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HomeMy WebLinkAboutC-2251(B) - Fun Zone Encroachment Agreement Resubdivision No. 724 (for 600 Edgewater Place)ni T. _ _ e .. v. x.b• NRECCFDING REQUESTED AND )INEN RECORDED RETURN TO: City Clerk City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 Space above this t TRY a jj ®a F F .. a o 3 ae i � � d � � .4—EaA'R-19( 1 i peco +ner of iur : , Count, , G• ii f'J; ilia :. .. Lt�i :�.. __ _ A. !�i C.� Reorder .T 1 i_ne for h___a ��_ _ --_ -.._ . a:: $ 0.0(3 FUN ZONE ENCROACHMENT AGREEMENT RESUBDIVISION NO. 724 ��-- THIS AGREEMENT is made and entered into this ,ZS" �� day of r/.d•t/va1/Lr , 1993, by and between Doo & Sons, Inc., hereinafter referredefo as "OWNER" and the City of Newport Beach, California, a municipal corporation organizedand existing under and by virtue of its Charter and the Constitution and the laws of the State of California, hereinafter referred to as "CITY"; W I T N E S S E T H: WHEREAS, OWNER owns that certain real property located at 600 Edgewater Place in the City of Newport Beach, County of Orange, State of California, which real property is more particularly described as Lots 1-7, Block B, Balboa Bayside Tract, and portions of Section 35, Township G South Range 10 West, San Bernardino Meridian hereinafter referred to as the "FUN ZONE" ; and WHEREAS, City has public utility easements (hereinafter "EASEMENTS) within certain public street rights -of -way located in the City of Newport Beach, County of Orange, State of California, known as Edgewater Place, Washington Street, East Bay Avenue and Palm Street. The public street rights -of -way and utility easements shall be referred to collectively as EASEMENTS which are more particularly shown in Exhibit "A" attached hereto and by this reference incorporated herein; and WHEREAS, City has water, sewer, street lighting and storm drain facilities located within said EASEMENTS; and WHEREAS, BALBOA FUN ZONE, INC, the predecessor in interest to Owner and CITY entered into an Agreement dated January 24, 1986 ("Encroachment Agreement") for the construction and maintenance of certain non-standard improvements recorded in the office of records of Orange County on January 27, 1986 as Document No. 86-035125; and WHEREAS, The Encroachment Agreement ran with the land pursuant to Section 1468 of the Civil Code of the State of California; and WHEREAS, OWNER desires to construct additional non-standard improvements (hereinafter "PERMITTED IMPROVEMENTS") within EASEMENTS; and WHEREAS, said PERMITTED IMPROVEMENTS may interfere in the future with CITY'S ability to construct, operate, maintain, and replace CITY and other public facilities and improvements within EASEMENTS; and WHEREAS, CITY desires to condition approval of construction of PERMITTED IMPROVEMENTS over a portion of EASEMENTS containing utility facilities; and WHEP77.S, the underlying public utilities benefit OWNER; and WHEREAS, it is the desire of OWNER and CITY to revise and superceed the Encroachment Agreement dated January 24, 1986 recorded in the office of records of Orange County under Document No. 86-035125; and WHEREAS; the parties hereto desire to execute an agreement providing for fulfillment of the conditions required by CITY to permit OWNER to construct said PERMITTED IMPROVEMENTS; NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as stairways, ramps, landscaped areas, trash becepticais, hike racks, non-standard street lights, benches, tables and chair, painted 1 railings along the Edgewater Place bulkhead and street or sidewalk surfacing which is not constructed of natural colored Portland cement concrete and/or finished in a customary broom finish within EASEMENTS. All permitted encroachments are shown on EXHIBIT "A". 2. CITY does hereby agree that OWNER may construct, reconstruct, install, maintain, use, operate, repair and replace the PERMITTED IMPROVEMENTS and appurtenances incidental thereto, within EASEMENTS, all in conformance with plans and specifications on file in the CITY. CITY agrees that OWNER may take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 3. Rights granted under this Agreement may be terminated in the event the CITY desires to use any of the public street rights -of -way for street purposes. CITY may terminate this Agreement at any time 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, or subsequent removal of improvements by CITY. 4. OWNER and CITY further agree as follows: a. OWNER may construct and install only those PERMITTED IMPROVEMENTS and appurtenances incidental thereto, which are described on Exhibit "A" hereto attached. The PERMITTED IMPROVEMENTS shall be constructed or installed in conformance with plans and specifications therefor on file in the CITY's Public Works Department. b. OWNER shall maintain the PERMITTED IMPROVEMENTS in accordance with general prevailing standards of maintenance, and pay all costs and expenses incurred in doing so. However, nothing herein shall be construed to require OWNER to maintain, replace or repair any CITY -owned pipeline, conduit, cable or any other facilities located in or under said PERMITTED IMPROVEMENTS, except as otherwise provided herein. c. If CITY or other public facilities or improvements are damaged by the installation or presence of PERMITTED IMPROVEMENTS, OWNER shall be responsible for the cost of repairs and shall make same. d. Should CITY be required to enter onto EASEMENTS to exercise its