HomeMy WebLinkAboutC-8152-1 - Encroachment Agreement EPN N2016-0407 for 300 Kings PlaceDocument -2065594 -Page- I
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department "
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Page 1 of I
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
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ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2016-0407)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
1st day of September, 2016, by and between Daniel Kahale and Cristin Kahale, husband
and wife as community property with right of survivorship ("Owner"), and the City of
Newport Beach, a California municipal corporation and charter city, organized and existing
under and by virtue of Its Charter and the Constitution, and the laws of the State of
Califomia ("City').
RECITALS
WHEREAS, Owner is the vested owner of property located at 300 Kings Place,
Newport Beach, California, 92663 and legally described as Lot 60 of Tract 1218, as per
Map recorded in Book 37, Pages 47 through 49 of Miscellaneous Maps in the office of the
County Recorder of Orange County, County Assessor's Parcel Number 049-271-29
("Property');
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted 1rnRrou9,meni ") within the Kings Place right-of-way,
(hereinafter "Right -of -Way") that is located adjacent to Property;
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 enter into this 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. City and Owner acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference into this Agreement.
Daniel and Cristin Kahale Encroachment Agreement 1
about:blank 10/13/2016
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Public Works Department
City of Newport Beach
P.O. Box 1768
Newport Beach, CA 92658-8915
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2016-0407)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
1st day of September, 2016, by and between Daniel Kahale and Cristin Kahale, husband
and wife as community property with right of survivorship ("Owner"), and the City of
Newport Beach, a California municipal corporation and charter city, organized and existing
under and by virtue of its Charter and the Constitution, and the laws of the State of
California ("City").
RECITALS
WHEREAS, Owner is the vested owner of property located at 300 Kings Place,
Newport Beach, California, 92663 and legally described as Lot 60 of Tract 1218, as per
Map recorded in Book 37, Pages 47 through 49 of Miscellaneous Maps in the office of the
County Recorder of Orange County, County Assessor's Parcel Number 049-271-29
("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted, Improvements") within the Kings Place right-of-way
(hereinafter "Right -of -Way") that is located adjacent to Property;
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 enter into this 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. City and Owner acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference into this Agreement.
Daniel and Cristin Kahale Encroachment Agreement 1
2. It is mutually agreed that Permitted Improvements shall be defined as:
a. A 36 -inch high wood picket fence encroaching 8 -feet into the Kings Place
right-of-way and;
b. A 36 -inch high by 5 -foot wide wooden entry gate encroaching 8 -feet into the
Kings Place right-of-way and;
C. A variable width brick paver entry walkway, installed at grade, with widths
from 5 -feet to 12 -feet encroaching 12 -feet into the Kings Place right-of-way
and appurtanances, as approved by the Public Works Department and as
shown on Exhibit A, attached hereto and incorporated herein by reference.
d. In addition, if any improvements actually built or installed during the time of
construction vary from 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.
3. 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 City. City will further allow Owner to take all reasonable
measures necessary or convenient in accomplishing the aforesaid activities.
4. Rights granted under this Agreement may be terminated by City with or without
cause and at any time without notice. City shall make good faith efforts to provide
sixty (60) calendar days' notice in advance of termination, 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.
5. Owner and City further agree as follows:
a. Owner may construct and install Permitted Improvements and appurtenances
incidental thereto in substantial conformance with the plans and specifications
on file in City's Public Works Department, and as described on Exhibit A.
b. Owner shall maintain 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 and restoration of these public facilities or
improvements to their condition at the time of entry into this Agreement.
Daniel and Cristin Kahale Encroachment Agreement 2
d. 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 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 Permitted Improvements affected by such work by
City.
(iii) City agrees to bear only the cost of any removal of Permitted
Improvements affected by such work by City.
(iv) Owner agrees to pay all costs for the renewal, replacement, or
restoration of Permitted Improvements.
6. 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 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)
calendar days' notice, with the notice specifying the date of termination.
7. In the event of any dispute or legal action arising under this Agreement, the
prevailing party shall not be entitled to attorneys' fees.
8. 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 Permitted
Improvements.
9. 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 Owner's interest in the land, whether fee or otherwise;
and shall be recorded in the Office of the County Recorder of Orange County,
California.
10. 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, California.
