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HomeMy WebLinkAbout3366 VIA LIDO*NEW FILE* 3366 VIA LIDO .jt (C JOINT USE AGP.EEMENT This Joint.Use Agreement ("Agreement") is made and effective this , day of , 197_, by and between IM3 ERIAL SAVINGS & LOAN ASSOCIATION, a corporation, hereinafter referred to as "the Company", and DONALD N. ROLL, hereinafter referred to as "Roll". 0 WITNESSETH: WHEREAS, Roll is the owner of that, certain real'property, consisting of the land and all buildings, improvements and appur -Eenances located- thereon, situated in the -City of Newport Beach, County of Orange, State of California described on Exhibit attached hereto and by this reference made a part hereof ("Roll's property"); WHEREAS,. the Company is.the owner of that certain real pro- perty, consisti na of the 1;;11 : a,-.' =l _ 7ii7i1rlinge f' imprn�remwan?-M �,� -appurtenances located thereon, situated in the City of Newport Beach,•County of Orange, State of California described on Exhibit "B", attached hereto and by this reference made a part hereof (" the Company's property"); WHEREAS, a parking lot with 20 parking spaces is located on Roll's property; WHEREAS, a parking lot with 22 parking spaces is located on the Company's property; WHEREAS, all of. said property was previously under the o�•merr ship of the Company; Company improved said property•wwith.concrete ' pavement and other improvements in order that the two parking lots` could be used for employee, and customer parking of -the Ciampany; .and,, WHEREAS, , the parties desire to use. the parking. ,,ated or: S REC�2U t��BE' _ Commu�a� t tr APR 191974 p, CITY OP NE%vI UR1 BEACH 111 EXHIBIT- J ti C C their respective properties jointly, solely for the parking of their invitees and permitees, excluding their employees, tenants and employees of tenants (the persons entitled to use the parking lots being referred to herein as "Invitees"), over and on the above described property, subject to the terms and conditions of this Agreement. NOW TMREFORE, it is agreed: 1: The Company and Koll hereby mutually lease and hire -to and from each other; without payment or rent,.the'- parking lots located upon the above -mentioned parcels for parking for their respective Invitees and for no other purposes, 22/42nds. of the parking space in both lots to. be made'availablefor the use of Invitees of the Company at all tines and 20/42nds of the' - parking -space in both lots to be available for the use of the Invitees of Koll at all times. 2. The .parties hereto - agree that either 'may, at au time , i"=*44-1.14e a^..d _a_ts over Ll£.n,t:adequate cont parking lots located on the Company's property and on Koll's property so as to ensure that the use of the available parking space will be divided in accordance with Section 1 above. Such control may be mechanical, requiring the use of equipment, or such control may consist of the use of one or more parking attendants. The parties recognize that the nature of the savings and'loan association business being conducted by the Company on the Company's property is such that the parking allocable to the Company must be available to the Company's customers at all times during its regular business hours and to that end many'of such allocable parking spaces may be vacant much. of the time; it is not the nature of the Company's business to have parking.areas full at any time during its regular.business hours. 3. The parties will jointly maintain the two parking lots in as good condition as they exist at the commencement 1 ,. C C of this Agreement, reasonable wear and tear and damages by act of God, the elements, fire, storm, and lightning and similar occur- rences excepted; , and will operate the premises so that the sa-me shall be used in accordance with the purposes set forth above.- *The expense of maintaining and operating the premises (as well as the expenses incurred under the other provisions of this Agreement and in particular under Paragraph 2 above) shall be borne 22/42nds by the Company and 20/42nds by Koll. Each party shall promptly pay the other for its share of such expenditures incurred by the other party from time to time. 4. This Joint Use Agreement shall commence at the_ close of the escrow initiated pursuant *to the Agreement For The - Purchase And Sale Of Real Property, entered into between the parties hereto, and shall continue for a period offifteen (15) years. 5. Each party shall pay the real and personal property tares assessed against their respective parking lots. 6. . Neither party will assign or sublet their . interest in or under this Agreement, or any part. thereof,. without.' Llie wr:iLten consent of the other, which consent shall not be unreasonably withheld. 7. Koll and the Company shall obtain public liability insurance for the benefit of Koll and the Company. jointly against liability for bodily injury and property damage in an amount not less than $250,000.in respect to injuries.to, or death of, any one person, and in art amount of not' less than $500,000 in respect to injuries to, or death of, more than .one person in any one occurrence, and in the amount of not less than $50,000 per occurrence in respect to. damage to property. Such limits may, -be --- increased. to any greater amounts as may be reasonably 'indicated. by circumstances from time to time existing.. 8. Any party which uses a greater number of spaces in the parking lots that the party is entitled to use under the terms of Paragraph 1 hereof, shall be guilty of excessive use and the other party ("the non -offending party") N nav demand in writing that such excessive use be terminated imm•_=diately.- Upon -receipt of such demand, the party guilty of 'the excessive use ("tile offending party") shall forthwith cease, or take such steps as are necessary to cause its Invitees to cease.'such use immediately. if such excessive use occurs again within a period of twenty (20) days after demand for the termination thereof has been made: (1) The non -offending party may have the parking spaces marked as reserved for the respective parties as follows:• 20/42nds of the spaces in each parking lot for Koll and 22/42nds of the.spaces in each lot for the Company, the right to use the same may be exercised by institution and installation of, the control mentioned in Paragraph 2 above; (2) within thirty (30) days after the date of expiration of such twenty (20) day period, the . non -offending party shall be entitled to give to f'l' 'tt t� L '1'1 tiOj Ltie offending patty written i10 ��.