HomeMy WebLinkAbout17 - N2002-0035 - 2100 W. Ocean Front Encroachment Appeal• March 26, 2002
CITY COUNCIL AGENDA
ITEM NO. 21
TO: Mayor and Mempers of the City Council
17
FROM: Public Works Department //-?-o '�I,
SUBJECT: APPEAL OF A STAFF DENIAL FOR STRUCTURAL ENCROACHMENTS
WITHIN THE PUBLIC RIGHT -OF -WAY ADJACENT TO 2100 W. OCEAN
FRONT (N2002 -0035)
OWNER: LEVON GUGASIAN
=91TO) IT, IITilAZnVi[iPRi
1. Uphold the denial on the basis that the proposed encroachments significantly exceed
what is allowed under the provisions of City Council Policy L -21.
Or
. 2. Approve the application with conditions subject to the following:
A. Execution of an Encroachment Agreement for non - standard improvements with
findings and conditions.
I. Authorize the Mayor and the City Clerk to execute the Agreement.
ii. 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. Revise the applicant's current Annual Outside Dining Encroachment Permit
(DEP97 -03) to include the metal structure enclosure.
DISCUSSION:
The following is a brief history of the area of the proposed encroachments:
• Prior to 1982, 215` Place functioned as an alley, open to vehicular traffic.
• On April 26, 1982, the City Council approved the closure of 215` Place to vehicular
traffic. At the same meeting, the Council also approved an Encroachment
• Agreement and Declaration of Covenants for Non - Standard Improvements in the
public right -of -way along McFadden Place, Ocean Front, and 2151 Place.
SUBJECT: APPEAL OF A STAFF DENIAL FOR STRUCTURAL ENCROACHMENTS WITHIN THE PUBLIC RIGHT -OF -WAY
ADJACENT TO 2100 W. OCEAN FRONT (N2002 -0035)
March 26.2002
Page 2
Improvements installed in 2151 Place at that time included paver tiles, bicycle racks, •
and decorative lighting.
On March 11, 1996, the City Council adopted Policy L -21, SIDEWALK CAFE
STANDARDS AND PROCEDURES, copy attached as Exhibit 1.
On August 25, 1997, the City Council approved an application by the previous owner
(Richard Lawrence) for an Encroachment Agreement for Non - standard Street
Improvements to install tables, umbrellas, and chairs and enclose the outside dining
area with removable, 36 to 42 -inch high wrought iron railing for three restaurants -
Cafe II Faro, Rockin Baja Lobster, and 21 Ocean Front.
Please note that the address used by the Orange County Assessor's office is 2100 W.
Ocean Front. It has been referred to over the years as 2100, 2104 and 2106 W. Ocean
Front.
The current owner (Levon Gugasian) of 21 Oceanfront Restaurant (McFadden Building,
2100 W. Ocean Front), has requested permission to construct a 6 to 10 -foot high wrought
iron fence structure in the 215` Place right -of -way to replace the existing 36 to 42 -inch high
wrought iron railing (Exhibit 2). The proposal also includes a planter that would expand the
existing encroachment further into the public right -of -way. The Public Works Department
denied the request on January 28, 2002, for the reasons set forth below. The owner
submitted an appeal letter on February 9, 2002 (Exhibit 3).
The metal structure does not conform to City Council Policy L -21 Sidewalk Cafe Standards
And Procedures for the following reasons:
• At 6 to 10 -feet the proposed barrier would significantly exceed the 42 -inch maximum •
height for barriers.
• The ornamental metal work along the proposed planting would not meet the
requirement of being "somewhat transparent" (such as a standard wrought iron
fence).
• Because of its size, weight, and the fact that it would be anchored to the existing
building, the barrier would require a significant effort to be removed for work by the
City.
• As currently designed, the proposed above grade foundations will be exposed when
the metal structure is removed and pose a potential hazard to pedestrians.
• The 215` Place alley right -of -way is only 20 -feet wide with existing private streetlights
and City water and sewer mains. Therefore, the proposed metal structural and
planter would hinder any emergency repairs and /or access to a much greater extent
than the existing 42 -inch high barrier.
• The metal structure and planters would block public views of the beach /ocean as
well as degrading views from the two existing sidewalk cafe areas at Cafe II Faro
and Rockin Baja Lobster.
• The proposal will create the impression that this portion of the public right -of -way is
private.
Staff does not support the proposed metal structural enclosure as currently submitted. We
believe it completely changes the character of the Sidewalk Cafe experience that the City
Council authorized in 1996. The proposed structure would effectively enclose the area and •
change the nature of the area from public to private.
