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HomeMy WebLinkAboutC-8995-1 - Encroachment Agreement EPN N2022-0430 for 2641 Circle Drive11/1/22, 10.14 AM Batch 14925461 Confirmation RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Attn: City Clerk's Office City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder jj II 11111 jJ11l II II I I I 11111 1111 I II 46.00 *$ R 0 0 1 4 0 3 9 9 9 9 $ * 202200035141610:10 am 11/01/22 227 NC-5 Al2 14 0.00 0.00 0.00 0.00 39.00 0.00 0.000.000.00 0.00 Space above this line for Recorder's use ENCROACHMENT AGREEMENT (Encroachment Permit Number N2022-0430) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 13th day of October, 2022, by and between, on the one hand, the City of Newport Beach, a California municipal corporation and charter city organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California ("City"), and on the other hand: William Menninger and Diane Nelson Menninger, husband and wife as community property ("HAWACP"); William E. Menninger and Diane N. Menninger, Trustees of the William E. Menninger and Diane N. Menninger Revocable Trust dated April 8, 2019 ("APRIL 8 TRUST"); and, William E. Menninger and Diane N. Menninger, Trustees of the William E. Menninger and Diane N. Menninger Revocable Trust dated April 9, 2019 ("APRIL 9 TRUST"). RECITALS WHEREAS, this Agreement pertains to the property located at 2641 Circle Drive, Newport Beach, California, 92663, Orange County, County Assessor's Parcel Number 049- 175-12 and as legally described on Exhibit A, attached hereto and incorporated by reference ("Property") ; WHEREAS, by Grant Deed dated June 24, 2009, recorded in the official records of the Office of the Orange County Clerk -Recorder on July 31, 2009, as instrument number 2009000412091, the Property was transferred to HAWACP; WHEREAS, by Quitclaim Deed dated April 25, 2022, recorded in official records of the Office of the Orange County Clerk -Recorder on May 2, 2022, as instrument number 2022000164687, HAWACP transferred the Property to the APRIL 8 TRUST; WHEREAS, due to a scrivener's error, instrument number 2022000164687 inadvertently identified the grantee as the APRIL 8 TRUST, but HAWACP actually intended to transfer the Property to the APRIL 9 TRUST; WHEREAS, by Correcting Quitclaim Deed dated October 4, 2022, recorded in official records of the Office of the Orange County Clerk -Recorder on October 5, 2022, as instrument number 2022000325507, HAWACP transferred the Property to the APRIL 9 TRUST; William E. Menninger and Diane N. Menninger, Trustees of the William E. Menninger and Diane N. Menninger Revocable Trust dated April 8, 2019 Encroachment Agreement 1 https://gs.secure-recording.com/Batch/Confirmation/14925461 3/6 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Attn: City Clerk's Office City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Space above this line for Recorder's use only. ENCROACHMENT AGREEMENT (Encroachment Permit Number N2022-0430) THIS ENCROACHMENT AGREEMENT ("Agreement") is made and entered into this 13th day of October, 2022, by and between, on the one hand, the City of Newport Beach, a California municipal corporation and charter city organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California ("City"), and on the other hand: William Menninger and Diane Nelson Menninger, husband and wife as community property ("HAWACP"); William E. Menninger and Diane N. Menninger, Trustees of the William E. Menninger and Diane N. Menninger Revocable Trust dated April 8, 2019 ("APRIL 8 TRUST"); and, William E. Menninger and Diane N. Menninger, Trustees of the William E. Menninger and Diane N. Menninger Revocable Trust dated April 9, 2019 ("APRIL 9 TRUST"). RECITALS WHEREAS, this Agreement pertains to the property located at 2641 Circle Drive, Newport Beach, California, 92663, Orange County, County Assessor's Parcel Number 049- 175-12 and as legally described on Exhibit A, attached hereto and incorporated by reference ("Property"); WHEREAS, by Grant Deed dated June 24, 2009, recorded in the official records of the Office of the Orange County Clerk -Recorder on July 31, 2009, as instrument number 2009000412091, the Property was transferred to HAWACP; WHEREAS, by Quitclaim Deed dated April 25, 2022, recorded in official records of the Office of the Orange County Clerk -Recorder on May 2, 2022, as instrument number 2022000164687, HAWACP transferred the Property to the APRIL 8 TRUST; WHEREAS, due to a scrivener's error, instrument number 2022000164687 inadvertently identified the grantee as the APRIL 8 TRUST, but HAWACP actually intended to transfer the Property to the APRIL 9 TRUST; WHEREAS, by Correcting Quitclaim Deed dated October 4, 2022, recorded in official records of the Office of the Orange County Clerk -Recorder on October 5, 2022, as instrument number 2022000325507, HAWACP transferred the Property to the APRIL 9 TRUST; William E. Menninger and Diane N. Menninger, Trustees of the William E. Menninger and Diane N. Menninger Revocable Trust dated April 8, 