HomeMy WebLinkAboutC-2063(D) - Encroachment Agreement (for Bluff Residential Lot Lease Parcel 54 & 54G)2
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85--287744
THE IRVINE COMPANY
550 Newport Center Drive
Post Office Box I
Newport Beach, California 92660-0015
Attention: Marketing, Sales and Business Operation
Community Development Division
RECORDER: INDEX AS AN AGREEMENT
Recorded at the request of
FIRST AMER. TITLE INS. CO.
8:00 A U G 51985
A.N.
Off,cial Recorc
Orange County. CahtorrH
l c. yg Recorder
THIS INSTRUMENT FILED FOR RSCORE, SY
FIRST AMERICAN TITLE INSURANCE COMPANY AS AN
ACCOMMODATION ONLY. IT HAS NOT BUM 2XAtc71NEO AS TO
ITS CXEXIUTION OR AS TO ITS EFFECT UPON THE TITLE.
(Space Above Line for Recorder's Use)
ENCROACHMENT AGREEMENT
THIS NCROACHMENT AGREEMENT is made effective this/3-
day of°/,44 ) , 19 , by and among the CITY OF NEWPORT
BEACH, a mun;cipa corporation (hereinafter referred to as the
"City"), THE✓IRVINE COMPANY, a Michigan corporation (hereinafter
referred to as "Irvine"), THE BLUFFS HOMEOWNERS' COMMUNITY ASSO-
CIATION, a California nonprofit, mutual benefit corporation
(hereinafter referred to as the "Association") , and ROBERT E. BURNS
and LOUISE H. BURNS, Trustees of the Burns Family Trust, dated June 14, 1984.
(hereinafter referred to as the "Lessee").
RECITAL S:
A. Irvine owns fee title to that certain real proper-
ty located in the City of Newport Beach, County of Orange, State
of California, more particularly described as follows:
Parcels 22 & 22G as shown and described
on Newport Beach Lot Line Adjustment
No. 83- 13 recorded on May 23,
1984, as Instrument No. 84-214024 of
the Official Records of Orange County,
California (hereinafter referred to as
the "Residential Parcel");
-and-
Parcel 126 as shown and described
on the aforesaid Newport Beach Lot
Line Adjustment No. 83- 13 (herein-
after referred to as the "Common Area
Parcel");
B. Lessee owns a leasehold interest in the Residen-
tial Parcel pursuant to "The Bluffs Residential Lot Lease"
dated October 8 , 19 64 , and recorded on November 11 , 19 64
as Instrument No. 23213 of the Official Records of Orange
County, California, and as amended by that certain "Standard
Amendment to Residential Lot Lease and Option to Purchase" re-
corded on September 30 , 1983, as Instrument No. 83-437976
of the Official Records of said County, pursuant to the judgment
entered on September 30, 1983, by the Superior Court of the State
of California for the County of Orange in the action entitled
TLP101 041185
�5--287744
Lewis E. Scott, etc., et al., vs. The Irvine Company, etc., et
al., No. 371066 (hereinafter referred to as the "Amended Lease");
C. Lessee also owns fee title to the single-family
residence and related improvements constructed on the Residential
Parcel (hereinafter referred to as the "Improvements");
D. The Association owns a leasehold interest in the
Common Area Parcel and is responsible for maintaining the Common
Area Parcel and certain portions of the Residential Parcel and
Improvements, as more particularly set forth in that certain
"Restated Declaration of Covenants, Conditions and Restrictions,
and Reservation of Easements for The Bluffs" dated May 22, 1984,
and recorded on May 23, 1984, as Instrument No. 84-214034 of the
Official Records of Orange County, California (hereinafter refer-
red to as the "Restated Declaration");
E. The City owns a "Public Service Easement" (as de-
fined in the Restated Declaration) which is located on and over a
portion of the Common Area Parcel and which adjoins the Residen-
tial Parcel (hereinafter referred to as the "Easement");
F. A portion of the Improvements extend over the
Residential Parcel and encroach onto the Easement, as more par-
ticularly shown and described on Exhibit "A" attached hereto and
incorporated herein by this reference (hereinafter referred to as
the "Encroaching Improvements"); and
G. The parties hereto desire to enter into this
Agreement to establish the respective rights and obligations of
the parties concerning the Encroaching Improvements.
