HomeMy WebLinkAboutC-2674 - Encroachment Agreement Resubdivision No. 765 (for 503 Edgewater - Newport Landing Restaurant)RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Clerk
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663-3884
Recorded in the County of Orange, California
Gary L. Granville, Clerk/Recorder
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1995@523399 2:14pm 11/28/95
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AMENDMENT TO ENCROACHMENT AGREEMENT
RESUBDIVISION NO. 765
THIS AMENDED ENCROACHMENT AGREEMENT, is made and entered into
this 1 day of /yl(/yyli , , 1995, between the CITY OF NEWPORT
BEACH, a Municipal Corporation, hereinafter referred to as "CITY,"
and Waterfront Enterprises, Inc., hereinafter referred to as
"OWNER," with reference to the following facts:
A. CITY has easements over certain public street rights of
way (hereinafter "EASEMENTS") located in the City of Newport Beach,
County of Orange, State of California, which EASEMENTS are more
particularly described in document #85-051775 recorded in official
records of Orange County, California on February 13, 1985.
B. OWNER owns that certain real property located at 503
Edgewater Place in the City of Newport Beach, County of Orange,
State of California, which real property is more particularly
described as Lots 2 - 6, Block 3, Balboa Bayside Tract, and which
real property is contiguous to the EASEMENTS. Whereas on October
7, 1986, CITY and OWNER's predecessor in interest entered into an
Encroachment Agreement for Resubdivision No. 765, recorded in
official records of Orange County, California, on October 19, 1986
as document number 86-478283 (hereinafter "ENCROACHMENT
AGREEMENT").
C. CITY and OWNER desire to amend paragraph 4 of the
ENCROACHMENT AGREEMENT to permit OWNER to provide food service on
an existing wooden deck within the EASEMENT area.
D. The City Council for CITY considered and approved this
amendment to the ENCROACHMENT AGREEMENT, on August 28, 1995.
NOW, THEREFORE, the parties agree as follows:
1. Paragraph 4 of the ENCROACHMENT AGREEMENT shall be
amended to read as follows:
"4. OWNER'S DUTIES
a. OWNER shall properly and regularly maintain the
improvements and shall timely pay all costs and expenses incurred
in doing so.
b. OWNER shall maintain improvements in an open manner
so that the general public has free access to the EASEMENT area
with no constraints placed on access to the public EASEMENT area
except for the enclosed Fish Market Building. OWNER shall, however
have the right to provide food and beverage service on the raised
patio subject to the requirements of a Use Permit."
2. Paragraph 12 of the Encroachment Agreement shall be
amended to read as follows:
"12. NOTICE
When notice is to be given pursuant to this Agreement, it
shall be addressed as follows:
CITY
City of Newport Beach
Office of the City Attorney
3300 Newport Boulevard
Newport Beach, CA 92663-3884
OWNER
Waterfront Enterprises, Inc.
C/O Newport Landing
503 East Edgewater
Balboa, CA 92661
Notice shall be deemed given as of the date of mailing
when notice is properly addressed and mailed with first class
postage prepaid."
3. Except as expressly amended in this Amendment to
Encroachment Agreement all other terms and conditions of the
Encroachment Agreement are applicable to this amendment and shall
remain unchanged in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the day and year first above written.
APPAS TO FORM:
CITY OF NEWPORT BEACH,
a Municipal Corporation
By:
ty Attorney / Mayor
ATTEST:
City Clerk
de\amend765.enc
WATERFRONT ENTERPRISES, INC.
BY:
BY:
j L
L7SR7 _ Pn.Es.
STATE OF CALIFORNIA )ss.
COUNTY OF ORANGE )
On GO /9: 1995 , before me, Sh. una L n 0 ler personally appeared
Da tit a ai''7�1a. '- /S.5 personally known to me (or proved
to me on the basis of satisfactory evidence) to bethe person(whose name} is/
subscribed to the within instrument and acknowledged to me that�re%heLthey executed
the same in er/their authorized capacity(i and that by his/her/their signature(5 n
the instrument the personN or the entity upon behalf of which the person(s)acted,
executed the instrument.
WITNESS my hand an•_ i seal.
otary Public in and for said
Shauna Lyn Oyler z
J �.r. Comm *1002681 (�
NOTARY PUBLIC CALIFORNIA'
ORANGE COUNT' c
` `p Comm Expires Aug 1997,,
STATE OF CALIFORNIA )ss.
COUNTY OF ORANGE )
On AU' 1995 , befor me, Shauna Lyn Oyler personally appeared
%I ee S a If 1sr��r f7. �cz / personally known to me (or proved
to me on the basis' of satisfactory evidence) t6 be the perso sr hose nam's " re
subscribed to the wits a strument and acknowledged to me that he/shefiej' Oxecu
the same in his/h- ut orized capaci 4(( nd that by his/her ei ignatur s) on
the instrument the perso (sjor the entity upon behalf of which the perso lid cted,
executed the instrument.
