PISMO BEACH CITY COUNCIL STAFF REPORT
Agenda Item #9.E
Meeting Date: April 15, 2025
TITLE:
Encroachment Agreement to Allow an Open Rail Fence in City Right-of-Way along the Water Street Property Frontage at 306 Pier Avenue
RECOMMENDATION:
Authorize the City Manager to execute, and the City Clerk to record, an Encroachment Agreement for 306 Pier Avenue to allow an existing fence in the City right-of-way.
DISCUSSION:
The applicant, The O’Neal Family Trust, currently owns the property at 306 Pier Avenue.
The property was recently redeveloped and a new single-family home was constructed.
The original plans for the property included installation of sidewalk; however on May 21, 2024 the City Council adopted Resolution R-2024-031 establishing a residential sidewalk policy. The policy states “development of residential sidewalk in [qualifying] cases shall only be required if, on a per-block basis, the street frontage on the side of the street where the project is located currently has 50% or more existing sidewalk.” In line with this policy, the applicant submitted revised plans to eliminate the sidewalk from the scope of the project, but did install other frontage improvements including curb and gutter. The open rail fence was constructed along both the Pier Avenue and Water Street frontages behind the curb; the fence along Water Street extends into City right-of-way by approximately 30 inches.
The encroachment has been reviewed by the Public Works Department and poses no threat to public health and safety. If approved, the Encroachment Agreement will give the City a means to order the removal of the encroachment at the owner’s expense should the City need to utilize this space at a future date. The Encroachment Agreement is in the standard format as reviewed and approved by the City Attorney.
Conclusion and Recommendation
Staff recommends that the City Council authorize the City Manager to execute, and the City Clerk to record, the Encroachment Agreement (Attachment 1) for 306 Pier Avenue.
FISCAL IMPACT:
There is no anticipated fiscal impact to the City from permitting the encroachment.
ATTACHMENTS:
1. Encroachment Agreement
2. Photos of Existing Fence
Prepared by: Erin Olsen, Senior Management Analyst
Submitted by: Rosemarie R. Gaglione, PE, Director of Public Works City Manager Approval:
9.E-1Council Agenda 4-15-2025
Rev. date Jan 2025
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of Pismo Beach
City Clerk
760 Mattie Rd.
Pismo Beach, CA 93449
Location: 306 Pier Avenue
APN: 010-352-008
Description: Open Rail Fence
ENCROACHMENT AGREEMENT
THIS ENCROACHMENT AGREEMENT, made and entered into as of the date the AGREEMENT is fully executed by all parties, by and between the CITY OF PISMO BEACH, a municipal corporation (hereinafter referred to as “City”), and The O’Neal Family Trust, (hereinafter referred to as “Applicant”).
RECITALS:
A.Applicant owns real property at 306 Pier Avenue known as APN 010-352- 008 in the City of Pismo Beach that has a legal description as set forth on Exhibit A hereto and is hereinafter referred to as the “Real Property”; and B.Applicant will maintain improvements, consisting of an open rail fence which encroaches into the City’s public right-of-way for Water Street; and C.Said improvements are described as within the approximate area schematically shown on “Exhibit B”, which is incorporated by reference, and the improvements are hereinafter referred to as the “Encroachment”; and
D.Only the Encroachments consisting of an open rail fence within the area shown on “Exhibit B”, incorporated by reference, are allowed under this Encroachment Agreement; and
E.The City is willing to allow the Encroachment subject to certain conditions.
NOW, THEREFORE, in consideration of the City allowing the Applicant to maintain the Encroachment, the Applicant accepts and agrees to the conditions as follows:
1.LIMITS OF ENCROACHMENT
The Applicant is allowed to construct only the Encroachment that is described herein, subject to the conditions contained herein and any applicable laws. This agreement shall be valid for thirty (30) years from the date of issuance, and shall be extended for ongoing consecutive thirty (30) year terms unless revoked or abandoned as otherwise provided in this agreement. The design of the
9.E-2Council Agenda 4-15-2025
Attachment 1
Rev. date Jan 2025
encroachment must be approved by the City Engineer in the City Engineer’s sole discretion.
2.COSTS
The Applicant shall bear the entire cost and expense of the construction, upkeep and maintenance of the Encroachment.
3.MAINTENANCE
All work relating to the Encroachment shall conform to recognized standards of construction and the Encroachment shall be maintained in a clean and safe manner by the Applicant and/or successors.
4.COMPLIANCE
The Applicant shall comply with all applicable City, County, State and Federal laws and regulations.
5.PERMITS
Applicant shall obtain all other required approvals and permits prior to construction.
6.REVOCATION FOR CAUSE
The Applicant agrees that this Encroachment Agreement may be revoked by the City for failure to comply with any condition contained herein if the Applicant has not eliminated such non-compliance within sixty (60) days after the City gives the Applicant written notice of non-compliance.
