PISMO BEACH CITY COUNCIL STAFF REPORT
Agenda Item #9.F
Meeting Date: June 3, 2025
TITLE:
Encroachment Agreement to Allow a Retaining Wall in City Right-of Way along the Property Frontage at 558 Price Street
RECOMMENDATION:
Authorize the City Manager to execute, and the City Clerk to record, an Encroachment Agreement for 558 Price Street to allow an existing retaining wall in the City right-of-way.
DISCUSSION:
From time to time, a situation arises where an otherwise illegal encroachment has been constructed in the public right-of-way. Often, such an encroachment may have existed for many years but only come to the attention of the City when another project requires formal plans detailing property lines and existing structures. In most of these cases, if there are no public safety concerns, the cost and inconvenience to the property owner of the removal of said encroachment outweighs any potential benefit to the public from its removal. In such cases, an Encroachment Agreement is the legal vehicle to allow for the encroachment to remain for the present, while acknowledging that the City has the legal right to require its removal in the future if the additional right of way is needed, or if the encroachment becomes unsafe.
The applicant, the MacMillan Family Trust, currently owns the property at 558 Price Street. This commercial property is currently being remodeled, including a small addition, bathroom remodel and other site improvements. During the plan review process, it was determined that the existing retaining wall along both the Price Street and Stimson Avenue frontage extends slightly into City right-of-way.
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 provide a means for the existing retaining encroachment to remain for the present, with the understanding that the encroachment may be required to be removed 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 558 Price Street.
FISCAL IMPACT:
There is no anticipated fiscal impact to the City from permitting the encroachment.
Council Agenda 6-3-2025 9.F-1
ATTACHMENTS:
1. Encroachment Agreement
2. Photo of Existing Retaining Wall
Prepared by:
Erin Olsen, Senior Management Analyst
Submitted by: Rosemarie R. Gaglione, PE, Director of Public Works City Manager Approval:
Council Agenda 6-3-2025 9.F-2
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: 558 Price Street
APN: 005-082-042
Description: Existing Landscape
Retaining Wall
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 Douglas MacMillan and Shannon MacMillan, Trustees of the MacMillan Family Trust, (hereinafter referred to as “Applicant”).
RECITALS:
A. Applicant owns real property at 558 Price Street known as APN 005-082- 042 in the City of Pismo Beach that has a legal description as follows:
(Voluntary Notice of Merger – Doc. #2024-014502)
The Real property in the City of Pismo Beach, County of San Luis Obispo, State of California, being Parcel A and Parcel B of Parcel Map Number PB-72-117 as recorded in Book 8, Page 47 of Parcel Maps, on file in the San Luis Obispo County Recorder’s Office, more particularly described as follows:
Beginning at the Southerly corner of said Parcel B, said point also being at the intersection of the Northwesterly Right of Way of Stimson Avenue, being a 25.00 foot offset Northwesterly of the centerline of Stimson Avenue as shown on said Parcel Map and the Map of Town of El Pizmo recorded in Book A at Page 155 of Maps on file in said County Recorder’s Office, and the Northeasterly Right of Way of Price Street, being a 48.00 foot offset Northeasterly of the centerline of Price Street, as shown on the Record of Survey recorded in Book 93 at Page 49 on file in said County Recorder’s Office;
Thence along the Southwesterly line of said Parcel B and Parcel A of said Parcel Map PB-72-117, and said Northeasterly Right of Way of Price Street, North 41°02’30” West 290.26 feet to the Westerly corner of said Parcel A, said point also being the intersection of said Northeasterly Right of Way of said Price Street with the Southeasterly Right of Way of Hinds Avenue, being a 25 foot offset Southeasterly of the centerline of Hinds Avenue as shown on said Map of Town of El Pizmo and said Parcel Map Number 72-117;
Rev. date Jan 2025
Thence along the Northwesterly line of said Parcel A and said Southeasterly Right of Way, North
48°57’30” East 77.00 feet to the Northerly corner of said Parcel A, said point also being on the Northeasterly line of the land described in the deed recorded December 4, 1964 in Book 1327, Page 247 of Official Records on file in said County Recorder’s Office, and also being on the Southwesterly Right of Way of California State Highway 101; Thence along the Northeasterly line of said Parcel A, said deed and said Right of way of Highway 101, South 46°02’35” East 153.03 feet; Thence along the Northeasterly line of said Parcel A and B, South 40°03’34” East 137.83 feet to the Easterly corner of said Parcel B and said Northwesterly Right of Way of Stimson Avenue;
Thence leaving said Deed line and Highway 101 Right of Way, along the Southeasterly line of said Parcel B and the Northwesterly Right of Way of Stimson Avenue, South 48°57’30” West 87.98 feet to the Point of Beginning and is hereinafter referred to as the “Real Property”; and B. Applicant will maintain improvements, consisting of the existing landscaping retaining walls which encroach into the City’s public right-of- way for Price Street & Stimson Avenue, which are dedicated on the map of Town of El Pizmo, San Luis Obispo County, book A page 155 of maps in the office of the County Recorder of said county; and C. Said improvements are described as within the approximate area schematically shown on “Exhibit A – Site Plan, Exhibit B – Encroachments”, which is incorporated by reference, and the improvements are hereinafter referred to as the “Encroachment”; and D. Only the Encroachments consisting of existing landscaping retaining walls within the area shown on “Exhibit A – Site Plan, Exhibit B – Encroachments”, 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. 7KHORFDWLRQDQGH[WHQWRI WKHHQFURDFKPHQWPXVWEHDSSURYHGE\WKH&LW\(QJLQHHULQWKH&LW\(QJLQHHU¶V VROHGLVFUHWLRQ.
Attachment 1
Council Agenda 6-3-2025 9.F-3
Rev. date Jan 2025
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 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.
Rev. date Jan 2025
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.
Attachment 1
Council Agenda 6-3-2025 9.F-4
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
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:
Shannon MacMillan, Trustee
MacMillan Family Trust
Date: ___________________
Douglas MacMillan, Trustee
MacMillan Family Trust Date:
___________________
APPROVED AS TO FORM:
Dave 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.)
Attachment 1
Council Agenda 6-3-2025 9.F-5
Attachment 1
Council Agenda 6-3-2025 9.F-6
Attachment 2
Council Agenda 6-3-2025 9.F-7