primary rights associated with the EASEMENTS, including but not limited to, the maintenance, removal, repair, renewal, replacement or enlargement of existing or future public facilities, utilities or improvements, provided CITY has engaged in reasonable efforts to avoid damage to these PERMITTED IMPROVEMENTS, CITY may remove portions of the PERMITTED IMPROVEMENTS, as required, and in such event: (i) CITY shall notify OWNER of its intention to accomplish such work, if any emergency situation does not exist. (ii) OWNER shall be responsible for arranging for any renewal or restoration of the PERMITTED IMPROVEMENTS affected by such work by CITY; (iii) CITY agrees to bear only the cost of any removal of the PERMITTED IMPROVEMENTS affected by such work by CITY; (iv) OWNER agrees to pay all costs for renewal or restoration of the PERMITTED IMPROVEMENTS. 5. OWNER shall indemnify and hold harmless CITY, its City Council, boards and commissions, officers and employees from and against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees (when outside attorneys are so utilized), regardless of the merit or outcome of any such claim or suit arising from or in any manner connected with the design, construction, maintenance, or continued existence of the PERMITTED IMPROVEMENTS. 6. 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 EASEMENTS 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 of condition of this Agreement, the prevailing party shall be entitled to reasonable attorneys fees and costs incurred. 2 dUtJ (1/J1) — (ueneraq rust nmencan I Itie Company personally appeared State of dee-1i/r/ua County of Las /1/2ye%S } RECEIVED MAR 1 2 1991 OnF hrus'y c25 9Y3 before me, ,-/C1nlG'e, -+ fve,lle 1V0%y,064 (DATE) (NAME, TITLE OF OFFICER - I.E., "JANE DOE, NOTARY PUBLIC") (NAME(S) OF SIGNER(S)) Lrsonally known to me - OR - OFFICIAL SEAL JANICE G. MUELLER NOTARY PUBLIC-CALIFORNIA LOS ANGELES COUNTY My Commission Expires July 4,1993 (SEAL) ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are sub- scribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand a . official seal. (SIGNATURE OF NOTARY) RIGHT THUMBPRINT (OPTIONAL) TOP OF THUMB HERE CAPACITY CLAIMED BY SIGNER(S) ❑ INDIVIDUAL(S) ❑ CORPORATE OFFICER(S) ❑ PARTNER(S) ❑ ATTORNEY IN FACT ❑ TRUSTEE(S) ❑ GUARDIAN/ CONSEI VATOR P-OTHER• ( )PP /t/apinfeaL 2ec ewer (TITLE(S)) SIGNER IS REPRESENTING: (NAME OF PERSON(S) OR ENTITY(IES)) Soper/or goo( t ATTENTION NOTARY: The information requested belov OPTIONAL. It could, however, prevent fraudulent attachment of this certificate to any unauthorized document. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Title or Type of Document Number of Pages Signer(s) Other Than Named Above Date of Document WOLCOTTS FORM 63240—ALL PURPOSE ACKNOWLEDGMENT WITH SIGNER CAPACITY/REPRESENTATION/FINGERPRINT—Rev. 12-92 } STATE OF CALIFORNIA }ss. COUNTY OF } On personally appeared before me, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (This area for official notarial seal) ©1992 WOLCOTTS FORMS, INC. 7. OWNER agrees tnat this Agreement shall remain in full force and effect from execution thereof; shall run with the land; shall be binding upon the heirs, successors, and assigns of OWNERS' interest in the land whether fee or otherwise, and shall be recorded in the Office of the County Recorder of Orange County, California. 8. This Agreement shall superceed the Encroachment Agreement recorded i the office of records of Orange County on January 27, 1986 as Document No. 86-035125. 9. When notice is to be given pursuant to this Agreement, it shall be as follows: CITY City of Newport Beach Office of the City Attorney 3300 Newport Boulevard Newport Beach, CA 92659-1768 OWNER Chang-Kyu Kim Doo & Sons, Inc. 17445 Avenida de Santa Ynez Pacific Palisades, CA 90272 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: By: ATTEST: By: City Atto City Clerk STATE OF CALIFORNIA ) ss: COUNTY OF ORANGE CITY • N.WPORT BEACH, a 'nicip.1 corporation Mayor OWNER: Doo & Sons, Inc. By: By: dv4 , 1992, before me, the undersigned, a Notary Public in an• • the State, personally appeared Phil Sansone , kno o me to be the Mayor of the City of New•• :each and Wanda E. Raggio , known to me to be - City Clerk of the City of Newport Beach, known to subscribed to the within instrume executed the same. WI '" S my hand and official seal. STATE OF CALIFORNIA f �vB��'''Plr,:j COUNTY OF E- ss: ns whose names are c nowledge• • me that they Notary Public in and for said State On f rjfuait c25 , 199/, before me, the undersigned, a Notary Public in and for the State, personally appeared Oaf/ kit ,e' : eeO '� , known to me (or proved to melon the basis of satisfactory evidence) to be the person(s) whose name(s) is (are) subscribed to the within instruction and acknowledged that he/she/they executed the same. OFFICIAL SEAL JANICE G. 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E. 660 NEWPORT CENTER DRIVE, SUITE 213 NEWPORT BEACH. CA 32660 SITE DETAILS 2 chc- 3 rilrn 33' z 4 2 0/10. kJ/ M 0 4 a , m soo06,0oe000e -3. -,..1 :i " .F.: .4. i • , , i ' 5 '..'. Z. .07 0 r- PC -o ,rIz - 4. tg 0 -4 a z y 2 T L, „2 a. .4 .0 CO' 0 ,z z 0 0 r- yton _Assoc..ns ARCHITECTS 811'./ .1.111 LA.& mum> Ca SAM lllll 1111,441. BALBOA FUN ZONE 600 EAST BAY AVENUE, NEWPORT BEACH A COMMERCIAL DEVELOPMENT FOR: YAVAR INDUSTRIES, R. E. 660 NEWPORT CENTER DRIVE, SUITE 215 NEWPORT BEACH, CA 92660 FERRIS WHEEL t.4 44. d 130 • kwa ir 7-71 ..s-A/4.."...-r 3 oir