7.REVOCATION UPON NOTICE
The City may revoke this Encroachment Agreement or a part thereof for any reason by giving written notice to the Applicant at least one hundred eighty (180) days prior to termination of this Agreement. In such event, Applicant shall, at the Applicant’s sole expense, remove any Encroachment or part thereof and restore the area as shall be required by the City.
8.FAILURE TO REMOVE
If the Applicant fails to remove the Encroachment and restore the area where the encroachment was located upon proper request, the City has the right to remove the Encroachment, restore said area, charge Applicant for costs of removal and restoration, and place a lien upon the real property.
9.AUTOMATIC TERMINATION
The Encroachment Agreement shall terminate automatically at any time the
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Attachment 1
Rev. date Jan 2025
Applicant abandons or removes the Encroachment. If the Applicant only abandons or removes a portion of the Encroachment, this Encroachment Agreement shall terminate as to the portion that is abandoned or removed.
10. INDEMNIFICATION
The Applicant agrees to defend and indemnify the City, its officers, employees, and agents against and shall hold them harmless from any loss, costs, damage, expense of whatever description (including all costs of defense and reasonable attorneys’ fees) or liability by reason of injury or death of any person, or damage to or destruction of any property arising out of the design, construction, maintenance or use of, or in any manner otherwise related to, the improvements allowed under this Agreement. It is the intent of this Section that the Applicant shall be responsible for all liability for design, construction, maintenance, and use of the improvements installed or work done pursuant to this Agreement and that the City, its officers, employees and agents shall not be liable for any negligence, whether active or passive in nature, nonfeasance, misfeasance, or malfeasance related to or arising from this Agreement, including but not limited to approving, reviewing, checking, or correcting any plans or specifications or in approving, reviewing, or inspecting any work or construction arising from this Agreement.
11. INSURANCE
The Applicant shall cover the encroaching property with and otherwise obtain sufficient liability insurance for both bodily injury and property damage to meet the obligations of this paragraph, but in no event shall the liability coverage be less than one million dollars ($1,000,000) per occurrence. Concurrently with execution of this Agreement, the Applicant shall provide the City with a certificate of insurance evidencing the existence of such coverage, which shall include a provision that provides the City thirty (30) days’ advance written notification of any cancellation or change to the policy of insurance. In the event the Applicant’s policy of insurance cannot be endorsed to provide this notice of cancellation, the Applicant shall provide the City notice of such cancellation, in writing, not later than twenty-four (24) hours following the effective time of such cancellation. The City shall be named as an additional insured via endorsement of the insurance policy. The City Attorney may waive the additional insured requirements if The City Attorney determines that the proposed encroachment will not constitute any significant possibility of City liability, or if such a policy is not commercially available to the Applicant. If such a policy is commercially available, additional costs to the Applicant in obtaining such a policy shall not be a basis upon which the additional insured requirement will be waived. Furthermore, the act of waiving this additional insured endorsement requirement shall not be construed as a waiver of any other right the City may have relating to this Agreement and/or the work permitted. If the Applicant fails to provide sufficient insurance to meet the obligations of this paragraph, the Applicant agrees that any expenses incurred by the City as a result of the improvements authorized by this Encroachment Agreement may be recorded as, and shall constitute, a lien upon the real property of the Applicant in favor of the City.
9.E-4Council Agenda 4-15-2025
Attachment 1
Rev. date Jan 2025
12.AGREEMENT BINDING UPON SUCCESSORS IN INTEREST
This Encroachment Agreement is an instrument affecting the title and possession of the Real Property. All the terms, covenants and conditions herein imposed shall be binding upon and inure to the benefit of the successors-in-interest of the Applicant, and shall run with the Real Property. Upon any sale of the Real Property, the successor-in-interest shall be bound by the obligations imposed on the Applicant by this Encroachment Agreement.
13.ADDITIONAL COSTS
In the event the City is required to perform additional work because of the Encroachment during the maintenance, repair, installation or reconstruction of any public facilities, the Applicant shall pay all such additional costs incurred in connection with the said extra work within thirty (30) days of receiving a written, itemized statement of charges from the City. In such event, the Applicant shall, at the Applicant’s sole expense, restore any portion of the Encroachment disturbed by the City’s operations when the City’s work is completed. In the event of any controversy, claim or dispute arising out of or relating to this Agreement or violation of any covenant contained herein, the prevailing party shall be entitled to receive from the losing party reasonable expenses, including attorney’s fees and costs.
14.NOTICE TO APPLICANT
Notice to the Applicant shall be deemed given when (i) the notice is enclosed in an envelope, addressed to the last known name and address of the owner of the Real Property as shown upon the most recent assessment roll of the County of San Luis Obispo, and (ii) that envelope is deposited in the United States mail, with postage fully prepaid. If said roll is no longer available, notice shall be deemed given upon (i) posting the notice on the Real Property and (ii) mailing the notice to the last known address of the owner of the Real Property.
