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Home My WebLink AboutC-5629 - Encroachment Agreement (for 7 and 8 Balboa Coves)a Recording Requested By FirstAmericr Title Insurance CompTr4is document w- electronically recorded by� RECORDING REQUES , -:D AND First American . itle Insurance Company WHEN RECORDED RETURN TO: cording Requested By Recorded in the County of Oran e California Public Works Department City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92659-1768 L.11_�, ican Title Insurance Compan 9 :STED AND �a L Granville, Clerk/Recorder ZETURNTdI1111IIIIII IIS II II1 ��IIIII1111III 39.00 lent 20000076737 3:46PM 02/10/00 1 004 00093854 102 28 003 12 0 0.00 6.00 33.00 0.00 0.00 0.00 ird 0.00 0.00 2659-1768 Space above this RN6 M?RLb6dWq'?qAi4ei€tP�e only. ENCROACHMENT AGREEMENT 0 ;44 0 THIS AGREEMENT is made and entered into this I/r� ' !l day of .Z) /1 k ( l t"I 2000, by and among George H. Feister and Betty Jane Feister, as trustees of eorge H. Feister and Betty Jane Feister Trust dated January 15, 1991, and George H. Feister and Betty Jane Feister, husband and wife, as joint tenants, each as to a 'one-half (1/2%) undivided interest in and to the real property described below as "LOT T' ,(collectively, "LOT 7 OWNER"), and Paul N. Donnelly and Kathleen M. Reardon, husband and wife as community property, with respect to the real property described below as "LOT 8" (collectively, "LOT 8 OWNER"), and the City of Newport Beach, California, a municipal. corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California, (hereinafter "CITY"), "LOT 7 OWNER" is the owner of property located at 7 Balboa Coves, Newport Beach, California and legally described as Parcel 1 of N.B.L.L.A. No. 99-17; ("LOT 7"), and "LOT 8 OWNER" is the owner of property located at 8 Balboa Coves, Newport Beach, California and legally described as Parcel No. 2 of N.B.L.L.A. No. 99-17 ("LOT 8" WITNESSETH: WHEREAS, N.B.L.L.A. No.99-17 has revised the property line between Lot 7 and Lot 8, respectively, to reflect a party wall presently existing between LOT 7 and LOT 8 (hereinafter "PERMITTED IMPROVEMENTS"), and a portion of the PERMITTED IMPROVEMENTS lie within a portion of an existing 6 -foot drainage easement through LOT 7 and LOT 8, hereinafter "EASEMENT", as legally described in Official Record No. 1086/340 (Book 1086, Page 340) in the office of the County Recorder of Orange County, California; and F:\USERS\CKP\DONNELLY\MACE\ENCROACHO 1 A.DOC 1 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 the EASEMENT; and WHEREAS; the parties hereto desire to execute an agreement providing for fulfillment of the conditions required by CITY to permit LOT 7 OWNER and LOT 8 OWNER (collectively, "OWNERS") to construct, reconstruct and maintain 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 an approximately six foot (6') high, six inch (6") wide block wall and appurtenances in the location shown on EXHIBIT "A" attached hereto and as approved by the City Engineer. 2. CITY will permit OWNERS to construct, reconstruct, install, maintain, use, operate, repair and replace said PERMITTED IMPROVEMENTS and appurtenances incidental thereto, within a portion of the EASEMENT, all in substantial conformance with plans and specifications on file in the CITY. CITY will further allow OWNERS to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 3. Rights granted under this Agreement may be terminated by CITY at any time as required to exercise its easement rights to maintain, repair or replace CITY and other public facilities and improvements, by giving 60 days written notice, with prior City Council approval, 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 as a result of exercising its easement rights to maintain, repair, or replace its storm drain facilities. 4. OWNERS and CITY further agree as follows: a. OWNERS may, at OWNERS' cost and expenses, construct and install PERMITTED IMPROVEMENTS and appurtenances incidental thereto, in substantial conformance with plans and specifications therefor on file in the CITY's Public Works Department, and as described on Exhibit "A" hereto attached; provided, however, that F:\USERS\CKP\DONNELLY\MACE\ENCROACHO 1 A.DOC 2 nothing herein shall require OWNERS to obtain any new approvals for the existing PERMITTED IMPROVEMENTS. OWNERS shall obtain applicable approvals such as building or zoning permits for replacement or alteration of the PERMITTED IMPROVEMENTS. b. OWNERS 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 OWNERS to maintain, replace or repair any CITY -owned pipeline, conduit or cable 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, OWNERS shall be responsible for the cost of all repairs. d. Should