HomeMy WebLinkAboutC-7770-1 - Encroachment Agreement EPN N2013-0271 for 303 Driftwood Road. WHEREAS, Owner is the vested owner of property located at 303 Driftwood
Road, Newport Beach, California 92625 and legally described as Lot 36 of Tract 1116,
as shown on a map recorded in Book 36, Pages 19 through 20 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, County
Assessor's Parcel Number 052-202-01 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Driftwood Road and
Seward Road 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.
RECORDING REQUESTED BY AND Recorded In Official Records, orange county
Hugh Nguyen, clerk -Recorder
WHEN RECORDED RETURN TO:
111111111[111111111111111111 NO FEE
Public Works Department $ R 0 0 0 6 1 3 0 2 5 9$
2013000493119 2:47 PM 08/20113
City of Newport Beach
193409Al2 7
P.O. Box 1768 0.00 OM 0.00 0.00 18.00 0.00 0.00 0.00
Newport Beach, CA 92658-8915
Exempt from recording fees pursuant to Govt. Code section 27383
Space above this line for Recorder's use only,
ENCROACHMENT AGREEMENT
(Encroachment Permit Number N2013-0271)
THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into
this 31st day of July, 2013, by and between Stephen J. Carlton and Ashley B. Carlton,
husband and wife as Joint Tenants ("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 303 Driftwood
Road, Newport Beach, California 92625 and legally described as Lot 36 of Tract 1116,
as shown on a map recorded in Book 36, Pages 19 through 20 inclusively of
Miscellaneous Maps in the office of the County Recorder of Orange County, County
Assessor's Parcel Number 052-202-01 ("Property");
WHEREAS, Owner desires to construct certain non-standard improvements as
further described herein ("Permitted Improvements") within the Driftwood Road and
Seward Road 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.
2. It is mutually agreed that Permitted Improvements shall be defined as:
a. A variable height meandering block wall with a maximum height of 18 -
inches encroaching up to 3 -feet into the Seaward Road right-of-way; and a
6 -foot wide entry walkway constructed with smooth sand finish Davis
Mesa Bluff colored concrete encroaching up to 10 -feet into the Driftwood
Road right-of-way, as approved by the City Council on July 9, 2013 and
the Public Works Department and as shown on Exhibit A, attached hereto
and incorporated herein by reference.
b. 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.
& 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.
Stephen J. and Ashley B. Carlton Encroachment Agreement 2
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.
(ill) 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.
Stephen J. and Ashley B. Carlton 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]
Stephen J. and Ashley B. Carlton 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 ATT E 'S OFFICE
Date: /7
M
Aarof C'. Harp
City Attorney
ATTEST: e
Date:
CITY OF NEWPORT BEACH,
a California m ici7pa corporation
Date: I
gy;aL�Z--- LAA
Dave Ki
k6 City Manager
By:
)N�—
Leilani I. Brawn
City Clerk
ATTACHMENT:
OWNER(S): Stephen J. Carlton and
Ashley B. Carlton, husband and wife as
joint tenants
Date:2`
By: -m
Ste en J. Carlton
Joint Tenant
Date: -7L-\3
By4sl6 ariton
Joint Tenant
[END OF SIGNATURES]
Owners must sign in the presence of notary public
Exhibit A—Permitted Improvements Plan as Approved by
Public Works
Stephen J. and Ashley B. Carlton Encroachment Agreement 5
State of California
County of 0 r^,f h0
On A t US� 121, '161 before me, 1 VV t
DateI L
Here InsertNatnt
personalty appeared 1i C & 4- 1
KIM RIEFF
Commisai0n # 1967538
Hptary Public - California
Orange County ..
M Cnmm. free Jan 26, 2016
Place Notary Seal Above
5M
CIVIL CODE § IISO
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who proved to me on the basis of satisfactory
evidence to be the person(,$)'whose name(sj is/are-
subscribed to the within instrument and acknowledged
to me that helsher/they' executed the same in
his1h%AfiW authorized capacity(iesj, and that by
hiis/hgr/their'- signature(" on the instrument the
person* or the entity upon behalf of which the
person(sy 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.
Signature:
Signature of 90tary Pu
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and could prevent fraudulent removal and reattachment of this form to another document,
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Signer's Name:
❑ Corporate Officer — Title(s):
❑ Individual
171 Partner — ❑ Limited ❑ General Top of thumb here
F1 Attorney in Fact
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n Guardian or Conservator
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Signer Is Representing:
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Signer's Name:
❑ Corporate Officer — Title(s):
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I t Partner — ❑ Limited ❑ General Top of thumb here
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❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
0 2010 National Notary Association • NationalNotary.org • 1.600,US NOTARY (1-800-676.6827) Item 45907
State of Californ
County of Mx,
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entity upo behalf of which the person(s) acted, executed the
I certify under PENAL=TY OF PERJURY under
foregoing paragraph is true and correct.
