive (in the Cameo Shores neighborhood) are requesting to retain existing private improvements within a City easement reserved for a future sewage force main. RECOMMENDATION: a) Waive City Council Policy L -6, Private Encroachments in the Public Rights -of -Way, to allow walls, patio, patio stairs and caissons to encroach in excess of 1 foot into the future easement for sewage force main; and b) Direct Staff to prepare an Encroachment Agreement with the property owners for the existing private improvements and authorize the City Manager and City Clerk to execute the Encroachment Agreement within one (1) calendar year upon receipt of approval. FUNDING REQUIREMENTS: There is no fiscal impact related to this item. DISCUSSION: The property owners at 233 Milford Drive are requesting approval to retain the existing walls, patio, patio stairs and caissons that encroach in excess of 1 foot into a City easement reserved for a future sewage force main. Approved building plans required that an encroachment permit and encroachment agreement be obtained prior to constructing the non - standard improvements. However, the property owner's contractor installed the non - standard improvements without the benefit and prior to the approval /issuance of an approved encroachment permit or encroachment agreement. The non - standard private improvements encroach up to 13.4 feet into the City's easement reserved for a future sewage force main and consist of the following: 12 -1 Patio and patio stairs constructed of colored concrete; Low seat wall with a maximum height of 25 inches tall with cougar stone veneer; Three (3) 5 -foot deep caissons along the edge of the patio; and Low curb wall varying in height from 7- inches to 18- inches with stucco finish (existing Encroachment Agreement N2009- 0180). City Council Policy L -6 prohibits structures that encroach more than 1 foot into the public right -of -way. This City Council Policy will need to be waived to allow the newly constructed walls, patio, patio stairs and caisson to remain. The City easement for a sewage force main was reserved in 1958 in the original tract development, tract map 3357, for the City's future use. Currently, there are no City facilities within the easement and there are no plans to build the sewage force main at this time. The easement varies in width from approximately 87.5 feet to 111.5 feet within the rear portion of the property located at 233 Milford Drive. The locations of the non - standard improvements are not anticipated to hinder the future design or construction of a sewage force main within the easement. The private improvements do 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. 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). ATTACHMENTS: Description Attachment A - Location Man Attachment B - Proiect Plan Attachment C - Proiect Photos Attachment D - City Council Policy L -6 Attachment E - Existing Encroachment Agreement N2009 -0180 12 -2 ATTACHMENT A 12 -3 W H Z W U Q H H Q 6, - MI rofip AVE. N r o y� N d f Z o I f I I i I I I I i I � I I' i I I I � i I (9 I z� O I 1 I I I I 11 Z I I I I i I � lii 1 I i n cs) l(-) cn Ill l R UI ZI CD I I -C) OD `j'; 1 I d• U •I � � I I � � I I ^i .OX sllooA9 i 1 I- V dW943 ONNi 30 34 01 i 1 K 1V1O1L I i cc S W U I U x 1 z UJ W 1 •�,t. I I I •'.I 002{038 b.LNI I i I I Ip' 1IJ31/J03AW3 / 'NI LL -le 5 W i I W W 7_ O I 1 p_ V i I I I I I I z I U ,'� ; I 1 I d• U S I� o ci I ^i .OX sllooA9 i 1 I- V dW943 ONNi 30 34 01 i 1 K 1V1O1L I i cc S W U I U x 1 z UJ W 1 Z W d I¢ w W 5 W i I W W 7_ O I 1 p_ V I I 1 I I I I LO O co 00 I I I I I I I I i I I I I I I I 1 I a >F i W U v LL W U IL W i Z 0Y > Q C) U z w CO U U) i N1� Nl c J R 11 U c� 7— 0 W U) N owl I I 1 I I I I LO O co 00 I I I I I I I I i I I I I I I I 1 I a >F i W U v LL W U IL W i Z 0Y > Q C) U z w CO U U) i N1� Nl c J R 11 U c� 7— 0 W U) N �7 J� m 1 N r ATTACHMENT C rt" 12 -8 ATTACHMENT D L -6 PRIVATE ENCROACHMENTS IN PUBLIC RIGHTS -OF -WAY It is the general policy of the City that the public rights -of -way are to be reserved for public use or open space; and that the rights of the public, present and future, are not to be diminished by the installation of private improvements within the public rights-of- way- Categories of private encroachments and improvements are listed below, together with the permit requirement for each category. A. Private encroachments prohibited. 1. Structural encroachments not otherwise listed; including, but not limited to, fences, walls, patios, raised planters, etc., which encroach in excess of 1 foot into the public right -of -way, or exceed 3 feet in height, measured from the top of curb elevation /or from sidewalk elevation where sidewalk exists. 2. Driveway approaches not conforming to Council Policy L-2. 