HomeMy WebLinkAboutC-4099 - Encroachment Agreement Conditional Use Permit No. 3122 (for Balboa Bayside Tract). •
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Clerk; .: ), Te a 71=
City of Newpbrt Beach
3300 Newport Boulevard
Newport Beach, CA 92663
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ENCROACHMENT AGREEMENT
Conditional Use Permit No. 3122
013
r?`-sC•a7iD ) IP.; (1FF ICIA(. R CORDS
n i)aANGE COUNTY CALIFORNIA.
-3 3 2 PM JUN 3'88
t c;Or:DEH
THIS AGREEMENT is made and entered into this a0 day of
4P2j4, , 19:fr by and between CITY OF NEWPORT BEACH, a municipal
corporation, hereinafter referred to as "CITY," AND "BALBOA LANDING, A GENERAL
PARTNERSHIP" 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 in the City of Newport
Beach, County of Orange, State of California, which real property is more par-
ticularly described as Lots 1-3, 7-12 and a portion of Lot 4 and„a-poion of an
abandoned alley, all in Block 3 of the Balboa Bayside Traei: aid portion' ,a ots
22 and 23 in Block A of the Bayside Tract and which real °property is-.contiguo s
to the aforesaid EASEMENTS.
C. These EASEMENTS also contain public utilities.
D. CITY has water, sewer, storm drain, and street light t cilitie�
located within said EASEMENTS.
E. CITY desires to condition approval of construction of non-standard
street improvements over a portion of said street EASEMENTS 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:
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ES--263 J I LF
1. DEFINITIONS
"Non-standard street improvements" (hereafter "IMPROVEMENTS") shall
be defined to include: boat rental structure, landscaped areas, and sidewalk
surfacing and appurtenances which are not constructed of natural colored
Portland cement concrete finished in a customary fashion.'
2. TERM
Rights granted under this Agreement shall terminate twenty-five
(25) years from the date of execution, unless either earlier terminated or
removed as provided herein. The term of this agreement shall be automatically
renewed for successive twenty-five (25) year terms unless either party gives
written notice of termination at least 30 days prior to the expiration. of the,
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term. In the event that CITY desires to use the EASEMENT for street4 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
otherwise, 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
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.
2 of 4
88 63114
5. REPAIRS
CITY has the right to make such repairs to the improvements as it
deems necessary for tie 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
standard street improvements been installed by OWNER.
c. OWNER agrees to pay any costs of restoration of the improvements
in excess of the costs to be paid by CITY.
7. INDEMNIFICATION
OWNER agrees to indemnify, defend, and hold CITY, City Council,
Boards and Commissions, officers, and employees harmless from all demands,
claims, losses or liability whatsoever, including reasonable attorney's fees,
regardless of the merit or outcome of any such claim or suit that arise out
of or that are in any way related to the construction, use, maintenance 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.
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83-263114
9. SEVERABILITY
The provisions of this Agreement are independent and severable, and-
the invalidity or partial invalidity or unenforceability of any one provision or
portion thereof shall not affect the validity or enforceabliiity of any other
provision hereof.
10. RECORDATION
Each of the parties hereto specifically consents to the recordation
of this Agreement in the Office of the County Recorder of Orange County,
California, and the covenants, restrictions and charges hereunder, and all their
benefits and burdens, shall run wit the land, pursuant to Section 1468 of the
Civil Code of the State of California.
11. ASSIGNMENT
The terms and conditions of this Agreement shall be binding upon the
successors and assigns of OWNER, and shall also be binding upon owners who take
title to this 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 OWNER
City of Newport Beach Balboa Landing, General Partnership
Office of the City Attorney 11980 San Vincente Boulevard, Suite 902
3300 Newport Boulevard Los Angeles, California 90049
Newport Beach, CA 92663-3884
Notice shall be deemed given as 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 rAS TO FORM:
City Attorney (Assistant)
ATTEST:
4 of 4
CITY OF EWPORT BEACH,
a Munic;i� a]7,Corp ra ,ion
Y r'j
fin_ t_ car.. sij n
By 4.' R
May, r
BALBOA LANDING, a General Partnership
88-%8:14
STATE OF CALIFORNIA)
)ss.
COUNTY OF ORANGE )
On
Public in and fo said State, personally appeared
own to m to the Mayor o the City
of Newport 5,each, and � , , know to me
4311( to be th illtify 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.
19a, before me, the under ig ed a Notar
`' ;; r� CFi;,:ti.L SEAL e3
S^. \.. DO C, S o L L. P LEN q
i'i
NOTARY PUBLIC - CALIFORNIA
F iNCIPAL OFFICE IN g
C ZANGE COUNTY ri
My Commission Exp. Apr. 5, 1939 t$
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STATE OF CALIFORNIA
COUNTY OF ORANGE
Notary Public i
(Partnership
On this l2th day of MAY , 1988, before me,
the undersigned, a Notary Public in and for said State, personally
appeared AUBREY GLASER , known to me to be one of the
partners of BALBOA LANDING , and personally known to me
(or proved to me on the basis of satisfactory evidence) to be the
person(s) whose named;» is/ subscribed to this instrument, and ,
acknow�;.edged that he/aN,'':'r ,O .' executed it.
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(SEAL)
OFFICIAL SEAL. `{
M.AUREEN L HUFF MA.N }
NOTARY PUBLIC — CALIFOC:NI['
ORANGE COUNT. ��
My cnrnm. expires NOV 3, 19`9 I}
WITNESS my hand and official seal.
%�' /
`Not,ary Public in and fo said State.
LOW
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