SUBJECT: APPEAL OF A STAFF DENIAL FOR STRUCTURAL ENCROACHMENTS WITHIN THE PUBLIC RIGHT -OF -WAY
ADJACENT TO 2100 W. OCEAN FRONT (N2002 -0035)
March 26.2002
Page 3
. Should the City Council desire to approve the property owner's request, Staff recommends
that the City Council make findings that the proposed improvements are unique and a
benefit to the public that form the basis for an exemption to the existing City Council L -21 or
that the Staff should revise City Council Policy, L -21 to permit the proposed improvements.
Additionally, it is recommended that Staff prepare an encroachment agreement for non-
standard improvements with conditions, encroachment permit, revise the applicant's current
Annual Outside Dining Encroachment Permit (DEP97 -03) to reflect the new changes with
the following suggested conditions:
• Staff recommends that the applicant be directed to obtain a Coastal Permit from the
California Coastal Commission for any feature that restricts public views including:
1) ornamental metal barriers exceeding the 42 -inch height limit;
2) awning exceeding coverage of over 50 percent of the area;
3) awning extending farther than 5 -feet from the building face; and /or
4) any post, gate, awning support, landscaping, or feature that contributes to
restricting the public view.
• Any approved barrier fencing shall meet the "transparency" criteria of the policy.
Shop drawings shall be approved by the Public Works Department and shall provide
roughly 70 percent transparency.
• All foundations shall be redesigned so that when the barriers are removed, the
resulting surface is flush with the sidewalk surface.
• Barriers and awnings shall be sectional in nature and easily removed by no more
than two people.
• Heaters, electrical lighting, or plantings shall not be attached to the awning structure.
• Any landscaped pots or planters, if desired, shall be placed within the permitted
barrier. Such planters shall be portable and not line the barrier in a continuous
fashion. The height of planter and plantings shall not exceed 42- inches. Barriers
and awnings may not be planted with vines.
• If applicant desires to place portable landscaped pots or planters on the exterior of
the permitted barrier, a separate permit will be required.
Respectfully submitted,
`PUBLIC WORKS DEPARTMENT
- Stephen G :Badum, Director
By:�� /�
Gil Wong
Associate Civil Engineer
Attachments: Exhibit 1 - Sidewalk Cafe Standards and Procedures
Exhibit 2 - Proposed metal structure
Exhibit 3 - Letter dated February 9, 2002 (appealing the denial)
• Exhibit 4 - Existing Encroachment Agreement
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SIDEWALK CAFE STANDARDS AND PROCEDURES
PURPOSE
EXHIBIT 1
L -21 0
These standards and procedures are adopted pursuant to Chapter 13.18 of the
Municipal Code in order to encourage appropriate outdoor activities in the public right -
of -way, to ensure that the space used for outdoor dining in the public sidewalk will
serve a public purpose, to ease the process of obtaining permission to operate an
outdoor dining facility, and to ensure adequate space for pedestrians on the sidewalk
adjacent to sidewalk cafes.
DEFINITIONS
Sidewalk Cafe. An outdoor dining area on a public sidewalk where patrons may
consume food and /or beverages provided by an abutting food service establishment.
Such establishments may either provide table service in the outdoor dining areas or sell
take -out items to be consumed in the outdoor dining area.
These regulations do not apply to outdoor dining on private property. .
GENERAL PROVISIONS
A. Permit required: Outdoor dining on a public sidewalk may occur only pursuant
to a Sidewalk Cafe License Encroachment Permit (hereinafter "Encroachment
Permit ").
B. Prohibited locations. Outside dining will not be permitted on sidewalks
designated by City Council resolution as shared bicycle and pedestrian facilities
(see Attachment B).
C. Permit transfer. An Encroachment Permit may be transferred to a subsequent
operator of the same establishment subject to approval by the Public Works
Director and payment of an Encroachment Permit transfer fee established by the
City Council. Prior to approval of the transfer the Public Works Director may
modify the terms of the permit as deemed appropriate to protect public health,
safety and welfare.
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D. Zoning requirements. Outdoor dining on a public sidewalk shall be subject to
the requirements and limitations set forth in Section 20.82.050 (Accessory
Outdoor Dining) of the Municipal Code. An Encroachment Permit may be
processed concurrently with an Accessory Outdoor Dining Permit..
E. Conditions of approval. The Public Works Director shall have the authority to
apply conditions to the approval of Encroachment Permits as appropriate to
ensure compliance with the provisions of this policy. Standard conditions of
approval are provided as Attachment A to this Council Policy. In addition to
these standard conditions, special conditions may be applied as deemed
appropriate by the Public Works Director.