3. Ocean front street end, or Bay front street end improvements not conforming to Council Policy L-8. 4. Ocean front alley end improvements not conforming to Council Policy L -8. 5. Modifications to original design concepts approved by the City. 6. Private signs except as provided for in the Building Code. 7. Lighting. 8. Parkway surfacing of loose rock, gravel, or any surfacing other than standard or colored/ textured concrete or flat stone /brick installed at grade and grouted. 9. Private dwellings and appendages including raised patios and decks, except as provided for in this section and the Building Code. 10. Pay telephones and private mail carriers drop boxes. 11 12 -9 CIM B. Private encroachments requiring an encroachment permit and if applicable an encroachment agreement from the Public Works Department and General Services Department approval. 1. Tree planting and removal. 2. Shrub planting and removal. 3. Median landscaping. If, in the opinion of the General Services Department, the approved planting is not being maintained for view and safety clearance, Chapter 10.50, "Public Nuisance Abatement," of the Municipal Code shall be used to remove offending plant material. The permit applicant shall reimburse the City of Newport Beach for the value of any City tree removed by this process. This value will be determined by the City Arborist using the International Society of Arboriculture's "Guide for Plant Appraisal." C. Private encroachments requiring an encroachment permit and if applicable an encroachment agreement from the Public Works Department. 1. Drive approaches conforming to Council Policy Lr2. 2. Standard sidewalks. 3. Carriage walks. 4. Parkway surfacing (standard or colored/ textured concrete or flat stone /brick) installed at grade (subject to General Services Department review for tree well location). 5. CATV and public utility facilities. 6. Structural encroachments not otherwise listed; including, but not limited to, fences, walls, patios, raised planters, etc., which encroach 1 foot or less into the public right -of -way. If, however, in the opinion of the Public Works Department, the nature or location of this type of encroachment is such that Council review is warranted, the Department may forward the item to the Council for action. 2 12 -10 U6 7. Mailboxes, when required by the U.S. Postal Service. The front of mailbox shall be aligned in the same vertical plane as the back of the curb. Mailbox base construction length shall not exceed the length of the mailbox, or 24 inches, whichever is less. 8. The placement of utility pedestals shall be at the back of sidewalks on arterials and major pedestrian thoroughfares without zero setbacks. In the commercial areas there shall be at least 4 feet of clear sidewalk width and /or pedestals shall be placed in the parkway outside of walk area. 9. When connecting to or relocating public utilities. D. Private encroachments requiring an Encroachment Permit from the Public Works Department and subject to the execution of an agreement for non - standard improvements. 1. Structural encroachments not otherwise listed which do not exceed 3 feet in height, including, but not limited to fences, walls, and raised planters in public rights -of -way in areas that are more than 8 feet behind the face of curbs on the following streets: a. Santa Ana Avenue from Cliff Drive to Fifteenth Street. 2. Permitted Structural Encroachments on Balboa Island along South Bay Front, North Bay Front, Grand Canal, and East Bayfront are as follows: a. Planters that do not exceed 1 foot in height located within 2'-6" of the back of existing sidewalk, planted with ground cover and shrubs not to exceed 2 feet in height measured from sidewalk elevation; b. Fences with a minimum setback of 2' -6" from back of sidewalk. L For patios constructed at grade elevation to 1' above sidewalk grade elevation, Fences may be 3' high above sidewalk grade in conformance with Building and Planning Code Regulations. ii. For patios constructed greater than 1' above sidewalk grade elevation, Fences must be set back a minimum of 3' from 3 12 -11 L-6 back of sidewalk, not exceed 2'-6" in height above the patio, have at least 40% visibility through them, and not to exceed Tin height above existing public sidewalk grade. C. Patios with a minimum setback of 2'-6" from the back of sidewalk. L Raised Patios are permitted provided they have a maximum height of 2' -6" above sidewalk grade, are set back a minimum of T -6" from back of sidewalk, and provided all bulkhead deadman and tiebacks supporting the Bay front bulkhead are replaced "If required by the Public Works Department" in conformance with the requirements of the Public Works Department; Stairs located a minimum of 2' -6" from back of sidewalk. 