03-0623_BERTOLINO TRUST (CAPISTRANO PLAZA)_IngresS/Egress/Access Easement Agreement & Deed_20030007477150
RECORDING REQUESTED BY:
ulty of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
AND WHEN RECORDED, MAIL TO:
Margaret R. Monahan, City Clerk
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Exempt from Recording Fees:
Benefits & Requested by
City of San Juan Capistrano
Recorded in Official Records, County of Orange
Tom Daly, Clerk -Recorder
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This Space for Recorder's Use Only
Title of Document:
INGRESS/EGRESS/ACCESS EASEMENT AGREEMENT AND DEED
Parties:
Ralph A. Bertolino, as Trustee of the Ralph Alan Bertolino 1996 Trust
Ralph A. Bertolino, as Trustee of the Ralph Alan Bertolino 1996 Trust DBA "Capistrano Plaza"
San Juan Capistrano Community Redevelopment Agency
City of San Juan Capistrano
THIS PAGE IS THE COVER PAGE FOR ALL CITY RECORDED DOCUMENTS
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RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Ralph A. Bertolino, Trustee
C/O Haas Accountancy Corp.
38 E. Huntington Drive
Arcadia, CA 91006-3253
Attention: Ken Haas
(Space above line for Recorder's use only)
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INGRESS/EGRESS/ACCESS EASEMENT AGREEMENT AND DEED
This INGRESS/EGRESS/ACCESS EASEMENT AGREEMENT AND DEED (this
"Agreement"), dated J- ZS'' 2003, is made by and among RALPH A. BERTOLINO,
AS TRUSTEE OF THE RALPH ALAN BERTOLINO 1996 TRUST and RALPH A.
BERTOLINO, AS TRUSTEE OF THE RALPH ALAN BERTOLINO 1996 TRUST DBA
"CAPISTRANO PLAZA" (hereafter collectively referred to as "Bertolino,"), the SAN JUAN
CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate
and politic (hereafter referred to as the "Agency"), and the CITY OF SAN JUAN
CAPISTRANO, a municipal corporation (the "City"). Bertolino, Agency and City are
sometimes referred to together as the "Parties".
In consideration of the promises made herein, the Parties agree as follows
RECITALS
A. BERTOLINO (hereafter sometimes referred to as "Grantee") is the owner of
certain real property located in the County of Orange, State of California, as more particularly
described on Exhibits "A" and "B", attached hereto and by this reference made a part hereof.
The property described on Exhibit "A' is referred to herein as the "Footprint Property", and the
property described on Exhibit "B" is referred to herein as the "Capistrano Plaza Property". The
Footprint Property and the Capistrano Plaza Property may sometimes be referred to collectively
as the "Grantee's Property".
B. The Footprint Property is improved with certain improvements, including, but not
limited to, a two story building and fences, walkways, walls and landscaping and similar
incidental items, collectively referred to herein as the "Building", and is commonly known as
26755 Verdugo Street, in the City of San Juan Capistrano, State of California.
C. The City is the owner of the public sidewalks which are immediately adjacent to
the Footprint, and of the public streets, curbs, driveways and gutters which are in turn adjacent to
such public sidewalks (collectively, the "Public Property").
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D. The Agency, by virtue of its interest as a sub lessee under that certain Ground
Lease dated March 8, 1971, between National Producers Life Insurance Company (the "Original
Lessor") as Lessor, and Provincial Properties, Inc. (the "Original Lessee") as Lessee (the "1971
Lease"), may have acquired some right, title or interest in and to some or all of the real property
or improvements ("Residual Rights Area") which surround the Footprint Property, which were a
portion of the property governed by the 1971 Lease. Although the 1971 Lease is, or by the date
of recordation of this Agreement will be, terminated, the Agency joins in this Agreement for the
purpose of insuring that no residual rights remain in Agency which could operate to prohibit or
interfere with Grantee's ingress and access to, or egress from, the Footprint Property and the
private property improved with landscaping, sidewalks, parking areas, driveways and similar
items which surrounds the Footprint Property. The Agency joins in the granting of the
easements conveyed herein as its interests, if any, may appear, and no intention to create any
new interest, or assume any obligations or liabilities which it would not otherwise have are to be
deemed to be created by virtue of such joinder.
