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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 • rtrr,j.f.7r, R ro -% -r,7E T.. r:- 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: 1 of 4 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, dc-r 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. 3 of 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$ .-:,:.;.::r,, : s. ,-= r=wnasc.ro v smi. .h.: 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. tl li (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. 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