NOW, THEREFORE, for and in consideration of the forego-
ing Recitals and the mutual covenants set forth hereinbelow, the
parties do hereby agree as follows:
1. RIGHTS AND OBLIGATIONS OF THE PARTIES.
1.1 Rights and Obligations of Lessee.
(a) Creation of a License for the Encroaching Im-
provements. The City, Irvine and the Association hereby
grant and convey to Lessee a license for the permanent
placement of the Encroaching Improvements on the Easement
and Common Area Parcel. In accordance therewith, Lessee may
continue to use and enjoy the Encroaching Improvements, as
shown on Exhibit "A" attached hereto, subject to the terms
and provisions of this Agreement. Notwithstanding the fore-
going, in the event the Encroaching Improvements are de-
stroyed or otherwise removed from the Easement, and Lessee
does not elect to rebuild the Encroaching Improvements and
complete same within one (1) year from the commencement of
construction, or elect to require the City to rebuild same
as provided in paragraph 1.3(b) below, the aforesaid license
shall automatically cease and terminate.
(b) Maintenance of the Encroaching Improvements
by Lessee. Except as otherwise provided herein, Lessee
shall, at his sole cost and expense, maintain and repair the
Encroaching Improvements so as to keep same in a neat, clean
and safe condition at all times.
(c) Construction of Additional Encroaching Im-
provements. Lessee shall not build, construct, erect or oth-
erwise cause to be installed any additional improvements of
any kind whatsoever upon the Easement without first obtain-
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85--287244
ing the prior express written consent of the Association,
the City and Irvine. Lessee acknowledges that the Associa-
tion and Irvine may impose such reasonable conditions as the
party giving such consent deems reasonably necessary. Fur-
ther, the City may refuse to grant the request or give its
consent subject to such conditions as the City deems neces-
sary.
1.2 Rights and Obligations of the Association. The
parties hereto acknowledge and agree that the Association's obli-
gations, if any, to maintain the Encroaching Improvements shall
be as specified in the Restated Declaration. Save and except as
expressly provided in the Restated Declaration, the Association
shall not be obligated to maintain or repair any of the Encroach-
ing Improvements.
1.3 Rights and Obligations of the City.
(a) Maintenance of Utilities. The City shall, at
its sole cost and expense, maintain its utility lines, con-
nections and other facilities located within the Easement.
(b) Removal and Restoration of the Encroaching
Improvements by the City. In the event the City, in its sole
discretion, deems it necessary or desirable to enter upon
the Easement to construct, repair, maintain, remove, renew,
replace and/or enlarge any utility line, connections or oth-
er facilities located within such Easement, the City may
demolish and remove any or all of the Encroaching Improve-
ments, subject to the following conditions: (1) that the
City shall perform all of such demolition and removal work,
at its sole cost and expense, and (2) that the City shall
reconstruct the Encroaching Improvements to substantially
the same condition as they existed prior to the commencement
of such work, at its sole cost and expense. In the event the
City damages or removes any irrigation systems or land-
scaping during the course of its work, the City shall only
be obligated to repair any damage to such irrigation systems
and to replace such landscaping with grass sod. Nothing in
this paragraph shall be interpreted or construed to obligate
the City to restore any Encroaching Improvements constructed
on the Easement in violation of paragraph 1.1(c) above.
(c) Performance of Work. The City shall exercise
its best efforts to minimize the need to remove any of the
Encroaching Improvements, shall perform the work in accor-
dance with City standards and shall complete the work within
a reasonable time.
