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HomeMy WebLinkAboutC-2063(C) - Encroachment Agreement (for Bluff Residential Lot Lease Parcel 54 & 54G)44 85--295177 --W`)ki'--) erlean ?'itle Compaq y When Recorded Return to: THE IRVINE COMPANY 550 Newport Center Drive Post Office Box I Newport Beach, California 92660-0015 $23.00 Recorded at the request of FIRST AMER. TITLE INS. CO. 8:00 AUG 91985 A.M. Othciai Records Orange County. Cai,torma Attention: Marketing, Sales and Business Operation Community Development Division RECORDER: INDEX AS AN AGREEMENT Recorder (Space Above Line for Recorder's Use) ENCROACHMENT PERMIT THIS ENCROACHMENT PERMIT is made effective this 5 day of �� , 19, by and among the CITY OF NEWPORT BEACH, a mucipal 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 EARL R. WICKHAM and ELEANOR A. WTC.KHAM husband and wife as joint tenants (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 54 & 54G 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 , 1964 , and recorded on November ] ] , 19 64 , as Instrument No. 23245 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. 83-432V6 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 THIS INSTRUMENT FILED FOR REOURil BY FIRST AL RICRN TITLE INSURANCE COMPANY AS AM ACCOMMODATION ONLY. IT HAS NOT BEEN EXAMINED AS TO ITS EXEOUTIOIN OW AS TO ITS EFFECT UPON THE TITLE TLP102 041185 85-_295177 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 "Re- stated 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 Of- ficial Records of Orange County, California (hereinafter referred 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 Per- mit 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 Permit. 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, as provided in subparagraph (c) 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) Reconstruction of the Encroaching Improve- ments by Lessee. In the event the City removes the Encroach- ing Improvements, as provided in paragraph 1.3(b) herein - below, Lessee may, at his sole cost and expense, reconstruct the Encroaching Improvements to substantially the same con- -2- 85--295177 dition as they existed immediately prior to the removal thereof. Lessee acknowledges that if he elects to recon- struct the Encroaching Improvements, he does so at his own risk that the City may again have to remove said Improve- ments, as provided in paragraph 1.3(b) below. (d) 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- 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 have any obligations concerning the Encroaching Im- provements. 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 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 other facil- ities located within such Easement, the City may, at its sole cost and expense, demolish and remove any or all of the Encroaching Improvements. Thereafter, the City shall not have any obligation whatsoever to reconstruct the Encroach- ing Improvements. (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. 85--2951'7'7 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 Permit, as provided in Section 4 hereinbelow, 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 in- juries in any (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 Permit, 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 Permit, 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, maintenance and/or reconstruction of the Encroaching Im- provements by Lessee or from any breach of this Permit 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 Permit or from any breach of this Permit by the City. -4- 85--295172 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 of 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 Permit or from any breach of this Permit by the Asso- ciation. 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 Permit or from any breach of this Permit 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 PERMIT AND TERMINATION OF A PARTY'S INTEREST. The provisions of this Permit 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, le- gal representatives, devisees, grantees, successors and assigns. Notwithstanding the foregoing, at such time as any party hereto grants and conveys the Residential Parcel, Encroaching Improve- ments, Common Area Parcel and/or Easement, as the case may be, all of such party's rights and obligations hereunder shall auto- matically 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--295177 5. GENERAL PROVISIONS. 5.1 Entire Agreement. This Permit constitutes the en- tire agreement between the parties hereto pertaining to the sub- ject matter hereof, and supersedes all prior and contemporaneous permits, agreements, understandings, negotiations and discus- sions, whether oral or written, between the parties in connection with the subject matter hereof, except as specifically set forth herein. No supplements or modifications of this Permit 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 Permit, including, without limi- tation, the right to prosecute a proceeding at law or in equity against the persons or entities who have violated or are attempt- ing to violate any of said terms and/or provisions, to enjoin or prevent them from doing so, to cause said violation to be reme- died 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 contro- versy, claim or dispute regarding the terms and provisions of this Permit, the prevailing party shall be entitled to recover from the losing party its costs of suit, including reasonable attorneys' 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 Permit 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 Permit 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 California Law. This Permit 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 Permit are for the purpose of reference only and shall not limit or define the mean- ing of the provisions of this Permit. 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 Permit. IN WITNESS WHEREOF, the parties hereto have made this 85--29517` (6/8 ) (Individual) First American Title Company Permit effective on the day and year first above written. ATTEST: OBERT BURNHAM City Attorney CITY OF NEWPORT BEACH, a ityun' cipal corporation 4 PHILLII MAURE�t,J Mayor aORM: LESSEE THE IRVINE COMPANY, LESSOR a Michigan corporation BY: BY: C.B. OLSON Vice Pres CHICK C. WILLETTE Assistant Secretary THE BLUFFS HOMEOWNERS' COMMUNITY ASSOCIATION, a California nonprofit, mutual benefit corporation BY: BY: CLAUDE WHITNEY President Hi/v7''' UMB C ERH Secretary 85--29517? } STATE OF CALIFQRNIA }ss. COUNTY OF grange } On August 5 1 98 5 ,before me, the undersigned, a Notary Public in and for said State, personally appeared Earl R. Wickham and Eleanor A. Wickham 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 • i ial seal. Signature DAMES P. LYNCH NOTARY PUBUC • CALIFORNIA PRINCIPAL OFFICE IN MANGE COUNTY CIF Coriusission Exp. Aug. 18, 1986 (This area for official notarial seal) 85--295177 STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE ) On ()CUINa 1 3 , 19 o S, 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 STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE IsameASUMIde OFFICIAL SEAL DONALD L WEBB 1R. Nota,y Public - California ORANGE COUNTY My Commission Expires Oct. 26, 1987 (SEAL) On7 , 19_, before me, the undersigned, a Notary Public inand 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. Signs u e of No ar ublic STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE ) OFFICIAL SEAL JOY V. GATZ Notary Public - California ORANGE COUNTY My Commission Expires May 4, 1988 (SEAL) On , 19 S , before me, the undersigned, a Notary Public A n 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 BARBARA REDWOOD NOTARY PUBLIC - CALIFORNIA ORANGE COUNTY My comm. expires JUN 24, 1988 (SEAL) 85--295177 SHEET 7 OF 14 SHEETS EXHIBIT "A" EASEMENT MAP SEE SHEET 3 OF 14 SHEETS TRACT NO. M. M. 2 0 0 / T 53 (53) e NOT -A -PART 5435 LOT O U 52 (521 51G (51G) 52G (52G) 53G (53G) 56 (56) 126 (126) 54G (54G) SEE SHEET 8 OF 14 SHEETS 55G (55G) 7 5 L \ F \ J --_AZzge 0 5 101520 CO 40 -t 60 GRAPHIC SCALE/ 1'•20• 1 SHEET 7O or 4.