3. Structural encroachments not otherwise listed which do not exceed three (3) feet in height, including, but not limited to fences, walls, patios and raised planters in public rights -of -ways in areas that are five (5) feet behind the face of curb on the following streets: a. Southerly side of West Bay Avenue between 8th Street and 15th Street. If, in the opinion of the Public Works Department, the nature or location of this type of encroachment is such that Council review is warranted, the Department may forward the application to the City Council for original action. The City Manager is authorized to execute, on behalf of the City, agreements for non- standard improvements which are entered into pursuant to this section or other authorization. E. Private encroachments not requiring a permit: 1. Parkway lawn and ground cover. 2. Parkway sprinkling systems. 3. Use of public streets and projections over public property which are covered by the Uniform Building Code under a valid building permit issued by the City. 4 12 -12 F. Application for any permit as required by this policy shall be filed with the Public Works Department on a form to be provided by the City and shall show the proposed planting or work and the nature thereof. If the application is for a permit required under Section A, it shall be forwarded to the City Clerk for submission to the City Council. If the application is for a permit under Section B, it shall be processed by the General Services Department. Drawings for encroachment permits requiring City Council review shall be prepared to scale. Plan and elevation drawings shall accurately depict location, height, and extent of the proposed encroachments. No building permit shall be issued on a parcel whose access requires City Council review for an encroachment permit on public property, until said encroachment permit has been issued. G. Variances from the strict application of this policy shall not be granted unless individual circumstances indicate that approval will be consistent with the public interest. Adopted - August 25,1969 Amended - February 14,1972 Amended - August 11, 1975 Amended - February 9,1981 Amended - November 23,1981 Amended - October 27,1986 Amended - January 26,1987 Amended - July 13,1987 Amended - February 13,1989 Amended - August 14,1989 Amended - November 27,1989 Amended - December 9,1991 Amended - December 14,1992 Amended - July 12,1993 Amended - January 24,1994 Amended - May 9,1994 Amended - February 27,1995 Amended - February 26,1996 Amended - May 8, 2001 5 12 -13 ATTACHMENT E Recorded in Official Records, Orange County Tom Daly, Clerk- Recorder RECORDING REQUESTED AND IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIINO FEE WHEN RECORDED RETURN TO: 200900043965811:34am 08114109 100 286 Al2 10 Public Works Department 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 City of Newport Beach Post Office Box 1768 Newport Beach, CA 92659 -1768 Space above this line for Recorder's use only. i ENCROACHMENT AGREEMENT (EPN2009 -0180) i THIS AGREEMENT is made and entered into this 7th day of July, 2009, by and between Scott Lewis Henderson and Diane Henderson, Trustees of the Scott and Diane Henderson Family Trust established November 2, 2006 (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 233 Milford Drive, Newport Beach, California 92625 and legally described as Lot 169 of Tract 3357, as shown on a map recorded in Book 107, Pages 1 through 7 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California Assessor Parcel Number 475 - 021 -04. WITNESSETH: WHEREAS, OWNER desires to construct certain non - standard improvements (hereinafter "PERMITTED IMPROVEMENTS ") within the Future Sewer Force Main easement located on the northerly side of the said property (hereinafter "RIGHT -OF- WAY ") that is located adjacent to the parcel legally described as Lot 169 of Tract 3357, as shown on a map recorded in Book 107, Pages 1 through 7 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County, California; also known as 233 Milford Drive, - Newport Beach, California 92625; 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 1 12 -14 WHEREAS, the parties hereto desire to execute an 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: 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as, a variable height concrete curb with heights varying from 7 inches to 18 inches encroaching up to 2 '/z feet into the variable width Future Sewer Force Main Easement located at the ear of said property and appurtenances as shown on EXHIBIT "A" attached hereto and as approved by the Public Works Department. In addition, if any of the PERMITTED IMPROVEMENTS actually built or installed during the time of construction vary from the 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. 