F. Authority of the Public Works Director; Appeal. The location and configuration
of any sidewalk cafe shall be subject to approval by the Public Works Director,
who shall consider public safety issues unique to the pedestrian and vehicular
needs of the specific location when reviewing Encroachment Permit applications.
Notwithstanding any other provisions of this policy, the Public Works Director
shall have the authority to deny any Encroachment Permit application or revoke
any existing permit if it is determined to be detrimental to public health, safety or
general welfare. The decision of the Public Works Director may be appealed to
the City Manager by the applicant. The decision of the City Manager shall be
final.
G. Indemnification. The Permittee shall defend, indemnify and hold the City and
its employees harmless from and against any loss or damage arising from the use
or existence of the improvements or encroachment authorized under an
Encroachment Permit.
H. Insurance. The Permittee shall obtain and maintain in force comprehensive
general liability, broad form property damage and blanket contractual liability
insurance in a combined single limit amount, per claim and aggregate, of at least
one million dollars ($1,000,000.00) covering the Permittee's operations on the
sidewalk. Such insurance shall name, on a Special Endorsement form, the City,
its elected and appointed boards, officers, agents and employees as additional
insureds. A Certificate of Insurance shall contain provisions that prohibit
cancellations, modifications, or lapse without thirty (30) days prior written notice
to the City.
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L -21 I*
APPLICATION PROCEDURE
A. An Encroachment Permit shall be required for all encroaching furniture and
improvements. The.application shall be filed with the Public Works Department
on a form provided by the Public Works Department. The application shall be
signed by the owner of the property, or his authorized agent. Authorized agents
shall submit written authorization. The application shall be accompanied by a
site plan, drawn to scale and fully dimensioned, which accurately depicts the
location, height, nature and extent of all proposed improvements and objects
within the encroachment zone. All fixed features such as tree wells, sign posts,
parking meters, fire hydrants, news racks, etc. within twenty feet (20') of the
encroachment zone shall be depicted on the site plan.
B. Prior to issuance of the Encroachment Permit the applicant shall provide both the
Certificate of Insurance and the completed standard Special Endorsement in a
form meeting the approval of the Public Works Director and the City Attorney.
TERM
{ Valid encroachment permits shall remain in effect until modified or revoked.
SIDEWALK CAFE DEVELOPMENT STANDARDS
A. Horizontal Clearance. A clear, continuous pedestrian path not less than six feet
(6') in width shall be required for pedestrian circulation outside of the outdoor
dining area, provided that the Public Works Director may require more than six
feet (6') if necessary to protect the public safety. Areas with heavy pedestrian
traffic may be required to maintain a minimum of eight feet (8') clear width on
the sidewalk. As used herein, pedestrian path means a continuous obstruction -
free sidewalk area, paved to City standards, between the outside boundary of the
dining area and any obstruction, including but not limited to parking meters,
street trees, landscaping, street lights, bus benches, public art, and curb lines.
These requirements may be modified at the discretion of the Public Works
Director.in locations where unusual circumstances exist and where public safety
would not be jeopardized.
B. Allowable uses. An outdoor dining area may incorporate street trees or street
furniture, provided that the required pedestrian path is maintained outside of
the outdoor dining area. •
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L -21 -
C. Setbacks from corners, streets and alleys. When an outdoor dining area is
located at a street comer, a ten -foot (10') setback from the corner of the building
shall be maintained along both frontages. When an outdoor dining area is
located adjacent to a driveway or an alley, a five -foot (5') setback shall be
maintained from the driveway or alley. These requirements may be modified at
the discretion of the Public Works Director in locations where unusual
circumstances exist and where public safety would not be jeopardized (e.g., the
sidewalk adjacent to the proposed outdoor dining area is wider than usual or the
perimeter of the building has an unusual configuration).
D. Extension to adjacent properties. Subject to approval of the Public Works
Director and the limitations of NBMC Sec. 20.82.050, an outdoor dining area may
extend onto the sidewalk in front of an adjacent business with the written
consent of both the adjacent business owner and property owner.
DESIGN STANDARDS
A. Barriers.
No barrier shall be required if the applicant proposes to limit the outdoor dining
area to one row of table and chairs abutting the wall of the establishment and if
no alcohol will be served.
Establishments that serve alcoholic beverages in the outdoor dining area shall
provide a physical barrier that meets the requirements of this policy and of the
Alcoholic Beverage Control Board.
Barriers should compliment the building facade as well as any street furniture
and be somewhat transparent (such as wrought iron) and shall be able to
withstand inclement weather.
Barriers shall conform to the Public Works Department installation standards
and be removable. Barriers and furniture shall be removed at the end of each
business. day unless otherwise approved by the Public Works Department.
