HomeMy WebLinkAbout09 - 322 Heliotrope AvenueCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 9
July 26, 2005
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Gil Wong
949 - 644 -3311
gwong@city.newport-beach.ca.us
SUBJECT: ENCROACHMENT AGREEMENT AND PERMIT FOR CONSTRUCTION
AND MAINTENANCE OF PRIVATE IMPROVEMENTS WITHIN THE
ALLEY RIGHT -OF -WAY ADJACENT TO 322 HELIOTROPE AVENUE,
CORONA DEL MAR (N2005 -0286)
OWNER: Embassy Plaza 12 LTD
RECOMMENDATIONS:
Authorize the Mayor and City Clerk to execute an Encroachment Agreement
providing for the construction of an alley extension structure that will become City
property after it is completed and accepted by the City.
DISCUSSION:
An existing residential structure (fourplex) occupying 2 lots (320 and 322 Heliotrope
Avenue) has been demolished. The 322 Heliotrope Avenue property is located on the
easterly side of Heliotrope Avenue, abutting Bayside Drive. Only the property at 320
Heliotrope Avenue has full alley access. The property at 322 Heliotrope Avenue has no
alley access at the rear of the property and no drive access from Heliotrope Avenue.
Thus the alley extension is needed to provide access to 322 Heliotrope Avenue.
The current owner of the properties is Embassy Plaza 12 LTD (Owner). The Owner's
Construction division, Turelk, Inc. proposes to construct single family homes at 320 and
322 Heliotrope Avenue. Building Permits B2003 -0724 and B2003 -0477 have been
issued for these new homes.
320 Heliotrope Avenue has vehicular access from the alley. To provide vehicular access
from the alley to the proposed single family home at 322 Heliotrope Avenue, the owner
SUBJECT: Encroachment Agreement And Permit For Construction And Maintenance Of Private Improvements Within The
Alley Right -Of -Way Adjacent To 322 Heliotrope Avenue, Corona Del Mar (N2005 -0266)
July 26, 2005
PAGE2
requests that the City permit the construction of a structure at the end of the alley to
extend the alley by approximately 21 feet to the north. The alley extension is necessary,
because there is also no street access for 322 Heliotrope Avenue. The Contractor
(Turelk, Inc.) has secured a $65,000 bond for the alley extension. The proposed alley
extension structure improvements are shown on Exhibits "A ", "B ", and "C ". Currently, the
single family home construction for 322 Heliotrope Avenue is on hold until the alley
extension has been approved.
The proposed alley extension structure will be constructed of reinforced concrete and
include a vehicular guardrail and pedestrian railing complying with City standards. The
structure and alley improvements will require an Encroachment Permit issued by the
Public Works Department to do the construction in the public alley right -of -way. From the
alley, this structural extension will appear to be a part of the alley and it will be built to
meet the standards for public alley improvements. The alley extension will be supported
by caissons and connected by vertical walls with no openings. The landscaping will help
camouflage the alley extension structure from public view off Bayside Drive. The
landscape plan has been reviewed and approved by the General Services Department.
When the construction of the alley extension structure has been completed and
accepted by the Public Works Department, it will be maintained by the City. The area
below the structure will not have any public access. This area will be landscaped by the
applicant and should be maintained by the adjoining property owner of 322 Heliotrope
Avenue via an encroachment agreement.
In addition to the standard Encroachment Permit Conditions, the following condition will
be required:
An Encroachment Agreement shall be executed to cover the construction of the
alley extension structure and provide for the continuing maintenance of the area
below the structure and including the irrigation /landscaping.
The attached Encroachment Agreement (see Exhibit "D ") provides for the approval by
the Public Works Director of the plans and specifications with supporting design
calculations and geotechnical studies for the alley extension structure. Liability,
automobile, and workers compensation insurance will be required - with the City named
as additional insured. The submitted labor and performance bonds will need to be
renewed. The City will own and maintain the alley extension structure after its
acceptance by the City. The Owner will be responsible for the installation and
maintenance of the slope and landscaping under /surrounding the structure and will hold
the City harmless from claims related to the work. This agreement will be recorded and
the conditions will run with the land for 322 Heliotrope Avenue.
The construction of the alley extension structure is tied to the single family home
construction and considered to be a minor alteration categorically exempt from CEQA.
The single family home construction and alley extension do not require a Coastal
Development Permit.
SUBJECT: Encroachment Agreement And Permit For Construction And Maintenance Of Private Improvements Within The
Alley Right -Of -Way Adjacent To 322 Heliotrope Avenue, Corona Del Mar (N2005 -0286)
July 26, 2005
PAGE 3
Environmental Review:
Categorically Exempt under Chapter 3, Article 19, Section 15301, Class 1(c) of Title 14,
California Code of Regulations. Exemption is for minor alteration of existing facilities
not expanding existing uses.