Daniel and Cristin Kahale Encroachment Agreement 3
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
[SIGNATURES ON NEXT PAGE]
9
Daniel and Cristin Kahale Encroachment Agreement 4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTOy�6 OFFICE
Date: 9
Aaron
City Attorney
ATTEST: ��
Date: 10.1;3"
:
BY l?C '
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
Dave Riff
City Manager
OWNER(S): Daniel Kahale and Cristin
Kahale, husband and wife as
community property with right of
survivorship
Date: Ic - i
By:
D nit04 atZ�hale
Owner
Date: 10 h At,
By:e
Cristin Kahale
Owner
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENTS: Exhibit A— Permitted Improvements Plan as Approved by
Public Works
Daniel and Cristin Kahale Encroachment Agreement 5
PERMITTED IMPROVEMENTS PLAN
Daniel and Cristin Kahale Encroachment Agreement A-1
60
TO:
FROM:
CITY OF
NEWPORT BEACH
City Council Staff Report
August 9, 2016
Agenda Item No. 12
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
David A. Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
PREPARED BY: Rodi Almendralo, Civil Engineer
ralmend ralo(d-)newportbeachca.gov
PHONE: 949-644-3334
TITLE: Request for Policy Waiver to Install Private Improvements within the
Public Right -of -Way at 300 Kings Place (N2016-0407)
ABSTRACT:
The property owner of 300 Kings Place (Owner) is requesting a waiver of City Council
Policy L-6 to install a 36 -inch high wood picket fence and wooden entry gate within the
public right of way on Kings Place.
RECOMMENDATION:
a) Determine that the action is exempt from the California Environmental Quality Act
(CEQA) pursuant to Sections 150303 of the CEQA Guidelines because it will have
no potential to have a significant effect on the environment;
b) Waive Council Policy L-6, Private Encroachments in the Public Rights -of -Way, to
allow a 36 -inch high wood picket fence, a wooden entry gate, and appurtenances
that encroach in excess of 1 -foot into the Kings Place right-of-way, contingent upon
all conditions of the Encroachment Permit process being met; and
c) Direct staff to enter into an Encroachment Agreement with the Owners 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.
12-1
Request for Policy Waiver to Install Private Improvements within the Public Right -of -
Way at 300 Kings Place (N2016-0407)
August 9, 2016
Page 2
DISCUSSION:
The Owner is requesting a waiver of City Council Policy L-6 to install a 36 -inch high
wood picket fence, and a 36 -inch high by 5 -foot wide wooden entry gate within the
Kings Place right-of-way. The public right-of-way extends 12 -feet behind the existing
curb. The private fence encroachment request is to place the fence 4 -feet behind the
curb (8 -feet into the Kings Place right-of-way). Also included in the owner's plan are
policy compliant encroachments for a variable width brick paver entry walkway, private
landscaping and irrigation improvements and appurtenances.
City Council Policy L-6, "Private Encroachments in Public Rights -of -Way" explains and
describes how 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. The Policy specifies
allowable and prohibited encroachments and describes the required permits or
encroachment agreements
In Section A, which outlines the general encroachment prohibitions, "...structural
encroachments including fences, walls, patios, raised planters, etc., which encroach in
excess of 1 -foot into the public right-of-way..." are prohibited. The property owner is
requesting City Council consideration for waiver of this policy to allow an encroachment
for a 36 -inch high wood picket fence and entry gate.
Staff has reviewed this request and supports this policy waiver. In staff's review of the
existing site conditions, there are no existing or planned sidewalks or informal walkways
on Kings Place or in the surrounding Cliff Drive neighborhood. The fence would not
affect or change walking or bicycle access or pathways. There are no City -owned
utilities that will be impacted by the proposed private encroachments. The owner is
requesting a wood picket fence which is less intrusive than a block wall. A wooden
fence is semi -temporary and can be removed easily at any time. There are 2 properties
on Kings Place and a few properties in neighborhood with similar fence encroachments.
(Those appear to be unpermitted.) The requested private fence and gate improvements
will not diminish the rights of the public, present and future at that location.
Should the City Council elect to approve the waiver and installation of the said private
improvements and appurtenances, staff recommends that the City council require the
property owner to enter into an encroachment agreement with the City. The
encroachment agreement specifies the rights of the City including future removals and
the responsibilities of the property owner. The encroachment agreement is recorded
onto the property's title and provides important notice and protections for the City and
for the current and future property owners.
12-2
Request for Policy Waiver to Install Private Improvements within the Public Right -of -
Way at 300 Kings Place (N2016-0407)
August 9, 2016
Page 3
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this
project
exempt from the California
Environmental Quality Act (CEQA)
pursuant to
Section
15303 (New Construction or
Conversion of Small Structures)
of the CEQA Guidelines, California Code of
Regulations, Title 14, Chapter 3,
because the
project
includes the construction of
accessory structures which have
no potential
to have
a significant effect on the
environment.