2019 Encroachment Agreement 1 WHEREAS, due to ambiguity regarding the identity of the legal owner of the Property, HAWACP, the trustees of the APRIL 8 TRUST, and the trustees of the APRIL 9 TRUST, each enter into this Agreement, jointly and severally, with the intent that this Agreement shall run with the land and shall be binding upon and imparts notice upon any and all heirs, successors, and assigns; WHEREAS, HAWACP, the trustees of the APRIL 8 TRUST, and the trustees of the APRIL 9 TRUST, are all one and the same natural persons, William Menninger and Diane Menninger; WHEREAS, HAWACP, the APRIL 8 TRUST, and the APRIL 9 TRUST, shall be collectively and individually referred to herein as, "Owner"; WHEREAS, Owner desires to construct certain non-standard improvements as further described herein ("Permitted Improvements") within the 20-foot wide public utilities easement right-of-way (hereinafter "Right -of -Way") that is located adjacent to Property; 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 Right -of -Way; and WHEREAS, the parties hereto desire to enter into this Agreement providing for fulfillment of the conditions required by City to permit Owner to construct and maintain said Permitted Improvements. NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree as follows: 1. City and Owner acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 2. It is mutually agreed that Permitted Improvements shall be defined as: a. One (1) first story, and one (1) second story, roof overhangs encroaching one and one half feet (1.5') into the City's twenty foot (20') wide public utility easement, at a height of ten and one half feet (10.5) and twenty and one half feet (20.5') above the ground surface, respectively, as approved by the Public Works Department and as shown on Exhibit B, attached hereto and incorporated herein by reference. b. In addition, if any improvements actually built or installed during the time of construction vary from Permitted Improvements approved herein, such variations or changes must be approved in advance by the Public Works Department and shall be shown on the "As Built" plans. 3. City will permit Owner to construct, reconstruct, install, maintain, use, operate, repair and replace said Permitted Improvements and appurtenances incidental thereto, within a portion of Right -of -Way, if in substantial conformance with the plans and Encroachment Agreement 2 specifications on file in City. City will further allow Owner to take all reasonable measures necessary or convenient in accomplishing the aforesaid activities. 4. Rights granted under this Agreement may be terminated by City with or without cause and at any time without notice. City shall make good faith efforts to provide sixty (60) calendar days' notice in advance of termination, 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. 5. Owner and City further agree as follows: a. Owner may construct and install Permitted Improvements and appurtenances incidental thereto in substantial conformance with the plans and specifications on file in City's Public Works Department, and as described on Exhibit B. b. Owner shall maintain Permitted Improvements in accordance with generally prevailing standards of maintenance and pay all costs and expenses incurred in doing so. However, nothing herein shall be construed to require Owner to maintain, replace or repair any City -owned pipeline, conduit 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, Owner shall be responsible for the cost of repairs and restoration of these public facilities or improvements to their condition at the time of entry into this Agreement. d. Should City be required to enter onto said Right -of -Way to exercise its primary rights associated with said Right -of -Way, 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 Permitted Improvements, as required, and in such event: (i) City shall notify Owner in advance of its intention to accomplish such work, provided that an emergency situation does not exist. (ii) Owner shall be responsible for arranging for any renewal, replacement, or restoration of Permitted Improvements affected by such work by City. (iii) City agrees to bear only the cost of any removal of Permitted Improvements affected by such work by City. (iv) Owner agrees to pay all costs for the renewal, replacement, or restoration of Permitted Improvements. 6. In the event either party breaches any material provision of this Agreement, the other party, at its option may, in addition to the other legal remedies available to it, terminate this Agreement and, in the event the breaching party is Owner, City may enter upon Right -of -Way and remove all or part of the improvements installed by Owner. Encroachment Agreement 3 Termination because of breach shall be upon a minimum of ten (10) calendar days' notice, with the notice specifying the date of termination. 7. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 8. Owner 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 Permitted Improvements. 