-ee V3. ,1.6111.e11a41V11 of this Agreement as provided in Paragraph 17 hereof. Such cancellation shall be effective six (6) months after the notice is deemed to have been served. Failure to give such notice within such thirty (30) day period shall constitute a waiver of such right. Upon such termination,. all rights• of each party in the property of the other shall cease. As a condition precedent to the termination of this Agreement pursuant to this subparagraph, Koll, whether or not he is the offending party, shall, if he has not already done so, construct a masonry type wall in lieu of the glass wall at the two- story high opening and as a part of the northwest,' wall of the Company's two story building -located, - upon the Company's property. The Company may waive the right to have the masonry wail so constructed. The circumstances surrounding the original -�- construction of the glass • -4- I wall in said opening or in place of such glass wall and construction of a masonry wall prior to the - time of such notice pursuant to this sub- paragraph are more particularly.set forth in the Agreement for Purchase and Sale dated 1973, between _Company and Roll and in particular Article 9.1.1 of such Agreement] and, (3) The non -offending party shall also be entitled to pursue, alternatively or con- currently, any other remedy, at law br equity,: that it may have for such excessive use. 9. The Company and Koll hereby agree and covenant that they will not reduce the number of -parking spaces on their respective properties below the number presently existing without the prior written consent of the other,,- which consent shall not be unreasonably withheld; provided, however,,that Company hereby consents that Koll may reduce the number.of parking spaces on Koll's property .from 20 to 17. ' If the number of parking spaces on either party's property is reduced the number of parking spaces -to which that party is entitled hereunder shall be reduced in the same proportion.. 10. If the Company's property or Ko11`s• property, or any portion thereof, is.utilized for a restaurant, cocktail lounge or for any use -with parking demands comparable to, or greater than, a restaurant or cocktail lounge then the party whose property is so utilized shall provide valet parking so that the vehicles of patrons of any such, establishment will be parked. in some parking area other than the lots on the Company's or Koll's property. Valet parking will be required only in the. case .' of such use of Koll's property during the Company's regular business hours. 11. The waiver by either party or any breach of any term, covenant, or condition herein contained shall not be deemed -to be a waiver of such term, covenant or condition or any subsequent -breach of -the same or any other term, covenant or condition herein contained. In particular, the failure of 'a part= to object to such excessive use of the subject premises by the other party shall not be deemed a waiver of the non — objecting party's rights to its proportionate use of the premises provided herein. No actual•use of the premises by the other party, regardless of the length of such'actual use, shall, in any. way, increase or diminish either party's rights and . obligations hereunder, nor in any way be•deemed to entitle one party to the use of the premises •in a greater proportion than provided hereunder, nor in any way be deemed to amount to an abandonment by, or ouster of, either party's rights to use the premises in the proportions provided herein. 12.The Company hereby agrees to indemnify Koll and•hold him harmless from all liabilityr loss, cost, attorneys' fees and actual costs of litigation and obligations on account of or arising out of any injury to any person or persons or, property of any kind whatsoever and to whomsoever belongings upon or in any way connected, with the premises, .caused. by the conduct of the Company, its employees, permitees or invitees on the premises and not covered by the insurance referred to in Article•7 hereof. Roll hereby agrees to indemnify the' Company and hold it harmless' from any and'all liability, lossr cost, attorneys': fees and actual costs of litigaiton and obligations on account of or arising out of any injury to any person or persons or property. of any kind whatsoever and to whomsoever belongings upons or in any way connected with the premises, caused by the conduct -of Koll, his employees, permitees or invitees on the premises and not covered by the insurance referred to in Article 7 hereof. Should any such claim or claims referred to in., this 'Paragraph arise from the joint or concurrent negl'igent'acts or omissions of the parties or the parties" failure to comply with t I r safety rules, laws or ordinances of any governmental agency, or the negligence or wrongdoing of some third party for which neither - of the parties is responsible, or,is so obscure that it cannot be legally ascertained by whose negligence or wrongdoing such loss, da:,iage, Or -liability was caused, 'then in every such instance each party shall bear all loss and damage which shall have been suffered in respect to its own property, and shall jointly share all liabilities which they.share jointly incur for the said claims. Horever, should one party be held liable on any claim or claims arising under this. paragraphbecause of its failure to discover and remedy a defect caused by the other party's negligent act or, omission, the party originally at fault in allowing the condition to occur shall indemnify and hold harmless the other party. 13. Koll and the Company covenant and agree that they will. operate the parking lot located on the premises in such, a manner as to conform to and comply with, each and all of the ordinances and regulations of the City of Newport Beach and the et r County of Orengand 4ach una a_e.. _- - -u every pa!:Ulent thereof, and in accordance with all of the laws of the State of California and the United States that are now in force or which•may hereafter be enacted with reference to the use or contemplated use of the leased premises. Koll and the Company hereby covenant and, agree that they shall not commit, or suffer to be committed, any waste upon the premises, nor shall they permit any nuisance to occur thereon. 