Barriers shall be capable of being removed through the use of recessed sleeves
and posts, by wheels that can be locked into place, or weighted bases.
The height of any barrier shall not exceed three feet six inches (3'6 ").
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L -21 I*
B. Awnings and Umbrellas. The use of awnings over the outdoor dining area and
removable table umbrellas may be permitted, provided they do not interfere
with street trees. No portion of an awning shall be less than eight feet (8') above
the sidewalk and no portion of an umbrella shall be less than seven feet (T)
above-the sidewalk. Awnings may extend up to five feet (5') from the building
front or cover up to fifty percent (50 %) of the outdoor dining area, whichever is
less. Awnings shall have no support posts located within the public right -of-
way. A building permit must be obtained prior to installation of an awning.
C. Lighting. Outdoor lighting fixtures should compliment the style of the building.
Lighting fixtures shall not be glaring to motorists or pedestrians on the adjacent
right -of -way, and shall illuminate only the outdoor dining area. Outdoor
lighting may be installed on the facade of the building. Electrical fixtures shall
not be permitted in the public right -of -way. Lighting shall be installed by a
licensed electrician under an electrical permit from the Building Department.
Battery operated lamps or candles will be permitted.
D. Design. The design, material, and colors used for chairs, tables, umbrellas,
_ awnings and other fixtures should compliment the architectural style and colors
of the building facade and street furniture. 0
E. Signs. Notwithstanding any other provision in the Municipal Code, signs and
logos shall be permitted on umbrellas in outdoor dining areas.
F. Heaters. Portable propane heaters shall be allowed within the outdoor dining
area.
FEES
A. Application fee. An application fee established by resolution of the City Council
shall be paid at the time an Encroachment Permit application is submitted to the
Public Works Department.
B. Transfer fee. A transfer fee established by resolution of the City Council shall be
paid at the time an Encroachment Permit transfer application is submitted to the
Public Works Department.
C. Annual use fee. An annual use fee established by resolution of the City Council
shall be paid upon annual renewal of an Encroachment Permit. No use fee shall
be charged during the first year of operation.
(- 5
L -21
VIOLATION /REMEDY
In the event that a Permittee fails to abide by the provisions of this policy or the terms
and conditions of an encroachment permit, the Public Works Director may summarily
abate any encroachment or improvement that is in violation of this policy. The
Permittee or property owner shall pay all costs incurred by the City in abating the
encroachment or improvement. The Permittee or property owner may appeal the
decision of the Public Works Director to the City Manager. The determination of the
City Manager with respect to abatement shall be final.
[Attachment A]
[Attachment B]
Adopted - March 11, 1996
Corrected - May 28,1996
Amended — March 22,1999
Note: This policy was adopted as L -19 on 3- 11 -96, however this number was already
assigned to Leased Street Lights (approved 2- 26 -96). i
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. L -21
ATTACHMENT A
STANDARD CONDITIONS OF APPROVAL
SIDEWALK CAFE LICENSE ENCROACHMENT PERMITS
A. Compliance with conditions. The Permittee shall comply with all of the
provisions of Council Policy L -21 and all of the following conditions imposed
upon this permit. Violation of any conditions of this permit shall be grounds for
permit revocation.
B. Revocation. The Public Works Director may revoke this at any time if it is
determined that continued operation of the sidewalk cafe is detrimental to the
public interest or the Permittee is in violation of conditions to the permit.
C. Abatement. In the event that the Permittee fails to abide by the terms and
conditions of this permit, the Public Works Director may summarily abate any
prohibited improvements and the Permittee shall pay all costs incurred by the
City in such abatement.
�^ D. Inspection. The Public Works Department may inspect improvements within the
public right -of -way at any time without notice to the Permittee.
E. Indemnification. The Permittee shall defend, indemnify and hold the City and
its employees harmless from and against any loss or damage arising from the use
or existence of the improvements or encroachment authorized under this permit.
F. Insurance. Permittee shall obtain and maintain in force comprehensive general
liability, broad form property damage and blanket contractual liability insurance
in a combined single limit amount, per claim and aggregate, of at least one
million dollars ($1,000,000.00) covering the applicant's operations on the
sidewalk. Such insurance shall name, on a Special Endorsement form, the City,
its elected and appointed boards, officers, agents and employees as additional
insureds. A Certificate of Insurance shall contain provisions that prohibit
cancellations, modifications, or lapse without thirty (30) days prior written notice
to the City.