1.4 Rights and Obligations of Irvine. Irvine shall not
perform any work on any Common Area Parcel which would cause
physical injury or other damage to the Easement, the Common Area
Parcel, the Residential Parcel or any of the Encroaching Improve-
ments.
S5--287744
2. INSURANCE.
2.1 Insurance by Lessee. The Lessee, at its sole cost
and expense, shall obtain and keep in force for so long as Lessee
is a party to this Agreement, as provided in Section 4 herein -
below, full coverage liability insurance insuring Lessee against
any liability which is occasioned in whole or in part by Lessee,
and which relates to Lessee's obligations as set forth in Section
1 hereinabove. Said policy shall be in an amount not less than
One Hundred Thousand Dollars ($100,000.00) for property damage,
Three Hundred Thousand Dollars ($300,000.00) for personal injury
to one (1) person and Three Hundred Thousand Dollars for personal
injuries in any one (1) accident. The policy shall provide that
it may not be cancelled or subject to reduction of coverage or
other modification except after thirty (30) days prior written
notice to the Association, the City and Irvine.
2.2 Insurance by the Association. The Association, at
its sole cost and expense, shall keep in force for so long as the
Association is a party to this Agreement, as provided in Section
4 hereinbelow, full coverage liability insurance insuring the
Association against any liability which is occasioned in whole or
in part by the Association, and which relates to the Associa-
tion's obligations as set forth in Section 1 hereinabove. Said
policy shall be in the amount of One Million Dollars
($1,000,000.00) or in the amount set by the Board of Directors of
the Association, pursuant to the Restated Declaration, whichever
is greater. The policy shall name Lessee, the City and Irvine as
additional insureds, and shall provide that it may not be can-
celled or subject to reduction of coverage or other modification
except after thirty (30) days prior written notice to Lessee, the
City and Irvine.
2.3 Insurance by Irvine. Irvine, at its sole cost and
expense, shall obtain and keep in force for so long as Irvine is
a party to this Agreement, as provided in Section 4 hereinbelow,
full coverage liability insurance insuring Irvine against any
liability which is occasioned in whole or in part by Irvine, and
which relates to Irvine's obligations as set forth in Section 1
hereinabove. Said policy shall be in an amount not less than One
Million Dollars ($1,000,000.00) per occurrence, shall name Less-
ee, the Association and the City as additional insureds, and
shall provide that it may not be cancelled or subject to reduc-
tion of coverage or other modification except after thirty (30)
days prior written notice to Lessee, the Association and the
City.
3. INDEMNIFICATION.
3.1 Indemnification by Lessee. Lessee hereby agrees to
defend, indemnify and save the Association, the City and Irvine,
and their respective officers, employees, agents and contractors,
free and harmless from and against any and all claims, liens,
damages, losses or other liability relating to injury or loss of
life to persons or damage to property arising from or relating to
the use or maintenance of the Encroaching Improvements by Lessee
or from any breach of this Agreement by Lessee.
3.2 Indemnification by the City. The City hereby
agrees to defend, indemnify and save Lessee, and his heirs, suc-
cessors and assigns, the Association and Irvine, and their re-
spective officers, employees, agents and contractors, free and
harmless from and against any and all claims, liens, damages,
losses or other liability relating to injury or loss of life to
persons, or damage to property arising from or relating to any
work on the Easement performed by the City, or its agents, under
this Agreement or from any breach of this Agreement by the City.
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85•-287744
3.3 Indemnification by the Association. The Associa-
tion hereby agrees to defend, indemnify and save Lessee, and his
heirs, successors and assigns, the City and Irvine, and their
respective officers, employees, agents and contractors, free and
harmless from and against any and all claims,- liens, damages,
losses or other liability relating to injury or loss of life to
persons, or damage to property arising from or relating to any
maintenance work performed by the Association, or its agents,
under this Agreement or from any breach of this Agreement by the
Association.