9. Owner, on behalf of itself, its heirs, representatives and assigns, warrants, covenants and agrees, with the City and its representatives and assigns, as follows: (a) that Owner has the right to convey the Property and to enter into any covenant, grant, or other encumbrance thereto; (b) that Owner will defend the rights and interest granted by this Agreement against lawful claims and demands of all persons, and (c) that Owner will do any further acts for the purpose of perfecting the rights and interest granted by this Agreement that City may reasonably require. 10. Owner shall provide actual notice of this Agreement orally and in writing, including delivering a copy of this Agreement, to any and all heirs, successors, and assigns of Owner's interest in the Property. 11. Owner 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, proceedings, actions, costs and expenses whatsoever, including but not limited to, reasonable attorneys' fees and costs, arising out of, related to, or in connection with actions to quiet title, or to extinguish, remove, or invalidate this Agreement or the rights or interest granted herein. 12. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, California. 13. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 14. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 15. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or Encroachment Agreement 4 any other term, covenant or condition contained herein, whether of the same or a different character. 16. Owner shall, at Owner's own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 17. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 18. Owner agrees 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 Owner's interest in the land, whether fee or otherwise; and shall be recorded in the Office of the County Recorder of Orange County, California. [SIGNATURES ON NEXT PAGE] Encroachment Agreement 5 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: t c)111 / 2 Z CITY OF NEWPORT BEACH, a California municipal corporation Date. By:ronC. (�'oT1 By: rp Mw Gr e Leung y 101iij22 Cit anager ATTEST:10 114 Daf By: [OWNER SIGNATURES ON NEXT PAGE] Encroachment Agreement 6 OWNER: William Menninger and Diane Nelson Menninger, husband and wife as community property Date: 26 By: William E. Mennin r Date. di 20 Z Z- By: Diane N. Menninger OWNER: William E. Menninger and Diane N. Menninger, Trustees of the William E. Menninger and Diane N. Menninger Revocable Trust dated April 8, 2019 Date: By:l/�il' 4Men—ninge William E. r Trustee of the William E. Menninger and Diane N. Menninger Revocable Trust dated April 8, 2019 Date: 67� H, ZO 2 2- By: Diane N. Menninger Trustee of the William E. Menninger and Diane N. Menninger Revocable Trust dated April 8, 2019 OWNER: William E. Menninger and Diane N. Menninger, Trustees of the William E. Menninger and Diane N. Menninger Revocable Trust dated April 9, 2019 Date: -7-6 2— By: William E. Menninger Trustee of the William E. Menninger and Diane N. Menninger Revocable Trust dated April 9, 2019 Date: By: Diane N. Menninger Trustee of the William E. Menninger and Diane N. Menninger Revocable Trust dated April 9, 2019 Owners must sign in the presence of notary public SEE ATTACHED [END OF SIGNATURES] NOTARIAL. CERTIFICATE Encroachment Agreement 7 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of © roc./1 9�-i } ss. On O c ro 6 e Y l a , 20 before me, 7-`/ 1tir u a Y%a T— Notary Public, personally appeared Vy r' 11; cc M E. /11 r, iviy, who proved to me on the basis of satisfactory evidence to be the person(s) whose names) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNES y hand and official seal. 6my TYLERDNotary PublicOrange County Commission # 2317772 Comm. Expires Jan 6, 2024 Si ature (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of 0%/i9-e` } SS. On OC rob e l-*'— ( q , 20 before me, %'�/ l�Y l� a �/ %Q 7 Notary Public, personally appeared i cl.N M proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)'is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. �> ;;.yf TYLER DAYYAT W Notary Public • California z i c^ Orange County Commission N 2317772 f `�(iF00.N�T My Comm. Expires Jan 6, 2024 11 Si nature (seal) Encroachment Agreement g EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Encroachment Agreement A_1 ATTACHMENTS: Exhibit A — Legal Description of Property Exhibit B — Permitted Improvements Plan as Approved by Public Works Encroachment Agreement 8 EXHIBIT A Sheet 1 of 1 Exhibit "A" - LEGAL DESCRIPTION PARCEL 1: Lot 28 of Tract 1102, in the City of Newport Beach, County of Orange, State of California, as per Map recorded in Book 35, Page 36 of Maps in the Office of the County Recorder of said County. PARCEL 2: A non-exclusive appurtenant easement for ingress or egress over private streets and other areas described in that certain easement deed to the Irvine Company, a West Virginia Corporation, recorded on August 14, 1974 in Book 11220, page 1008, Official Records of Orange County. 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