HomeMy WebLinkAboutC-8321-1 - Encroachment Agreement EPN N2013-0436 for 432 Holmwood DriveDocument -2 981441 -Page -1
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 1
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
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Space above Oft fine For Recorder's use only.
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2013-0436)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
7th day of February, 2017, by and between Ryan F. Shea and De Anne Shea as Trustees of
the Ryan and De Anne Shea 2008 Trust dated March 18, 2008 ("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 432 Holmwood Drive,
Newport Beach, California, 92663 and legally described as Lot 50, Tract 1136, as shown on
a map recorded in Book 37, Pages 18 through 19 inclusive of Miscellaneous Maps, in the
office of the County Recorder of Orange County, County Assessor's Parcel Number 049-
082-15 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as further
described herein ('Permitted Improvements") within the Holmwood Drive right-of-way
(hereinafter "Right -of -Way") that is located adjacent to Property;
WHEREAS, said Permitted Improvements may interfere inthe 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.
Shea 2008 Trust Encroachment Agreement 1
about:blank 03/21/2017
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 N2013-0436)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this
7th day of February, 2017, by and between Ryan F. Shea and De Anne Shea as Trustees of
the Ryan and De Anne Shea 2008 Trust dated March 18, 2008 ("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 432 Holmwood Drive,
Newport Beach, California, 92663 and legally described as Lot 50, Tract 1136, as shown on
a map recorded in Book 37, Pages 18 through 19 Inclusive of Miscellaneous Maps, in the
office of the County Recorder of Orange County, County Assessor's Parcel Number 049-
082-15 ("Property');
WHEREAS, Owner desires to construct certain non-standard improvements as further
described herein ("Permitted Improvements") within the Holmwood Drive 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:
City and Owner acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference into this Agreement.
Shea 2008 Trust Encroachment Agreement 1
2. It is mutually agreed that Permitted Improvements shall be defined as:
Two (2) 38 -inch tall block walls with vinyl gate constructed of white stucco
encroaching up to 1 -foot 5 -inches into the Right -of -Way;
b. Two (2) 29 -inch tall planter walls constructed of white stucco encroaching up
to 3 -feet 10 -inches into the Right -of -Way;
C. 15 -inch square pavers constructed of concrete and encroaching up to 7 -feet
into the Right -of -Way;
d. Low voltage lighting attached to the planter wall encroaching 3 -feet 10 -inches
into the Right -of -Way, as approved by the Public Works Department and as
shown on Exhibit A, attached hereto and incorporated herein by reference.
e. 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.
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 the 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.
Shea 2008 Trust 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.
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.
Shea 2008 Trust Encroachment Agreement 3
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]
Shea 2008 Trust 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 ATTORNEY'S OFFICE
Date: Z//3//: -
M
Aaron C. FTai
City Attorney
ATTEST:
Date: 5.V.
By:_ aw
Leilani I. Brown`
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 3I
(� By.
Dave7r"iff
City Manager
OWNER(S): Ryan F. Shea and De Anne
Shea as Trustees of the Ryan and De
Anne Shea 2008 Trust dated March 18,
2008
Date: L Z '�r
By: 4—)
Ryan F. Shea
Trustee
Date: Z- ?-
By: e;!�)_f.
De Anne Shea
Trustee
[END OF SIGNATURES]
Owners must sign in the presence of notary public
ATTACHMENTS: Exhibit A — Permitted Improvements Plan as Approved by
Public Works
Shea 2008 Trust Encroachment Agreement 5
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of C
County of UrGtJQP } ss.
On EtflDkI/ , 20 V1 before me, Y/f ►f Mla(f6H Notary
Public, personally appeared Kline F who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
State of
YVETTEMADRID
Commission * 2040995
. Notary Public - California
UEOrange County
M Comm. Expires Oct 7 2017 r
(seal)
t1ounly or Uj u re— 1 ss.