3.4 Indemnification by Irvine. Irvine hereby agrees to
defend, indemnify and save Lessee, and his heirs, successors and
assigns, the City and the Association, and their respective offi-
cers, employees, agents and contractors, free and harmless from
and against any and all claims, liens, damages, losses or other
liability relating to injury or loss of life to persons, or dam-
age to property arising from or relating to any work performed by
Irvine, or its agents, under this Agreement or from any breach of
this Agreement by Irvine.
3.5 Interpretation of Indemnification Provisions.
Nothing in the preceding paragraphs shall be interpreted or con-
strued to require any indemnitor to indemnify any indemnitee from
any liability whatsoever arising from any negligent or intention-
al acts or omissions of such indemnitee.
4. TERM OF AGREEMENT AND TERMINATION OF A PARTY'S INTER-
EST. The provisions of this Agreement constitute covenants which
shall run in perpetuity with the Residential Parcel, the Common
Area Parcel and the Easement, and shall inure to the benefit of
and be binding upon all parties hereto, and their respective
heirs, legal representatives, devisees, grantees, successors and
assigns. Notwithstanding the foregoing, at such time as any party
hereto grants and conveys the Residential Parcel, Encroaching
Improvements, Common Area Parcel and/or Easement, as the case may
be, all of such party's rights and obligations hereunder shall
automatically cease and terminate; provided, however, the trans-
feror's right to indemnification, as set forth in Section 3
above, shall remain in full force until all pending and potential
claims and actions against such transferor are resolved or barred
by the applicable statute of limitations, and the transferor's
obligation to indemnify others, as set forth in Section 3 above,
shall remain in full force as to any claims or actions which may
arise out of the period such transferor owned an interest in the
Residential Parcel, Encroaching Improvements, Common Area Parcel
and/or Easement, as the case may be, until all pending and poten-
tial claims and actions are resolved or barred by the applicable
statute of limitations.
85--287744
5. GENERAL PROVISIONS.
5.1 Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto pertaining to the
subject matter hereof, and supersedes all prior and contempora-
neous agreements, understandings, negotiations and discussions,
whether oral or written, between the parties in connection with
the subject matter hereof, except as specifically set forth here-
in. No supplements or modifications of this Agreement shall be
binding unless executed in writing by all parties hereto and re-
corded with the County Recorder for Orange County.
5.2 Enforcement. The parties hereto shall each have
the right to enforce, by proceedings at law or in equity, all of
the terms and provisions of this Agreement, including, without
limitation, the right to prosecute a proceeding at law or in
equity against the persons or entities who have violated or are
attempting to violate any of said terms and/or provisions, to
enjoin or prevent them from doing so, to cause said violation to
be remedied and/or to recover damages for said violation.
5.3 Attorneys' Fees. In the event legal proceedings
are filed between any of the parties hereto to enforce the terms
hereof, to declare rights hereunder or to resolve any controver-
sy, claim or dispute regarding the terms and provisions of this
Agreement, the prevailing party shall be entitled to recover from
the losing party its costs of suit, including reasonable attor-
neys' fees, as may be fixed by the court.
5.4 Waiver. The failure of any party hereto to enforce
any term or provision of this Agreement shall not constitute a
waiver of the right to enforce the same term or provision, or any
other term or provision, thereafter. No waiver of any provision
of this Agreement shall be deemed or shall constitute a waiver of
any other provision herein (whether or not similar), nor shall
such waiver constitute a continuing waiver.
5.5 Mortgagee Protection. A violation of the terms or
provisions set forth herein shall not affect or impair the lien
or charge of any bona fide mortgage or deed of trust made in good
faith and for value on all or any portion of the Residential Par-
cel and/or Common Area Parcel; provided, however, that any subse-
quent owner shall be bound by the terms and provisions set forth
herein, without regard to whether such owner's title was acquired
by foreclosure, a trustee's sale or otherwise.