Signatures begin on next page
9.E-5Council Agenda 4-15-2025
Attachment 1
Rev. date Jan 2025
APPROVED AS TO CONTENT:
Rosemarie R. Gaglione, PE
Director of Public Works
CITY OF PISMO BEACH,
A Municipal Corporation
Jorge E. Garcia, City Manager
Date: ___________________
APPLICANT:
The O’Neal Family Trust
Sean M. O’Neal, Trustee
Date: ___________________
The O’Neal Family Trust
Christopher Ryan O’Neal, Trustee
Date: ___________________
APPROVED AS TO FORM:
David M. Fleishman, City Attorney
INSTRUCTIONS
This Agreement will be recorded. Your signature(s) must be acknowledged by a notary.
Inform the Notary that the acknowledgment is for an instrument to be recorded. (California Civic Code 1169, et seq.)
9.E-6Council Agenda 4-15-2025
Attachment 1
LEGAL DESCRIPTION
Real property in the City of Pismo Beach, County of San Luis Obispo, State of California, described as follows:
LOT 2 AND THE NORTHEASTERLY 25 FEET OF LOT 4 IN BLOCK 15 OF TRACT NUMBER 24, IN THE CITY
OF PISMO BEACH, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA, ACCORDING TO THE MAP FILED MARCH 2, 1936, IN BOOK 5, PAGE 44 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHERLY CORNER OF SAID LOT 2, AS EVIDENCED BY A 5/8” REBAR WITH CAP STAMPED “LS 5702” AS SHOWN ON THAT CERTAIN RECORD OF SURVEY FILED IN BOOK 125 AT PAGE 23 OF RECORDS OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, ALSO BEING A POINT ON THE SOUTHWESTERLY RIGHT-OF-WAY LINE OF WATER STREET, A 49.90 FOOT WIDE STREET AS SHOWN ON SAID RECORD OF SURVEY; THENCE ALONG SAID RIGHT-OF-WAY LINE
1. SOUTH 64°46’20” EAST, 79.95 FEET TO THE MOST EASTERLY CORNER OF SAID LOT 2, AS EVIDENCED BY A 5/8” REBAR WITH CAP STAMPED “LS 5702” AS SHOWN ON SAID RECORD OF SURVEY, BEING A POINT ON THE NORTHWESTERLY RIGHT-OF-WAY LINE OF PIER AVENUE, A 49.90 FOOT WIDE STREET AS SHOWN ON SAID RECORD OF SURVEY; THENCE ALONG SAID RIGHT-OF-WAY LINE OF PIER AVENUE
2. SOUTH 28°53’00” WEST, 75.00 FEET TO THE MOST SOUTHERLY CORNER OF THAT CERTAIN PARCEL OF LAND DESCRIBED IN THE GRANT DEED TO 242 PALOMAR, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, RECORDED APRIL 13, 2021 AS DOCUMENT NO. 2021-027557 OF OFFICIAL RECORDS, AS EVIDENCED BY A 5/8” REBAR WITH CAP STAMPED “LS 5702” AS SHOWN ON SAID RECORD OF SURVEY; THENCE
3. NORTH 64°46’20” WEST, 79.96 FEET TO THE MOST WESTERLY CORNER OF SAID GRANT DEED, AS EVIDENCED BY A 5/8” REBAR WITH CAP STAMPED “LS 5702” AS SHOWN ON SAID RECORD OF SURVEY; THENCE
4. NORTH 25°52’58” EAST, ALONG THE SOUTHEASTERLY LINE OF LOTS 3 AND 1 OF SAID TRACT NUMBER 24, A DISTANCE OF 75.00 FEET TO THE POINT OF BEGINNING.
THE ABOVE LEGAL DESCRIPTION IS PURSUANT TO THAT VOLUNTARY NOTICE OF MERGER RECORDED MARCH 10, 2023 AS INSTRUMENT NO. 2023006588 OF OFFICIAL RECORDS.
APN: 010-352-008
Exhibit A
9.E-7Council Agenda 4-15-2025
Attachment 1
WATER STREET
PIER AVENUE
306 PIER
AVENUE
PATIO
DRIVEWAY
PROPERTY LINE & RIGHT-OF-WAY
EXISTING OPEN RAIL FENCE
+/
-
3 0
"
EXISTING OPEN RAIL FENCE
PROPERTY LINE & RIGHT-OF-WAY
3765 S. Higuera St., Ste. 102 ● San Luis Obispo, CA 93401 p: (805) 543-1794 ● f: (805) 543-4609
www.rrmdesign.com
a California corporation ● Lenny Grant, Architect C26973 ● Jerry Michael, PE 36895, LS 6276 ● Jeff Ferber, LA 2844
DRAWN BY
DATE
JOB NO.
CHECKED BY
REF. SHEET
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DJC
DJC
11/25/24
2322-02-RS21
306 PIER AVENUE
ENCRAOCHEMENT AGREEMENT
EA-01
SCALE: 1" = 20'-0"EA-01
ENCROACHMENT AGREEMENT EXHIBIT1
Exhibit B
9=E48Council Agenda 4-15-2025
Attachment 1
9.E-9Council Agenda 4-15-2025
Attachment 2