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L -21
G. Permit limitations. This permit is issued in conformance with Newport Beach
Municipal Code Chapter 13.18 and Council policy L -21 relating to outdoor
dining on public sidewalks. However, issuance of this permit does not imply
that all governmental agency requirements for starting a new. restaurant or
expanding an existing one have been satisfied. Business owners are responsible
for securing and complying with all required licenses and permits from other
agencies including the state Alcoholic Beverage Control Board, the County
Health Department, and the City of Newport Beach. Sale of alcoholic beverages
in outdoor dining areas shall comply with Section 10.04.010 of the Newport
Beach Municipal Code and Council Policy K -7 (Determination of Convenience
and Necessity for Alcoholic Beverage Outlets).
H. No alterations. The floor of the outdoor dining area shall be maintained at the
same level as the sidewalk, and no alterations to the sidewalk or coverings on the
sidewalk (e.g., borings for recessed sleeves) shall be installed unless expressly
approved by the Public Works Director.
I. Disabled access. The outdoor dining area shall be accessible to the disabled, and
.. buildings adjacent to these dining areas shall maintain building egress as defined
by the Uniform Building Code and State of California Title 24 Disabled Access {
Standards.
J. Management. Restaurant management shall operate the outdoor dining area in
compliance with the terms and conditions of this permit and shall not delegate or
assign that responsibility. The Permittee shall ensure that sidewalk cafe patrons
do not disturb persons on the adjacent right -of -way by loud, boisterous, and
unreasonable noise, offensive words or disruptive behavior.
K. Maintenance. Restaurant management shall keep the outdoor dining area clear
of litter, food scraps, and soiled dishes and utensils at all times. Trash receptacles
shall be provided in outdoor dining areas used for consuming take -out items
unless public trash receptacles located nearby are determined to be adequate by
the Public Works Director. At the end of each business day, establishments are
required. to clean (sweep and wash) the entire sidewalk in and around the
outdoor dining area and remove debris to a closed receptacle. No debris shall be
swept washed, or blown into the sidewalk, gutter or street. If disposable
materials are used, the establishment shall comply with all applicable City
recycling programs. Awnings and umbrellas shall be washed whenever they are
dirty and, in any event, no less than two times each year. Private trash
receptacles shall be emptied daily.
8 ��
_ L -21
L. Furniture removal. When the establishment stops serving for the day and
patrons already seated in it leave, further seating in the outdoor dinning area
shall be prohibited and the outdoor dining furniture shall be removed from the
right- of- way.unless otherwise approved in the Encroachment Permit.
M. Plants. Plants shall be properly maintained and stressed or dying plants shall be
promptly replaced. Because plant fertilizers contain material that can stain the
pavement, eater drainage from any plants onto the adjacent sidewalk shall not
be allowed. Potted plants shall have saucers or other suitable systems to retain
seepage and be elevated to allow for air flow of at least one inch (1 ") between
saucers and sidewalk.
N. Plans and permits. All City- approved plans and permits for the outdoor dining
area shall be kept on the premises for inspection at all times when the
establishment is open for business.
O. Smokine. Restaurant management may permit smoking in the outdoor dining
area consistent with all applicable statutes and regulations. Management may •
also prohibit smoking in the outdoor dining areas.
P. Permit transfer. This permit may be transferred to a subsequent operator subject
to approval by the Public Works Director and payment of a transfer fee as
established by the City Council. Prior to approval of a transfer the Public Works
Director may modify the terms of the permit as deemed appropriate to protect
public health, safety and welfare.
Q. Termination. Upon termination of the Encroachment Permit, the Permittee shall
immediately remove the barriers around the outdoor dining area, return the
sidewalk to its original condition, and remove all personal property, furnishings,
and equipment from the sidewalk.. Any personal property remaining on the
premises shall be removed pursuant to the laws of the State of California and the
City.
Adopted - March 11, 1996
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L -21
ATTACHMENT B
SHARED BICYCLE /PEDESTRIAN FACILITIES
WHERE SIDEWALK CAFES ARE PROHIBITED
Campus Drive - south side Von Karman Avenue to Jamboree Road
Irvine Avenue - east side
Jamboree Road - west side
MacArthur Boulevard - east side
Ocean Front
Riverside Avenue - north side
San Joaquin Hills Road - south side
San Miguel Drive - west side
San Miguel Drive - both sides
Adopted - March 11, 1996
Orchard Avenue to Bristol Street
Eastbluff Drive North to Campus Drive
Jamboree Road to Campus Drive
F Street to McFadden Place and westerly line
of Ocean Front parking lot to 36th St.