WITNESS my hand and official seal.
Notary Public in andfoflsaid Sta
Shauna Lyn Oyler
Comm #1002681 ^^
,NOTARY PUBLIC CALIFORNIA'
ORANGE COUNTY Q
Comm Expros Aug 22, 1997
,.ECORDING REQUESTED BY AND
F,4Eiv RECORDED, RETURN .TO:
City Clerk/Y-Y I'.z 211
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663-3884
—4XEMPT RECORDING REQUEST PER
GOVERNMENT CODE 6103
EXEMPT
Cl
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RECORDED IN OFFICIAL RECORDS
OF ORANGE COUNTY CALIFOFiNIA
-111s AM OCT 10'86
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aecol�nEn
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
RESUBO/ V/5 /ON N. 76o S
AGREEMENT, made and entered into this a- day of '
and between the CITY OF NEWPORT BEACH, a municipal corporation,
hereinafter referred to as "CITY," and HOWARD PROPERTIES, hereinafter referred
to as "OWNER," is made with reference to the following facts:
A. CITY has easements over certain public street rights of way
(hereafter "EASEMENTS") located in the City of Newport Beach, County of Orange,
State of California, which EASEMENTS are more particularly described in Exhibit
"A" attached hereto and by this reference incorporated herein.
B. OWNER owns that certain real property located at 503 Edgewater
Place in the City of Newport Beach, County of Orange, State of California, which
real property is more particularly described as Lots 2 - 6, Block 3, Balboa
Bayside Tract, and which real property is contiguous to the aforesaid EASEMENTS.
C. This EASEMENT also contains public utility easements.
D. CITY has street lighting facilities located within said EASEMENT.
E. CITY desires to condition approval of construction of non-standard
street improvements over a portion of said street EASEMENT containing said
utility facilities.
F. The parties hereto desire to execute an agreement providing for
fulfillment of the conditions imposed by CITY on OWNER as a precondition for the
granting of permission to construct the non-standard street improvements.
NOW, THEREFORE, in consideration of their mutual promises, the parties
hereto agree as follows:
1 of 4
_,RECORD,ING REQUESTED BY AND
WHEN RECORDED RETURN T0:
City Clerk
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663-3884
Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
THIS AGREEMENT, made and entered into this /'- "day of
1986, by and between the CITY OF NEWPORT BEACH, a municipal corporation,
hereinafter referred to as "CITY," and HOWARD PROPERTIES, hereinafter referred
to as "OWNER," is made with reference to the following facts:
A. CITY has easements over certain public street rights of way
(hereafter "EASEMENTS") located in the City of Newport Beach, County of Orange,
State of California, which EASEMENTS are more particularly described in Exhibit
"A" attached hereto and by this reference incorporated herein.
B. OWNER owns that certain real property located at 503 Edgewater
Place in the City of Newport Beach, County of Orange, State of California, which
real property is more particularly described as Lots 2 - 6, Block 3, Balboa
Bayside Tract, and which real property is contiguous to the aforesaid EASEMENTS.
C. This EASEMENT also contains public utility easements.
D. CITY has street lighting facilities located within said EASEMENT.
E. CITY desires to condition approval of construction of non-standard
street improvements over a portion of said street EASEMENT containing said
utility facilities.
F. The parties hereto desire to execute an agreement providing for
fulfillment of the conditions imposed by CITY on OWNER as a precondition for the
granting of permission to construct the non-standard street improvements.
NOW, THEREFORE, in consideration of their mutual promises, the parties
hereto agree as follows:
1 of 4
1. DEFINITIONS
"Non-standard street improvements" (hereafter "IMPROVEMENTS") shall .
be defined to include a fish market; raised patio; gas heaters; landscaped
areas; storm drain; and sidewalk surfacing and appurtenances which are not con-
structed of natural colored Portland cement concrete finished in a customary
fashion.
2. TERM
Rights granted under this Agreement shall terminate twenty (20)
years from the date of execution, unless earlier terminated as provided herein.
In the event that CITY desires to use the EASEMENT for street purposes, CITY may
terminate this Agreement by giving 60 days' notice of its intention to do so,
specifying in said notice the date of termination. CITY shall incur no liability
whatsoever in the event of the termination of this Agreement, early or other-
wise, and/or subsequent removal of improvements by CITY.
3. RIGHTS OF OWNER
OWNER may construct, reconstruct, install, maintain, use, operate,
repair and replace said improvements, all in substantial conformance with plans
and specifications therefor on file in the CITY's Public Works Department, in on
and across those certain easements described in Exhibit "A" hereto.
