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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., -. 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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