14. Failure of the.Company or Koll to observe the. covenants contained herein shall constitute a default hereunder. The non -defaulting party may give the defaulting party notice of said default and demand that said default be cured immediately. If the default is not cured.within-ten (10). days of the demand to cure, the non -defaulting party may, at its option, immediately terminate this Agreement and pursue such remedies or seek such damage from the defaulting party as may .be provided by. lap or equity. Failure of the.non-defaulting party to seasonably object to a default shall not be deemed a waiver thereof and -7- r shall not preclude objecting to such default at -any time before it has been cured. Excessive use of -the parking spaces shall -not constitute a default within the meaning -of this Article 14. Such excessive use shall be governed by Article 8 hereof. 15. Upon termination of this Agreement, for any reason, each party shall execute, acknowledge, and deliver to the other party all documents including a Quitclaim Deed requested by such other party necessary or convenient to provide such other party with title to his property free of the restrictions of this Agreement. 16. In the event that either party hereto shall " institute any legal action or proceeding against the other party - 'on account bf the other's failure or refusal to perform or fulfill. any of the covenants or conditions of this Agreement on his part 'to be performed or fulfilled, then it is agreed that in any such action or proceeding the prevailing party' shall be entitled to his reasonable costs therein and such further a --rid additional,.. sums as and for his attorneys' fees as the court in such action or proceeding may adjudge to be reasonable. 17. Any notice, request or demand required to be given hereunder shall be in writing and shall be served and. given by registered or certified mail, return receipt requested, and shall be deemed to have been served and given 24 hours after the deposit thereof in the United States mailr postage prepaid, addressed to the party to whom such notice of demand is to be given, as hereinafter provided, and the issuance of the registry of certification received therefore. Any notice, request or demand -to the Company shall be addressed to: Mr. Harry H. Holthusen, President-* Imperial Savings & Loan Association Executive Offices 2320 Fifth Avenue San Diego, California 9210i Any notice, request or demand to Roll shall be addressed to: - - Mr. Donald m. Roll Either party may hereafter and from time to time designate by a notice in writing given in *accordance with this Paragraph a different address for mailing of notices, requests or demands. 18. Time is of the essence of this Agreement and the parties hereby agree to perform each and every condition and covenant•-Eo be performed by them in a.prompt and timely manner. 19. This Agreement shall be -binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators and successors. This Agreement is for the benefit of the Company's property, and Ro11's property;` Roll agrees for himself and his heirs, executors,.administrators and successors that the covenants herein shall (1) run with and bind Roll's property and (2) create a lien i.hF.reo 5�� occ�e t11t1C performance. • The Company agrees for itself and its successors that the covenants herein shall (1) run with and'bhnd the Company's property and (2) create a lien thereon to secure their performance_ IN WITNESS WHEREOF, the parties hereto have caused - this Agreement to be executed on the date first above written. _ C014PANY : UIPERIAL SAVINGS & LOAN ASSOCIATION on ROLL: DONALD M. ROLL -9- C C EXHIIBIT "A" DESCRIPTION OF PROPERTY 1. The southeasterly =_0 feet of -Lot 15, all of Lot 14 and the northwesterly 30.75 feet of Lot 13 of Trdct 1622, Countv of Orange, according to reap recorded in Book 47, Page 39 of Miscellaneous Ma-ps, Records of said •Jrange County. EXHISIT "B" _ DESCRIPTION OF PROPERTY The northwesterly 20 feet of Lot 7,.all of Lots 8,,9f 10, ll,.12 and 13 except the northwesterly 30.75 feet of Lot. 13 of Tract*1622, County of Orange, as shown on the Map recorded in Book 47, Page 39 of Miscellaneous Maps, filed in .the Office of the Recorder of said County. f n i TO 443 c LL (Corporation) 1 STATE OF CALIEOR\G1 S SS. COUNTY OF J A • 01 before me, the undersigned, a Notary Public in and for said State, personally appeared u known to me to be 111C President, and i c 1-1 known to rose to be Secretary of the corporation riot executed the within Instrument, f x knoun to mu to be the person wbo executed due within beltalf of the corporation therein named. and' ' .Uj a. Instrument at acknmdetlgcd'to me that such c.eporation executed the eithin a. ' o instrument pursuant to its ls)Aais or a resolution of its board of directors. ' i I• WITNESS my Band and official seal i Signature' 1 _ fName (Typed or Printed) � tThls am fx ataaiat n4tutal cull • TO 447 c (Individual) ISTATE OF CALIFORNIA l COUNTY OF } SS. Aj On before me„ the undersigned, a Notary Public in and for said 1 State, personally appeared ? u m known to Ma- a- to be theperson _ whose name_ subscribed to the .within iostruutent and acknowledvil that ' executed ilia same. WITNESS_my band and ot~ucfal seal. I Siarnalurr IName (Typed or Inrrotcd) (This area fw• 411CIA nolydal seals JOINT USE AGREEMENT This JOINT USE AGREEMENT ("Agreement"), made and effective this day of 1973, by and between._. IMPERIAL SAVINGS AND LOAN ASSOCIATION, a corporation hereinafter referred to as "the Company", and DONAL•D DI, NOLL, hereinafter referred to as "Noll". _ WITNESSETH: WHEREAS, Noll is.the owner of Lots 26, 27r 28r.29 and 30 of Block 530 of Lancaster's addition to Newport Beach, as, described on Exhibit "D" attached hereto and by this reference made a part hereof, ("roll's property");•and V7HEREAS, the Company is the owner of Lots 22, 23r -- 24 and 25 of Block 530 of'Lancaster`s addition to Newport -Beach, County of Orange in accordance with