WITNESS r%'hand and official seal
nature
laws of the State of California that the
ACKNOWLEDGMENT
State of California
County of t`P4'?4 OE
On JU1,14 2 '� 20 /3 before me,
Notary Public, personally appeared
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proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) -!dare
subscribed to the within instrument and acknowledged to me that Me/she/they executed the
same in hitVher/their authorized capacity(ies), and that by hislher/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 Califomia that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Gi<
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LAREN R
6 21
Commission # 1894720
• Notary Public - California
Orange county
My Comm. Expires Au 1, 2014
(seal)
Stephen J. and Ashley B. Carlton Encroachment Agreement 6
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IF �. City Council Staff Report
Agenda Item No. 11
July 9, 2013
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
David Webb, Public Works Director
949-644-3328, dawebb@newportbeachca.gov
PREPARED BY: Rodi Almendralo, Associate Civil Engineer
949-644-3334, ralmendralo@newportbeachca.gov
APPROVED: 0 -
TITLE: Request to Install Private Improvements Within the Public Right -of -
Way at 303 Driftwood Road
ABSTRACT:
The property owners of 303 Driftwood Road request to install private improvements
within the Seaward Road right-of-way frontage consisting of a meandering block wall
with a maximum height of 18 -inches encroaching up to 3 -feet into the public right-of-
way.
RECOMMENDATIONS:
1. Waive City Council Policy L-6, Private Encroachments in the Public Rights -of -Way,
to allow for an 18 -inch block wall to encroach up to 3 -feet into the Seaward Road
right-of-way, contingent upon all conditions of the Encroachment Permit process
being met.
2. Direct staff to prepare an Encroachment Agreement for the proposed private
improvements within the Seaward Road right-of-way and authorize the City Manager
and City Clerk to execute the Encroachment Agreement.
FUNDING REQUIREMENTS:
There is no fiscal impact related to this item.
DISCUSSION:
The property owners are requesting to install a meandering block wall with a maximum
height of 18 -inches within the Seaward Road right-of-way frontage of the property. The
block wall will have a stone face finish and a "fieldstone" cap. This block wall will
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Request to Install Private Improvements Within Public Right -of -Way at 303 Driftwood
Road
.July 09, 2013
Page 2
encroach up to 3 -feet into the public right-of-way. The property owners are requesting
approval for the meandering block wall in order to "level -off" their side -yard because
Seaward Road has a slight slope in the parkway area. Planting will also be installed to
soften the look of the proposed block wall.
City Council Policy L-6 prohibits structural encroachments including walls and raised
planters in excess of 1 -foot into the public right-of-way. This City Council Policy will
need to be waived in order to allow for the proposed block wall to encroach up to 3 -feet
into the Seaward Road right-of-way.
The proposed meandering block wall will not diminish the rights of the public, present
and future. The property owner will need to obtain an Encroachment Permit and enter
into an Encroachment Agreement with the City which would permit the City to terminate
rights granted at any time in the future and could require the removal of the proposed
block wall.
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).
Submitted by:
Davi A. Welk
Public Works Director/City Engineer
Attachments: A. Area Map
B. Site Plan
C. Letter from Property Owner
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OR
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ATTACHMENT "B"
SITE PtAh
ATTACHMENT C
march 2.1, 201-1
Public Works Department
110 l3o}t 1768
Newport: Beach, CA 92658
RE: 303 Driftwood Rodd, Carona bel Mar, CA 92625
Request for encroachment permit
To Whom It May Concern:
I am writing to request approval of a minor landscaping Improvement in the public right of way that
abuts our property at 303 Driftwood Road. Our property is on a coater lot with frontage on both
Driftwood Road and Seaward Road where there are large property line setbacks from the curb that limit
the usable area of our: yard. The addition of this Improvement will both enhance the aesthetic
appearance ofthe public right of way and allow our family to enjoy our property on the uphill side. The
small meandering retaining wall will be constructed In a first class manner using a tight stacked bocal
canyon stone face and fieldstone cap. The exposed height of the wall will only be 18" tali and at no point
will it be closer than 48" from the inside face of the curb, brought resistant plants will be planted along
the wall to soften Its exposure and we will be responsibility for all maintenance.
This landscaping plan has been approved by the Shore Cliffs Home Owners Association. Additionally, all
of our neighbors have signed the plan to approve It part of the Shore Cliffs neighborhood awareness
plant, In the construction of our new home, we have asked for no other variances from either our HOA or
the city. our new home and landscape design is a drastic improvement over the former dwelling which
was built In 1946 and poorly maintained.
The Shore Cliffs community has numerous examples of similar improvements that have been
constructed in the public right of way. We hope that the planning commission will view our request as a
positive and harmonious with the community.
Thank you for your consideration.
Sincerely,
5 ephen Carlton
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