CITY be required to enter onto said EASEMENT to exercise its primary rights associated with said EASEMENT, including but not limited to, the maintenance, removal, repair, renewal, replacement or enlargement of existing or future public facilities or improvements, CITY may remove portions of the PERMITTED IMPROVEMENTS, as required, and in such event: (i) CITY shall reasonably notify OWNERS of its intention to accomplish such work, if any emergency situation does not exist. (ii) OWNERS 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) OWNERS agree to pay all costs for renewal, restoration, or replacement of the PERMITTED IMPROVEMENTS. e. This Agreement does not extend the OWNERS' rights to construct any additional improvements at a later time. F:\USERS\CKP\DONNELLY\MACE\ENCROACHO 1 A.DOC 3 5. In the event either CITY or OWNERS breach 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 OWNERS, CITY may enter upon the EASEMENT and remove all or part of the improvements installed by OWNERS. Either party that is alleged to have breached any material provision of this agreement shall be given 30 days written notice of the breach and the opportunity to cure with the date of breach and the date of termination, if cure is not made. 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. 6. OWNERS shall defend, 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. 7. OWNERS agree that 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. As between LOT 7 OWNER and LOT 8 OWNER (but without affecting CITY's rights or obligations hereunder), in the event that the PERMITTED IMPROVEMENTS require repair, maintenance or replacement (whether as a result of CITY's actions or otherwise), such repair, maintenance or replacement shall, to the extent feasible, be performed with materials, workmanship, dimensions and design comparable to the EXISTING IMPROVEMENTS (except as otherwise agreed by OWNERS, and subject to CITY's approval as provided above) and LOT 7 OWNER and LOT 8 OWNER shall pay equally for the costs of such repair, maintenance or replacement. In the event one of the OWNERS advances the costs of such repair, maintenance or replacement, the other shall repay one-half of such costs promptly upon request. Default under this provision shall not be a ground for termination of this Agreement, but the non -defaulting owner shall have all other available legal and F:\USERS\CKP\DONNELLY\MACE\ENCROACHO 1 A. DOC 4 equitable rights and remedies, including specific performance, injunctive relief, declaratory relief, damages, interest, attorneys' fees and costs. 9. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall be deemed one and the same instrument. 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: City Attorney LOT 7 OWNER: In George H. Feister, Trust Betty Jane Feister, Trust LOT 8 OWNER: Paul N. Donnelly Kathleen M. Reardon F:\USERS\CKP\DONNELLY\MACE\ENCROACH01 A.DOC 5 CITY OF NEWPORT BEACH, a Municipal corporation By: City Manag equitable rights and remedies, including specific performance, injunctive relief, declaratory relief, damages, interest, attorneys' fees and costs. 9. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall be deemed one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first -above written. CITY OF NEWPORT BEACH, a Municipal corporation APPROVED AS TO FORM: By: By: City Attorney City Manager LOT 7 OWNER: B George H. Feister, Trust Betty Jane Feister, Trust LOT 8 OWNER: By: Paul N. Donnelly By: Kathleen M. Reardon F:\USERS\CKP\DONNELLY\MACE\ENCROACHO 1 A.DOC 5 equitable rights and remedies, including specific performance, injunctive relief, declaratory relief, damages, interest, attorneys' fees and costs. 9. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall be deemed one and the same instrument. 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: City Attorney LOT 7 OWNER: By: George H. Feister, Trust By: Betty Jane Feister, Trust LOT 8 OWNE By: Paul N. Donnel By: Kathleen M. Reardon F:\USERS\CKP\DONNELLY\MACE\ENCROACHOI A.DOC 5 CITY OF NEWPORT BEACH, a Municipal corporation A City Manager EXHIBIT "A" S_.ZET 1 of 2 EXHIBIT "B" LOT LINE ADJUSTMENT N.B.L.L.A. (MAP) 99 - OWNERS PAUL N. DONNELLY and ' KATHLEEN M. REARDON GEORGE H. & BETTY JANE FEISTER, TR. SCALE: 1" = 30' TRACT H. M. PCL. 1 EXISTING PARCELS AP NUMBERS PROPOSED PARCELS REFERENCE NUMBER LOT 8 APN: 423-031-09 PARCEL 2 LOT 7 APN: 423-031-05 NO. 0 0 36 m z 0 T 119.01' N 74'43'40" W 192.57 193.22' `-- N73'34'20"W 195.99' CLEESR HIGH r OEOUNTY PRlPEOURT CASENO. 