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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 III 111111I 1111 I I1III II II II No Fee 1995@523399 2:14pm 11/28/95 005 101042 20 50 IB18 R Al2 5 7.00 12.00 0.00 0.00 0.00 0. Space above this line for Recorder's use only. Ern 11 5 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 U J 7� //27/�0 RECORDED IN OFFICIAL RECORDS OF ORANGE COUNTY CALIFOFiNIA -111s AM OCT 10'86 cow., 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 m E 0 U 1- 0 0 0 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. 1111�if11111'i�t !�11116iii 111; I;i::11 f �� s�+;'i pi ,11 '`it # �� it ,It '(` 9 }�i 11f'i }1}} litit 1l t• +st1! 1�+r1{{illl 11iu�1titiiiil.i _ o o F PPfli[1i{�{� 1pi11}if 1111;1;!1,1111 111111J11f•t1, i, 1' 9if I111 Q' eNCROACf1MENT 4GREEMIFA/T ieEsu so/v/sitN 'vet 765 -2 • ette& tif Y11� EDGEWATER PLACE BALBOA, CALIFORNIA CORBIN,YAMAFUJI AND PARTNERS YC271IRNEAUFO A94 -Id Planners 0 4930 Campus Drive ❑ Newport Beach, CA 92660 ❑ (714) 476-8888 1__ I CONSTRUCTION! •PLAN t Utascapes, me. 0 Landscape s Ear/weir ` q t'