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Home My WebLink AboutEDGEWATER PLSinasek, Jim From: Clauson, Robin To: Medina, Paul Cc: Sinasek, Jim Subject: RE: Edgewater Place Public Right of Way - Liability Date: Monday, August 07, 1995 3:50PM if the tables and chairs are on public property with out permit we should tell them to take them away. Call Jim Sinasek in code enforcement. Im not sure what the fun zone use permit , permits but they need something, encroachment or otherwise to provide city with insurance and indemnity. From: Medina, Paul To: Clauson, Robin Subject: RE: Edgewater Place Public Right of Way - Liability Date: Monday, August 07,1995 3:25PM Emerald Forest replaced Parker s (between Newport Landing and Palm Street). The area where the tables and chairs are is an easement for public utilities and pedestrian use. There is an encroachment agreement but, it does not address items such as tables and chairs in the easement area. i don't mean to be an alarmist; however, this type of situation (tables and chairs in public right of way) is occurring in many places. I'll send you a copy of the agreement. From: Clauson, Robin To: Medina, Paul Subject: RE: Edgewater Place Public Right of Way - Liability Date: Monday, August 07, 1995 3:01PM why do you think the city would be liable? Wasn't the restaurant private property? where is emerald forest? If the chair was on public property did they have a permit. Was it in the fun zone? .......... Robin From: Medina, Paul To: Clauson, Robin Cc: Webb, Don Subject: Edgewater Place Public Right of Way - Liability Date: Monday, August 07,1995 2:20PM While having dinner at the Emerald Forest restaurant Saturday evening.there was a girl who fell against a light post when the plastic chair she was sitting on collapsed. One of the rear legs of the chair actually ripped away from the chair. She may have been leaning back and balancing on the rear legs ... I'm not sure. Right away I'm thinking "here comes another lawsuit". It appeared that the girl got only scratches; she was very lucky she didn't hit her head against the light post. Can anything be done to protect the City from possible liability? Thanks, Paul Page 1 DATE %I'1 // TIME FOR — WHILE YOU WERE OUT PHONE TELEPHONED PLEASE CALL RETURNED YOUR CALL WILL CALL AGAIN CAME IN TO SEE YOU I URGENT MESSAGE / / 5�—.V- Vy Z BY ow L/Q DATE TO: ❑ MAYOR ❑ CITY COUNCIL ❑ CITY MANAGER ❑ FIRE EPUTY CITY MGR. ❑ GENERAL SERVICES ATTORNEY ❑ LIBRARY ❑ BUII DING ❑ MARINE ❑ CIIY CLERK ❑ PARKS & REC. ❑ FINANCE-ADMIN. ❑ PERSONNEL ❑ ACCOUNTING ❑ PLANNING ❑ DATA PROCESSING ❑ POLICE ❑ DUPLICATING ❑ PUBLIC WORKS ❑ PAYROLL ❑ TRAFFIC ❑ PURCHASING ❑ UTILITIES ❑ REVENUE ❑ TELECOMM. FOR; ❑ 4CTION & DISPOSITION INFORMATION REVIEW & COMMENT REMAPM: %r- .7u'o- i -0 PUBLIC WORKS DEP{IR111 M RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk/ raj, 74rrf 771' City of Newpbrt Beach 3300 Newport Boulevard Newport Beach, CA 92663 E tEh!r REGORDI% FtE SE5S PEf W88-263114 G0VER\3::Ef?T CODE 6103 ENCROACHMENT AGREEMENT Conditional Use Permit No. 3122 A L'CQ��OED U; gF�IC IAI REC(1RUS 'JF-M414GE CUUNIY CALIFORNIA. -� 32 Phi JUN 3'88 THIS AGREEMENT is made and entered into this Z9,11c day of �P2iL 1986 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 - titularly described as Lots 1-3, 7-12 and a portion of Lot 4 abandoned alley, all in Block 3 of the Balboa Bayside Tragls, 22 and 23 in Block A of the Bayside Tract and which real? pro to the aforesaid EASEMENTS. . v. C. These EASEMENTS also contain public utilities. D. CITY has water, sewer, storm drain, and street li, located within said EASEMENTS. oction of an I IIi, A 'or ion pa ots r i'sFcontiguo�� % r• }ne—f cilitieS 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: i of 4 J ' 0 1. DEFINITIONS 88-26311 0 "Non-standard street improvements" (hereafter "IMPROVEMENTS") shall d 1 d 1,t rental structure landscaped areas, and sidewalk be define to inc u e. oa > 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 or pe ala.P 6-1 v.i term. 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 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 S 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 •wa-� general public has free access to the EASEMENT area with no constraints placed on access to the public EASEMENT area. 2of4 0 63�63114 ' 5. REPAIRS CITY has the right to make such repairs to the improvements as it f t deems necessary for the protection of the public health, welfare and sa a J. 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 in addition to the other legal Agreement, the other party at its option may, 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 art of the improvements installed by OWNER. Termination because ofnbreach datel,l pa rt upon a minimum of ten (10) days' notice, with the notice specifying term or ced th respect o any of termination. In the event of litigation ca�rtenshall,be entitledtto reasonable condition of this Agreement, the prevailing party attorney fees and costs incurred. 3 of 4 !` 88-2631f4 ,r 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 enforceablility 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 thi.s 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 AS TO FORA: Ali City Attorney (Assistant) 4 of 4 CITY OF bKt�PORT BEACH, a Muni ,;ifa�Corpg,,fa�ion X. :8 Aubrey ING, a General Partnership vV� O ! il:r0.0 e Y 1 r1 to .i_ per.. RESTALIRANi vsYg U LmLE n ^z.ff. -Rte� A4. CCKi. c SERVICE YARD .L�yymt+c C*1- • HA=.1c y p=NG v � 4 ° o D FAST FOOD RETAS &AT KIOSK �--- -—._ a •° •� . "�} ' �" •- ❑0_❑_ _ °' CID❑ I � - � ELM mm. CT GME I •4 P o= r � wAM-n L ¢ Cam. 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