5.6 Construction of Agreement. This Agreement shall be
construed in accordance with, and shall be governed by, the laws
of the State of California.
5.7 Headings. The headings of this Agreement are for
the purpose of reference only and shall not limit or define the
meaning of the provisions of this Agreement.
5.8 Cooperation. The parties agree to cooperate with
each other, including, but not limited to, executing and deliver-
ing all documents and performing any act reasonably required to
implement the terms and provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have made this
85--287744
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Agreement effective on the day and year first above written.
ATTEST•
APP1 AVED AS T/FORM:
k
ROBERT B
City Attorney
CITY OF NEWPORT BEACH,
a ipal corporation
PHI IP MAU3ER, Mayor
LESSEE
ROBERT E. BURNS
.17
LOUISE H. BURNS (Trustee)
THE IRVINE COMPA 1, LESSOR
a Michigan corppration
BY:
BY:
C.B. OLSON
Vice Preent
CHICK C. WILLETTE
Assistant Secretary
THE BLUFFS HOMEOWNERS' COMMUNITY
ASSOCIATION,
a California nonprofit, mutual
benefit corporation
BY:
CLAUDE WHITNEY
President
Secretary
1
STATE OF CALIFORNIA _ Iss.
COUNTY OF f)y?,�>L°G& I
On ck'� y ,.V, / (Is- ,beforrIe me, the undersigned, a Notary Public in and for
said State, personally appeared /C�%E-ie / 't "
/-.t7 / S r - % 3 U /2 /L' -
personally known to me (or proved to me on the basis of satis-
factory evidence) to be the person(s) whose name(s) is/are sub-
scribed to the within instrument and acknowledged to me that
he/she/they executed the same.
WITNESS my hand and o
Signature
ial seal.
` ! OFFICIAL SEAL
I`;! NOTARY PUSLIC - f:ALIi OPN A �l
O^L".NGF. GO JNr i'
":y comm. expires SEP SO, 19(5 ••
(This area for official notarial seal)
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85--287 44
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
On vvm I? , 19EL, before me, the undersigned, a
Notary Public in and for said State, personally. appeared PHILLIP
MAURER, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed this instru-
ment as the Mayor of the City of Newport Beach, a municipal cor-
poration, and acknowledged to me that such municipal corporation
executed the same.
WITNESS my hand and official seal.
Signature of Notary Public
a -
OFFICIAL SEAL
DDPALD L WEBB JR.
Not-ry Public - California
ORANGE CGU'IITY
My Commission Expires Oct. 26, 1987
(SEAL)
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
On 97Z %, 19k, before me, the undersigned, a
Notary Public in and for said State, personally appeared C.B.
OLSON and CHICK C. WILLETTE, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the persons who
executed the within instrument as Vice President and Assistant
Secretary on behalf of THE IRVINE COMPANY, the corporation there-
in named, 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 hand and official seal.
Sig r tu*e of Notate Public
OFFICIAL SEAL
JOY V. GATZ
Notary Public - California
ORANGE COUNTY
My Commission Expires May 4, 1988
(SEAL)
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGES )
On ;;' c , before me, the undersigned, a
Notary Public in and for said State, personally appeared CLAUDE
WHITNEY and CHET UMBERHAM, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the persons who
executed the within instrument as President and Secretary on be-
half of THE BLUFFS HOMEOWNERS' COMMUNITY ASSOCIATION, the corpo-
ration therein named, and acknowledged to me that such corpora-
tion executed the within instrument pursuant to its By -Laws or a
resolution of its Board of Directors.
WITNESS my hand and official seal.
Signature of -Notary Public
OFFICIAL SEAL
BAR ARA REDWOOD
NOTARY PUBLIC - CALIFORNIA
ORANGE COUNTY
My comm. expires JU'N 24, 1988
(SEAL)
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