the map recorded in Book 5r- 'P?.cCsP 14 of Miscellaneous Maps. filed -in the Office of the County. Recorder of such County; and WHEREAS, all of said property was previously under . the ownership of the Company and improved with blacktop pavement and a perimeter chain -link fence with control gate opening on Villa Way in order that the entire property may be used for. employee parking of the Company with 76 parking spaces being marked. thereon; and WHEREAS,• the parties desire to use their•respectiver properties jointly, solely to meet the minimum parking requirements of the City of Newport Beach for the use of- the ,five-sto:-y building- ovmed by roll and the two-story building owned by the Company sublect to the terms and conditions of this Agreement.' NOW THEREFORE, IT IS AGREED: 1. The Company and Noll hereby to and from each other, without payment or rent, EXHIBIT- -R t� APR19J9740.. OI R� aEAFhH i . "Zing'r their respecti- e e:an lc�, �s and tenants anCi parcels for pa .., for no other purpose, five -ninths of the 76 parking spaces to be available for the use• of enployees and tenants of Koll at all times and four -ninths of the 76 parking spaces to be available for the use of employees and tenants of the Company at all timtes. 2. The parties will jointly maintain the two parcels in as good condition as they exist at the commencement of this Agreement; reasonable wear and tear, and damages by act O.L. God, the elements, fire, storm, and. like occurrences excepted, and to operate the premises so that the same shall. be used in accordance: with the purposes set forth above. The expense of maintaining - and operating .the premises to be borne five -ninths by Koll and four -ninths by the Company. Each party shall promptly pay the - other for its share of such expenditures incurred by the other party from time to time. 3. This Agreemant shall commence at the close• of escrow and shall continue for so long as the ordinances of the City of Net•Iport Beach, calif ornia, require -parking incidental., D.L.� . '1 7 1 .. to the tick n•� i-��•+e•••Fi��n-.c..'t'Q.wj C'�. :"L:Ct:I.;.3 vr:,xc.a uy i.O�..i ui ixtC two-story structure owned by the Company, which is in excess - of that now provided on the respective ocanerships upon which such structures are located,. but; in any event, for no longer than the life of the Agreement between said city and Newport Balboa Savings and Loan Association referred'to hereinafter as Exhibit "C". Koll's five -story structure is located on the property described on Exhibit "A", attached hereto and by this 'reference made a part hereof, and at the commencement of this lease 20 spaces were provided thereon. The company's two --story. structure is located'on the. property described on'Exhibit "B", attached hereof,'and, as of the time of commencement of. this lease, 22 parking spaces were provided thereon. 4. Each party shall pay the real and personal f property taxes. assessed against their respective parcels. -2- l `, . 5. neither party will assign or sublet their interest under this Agreement or any part thereof without -the consent of the other, which consent shall not be unreasonably withheld. . 6. All uses of the premises leased hereunder by either party shall be such as will not interfere with the use or. operation of the facilities thereon by the other party. 7. Kell and the Company shall share expenses of public liability insurance for the benefit of Koll and. the Company jointly against liability, for bodily injury and property damage -in, an amount not less than $250•1000 in respect to injuries to, or death of, any one person, and in an account of not less than ,$500,000 in respect to injuries to, or death of, more than one person in any one occurrence,.and in the"amount of not less than $50,000 per occurrence in respect to damage to property. Such limits may be increased to greater amounts that may be reasonably - indicated by circumstances from tine to tine existing. avvaa-�iu�.rer. .+-Ile waiver u,y CivaC+. Nang-1/ any breach -of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such termf covenant or condition or any subsequent breach of the.same,or any other term, covenant or condition herein contained. In particular the parties agree that the Company shall be entitled to the use of four -ninths of the 76 parking spaces located on the subject premises for.the entire term of this Agreement. Kell shall be entitled to use five -ninths of the.76 parking spaces located on the subject premises for the entire term of this Agreement. Any use of the subject. premises by either party hereto, which exceeds the proportionate. use to which it is entitled hereunder, shall be.immediately terminated upon written demand from the other.party hereto. The failure of either party to object to the excessive use of the subject premises by, the other party shall not be deemed a waiver of the non -objecting party's rights to its. proportional - use of the premises provided herein. A. failure to object to -3- N I the excessive use of the premises by the•other party does not preclude the non -objecting party from later demanding the terminatior_ of such excessive use. No actual use of. the premises by either . party, regardless of the length of time or such actual use 'shall, in anyway, increase or diminish'either party'S rights and obligations hereunder, nor, in any way, be deemed to entitle one party to the use of the prenises in .a greater proportion than provided herein, nor,' in any way be deemed to amount to an. abandonment by, or ouster of, either party's right to use the premises in the proportions provided herein. 9. That certain agree-nent (111960 Agreement") between City of Newport Beach and :?ewport'Balboa Savings and Loan Association ("the Association") executed January 15, 1960r and recorded in the Orange County Recorder's Office in Book Page 22 of Official Records on , 196 r is_ attached' hereto as Exhibit "C" and by this reference made a part hereof. Koll and the Company agree to be bound by all terms and •1 (1G i1 .T ... .. .4 t.. L Lam_—�.. :b •1..� 1. _ _ __ • co^d:. ti.viu V . . ,J U Agram. t.a.1Gll :. l.V LC 1JCLLV1ll:C:U J.JY 1-11C ASS Vt+�a l..7.Ui2i and its successorsr to perform the. same jointly as successors - in -interest to the Association, and further agree that all . provisions of the present Agreement shall be subject and subordinate to the terms and conditions of the 1960 Agreement. 