On P ✓A -�h 20 17 before me, He ondk H Notary
Public, personally appeared P f)11no ,Wo , 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 signatures(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
S" ature
MR YVETTE MADRID
Commission * 2040995
Notary Public - California a
Orange County >
(seal) 4 Comm. Ex ires Oct 7, 2017 J
Shea 2008 Trust Encroachment Agreement 6
EXHIBIT A
PERMITTED IMPROVEMENTS PLAN
Shea 2008 Trust Encroachment Agreement A-1
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<,FoR�P City Council Staff Report
December 13, 2016
Agenda Item No. 11
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
PREPARED BY: Kathryne Cho, Civil Engineer, kcho@newportbeachca.gov
PHONE: 949-644-3014
TITLE: Request to Retain Existing Private Improvements within the Public
Right -of -Way at 432 Holmwood Drive
ABSTRACT:
The property owner of 432 Holmwood Drive requests to retain existing private
improvements within the Holmwood Drive public right-of-way.
RECOMMENDATION:
a) Determine that the action is exempt from the California Environmental Quality Act
(CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines
because it will not result in a physical change to the environment, directly or
indirectly;
b) Waive City Council Policy L-6, Private Encroachments in the Public Rights -of -Way,
to allow stairs with handrail and retaining walls and lighting that encroach in excess
of 1 foot into the right-of-way and exceed 3 feet in height within the Holmwood Drive
right-of-way; and
c) Direct staff to enter into an Encroachment Agreement with 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.
Request to Retain Existing Private Improvements within the
Public Right -of -Way at 432 Holmwood Drive
December 13, 2016
Page 2
DISCUSSION:
It has been brought to staff's attention that property encroachments have been
constructed at 432 Holmwood Drive. Staff approached the property owner and started
the process of obtaining City Council approval and eventually an encroachment
agreement.
Staff contacted the property owner (Owner) of 432 Holmwood Drive to inform him of his
options to retain the existing encroachments.
Owner opted to request for a waiver from City Council Policy L-6, Private
Encroachments in the Public Rights -of -Way, to retain the existing improvements at his
property. The request includes the retention of the following: a) a 38 -inch tall block wall
and a 34 -inch tall entry gate encroaching 1 foot 5 inches; b) a 29 -inch tall planter wall
and low -voltage lighting encroaching approximately 4 feet; and c) 15 -inch square
concrete pavers and entry walkway encroaching up to 6 feet 6 inches into the
Holmwood Drive right-of-way.
Currently, no sidewalks exist along the Holmwood Drive right-of-way nor has this street
been identified as a Significant Link Street in the City's Circulation System (Resolution
No. 88-88). With the encroachment agreement in place and no current need to install a
sidewalk, staff supports the request to retain the existing private improvements as it
does not presently diminish the rights of the public.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A - Location Map
Attachment B - Existing Improvements Plan
Attachment C - Project Site Photos
Attachment D - City Council Policy L-6
11-2
ATTACHMENT A
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ADD
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CITY OF NEWPORT BEACH
PUBLIC WORKS DEPARTMENT
Property Lim
Curb Face
ATTACHMENT B
EXISTING IMPROVEMENT PLAN
concrete pavers 29 -inch tall planter wall 15 -inch square
HOLMWOOD DRIVE
concrete pavers
ATTACHMENT C
PROJECT SITE PHOTOS
11-5
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ATTACHMENT D
L-6
PRIVATE ENCROACHMENTS IN PUBLIC RIGHTS-OF-WAY
It is the general policy of the City that the public rights-of-way are to be reserved for
public use or open space; and that the rights of the public, present and future, are not to
be diminished by the installation of private improvements within the public rights-of-
way.
Categories of private encroachments and improvements are listed below, together with
the permit requirement for each category.
A. Private encroachments prohibited.
1. Structural encroachments not otherwise listed; including, but not limited
to, fences, walls, patios, raised planters, etc., which encroach in excess of 1
foot into the public right-of-way, or exceed 3 feet in height, measured
from the top of curb elevation/ or from sidewalk elevation where sidewalk
exists.
2. Driveway approaches not conforming to Council Policy L-2.
3. Ocean front street end, or Bay front street end improvements not
conforming to Council Policy L-8.
4. Ocean front alley end improvements not conforming to Council Policy
L-8.
5. Modifications to original design concepts approved by the City.
6. Private signs except as provided for in the Building Code.
7. Lighting.
8. Parkway surfacing of loose rock, gravel, or any surfacing other than
standard or colored/ textured concrete or flat stone/brick/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
11-7
ATTACHMENT D
L-6
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
11-8
ATTACHMENT D
L-6
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
11-9
ATTACHMENT D
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
11-10
ATTACHMENT D
L-6
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
ATTACHMENT D
L-6
Amended - May 8, 2001
Amended - January 27, 2015
11-12