23686 PER 201/255 O.R. c0 r� r (7) Z -o 1-0 0 0 0 N a) AREAS 9114.5.5 NEI PCL 1 13,527 S.F. (0.311 AC.) 5,010 S.F. (0.115 AC) PCL 2 15,672 SF (0.360 AC.) 5,310 S.F. (0.122 AC) 3;% 1011 1,0 a JCL 6.00' WIDE EASEMENT FOR STORM 1DRAIN PURPOSES PER 1086/340 O.R. PARCEL 1 SHEET 2 OF 2 SHEETS PCL. 2 C/L CONC. BCK WALL ON P /L. ___ 122.22' N 74LO'43'40" W --- — 222.75' - \ ACHANNEL RY ESERVATION E OF PER 6/1p R. 1, VICINITY MAP 223.04' NEWPORT BEACH S73'34'20"E . 220.27' ?J� LEGEND Q- gg� INDICATES LOT LINE a m ------ TO BE REMOVED P.C.IJ. INDICATED LOT LINE TO REMAIN INDICATES PROPOSED LOT LINE SITE— BALBOA COVES EXHIBIT A SHEET 2 OF 2 TWO STORY RESIDENCE 7 BALBOA COVES 0.09' 0.25' 0.25' 0.26' i i i i SCALE: 1" = 5' THIS SKETCH SHOWS THE RELATIONSHIP OF THE EXISTING CONC. BLOCK WALL WITH THE PROPOSED LOT LINE AND THE W'LY LINE OF THE 6' WIDE STORM DRAIN EASEMENT WITH THE E'LY FACE OF SAID CONC. BLOCK WALL TWO STORY RESIDENCE 8 BALBOA COVES PROPOSED LOT LINE CENTERLINE 6' WIDE STORM DRAIN EASEMENT AND EXISTING LOT LINE EXISTING 6' HIGH, 6" WIDE CONC. BLOCK WALL END WALL NOTE: THE WALL IS OT PARALLEL ) THE C TERLINE OF THE EASEMENT. STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: On 412A1 q , 2000, before me, [4 ii th )rVS personally , personally known to me (GF- to be the person( whose name(. is/are subscribed to the within instrument and acknowledged to me that er/they executed the same in er/their authorized capacity(issa, and that by /her/their signature on the instrument the person or the entity upon behalf of which the persons() acted, executed the instrument. appeared Rona-1, _ 1Un WITNESS my hand and official seal. 49., \I 1.67 Notary Public in and for said State STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) LEILANI V. INES Commission # 1170960 No-ary Public - California Orange County My Comm, Expires Jan 25, 2002 (This area for official notarial seal) On , 2000, before me, personally appeared , 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 his/her/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 persons(s) acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State F:\USERS\CKP\DONNELLY\MACE\ENCROACHO 1 A.DOC (This area for official notarial seal) 6 STATE OF CALIFORNIA ) ) ss: COUNTY OF 0-R )`> IA>><r - -- j ) OM l��' c . f3� , 2000, before me;_ �� (. tip, I(- ��' - personally appeared C'"� c �c _ [��;-�-�fr J , personally -known -.to -me (or proved to me on they basis of satisfactory evidence) to be the person(0) whose name( is/are subscribed to the within instrument and acknowledged to me that his/heFlthey executed the same in his/heFitheir authorized capacity(ies), and that by his/her/their signature(g) on the instrument the personce) or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. Notary I�ublic in and fd'r 'aid State COUNTY OF STATE OF CALIFORNIA ) )� � ) ss: GE f i,7o ROSLYN SUTUFFE Commission # 1221264 Notary Public - Califomia San Bemarciino County My Comm. 6cp sJun10,2003 (This area for official notarial seal) On f , 2000, before me, )) ) 1/1- = c°.. personally appeared �7. -,.._!I t e__ ' f`<` / -f , personally -known -to -me kor proved to me on the( •asisof satisfactory evidence, to be the person(,i) whose name is/are--subscribed to the within instrument and acknowledged to me that -tags-/her/they executed the same in .la+s/her/their- authorized capacity(iee); and that by #is/her/tom signatures on the instrument the person or the entity upon behalf of which the persons ) acted, executed the instrument. WITNESS my hand and official seal. L • Lei (i Notary Public in and for said State F:\USERS\CKP\DONNELLY\MACE\ENCROACHO 1 A.DOC ROSLYN SUTLIFFE t max♦ Commission # 1223864 Z 1,4 r-zi Notary Public - Califomia kj San Bernardino County `+ My Comm. E :r Jun 10, 2003 (This area for official notarial seal) 6 STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) On l, 2000, before me, (��l )7ak �I%l/l� personally appeared ,- , 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 his/her/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 persons(s) acted, executed the instrument. WITNESS my hand and official seal. Notdry Public in and for said State STATE OF CALIFORNIA ) ) ss: COUNTY OF ORANGE ) ELIZABET11 A. ANDERSON Commission # 1226726 Z Notary Public - California Z Orange County MY Comm. E)q�Jun 28,= (This area for official notarial seal) On �& i(% , 2000, before me, a7C1�* f /'h %%personally appeared --lk: QQt hl-aln ,G/. Ck-)' , 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 his/her/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 persons(s) acted, executed the instrument. WITNESS my hand and official seal. Not4y Public in and for said State F:\USERS\CKP\DONNELLY\MACE\ENCROACHO 1 A.DOC o w ®. ELIZABE H A. ANDERSON Commission # 1226726 Z Z Notary Public - California > Orange County My Comm. Exkes Jun 213, 2003 (This area for official notarial seal)