10. The Company hereby agrees to indemnify Koll and hold him harmless from all liability, loss, cost,'attorneys' fees and actual costs of litigation and obligations on account of or arising out of any•injury•to any person or persons or property of any kind whatsoever and to whomsoever belonging, upon, or in any way connected with the premises, caused by the conduct of the Company, its -employees, permitees.or invitees on the premises not covered by the insurance referrad to in Article 7. hereof. Koll hereby agrees to indemnify the Company and hold it harmless from any and all liabilityr loss, cost, attorneys` fees and actual -costs of litigation and obligations on account -4= 0 A C. of or arising out of any injury to any person or persons or property or any kind Sahatsoever and to whomsoever belonging, upon, or in any way connected vTith the premises, caused by.the conduct of Koll, his employees, permit --es or invitees on the premises not covered by the -insurance referred to in Article 7 hereof. Should any such claim or claims referred to in this paragraph arise from the joint or concurrent'negligent acts or omissions of the parties or the parties' failure to comply with safety rules, laws or ordinances of any governmental agency, or the negligence or wrongdoing of some t-hir3 party for which neither of the parties is responsible, or is so obscure that it cannot be legally ascertained by whose negligence -or wrong— doing such loss, damage; or liability was caused, -then in every such instance each party shall bear all loss and damage and, shall. jointly, share all liabilities v4hich they shall jointly incur for the said claims. However, should one party be held liable on any claim or claims arising under this paragraph because of i-f-s- failure to discover and remedy a defect'caused by the other party's negligent act ,or omission, the party originally at fault in allowing the condition to occur shall indemnify and hold harmless the other party. 11. roll and the Company covenant and agree that they will operate the parking lot located on the premises in such a manner as to conform to and comply with, each and all of the ordinances. and regulations of the City of Newport Beach and the County of Orange, and each and every department thereof, and in accordance with all of the laws of the State of California and the United States that are now in.force or which hereafter be enacted with reference to the use or contemplated use of the leased premises. Koll and the Company hereby covenant and agree that they shall not commit, or suffer to be committed, any waste upon the premises, nor shall they permit any nuisance to occur thereon. -5, I, 1.2. Koll and the Company covenant and agree that the refuse containers on Roll's property shall remain in their present location therein and that said refuse containers will continue to be utilized for the convenience of the tenants of 'the Company's two-story building and Koll's five -story building. 13. Failure of the Company or Koll to observe the covenants contained herein -shall constitute a default hereunder. The non -defaulting party may give the defaulting party notice of said default and demand -that 'said default be cured immediately - If the default is'not cured within ten (10) days of the demand to cure, the non -defaulting party may,, at its option, immediately terminate this Agreement and pursue such remedies or seek such damages from the defaulting party as may be provided by law or' - equity. , If the non -defaulting party elects to terminate this Agreement, the defaulting party shall ba liable, in addition to its liability for other damages caused by the d efaulL, Lux. all expenses incurred bj: �he non_dcfa.'1t4 ,g part' - in securing such substitute parking facilities of like size and convenience to meet the parking requirements 'of the City of Newport - Beach. -The defaulting party shall be liable for any and all damages caused to the non -defaulting party by the unavailability of such substitute parking, including any and all expenses incurred in seeking relief from. the parking requirements of the City of Newport Beach. Failure of the non -defaulting party to seasonably" object to a default shall not be deemed a waiver thereof and shall not preclude objecting to such default at any time before it has been cured'. 14. Either party may, •Provided it is not. in default,. under the terms hereof,. -.at any time terminate this Agree-neat.upon six (6) months written notice upon the following conditions: -6- I+ (a) Plat �..a consent of. the City of` =wport Beach thereto be first obtained if the termination of this Agreement 1•,ould-cause or result in a breach of or default in the 1960- Agreeent; (b) The terminating party shall construct such improve- ments on the other'party's property as will allow that property to be separately operated as a parking lot with controls and with comparable space for parking and circulation of traffic as was previously allocated to both parties under the operation of both . ..properties as one parking lot. Such improvements shall include, but not be limited to a six (6)•foot chain -link fence along the common boundaries between the property of the parties, an automatia entry gate blocking entrance- of cars except upon use of a card •key or similar activator. (c).' To the extent the other party`s share of the seventy-- sir. (76) parking spaces is not reasonably available on its own property when used separately as a parking lot in accordance with the standards set forth in (b) above, the terminating party shall mare available to the"other party a number of equally convenient parking spaces in the im-tiediate vicinity. Such spaces shall be provided without cost to the. non -terminating party. Upon both the occurrence of the aforesaid conditions and the expiration of the six ' (6) month period, this Agreement shall terminate- and neither party shall (1)-•thereunder have any further'obligatibn thereunder and (2) thereafter have any right whatsoever in the. - property of the other. 