Cliff Drive to 150 feet north of Avon Avenue
MacArthur Blvd. to Marguerite Avenue
Port Sutton Drive to San Joaquin Hills Road
San Joaquin Hills Road to Avocado Avenue
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EXHIBIT 3
James Santaniello
General Contractor
CA Lic. #361862 . NV Lic. #39350
3 Morro Bay . Irvine, CA 92602
(714) 665 - 0300.(714)665 -0241 fax
Mr. Levon Gugasian, Property Owner
11 Ridgeline Drive. Newport Beach, CA 92660
February 9, 2002
Mr. Gilbert Wong, Project Engineer
City of Newport Beach, Public Works Dept.
3300 Newport Boulevard
Newport Beach, CA 92658 -8915
Re: Appealing denial of Non - Standard Improvement in Public right -of -way (EPN2002 -0035)
Dear Mr. Wong:
We respectfully wish to address the City Council to appeal the denial of our request for the Metal structure
at 2106 Oceanfront Boulevard in Newport Beach (please see attached denial letter dated January 28, 2002).
It is our contention and opinion that the improvement (see attached drawing specifications) will greatly
enhance the overall beauty and betterment of the existing alley way. Besides visual enhancement this improvement
will provide a much needed wind break so that outside dining can be utilized to its full potential and designated use.
Currently, the outside dining area is not used as the full forced brunt of the winds prohibit diners form enjoying
their meals in a comfortable manner. Installation of this much needed wind break provides the business owner "full
use' of his restaurant services, will greatly enhance the aesthetics of the alley way for public use and shall provide
customers with a comfortable patio area for outdoor dining. The restored area of the alley way does not suffer the
same "full force of the winds" as there are several palm trees and lampposts which act as a windbreak to the winds.
Please advise us as to the time we can address the Newport Beach City Council to appeal the denial for a .
modification to the existing "ENCROACHMENT AGREEMENT AND DECLARATION OF COVENANTS
BE�w EN LANDOWNERS (NON TANDARD STREET IMPROVEMENTS) for the pmp= at 2106
Oceanfront Boulevard in Newport Beach As recorded ' h un11 , of Orange County Recorders office. Item
Numher 1907056R6n0 at mints... 11!17/07 f— nN._U.A A_'. C- .L:L'. ".." r�_._a ,. •„
Sincerely,
V w IE V Y.
James Sagi 'ello, Contractor Levon Gugasian, Prope y Owner
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
Recorded in the County of Oran V1131T 4
Gary L. Granville, Clerk /Recortleal ifornia
IuIIIIIIIiiIIIIIiIIIIIIIIII�II�IIIINIIIIIIIIIIIIIIIIIIIIII
39, 00
19970568600 2:00pm 11/07197
005 2005089 02 19
Al2 12 6.00 33.00 0.00 0.00 0.00 0.00
Space above this line for Recorder's use only
ENCROACHMENT AGREEMENT AND DECLARATION OF COVENANTS
BETWEEN LANDOWNERS
)NON- STANDARD STREET IMPROVEMENTS)
51�
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This Encroachment Agreement supersedes the Encroachment Agreement executed on
November 17, 1982 and recorded on November 29, 1982 as Official Record No. 82- 416124 in
the Office of the County Recorder of Orange County, California. THIS AGREEMENT is made i L'
and entered into this /(PZw day of 1997, by and between
Richard Lee Lawrence (hereinafter "OWNER "), and the City of Newport Beach, California, a
municipal corporation organized and existing under and by virtue of its Charter, and thole
Constitution and the laws of the State of California, (hereinafter "CITY"), "OWNER" is the owner
of property located at 2104 W. Ocean Front, Newport Beach, California, and legally described
as Lot 19, Block "21 ", Newport Beach Tract, as shown on a map recorded in Book 3, Page 26
inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County,
California;
W ITNESSETH:
WHEREAS, CITY administers certain public street rights -of -way located in the
City of Newport Beach, County of Orange, State of California, which rights -of -way are more
particularly described in Exhibit "A" hereto and by this reference incorporated within; and
WHEREAS, OWNER holds a 99 -year lease, which terminates on or about the
year 2070, on that certain real property located on the corner of Ocean Front and McFadden
Place in the City of Newport Beach, County of Orange, State of California, which real property
is more particularly described as Lot 19, Block 21, Newport Beach Tract, as shown on a ma�
1
fled in Book 3, Page 26 of Miscellaneous Maps, Records of Orange County, California, and
which real property is contiguous to the aforesaid street right -of -way as shown on Exhibit "A ";
and
WHEREAS, said street right -of -way also contains public utility easements; and
WHEREAS, CITY has sewer, water, street lights, and storm drain facilities located
within said street right -of -way; and
WHEREAS, CITY desires to condition approval of construction of non - standard
street improvements over a portion of said street right -of -way containing said utility facilities;
and
WHEREAS, the parties hereto desire to execute an Agreement providing for
fulfillment of the conditions required by CITY to permit OWNER to construct said non - standard
improvements;
NOW, THEREFORE, in consideration of their mutual promises, the parties hereto
agree as follows:
1. It is mutually agreed that "non- standard street improvements" shall be
defined as any landscaped planter areas, landscaped planters with decorative brick/wrought
iron and accompanying irrigation systemsVighting, non - standard street lights, bike racks,
benches, awnings, street clocks, portable gas fire pit, trash receptacles, grouted brick pavers,
and appurtenances within the public right -of -way. "Standard street improvements" shall be
defined as asphalt concrete and/or portland cement concrete surfacing with only a "broom" or
trowel finish.