Prepared by:
Gilbert Wong
Associate Civil Engineer
Submitted by:
Attachment: Alley Extension, Exhibit "A ", "B ", and "C"
Encroachment Agreement, Exhibit "D"
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RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
Post Office Box 1768
3300 Newport Boulevard
Newport Beach, CA 92658 -8915
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2005 -0286)
THIS AGREEMENT is made and entered into this day of
2005, by and between Michael Paselk (General Partner) on behalf of Embassy Plaza 12 LTD;
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 322
Heliotrope Avenue, Newport Beach, California and legally described as portion of Lot 22,
Block 235 of Corona del Mar Tract as shown on a map recorded in Book 3, Pages 41 through
42 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange County,
California;
WITNESSETH:
WHEREAS, OWNER desires to construct and maintain certain non - standard
improvements (hereinafter "PERMITTED IMPROVEMENTS ") within alley right -of -way
(hereinafter "RIGHT -OF- WAY ") that is located adjacent to 322 Heliotrope Avenue, Newport
Beach, California and legally described as portion of Lot 22, Block 235 of Corona del Mar
Tract as shown on a map recorded in Book 3, Pages 41 through 42 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, California;
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;
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree
as follows:
EXH /8/T "D"
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as a
concrete alley extension with grade beams and caissons, metal guardrail with signage, and
appurtenances in alley right -of -way and along the public slope below and between 322
Heliotrope Avenue and the Bayside Drive roadway as shown on EXHIBIT "A" attached hereto
and as approved by the City Engineer. In addition, the proposed PERMITTED
IMPROVEMENTS may vary at the time of construction. Hence, any changes must be
approved by the City Engineer and shall be shown on the "As Built" plans.
2. Prior to construction of the PERMITTED IMPROVEMENTS, the OWNER shall:
a. Obtain from Public Works Department an Encroachment Permit
authorizing the work in the RIGHT -OF -WAY and comply with all conditions of the Permit.
b. Obtain commercial liability, automobile, and workers compensation
insurance in amounts required by Public Works Department and City's Risk Manager.
C. Require Contractor to name CITY as an additional insured on commercial
liability and automobile insurance policies.
d. Provide Performance Bonds and Labor Material Bonds in the amounts
equal to one hundred percent (100 %) of the cost of the PERMITTED IMPROVEMENTS.
3. OWNER of 322 Heliotrope Avenue shall provide and maintain the
landscaping /irrigation to the area below /surrounding the alley extension structure.
4. OWNER agrees that upon completion of the PERMITTED IMPROVEMENTS,
and acceptance by the CITY, the PERMITTED IMPROVEMENTS shall be open for public use
and to provide access to other properties.
5. Upon acceptance of the PERMITTED IMPROVEMENTS by CITY, CITY shall
repair and maintain the alley extension structure and appurtenances incidental thereto, within
a portion of RIGHT -OF -WAY.
6. OWNER and CITY further agree as follows:
2
07/14/05
a. OWNER shall construct 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. If CITY, or other public facilities or improvements are damaged by the
construction of PERMITTED IMPROVEMENTS, OWNER shall be responsible for the cost of
repairs.
7. 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 with one
exception. That one exception shall be the CITY cannot permanently deny vehicular access
to the subject property. 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.
8. OWNER shall defend, indemnify, waive, and hold harmless CITY, its City Council,
boards and commissions, officers and employees from and against any and all loss, damage,
liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees
(when outside attorneys are so utilized), regardless of the merit or outcome of any such claim
or suit arising from or in any manner connected with the design, construction, maintenance, or
continued existence of the PERMITTED IMPROVEMENTS.
9. OWNER agrees that during construction of the PERMITTED IMPROVEMENTS,
OWNER shall indemnify and hold harmless adjoining property owners from any and all
damage to structures on property adjoining RIGHT -OF -WAY caused by the construction of the
PERMITTED IMPROVEMENTS.
10. 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.
3
07/14/05
11. OWNER agrees that this Agreement shall always be prior and superior to and
shall be recorded prior to any mortgage, deed of trust or any other hypothecation for security
hereafter placed on the PROPERTY. OWNER agrees to execute and deliver to CITY any
instrument that may be deemed necessary to effect subordination to this Agreement of any
mortgage or deed of trust or other hypothecation already recorded against the PROPERTY,
such that the covenants, conditions and restrictions in this Agreement shall be binding upon
and effective against any owner whose title is derived through foreclosure or trustee's sale of
otherwise.
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:
la
ATTEST:
City Attorney
City Clerk
CITY OF NEWPORT BEACH,
a Municipal corporation
0
City Mayor
OWNER: Embassy Plaza 12 LTD
M
By:
Michael Paselk , General Partner
on behalf of Embassy Plaza 12 LTD
07/14/05
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On , 2005, before me,
personally appeared personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is /are subscribed to the within instrument and acknowledged to me that
he /she /they has executed the same in his /her /their authorized capacity(ies), and that by
his /her /their signature(s) on the instrument the person(s) or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(This area for official notarial seal)
STATE OF CALIFORNIA )
) ss:
COUNTY OF ORANGE )
On 2005, before me
personally appeared personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is /are subscribed to the within instrument and acknowledged to me that
he /she /they has executed the same in his /her /their authorized capacity(ies), and that by
his /her /their signature(s) on the instrument the person(s) or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(This area for official notarial seal)
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