15. Either Koll or the Company may construct any building or improvement on their respective ownerships, which is not prohibited -by laT.o or the Agreement attached hereto as Exhibit "C" and not inconsistent with the terms of this Agreement. In particular, that such improvements, -or the cons•truction•thereof, shall not unreasonably interfere with the use of. the parking-. facilities by the other party, and that any such improvements shall not reduce the number of parking spages•to which the other. party is entitled under the terms hereof: -7- 0 16. Any and all notice or demands to or from the Company or roll shall be in writing and shall be served either personally or by registered mail. I£ served personally, service shall be conclusively deemed to be made at the time of service. If served by registered mail, service shall be conclusively deeded made forty-eight (48) hours after the deposit thereof in the United States maid., postage prepaid, addressed to the party to whom such notice or demand. is being. given as hereinafter provided.. Any notice or demand to the Company may be given to it at -- Imperial Savings & Loan Association Executive Offices 2320 Fifth Avenue' San Diego, California,92101 : or such other place or places as may hereinafter be designated by the Company. Any notice, or damand to,Koll may be given at. Donald M. Roll or at such other place or places as may hereinafter be designated by Roll. 17. Upon termination of this Agreement, for.any reason, each party shall execute, acknowledge and deliver to the other party all documents, including a Quitclaim Deed, requested by such other party, necessary or convenient to provide such other party with. title to his property free of the restrictions of this _ Agreement.' 18; In the event that either party hereto -shall institute any legal action or proceeding against the other party on account ofthe other's failure or refusal to perform or fulr"511 any of the covenants. or conditions of this Agreement on'his or its part to be performed or fulfilled, then it is agreed that in any such action or proceeding the prevailing party shall*be entitled to its reasonable costs therein and such further and .additional sum as and for his attorneys' fees as the court in such action or proceeding may adjudge reasonable. -8- 19. The terns of this Agreuuent shall be binding upon tte Company, Koll, and their successors. 20. Koll and the Company hereby agree that timely and strict performance and hereby declared to be the essence of this Agreement and of each and all of its covenants and conditions. IN WITNESS WHEI2E01-P, the parties hereto have, caused this Agreement.to'be executed on the date first above written. IYLpERIAL SAVINGS & LOAM ASSOCZATIO-N ., . By By UVNA.0 LI. MULL a E{!..ISIT "A" DESCRIPTION OF PROPr-Ti' 1. The southeasterly 40 feet of Lot 15, all of Lot 14 and the northwesterly 30.75 fee- of Lot 13 of Tract. 1622, County of Grange, according to -map recorded in Book 47, Page 39 of Miscellaneous 1%?aps,'.Pecords of said Oranges County. r • " E};IITI3IT "inn - . ASSCRIPT•ION OF PROPLR'Py The north;•resterly 20 feet of Lot 7, all of Lots 8, 9, 10r ll,.12 and 13 except the nor h,sesterly 30.75 fee" of Lot 13 of 'Prac.t.16221County of. Orange, as shown on the Mao recorded in Book 47, Page 39 of iiiscellaneous baps, filed in of said Count, the Office of the ?recorder . • r COMMIbSIONERS vC m vi m'y � m M mmi y= " < i F P A ROLL CALL M CITY OF NEWPORT BEACH Mav 16. 1974 MINUTES ---- - - - mvcw Item #4 Request to amend an existing Off -Site Parking Agreement in conjunction with a five story build- FF-SITE 3ARKING ing located at 3360 Via Lido so as to permit the GREEMENT operation of a restaurant on the fourth floor of the existing structure. REMOVED R M Location: Portions of Lots 13 and 15 and Lot DAR 14, Tract 1622, (i.e., Parcel 1 of Resubdivision No. 433) located at 3360 Via Lido, on the northeasterly side of Via Lido, southeasterly of Via Oporto, in the Lido Village Area (i.e. the former Imperial Savings and Loan Building) and por- tions of Lots 22 through 30, Block 530, Lancaster's Addition, located at the southeasterly corner of 32nd Street and Villa Way (i.e., off - site parking area). Zones: C-1-H (5 story building) and Unclassified (off -site parking area) Applicant: Don Koll Co., Inc., Newport Beach Owner: Same as Applicant lotion X At the request of the applicant, Planning Commis- �yes X X X X X X sion removed this matter from the calendar. absent X Item #5 Appeal from the conditions of approval of Modifi- MODIFICA- cation No. 784 so as to allow existing illegal construction on the front 12 feet of the building ., West Ocean Front) to remain where the Muni al Code requires additional open space. TION 784 CONT. TO DUNE 6 In addit the application also seeks approval for the cons ction of a second garage space and second floor roo additions to an existing duplex which is nonconform because it has one garage space where the Municip Code requires three garage spaces and it is on site which contains less than the required 2,000 s ft. Location: Lot 4, Block 50, Ocean ont Tract, located at 5007 Seashore D e, on the south side of Seashore Dr Page 6. Planning Commission Meeting May 16, 1974 CITY OF NEWPORT BEACH May 9, 1974 Item No. TO: Planning Commission FROM: Department of Community Development SUBJECT: Request to amend an existing Off -Site Parking Agreement in conjunction with a five story build- ing located at 3360 Via Lido so as to permit the o eration of a restaurant on the fourth floor of the existing structure. Discussion LOCATION: Portions of Lots 13 and 15 and Lot 14, Tract 1622, (i.e. Parcel 1 of Resubdivision No. 433) located at 3360 Via Lido, on the northeasterly side of Via Lido, southeasterly of Via Oporto, i-n the Lido Village Area (i.e. the former Imperial Savings and Loan Building) and portions of Lots 22 through 30, Block 530, Lancaster's Addition, located at the southeasterly corner of 32nd Street and Villa Way (i.e., off -site parking area): ZONES: C-1-H (5 story building and Unclassified (off -site parking area) APPLICANT: Don Koll Co., Inc., Newport Beach OWNER: Same as Applicant Recommendation The applicant has requested that this matter be removed from the Commission's calendar. Staff concurs with the applicant's request. DEPARTMENT OF COMMUNITY