2. CITY will allow OWNER to construct, reconstruct, install, maintain, use,
operate, repair and replace said non - standard street 'improvements and all facilities and
appurtenances necessary and incidental thereto, over CITY's utility facilities, all in substantial
conformance with plans and specifications therefor on file in the CITY's Public Works
Department of the City of Newport Beach, in, on, and across those certain rights -of -way
described in Exhibit "A° hereto. CITY will further allow OWNER to take all reasonable
measures necessary or convenient in accomplishing the aforesaid activities.
3. OWNER and CITY further agree as follows:
(a) OWNER shall construct and install non - standard street improvements
and all facilities and appurtenances necessary and incidental thereto, all in substantial
OA
conformance with plans and specifications therefor on file in the CITY's Public Works
Department, in, on, and across those certain rights -of -way described in Exhibit "A" hereto.
(b) OWNER shall maintain the aforesaid non - standard street
improvements and facilities in accordance with general prevailing standards of maintenance,
and to 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 non - standard street improvements.
Should a dangerous or defective condition of said improvements occur,
OWNER understands and agrees that they are responsible for such condition, and further
agrees to proceed immediately to correct the condition.
In. the event the City Council of the City of Newport Beach determines, after
a public hearing held on at least thirty (30) days prior written notice to OWNER, that OWNER
has failed or ceased to maintain the aforesaid improvements and facilities as required by this
paragraph, OWNER agrees that CITY may, at CITY's option, assume the maintenance thereof
and may bill OWNER directly for the costs of such maintenance. OWNER agrees to pay the
amounts set forth in said bills promptly, upon receipt of such billing.
CITY reserves to itself the right to make such emergency repairs to th�
improvements and facilities installed by OWNER pursuant hereto as it deems necessary for the
immediate protection of the public health and safety. OWNER agrees to promptly reimburse
CITY for the reasonable costs and expenses incurred by CITY in effecting such emergency
repairs.
(c) That should CITY be required to enter onto any easements owned by
CITY to exercise its primary rights associated with said easements, including, but not limited to,
the maintenance, removal, repair, renewal, replacement or enlargement of the water, sewer,
street light, or storm drain facilities, the CITY may remove portions of the non - standard street
improvements and in such event:
work;
1) CITY shall notify OWNER of its intention to accomplish such
2) OWNER shall be responsible for arranging for any renewal or
restoration of the non - standard street improvements affected by such work by CITY;
3
3) CITY agrees to bear the portion of the costs of any such renewal
or restoration of the non - standard street improvements not in excess of the cost which would be
46 incurred for the restoration or renewal of standard street improvements in the same location;
4) OWNER agrees to pay any costs of renewal or restoration of the
non - standard street improvements in excess of the costs to be paid by CITY.
(d) Owner agrees to defend, indemnify and hold harmless CITY, its
officers, agents and employees from all demands, claims, losses or liability on account of injury
or damage to persons or property suffered or claimed to be suffered as a result of the
construction, use, maintenance or renewal of the non - standard street improvements.
4. OWNER agrees to bear the cost of providing water for planter irrigation,
cost of power for non- standard street lights and street clock, and cost of gas for fire pit.
5. OWNER agrees that if the CITY should ever need to use the right -of -way
over which the non - standard street improvements are established, CITY can cause the
improvements to be removed and face no liability to OWNER for the loss of use of the non-
standard street improvements.
6. No breach of the covenants, conditions or restrictions herein contained
shall defeat or render invalid the lien of any deed of trust, lease or lawful encumbrance made in
good faith and for value, but all of said covenants, conditions and restrictions shall be binding
upon and effective against any owner whose title is derived through foreclosure or trustee's
sale or otherwise.
7. These restrictions, covenants and agreements may be modified, amended
or terminated jointly by the parties hereto, or their heirs, assigns or successors, expressed in
writing and recorded in the Office of the County Recorder of Orange County, California.