4. OWNER'S DUTIES
a. OWNER shall properly and regularly maintain the improvements
and shall timely pay all costs and expenses incurred in doing so. In the event
that owner fails to properly and/or regularly maintain the improvements, CITY
may, at its option, assume the maintenance of the improvements and OWNER agrees
to pay all costs incurred by CITY in maintaining the improvements.
b. OWNER shall maintain improvements in an open manner so that the
general public has free access to the EASEMENT area with no constraints placed
on access to the public EASEMENT area except for the enclosed Fish Market
Building.
c. OWNER shall place signs at all patio entrances stating that the
patio is a public area. Sign lettering shall be a minimum of two (2) inches in
height and approved by the Public Works Department.
2 of 4
5. REPAIRS
CITY has the right to make such repairs to the improvements as it
deems necessary for the protection of the public health, welfare and safety.
OWNER agrees to promptly reimburse CITY for the reasonable costs and expenses
incurred by CITY in effecting such repairs.
6. RESTORATION
Should CITY be required to enter onto the easements to construct,
maintain, remove, repair, renew, replace or enlarge the water, sewer, street
lighting, or storm drain facilities, CITY may remove all or part of the improve-
ments and in such event:
a. OWNER shall restore the improvements to their condition prior
to removal by CITY, said restoration to be completed within 60 days from notice
to OWNER that CITY has completed its work:
b. CITY agrees to bear the portion of the costs of the restoration
of the improvements to the extent such costs would have been incurred had stan-
dard street improvements been installed by OWNER.
c. OWNER agrees to pay any costs of restoration of the improve-
ments in excess of the costs to be paid by CITY.
7. INDEMNIFICATION
OWNER agrees to indemnify, defend, and hold CITY, its officers,
agents and employees harmless from all demands, claims, losses or liability
that arise out of or that are in any way related to the construction, use, main-
tenance or restoration of the improvements.•
8. BREACH
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 the Easement and remove all or
part of the improvements installed by OWNER. Termination because of breach
shall be upon a minimum of ten (10) days' notice, with the notice specifying the
date of termination. In the event of litigation commenced with respect to any
term or condition of this Agreement, the prevailing party shall be entitled to
reasonable attorney fees and costs incurred.
3 of 4
the
9. SEVERABILITY
The provisions of this Agreement are independent and severable, and
invalidity or partial invalidity or unenforceabiiity of any one provision or
portion thereof shall not affect the validity or enforceability of any other
provisions hereof.
10. RECORDATION
Each of the parties hereto specifically consents to the recordation
of this License Agreement in the Office of the County Recorder of Orange County,
California, and the covenants, restrictions and charges hereunder,
benefits and burdens, shall run with the land,
Civil Code of the State of California.
the
pursuant to Section
11. ASSIGNMENT
The terms and conditions of this Agreement shall
and all their
1468 of the
be binding upon
successors and assigns of OWNER, and shall also be binding upon owners who
take title to the property by reason of foreclosure, trustee's sale, or
otherwise.
12. NOTICE
When notice is to be given pursuant to this Agreement, it shall be
addressed as follows:
CITY
City of Newport Beach
Office of the City Attorney
3300 Newport Boulevard
Newport Beach, CA 92563-3884
OWNER
Howard Properties
503 East Edgewater
Balboa, CA 92661
Notice shall be deemed given as of the date of mailing when notice is properly
addressed and mailed with first class postage prepaid.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
APPROVED AS TO FORM:
lam.
City Attorney
CIT�f-0E—NEWPORT BEACH,
fi orpor'ti •n
By
4 of 4
STATE OF CALIFORNIA
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COUNTY •F
said Sta
}ss.
rr 4' before me the undeArsiggned, a Notary Public in and for
personally appeared Ae_Arth_ t<1 4 i — —
p fsenaffy 1mn0wirh, me (or proved to me on the basis of satis-
factory evidence) to be the person(s) whose name( is re sub-
scribed to the within instrument and acknowledged to that
he/ he/they executed the same.
co
WITNESS my hand and official seal.
co
o
co
Signature
OFFICIAL SEAL
LINDA L. DACUS
NOTARY PUBLIC CALIFORNIA
PRINCIPAL OFFICE IN
ORANGE COUNTY
Commission Expires Dee. 4, 1987
(This area for official notarial seal)
STATE OF CALIFORNIA)
) ss.
COUNTY OF ORANGE )
On , 1986, before me, the undersigned, a Notary
Public in and for said State, personally appeared
, known to me to be the Mayor of the City of
Newport Beach, and , known to me
to be the City Clerk of the City of Newport Beach, known to me to be the
persons whose names are subscribed to the within instrument, and
acknowledged to me that they executed the same.
WITNESS my hand and official seal.
Notary Public in and for said State
STATE OF CALIFORNIA)
) ss.
COUNTY OF ORANGE )
On , 1985, before me, the undersigned, a Notary
Public in and for said State, personally appeared
and
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the and , respectively, of
, the corporation that executed the within instru-
ment and known to me (or proved to me on the basis of satisfactory evidence) to
be the persons who executed the within instrument on behalf of said corporation
and acknowledged to me that such corporation executed the same.
WITNESS my hand and official seal.
Notary Public in and for said State
A
DA.T.
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