DEVELOPMENT R. V. HOGAN, DIRECTOR By_ (NO-t + William R. Lay c ck, Senior Planner WRL/sh Item No. 4 DON KOLL COMPANY, INC. May 8, 1974 City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92660 Attention: Mr. James D. Hewicker Reference: Restaurant Use at 3360 Via Lido Gentlemen: We hereby request a withdrawal of our request for an amendment to the existing off -site parking agreement in connection with the above referenced property to permit the operation of a restaurant on the fourth floor and to permit off -site parking for the restaurant's use on the 32nd Street parking lot as set forth in my letter dated April 16, 1974, a copy of which is enclosed herewith. Very truly yours, DON KO CO , INC. Timothy Strader Senior Vice President and General Counsel TL•S:dh Enclosure C, Con mun1ED Deve 1pt�BOt MAY 8 1974a. NEWP�F EACH, 1901 COVE STREET • NEWPORT BEACH • CALIFORNIA 92560 • (714) 833-3030 DON KOLL COMPANY, INC. ( �` !y April 16, 1974 City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92660 Attention: Mr. James D. Hewicker Re: Restaurant Use at 3360 Via Lido Gentlemen: We are in escrow to purchase the Imperial Savings and Loan Associa- tion five -story building located at 3360 Via Lido, Newport Beach, California. Enclosed with this letter is a copy of the off -site parking agreement with the City of Newport Beach which affects this building and the adjacent two-story building to be retained by Imperial Savings and Loan. We are in the process of leasing the fourth floor of the building for use as a restaurant. Enclosed is a floor plan showing the location of kitchen and bar for the restaur- ant use on the fourth floor. The restaurant will only be operated after 6:00 PM and we propose to permit parking on -site of some 20 cars and off -site of the remain- ing cars required by the occupancy limit on the facility. We request an amendment to the existing off -site parking agreement to permit the operation of a restaurant an the fourth floor and to permit off - site parking for the restaurant use on the 32nd Street parking lot for those number of spaces in excess of the 20 on -site spaces. We would appreciate if this matter could be set for the Planning Commis- sion Meeting scheduled on May 16, 1974. Very truly yours, DON KOLL COMPANY, INC. Senior L. Strader esid !$� Senior Vice President � and General Counsel /// RECEIVED ', Com Developmonpmor>t TLS : pjm Dept. Enclosures AF C i J !074 1 rY. 1901 DOVE STREET. NEWPORT BEACH- CALIFORNIA 92880• (714) 833-3000 '' t ^ ; 41 111J1oJ M$ I! AGE:c,S'-EN7 2 I 3 il TgIS AGRcE.fiPT, made by and between the CITY 0. NE TO= BEACRt a A .! municipal corporation, hereinafter called "Cit:•", and NEi•)PORT BA1304 SAVINGS • *� * ASSOCIATION, a corporation, hereinafter called "Associ<tiou", is (if predicated upon the €ollowing: R f 7RECIMS f • .8� Association proposes to erect an addition to as existing building 9 lt i at 3355 via Lido in the City of Newport Beach ead has applied for a variaac»� 11 • . . 10�� permitting the reduction of off-street parking required by the Newport Beach, 111 Municipal Code and in lieu thereof has proposed installation of an ofi-site I '.12 �' automobile parking area. to be established mad' aaiaitiaaaed ior'use'`iit cor ectiorti. t 13 { with said existing building and proposed •addi.tioa. The property or, which 14' I said addition will be situated is all that certain real property is theCity . 15 of i,ec,•port_Beach, County of Orange' State of California,'described as folio:•= Le 73uCi:ulydS ..GTiy .v xc::� vi �:•� •, ��_ •••• ,.,••.••. - �' to 14,•inclusive, and the southeasterly 40 feet 17 a of ;.ot 15., Tract 1622, as per nap recorded is Book 47, page 39, of 'Uscellaneous Maps., Records 18 of Orange County, California,. 19-11'and is hereinafter. referred to as "parcel h14. The property as which. said 20 off site parking lot is to be situated is all •that.certain real, property is 21 the City of Newport Beach, County of Orange ,, State'o£ California, described 22 1 as follows: _ w, The Northerly 77.00 feet of Lots 23 to 30 inclusive 23 �' -and the Westerly 17.74 feet of Lot 22, Block 530, , . 24 Lancasters Addition to :Ie' ort Beach, as_shoi-a on..a reap thereof; recorded in nod: 51 -,age 14 of •a.scellaneaus.. 25 Maps, Records of Orange County, California, and that portion of 32nd Street, formerly i:ashiaoton Avenue as •• 26 on said Map and mare particularly described as II follows: 27 �� Beginning at the North::esterly corner of said Lot 2g 30,,Block 530 of 'L acasters-Aeditioa, thence Northerly r I{ along tEie ::ornherly pZolongatLon of the Pasterly line. c 9 ff of said lot 3 , a distance of 11.00 =eet to the 'i beginning of a curve concave to the Southeast, ilavieg 30 ;j• a radius of 15 Eeet; thence along said curve a distance of 23.5o feet tarou3h a central angle of 90 dagrees•to 31 i I �y 2' feet mnuaured at a point, said point L '::� in aline o I) right angles :Ion=curly of aad parallel to toe Northerly !! line of 1,ot• 30; thunce Lastarly along said parallel line . Pli jXffTPTT- 14� 15� 16i 17, 19 20 21 22 23 24 25 26 27 28 29 Of • 31 32 to an intersection with the 'i?n;:EA,=rl.y prolongation of the Easterly line of the17.74 feet of Lot 22 of said Block 530; thence •A!Qr'. said Northerly p=oiongatioa 2G.00 �;• ko- the t;orth�rly line of said Lot 22, thence ;ie:..-_erly along the northerly line of the Wastcrly- 17.74 feet of Lot 22 aad'aloag the Northerly line of Lots 23 to 30 inclusive to the Point of BeSiani•ng, and is hereinafter referred to as-' "Parcel B". Both of said parcels are owned by the Association and the Association is entitled to the mediate possession and use thereof,. City, by and through its duly constituted Planning Co=ission," has granted Variance No..555 authorizing the reduction of parking on Parcel A upon. the condition•:that Parcel B 'shall be used to provide the auaber of parking• spaces presently required by the iiewport Beach L�anicipal Code ,ta serve said building and proposed addition_ thereto on said Parcel A. '-Association has elected to accept, said. conditional variance. and,. - therefore., in consideration' tb.ereof,-does hereby covenant aad agree. with. - city as follows; 1. :on or before • the date the addition proposed to be built on Parcel A is completed, Parcel B