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:
Attachment A —
Location Map
Attachment B —
Proposed Encroachment Fence Site Plan
Attachment C
— Property Owner Request Letter
Attachment D
— Property Photographs
Attachment E —
City Council Policy L-6
12-3
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12-5
Daniel Kahale
7722 Talbert Ave. Ste B
Huntington Beach, CA 92648
714.615-5000
4HP dannykahale@gmail.com
June 15, 2016
City of Newport Beach
100 Civic Center Dr.
Newport Beach, CA 92660
Subject: REQUEST FOR ENCROACHMENT PERMIT
Our home is located on the busy corner of Cliff Dr. and Kings Pl. We would like to complete a
fence to keep our family safe. Our little girl is now mobile and it would be nice to spend time in the
front yard. Also, we've had a number of close calls with our labrador. Although, she is well trained,
she has a tendencies to sneak off and sniff around the dangerous edges of the property. A fence
would keep everyone safe and contained even in the event of an accidental "escape".
Therefore, our plan is to install a wood picket fence around the main front yard (Exhibit 1). The Cliff
Dr./Kings PI. corner slope will be landscaped with synthetic turf and drought -tolerant plants.
Although I started building the fence prior to this request, I wasn't trying to avoid permits or build a
substandard fence. I did call the city to inquire about the permit process and was told that as long as
the fence is three feet or less, no permit is required. Many of my neighbors have similar fences and
similar setbacks.
The fence posts (already set) are 6"x6" treated heartwood redwood posts. It's also worth noting that
we are using top quality material and construction to maximize the life of the fence. Not only will this
fence keep our family safe, it will elevate the curb appeal of our home and neighborhood.
Although unintentional, I understand that it was my mistake to start the process without approval.
Unfortunately, I have already invested in the high-end posts and labor, and it would be a massive
financial burden to remove the posts and start over. Please grant approval of our fence and brick
path.
Thank you,
Daniel Kahale
Home Owner
300 Kings PI
Newport Beach, CA 92663
12-6
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Attachment E
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/pavers
installed at grade.
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.
1
12-8
B. Private encroachments requiring an encroachment permit and if applicable an
encroachment agreement from the Public Works Department and Municipal
Operations Department approval.
1. Tree planting and removal.
2. Shrub planting and removal.
3. Median landscaping.
If, in the opinion of the Municipal Operations 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 L-2.
2. Standard sidewalks.
3. Carriage walks.
4. Parkway surfacing (standard or colored/ textured concrete or flat
stone/brick) installed at grade (subject to Municipal Operations
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
12-9
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.
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.
10. Artificial Turf up to 100% of the required parkway landscape area.
Artificial turf grass shall be installed in accordance to manufactures
recommendations. Material must be securely anchored and maintained so
as to eliminate disrepair, fading, tearing, wrinkling and or edge curling or
any other type of material performance. Material shall be replaced prior to
the aforementioned conditions occur. Prohibited application: Indoor and
outdoor carpet, green in color or otherwise. The Director of Public Works
shall from time to time update the standards for this application. See
Artificial Turf - Material and Installation Standards.
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 measured from the top of curb elevation/or from sidewalk
elevation where sidewalk exists, 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
3
12-10
L-6
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.
For patios constructed at grade elevation to 1' above
sidewalk grade elevation, Fences may be 3' high above
sidewalk grade.
ii. For patios constructed greater than 1' above sidewalk grade
elevation, Fences must be set back a minimum of 3' from
back of sidewalk, not exceed 2'-6" in height above the patio,
have at least 40% visibility through them, and not to exceed
4' in height above existing public sidewalk grade.
C. Patios with a minimum setback of 2'-6" from the back of sidewalk.
Raised Patios are permitted provided they have a maximum
height of 2'-6" above sidewalk grade, are set back a
minimum of 2'-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.
4. Non-standard encroachments, including, but not limited to fences, walls,
and raised planters within City easements.
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.
4
12-11
IM
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 California Building Code or California Residential Code
under a valid building permit issued by the City.
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 Municipal Operations 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 - August 14,1989
Amended - February 14, 1972
Amended - November 27, 1989
Amended - August 11, 1975
Amended - December 9,1991
Amended - February 9,1981
Amended - December 14,1992
Amended - November 23,1981
Amended - July 12,1993
Amended - October 27, 1986
Amended - January 24, 1994
Amended - January 26,1987
Amended - May 9,1994
Amended - July 13,1987
Amended - February 27,1995
Amended - February 13,1989
Amended - February 26,1996
k
12-12
L-6
Amended - May 8, 2001
Amended - January 27, 2015
12-13