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, if in substantial conformance with the 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 -day 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 the 2 12 -15 plans and specifications on file in the CITY's Public Works Department, and as described on Exhibit "A" attached hereto. b. OWNER shall maintain the 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. 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 in advance of its intention to accomplish such work, provided that an emergency situation does not exist. (ii) OWNER shall be responsible for arranging for any renewal, replacement, 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. 3 12 -16 (iv) OWNER agrees to pay all costs for the renewal, replacement, 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) day 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 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. 8. 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. 4 12 -17 9. 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. 10. 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. 11. 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. 12. OWNER shall at OWNER'S 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. 13. 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. 5 12 -18 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: OFFICE OF THE CITY ATTORNEY By: ynet D. e°�f c amp, Assistant City A4t rney ATTEST: : B Y VI/W rVvu�� Leilani Brown, City C erk CITY OF NEWPORT BEACH, a Municipal corporation By: Y-T"",/ 'C' mer Bludau, City Manager OWNER: Scott Lewis Henderson, Trustee OWNER: F:\ users \cat \shared\ContractTempIates Pub IishedonI ntra netT0 RM EA.doc Revised: 03.05.09 .I- .-1 f: \users \pbw\shared \encroach \row agreements\2009 \n2009- 0180 -233 milford dr (henderson family trust).doc 6 12 -19 CALIFORNIA ALL - PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA) COUNTY OF ORANGE ) On -. 17 I �210 Jai before(( me, Mt )Ze' f�) 11 PRAO , Notary Public, personally appeared tG � Aev)Jf' -Fcn a,,4 Scd>L dead -e,15o who 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 person(s) 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. ' l l J�-� (SEAL) N and for said State OPTIONAL INFORMATION Title or Type of Document: Date of Document: ..:: MIKE LIMAN C> - 3454 COMM. #166 ~-� •• NOTARY PUBLIC CALIFORNIA —{ f ORANGE COUNTY 0 m my COMM. E><plree May 9.2070 Ile 12 -20 CONSTRUCT NEW GARDEN WALL PER DETAIL 12 ON SHEET G-2. NOT USED. REMOVE PORTION OF EXISTING CONC. WALL (WHERE REQUIRED) AND CONSTRUCT NEW MODIFIED CONCRETE CURB PER DETAIL ON SHEET G-2. PROTECT IN PLACE 'A 14' PORTION OF, CURB CAN "BE REMdVED AS NEEDED FOR WORN WITHIN` THE SEWER EASEMENT;. R EX\CURB P TREE Ov ... . . ...... e 7 �Y'J<x . . ...... Exhibit "A" Sheet I of 2 N2009-0180 OWNER: Henderson ADDRESS: 233 Milford Dr. Newport Beach, CA 92625 1 1 12-21 R =0.5 "—\ I I ,-- R =0.5" NOTES: 1. CONCRETE SHALL BE 560 -C -3250. 2. WEAKEND PLANE JOINTS SHALL BE FORMED AT INTERVALS OF 20'. 14 MODIFIED CONC. CURB N.T.S. CONC. CAP Exhibit "A" Sheet 2 of 2 N2009 -0180 24" MAXI VAP, ES (,^ WIDE KK CONC, BLOCK OWNER: Henderson 2• ADDRESS: 233 Milford Dr. 7 Newport Beach, CA 9262512 22 CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California County�� of 0 N On ilr�% f i�tt Date personally appeared 1 before me, 1LLrAte} 4,AS7tN CIV, N-I)rAttzl/ Put-) 1c. Here Insert Name and Tale of the Officer L. WASHINGTON Commission # 1840150 a -r Notary Public - California i i Orange County D My Comm. Expires Mater 112.22013' L. 6L I;1 L. WASHINGTON F Commission # 1840150 =ee " Notary Public - California i z Orange County s My Comm. Expires Mar 12, 2013+ Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(s� whose narl is /arm subscribed to the within instrument and acknowledged to me that he /s*thjty executed the same in his /hkith* authorized capacity(i X and that by his /h *tlf* signature( on the instrument the personK,, or the entity upon behalf of which the personacted, 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 J6/ojicial seal. Signature' —� / Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): _ ❑ Partner — D Limited D General ❑ Attorney in Fact ❑ Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Number of Pages: Signer's Name: ❑ Individual • Corporate Officer — Title(s): • Partner — ❑ Limited D General • Attorney in Fact • Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER 02007 National Notary A55ociation• 9350 De Soto Ave.. P.O. Box 2402•Chalu lh, CA 91313 .2402•vnvw.NationalNotaryorg Item #5907 Reorder .CallTolbFreel-800.8765827 12 -23