will be establistiad and improved and there- after maintained as a parking lot for use in connection with said existing building and proposed addition on Parcel A for Association employees and . others having lawful permissive use thereof. I( 2. Said, parking lot shall contain at least seventy-one MY Parking spaces of standard size. t 3: Said parking lot on Parcel B shall be maintained to provide j the number of spai�.2s herein agreed upon for as long a'Parcel A and the [bui.ldines and improvements existing thereon, land to be erected thereon, i shall be used for any purpose which, under .tile laws and ordinances of the City., requires that such amount of auto-ajb!le parking be provided is connection with such use. it is undersi:c>nd and agreed that Associatioa shall provide parking on Parcel A which, together with the parking to be Parcel B, shall meet the present I]ewport Beach :•iinicipal Code provided on requirements for the present use and the proposed addition on said Parcel r� the time shall apply.- 4.:-.This agreement and the covenants herein contained are made.updn. the condition that if, in the future, the Association with the approval.aE . tF.a City Council as to location shall provide a substitute parI4 areas plan or,system, at least equal in number of spaces to that to be provided on Parcel B,. then this. agreement, and the covenants herein set forth shall aerie and terminate and be of no further force or effect, and the City shall thereupon execute a quitclaim releasing all clams and interest it may have in said'Parcel B as created by this agreement. $; This agreement shall run with the lands herein described.aad.. shall bind the successors of the present owners thereof and shall be recorded I in the Office of the County Recorder of Orange County. Executed January--.�----� 1960. CITS: or PI OP= MUCH., I'ITWPORT BALBOA SAMMS AIM LOM a -,.iu icipal Corp •at' n ASSOCIATION, a California corporatica Mayor President..Attes '. By 1 CiV Clerk Secreta_ry'. , iII A'and that any subsequent: changes in said Code or other laws or ordinances 2I! s:iall not operate to r:;uire -lie Association to provide additional parki::o for the present use -and said proposed addition. It is agreed, however, that A the City is not hereby restricted from legislative, administrative, executive 5or quasi-judicial action with respect to either parcel of property as such. 6� action may now or hereafter be authorized. Should a change in use or 7 I� additional use of either parcel be proposed, the regulations applicable at 20 21 22 23 24 25 26 27 28 24 30 31 13 14 15 16 17. 18i 191 1 201 211 22 li 23 i; 24 • ;s 2511 261 27 i 28 29 11 30 1' I 32 r ST tM OF C .Ll'f"- ZXIA ) ss COUNTIZ OF ORi_UG£ ) Ou this /,Q`- day of January, 1960, before re, the undersign a Notary Public in and for said County and State, personally appeared P. A. Palimar a -ad Florence Earl, knot.., to re to be the President and Secretary, respectively, of the corporation that executed the within instruaeat, and acknowledged to me that such corporation executed the within instrument - pursuant to its by-laws or. a resolution -of its board of directors. WITNESS my.haad and official seal. I(" Notary ablic' in and fort _ _ _ ' said County and State MY Coc:o,ss:ca t.cc,res ";C.' _ - - - STATE OF CALiFOR;YIA,ss ) •`'fr7,,�.: ,r, COUNTY OF Oi2ArGE ) f On this /-I day of January, 1900, before me, the uadersigne! I a Notary Public in and for said County and State, personally appeared JAi•f-:S' B. STODDARD and MIRGERY SCFIROUDER, known to m3 to be the Mayor -and the City - Clerk, respectively, of the CITY OF 'PORT BEACH, the municipaL corporation that.executed the within iustrument, and acknowledged to me that said rn:ni.cipat corporation executed.the same pursuant to a resolution of its City Coua^..il.. W1;NESS my -hand and official seal. Notary Public in and for"! said County and State RECORCE'D Al REQ'J_SP 0" M C 1r :c :a M OFF:C!AL r'.f.i:ur:i,3 GF ORAN::,E COUNTY, CALIF. 9:C5 AU JAN 213 1950 i Fps_ April 4, 1974 Mr. Dennis D. O'Neil City Attorney City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92660 Re: Proposed Mario's Restaurant Dear Denny: We are in escrow to purchase the Imperial Savings and Loan Associa- tion five -story building located at 3360 Via Lido. Enclosed with this letter is a copy of the off -site parking Agreement with the City of Newport Beach which.affects said building. We are in the process of leasing the fourth floor of the building for use as a restaurant which will do business as Mario's. Mario's utilizes singing waiters and presently operates a restaurant in Palm Springs. Pursuant to our Purchase and Sale Agreement with Imperial Savings, we have agreed to continue joint use of the parking lots presently used by Imperial Savings. Enclosed is a copy of the Joint Use Agreement which will be delivered through escrow. Jim Hewicker informed me yesterday that it was his opinion the parking Agreement would require an amendment if we change the use to restaurant use based upon Paragraph 3 of the off -site parking Agreement. I respect- fully disagree with his conclusion based upon my reading of the Agreement. It is my opinion that if anything is required, a use permit would be required since a restaurant use is permitted in the commercial zone which covers this particular piece of property. Therefore, if we satisfy the one per three restaurant parking requirement under the existing City regulations, there is no need to amend the parking Agreement. Mario's plans to operate with an occupancy limit of 176 and to only be open after 5:00 P.M. daily. Imperial Savings,closes at 4:00 P.M. 1901 DOVE STREET. NEWPORT BEACH -CALIFORNIA 92660• (714)B33-3030 -Mr. Dennis D. O'Neil r Page Two April 4, 1974 Monday through Thursday and at 6:00 P.M. on Friday. We propose to apply for a use permit similar to the use permit we applied for in connection with The Warehouse Restaurant parking to permit the Mario's Restaurant operators to utilize valet parking during their operating hours. I would appreciate any opinion you may have regarding the appropriate course of action in connection with this matter. Very truly yours, DO KO KO , CO Y NC. Timothy. Strader Senior Vice President and General Counsel TLS:dh encs. cc: Jim Hewicker