8. The provisions hereto shall be deemed independent and severable, and
the invalidity or partial invalidity or unenforceability of any one provision or portion thereof shall
not affect the validity or enforceability of any other provisions hereof.
9. It is mutually agreed that this Agreement shall be binding upon the heirs,
successors and assigns of OWNER and shall also be binding upon owners who take title to the
property by reason of foreclosure, trustee's sale, or otherwise.
10. Each of the parties hereto specifically consent to the recordation of this
. License Agreement in the Office of the County Recorder of Orange County, California, and the
C!
covenants, restrictions and charges hereunder, and all their benefits and burdens shall run with
the land, pursuant to Section 1468 of the Civil Code of the State of California.
11. When notice is to be given pursuant to this Agreement, it shall b*
addressed as follows:
Cltv
City of Newport Beach
Office of City Attorney
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92663 -3884
Owner
Richard Lee Lawrence
1600 Dove Street
Suite 327
Newport Beach, CA 92660
and
2104 W. Ocean Front
Newport Beach, CA 92663
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
City Clerk
APPROVED AS TO FORM:
City Attorney
1i
CITY OF NEWPORT BEACH
a Municipal Corporation
By.
M
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RICHARD LEE LAWRENCE
11
STATE OF CALIFORNIA)
) ss.
• COUNTY OF ORANGE )
On Y)"1W . 1997, before me, the undersigned, a Notary Public in and
for said Stat , personally appeared RICHARD LEE LAWRENCE, known to me to be the person
whose name is subscribed to the within instrument and acknowledge that he executed the
same.
WITNESS my hand and official seal. Cie-
Signature (A /U.
OML 6 au YO
Name (Typed or
STATE OF CALIFORNIA)
) ss.
• COUNTY OF ORANGE )
On 1997, before me the undersigned, a Notary Public in and for
said State, personally appeared _ known to me to be
and known to me to be the
City Clerk of the municipal corporation that executed the within Instrument, known to me the
persons who executed the within Instrument on behalf of the municipal corporation therein
named, and acknowledged to me that such municipal corporation executed the within
Instrument pursuant to its by -laws or a resolution of its Board of Directors.
WITNESS my hand and official seal.
Signature
Name (Typed or Printed)
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State of
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On Dc!
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CAROLS. GYRES m within instrument and ac owledged to me that heMe r
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WITNESS my hand and official seal.
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Signature oltilutry 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:)( �J . Number of Pages
Signer(s) Other Than Named Above:
Claimed by Signer(s)
Signer's
Individual
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Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attomey -in -Fact
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❑ Guardian or Conservator
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Signer Is Representing:
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• Corporate O ' e
Title(s):
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Signer's Name:
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Signer Is Representing:
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0 1996 National Notary Asaocialion • 6236 Remmel Ave.. P.O. Box 7184 - Canoga Park. CA 91309 -7184 Prod. No. 5907 Reorder Call Toll-Free 1. 8000876.6627
to be the person(s) whose name(s) -is /are subscribed to the
OFFICIAL SEAL
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Signature of Netary Pub6e
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons retying 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: (i����i��� Number of Pages: _ 1)
Signer(s) Other Than Named Above: U�kAj������
Capacity(ies) Claimed by Signer(s)
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❑ Guardian or Conse or `
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Signer's Name:
Individual
Corporate Officer
— ❑ Limited ❑ General
Guardian ' Conservator
Other:
Signer Is Representing:
RIGRTTMIMBPRINT
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Apr 08 02 03:20p RLDEM MANAGEMENT
*02 PP% -U P5 :02
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April 8, 2002
Marcia Dossey
1902 W. Balboa Blvd.
Newport Beach, CA 92663
949 -400 -0471
VIA FACSIMILE 949 -644 -3020
City Council Members
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
Re: 2100 W. Oceanfront Appeal
April 9, 2002, Agenda Item 17
Dear Council Members_
(714)751 -7857 p.l
Al IERAGENDA
A current appeal is before the City Council, Agenda Item 17, for the property
located at 2100 W. Oceanfront, Newport Beach.
The owner of the property, Mr. Levon Gugasian, has requested my assistance on
this matter. On March 26, 2002 an extension was requested, as all pertinent
facts were not available.
After several discussions, we are requesting additional time to allow further
discussions with city staff, council members, and other entities to assist in
mitigating and satisfying all requirements. We request an extension until May 7,
2002 when we feel all discussions and preparations will be completed.
Should you have any questions, please feel free to contact me.
Sincerely,
Marcia Dossey
PPR -08 -2002 17:00 714 751 7857 95% P.01