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HomeMy WebLinkAboutC-2063(A) - Encroachment Agreement (for Bluff Residential Lot Lease Parcel 20 & 20G)cC-4 VI VI c.c:1_ Ace( ,dation First American Title Company When Recorded Return to: 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 85--320549' Recorded at the request of FIRST AMER. TITLE INS. CO. 8:°° AUG2 71985 A.M. RECORDER: INDEX AS AN AGREEMENT $21.00 Othual Records Orange County. Cahlorn 3 Become, (Space Above Line for Recorder's Use) ENCROACHMENT AGREEMENT THIr'ENCROACHMENT A9C.REEMENT is made effective this day of ,�,�� , 19 , by and among the CITY OF NEWPORT BEACH, a mu i6ipal corpora ion (hereinafter referred to as the "City"), TH 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 WILLIAM S. HOLSTEIN, Trustee of Trust "A" of Declaration of Trust Dated April 6, 1967 Executed by George (hereinafter referred to as the "Lessee") . M. Holstein and Susan P. Holstein Trustors and Trustees. 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: Parcel 20 & 20Gas 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 27_ , 19 64 , as Instrument No. 23211 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. 83-432976 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 85--3205,19 Lewis E. Scott, etc., et al., vs. The Irvine Company, etc., et al., No. 371066 (hereinafter referred tows 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) hPlow; 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- -2- 85--320549 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--320549 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. -4- 85--320549 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--320549 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 prow sii on 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--320 549 Agreement effective on the day and year first above written. ATTEST: CITY CLERK 1( APPROVED AS TO. ORM: IOERT U HAM City Attorney c ro a E 0 U a) 0 U E 0 LL CO =o c N CO 0 O co CITY OF NEWPORT BEpiCH, a munal corporation BY: U Ma,or LESSEE J THE IRVINE COMPANY, LESSOR a Michigan corporation BY: BY: C.B. OLSS Vice Pr dent 4/4/4U- � e CHIC C. WILLETTE Assistant Secretary THE BLUFFS HOMEOWNERS' COMMUNITY ASSOCIATION, a California nonprofit, mutual benefit corporation BY: BY: CLAUDE WHITNEY President Secretary STATE OF CALIFORNIA COUN� OF OranP,Q ��� Onu--K �P. William said State, per Wally appeared 1 )ss. ,before me, the undersigned, a Notary Public in and f S. Holstein, Trustee personally known to me (or proved to me on the basis of satis- :.s.i 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 official seal. OFFICIAL SEAL i:.4ARIAN L. JOHNSON NOTARY PJ&LIC- CAUFORNIA PRINCIPAL OFFICE IN ORANGE COUNTY MY COMMISSION EXPIRES 111LY 28, 1986 l JI J (This area for official notarial seal) 85--320549 STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE ) On 3 GU/l e , 19 US, 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 ) OFFICIAL SEAL DONALD L. WEBB 1R. Notary Public - California ORANGE COUNTY My Commission Expires Oct. 26, 1987 r.r (SEAL) On 7 , 19c,; , 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. OFFICIAL SEAL JOY V. aA T Z Notary Public - California ORANGE COUNTY My Commission Expires May 4, 1988 (SEAL) STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE On � /6 , 195, 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 OfltCIAL SEAL BARBARA REDWOOD NOTARY PUBLIC - CALIFORNIA ORANGE COUNTY 11ly comm. expires MN 24, 1988 (SEAL) SHEET 4 OF 14 SHEETS VISTA DEL ORO 85 - 32O549 EXHIBIT "4d EASEMENT MAP (126) 1 9G 20G (22G) (23G) (20) czow AVENIDA CHICO 0 5 1015 20 40 60 5NEET 47 or )34-