E. The City is the owner of the Leasehold interest in the property described on
Exhibit "C" hereto (the "Parking Lot"), pursuant to that certain Ground Lease Agreement dated
July 15, 1982, between Antonin Bertolino, Echo May Bertolino, and Ralph A. Bertolino as
landlord but referred to therein as "Owner" and the City as tenant but referred to therein as "City"
(the "1982 Lease"). Bertolino is the current fee owner of the Parking Lot property, which is
adjacent to both the Footprint Property and Capistrano Plaza.
F. The City and the Agency are sometimes referred to herein collectively as
"Grantor", and the Public Property, the Parking Lot, and the Residual Rights Area are sometimes
collectively referred to herein as the "Easement Areas".
G. The Parties desire to ensure that the Footprint Property has adequate ingress,
egress and access to and from the Building and the Public Property, the Residual Rights Area,
and the Parking Lot, and have entered into this Agreement to accomplish same.
Therefore, the Parties agree as follows:
1. Grant of Easement By City. The City hereby grants to Grantee, its successors
and assigns with respect to Grantee's interest in the Building and the Footprint Property, a
perpetual, non-exclusive easement for pedestrian and vehicular (but only to the extent vehicular
access is consistent with the level of improvement of the Public Property and the Parking Lot)
and is otherwise in conformity with all applicable laws, rules and regulations) ingress, egress and
access (a) to the Footprint Property and the Building from the Public Property which is
contiguous to the Building or the Footprint Property, or which is otherwise reasonably necessary
to provide usual and customary ingress, egress and access to and from the Building and Footprint
Property, and (b) to and from the Parking Lot .to the Building and the Footprint Property, and to
and from the Building or Footprint Property to the Parking Lot.
2. Grant of Easement By Agency. The Agency, as and if its interest in the servient
tenement may appear, hereby grants to Grantee, its successors and assigns with respect to
Grantee's interest in the Building and the Footprint Property, a perpetual, non-exclusive
easement for pedestrian and vehicular (but only to the extent vehicular access is consistent with
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the level of improvement of the Residual Rights Area) and is otherwise in conformity with all
applicable laws, rules and regulations) ingress, egress and access to the Footprint Property and
the Building from the Residual Rights Area which is contiguous to the Building or the Footprint
Property, or which is otherwise reasonably necessary to provide usual and customary ingress,
egress and access to and from the Building and Footprint Property.
3. Reservation of Rights. The City, and its respective successors and assigns, and
the Agency and its respective successors and assigns, with respect to the Residual Rights Area,
each hereby reserve the right to use same for any purpose whatsoever so long as such use does
not unreasonably interfere with the continuous and uninterrupted use of the easements by
Grantee.
4. General Management of Easement Areas.
(a) Obstruction of Easement Areas. Neither the City nor the Agency nor
either of their employees, agents, subtenants, licensees, contractors will impair, nor will they
permit the impairment by any of their respective guests, occupants, invitees and/or permitted of
the continuous and uninterrupted use by Grantee of the easement rights granted herein, for the
purposes set forth in this Declaration.
(b) No Charge. Neither the City nor the Agency shall collect, attempt to
collect or permit the collection of any charge for the use of, or access to or through any portion
of the Easement Areas.
(c) Maintenance of Easement Areas. Except as provided specifically
herein, all maintenance and repairs, whether ordinary or extraordinary, capital or expense in
nature, major or minor, of the Easement Areas shall be performed by their respective owners,
which, as used herein, shall mean the Grantor with respect to each portion of such Areas, at their
sole cost and expense. All such work shall be performed in such manner and at such intervals so
that the Easement Areas shall at all times be in a clean, safe and sanitary condition.
General Provisions.
(a) Related Rights. The Easements granted herein shall also include such
other incidental and related rights as are reasonably necessary for Grantee to enjoy and enforce
its rights, and perform its duties, created herein
(b) Indemnity. Grantor agrees to, and shall, indemnify, defend, hold
harmless the City or the Agency, as relevant, from and against any and all liabilities, judgments,
claims, demands, losses, damages, costs, including costs of defense, expenses and fees (including
reasonable attorneys' fees and costs) arising from or related to the exercise of any easement
rights by Grantee in a manner inconsistent herewith.
(c) Easements and Covenants Binding on Successors and Assigns. The
Easements and the terms, rights, conditions, restrictions and limitations contained herein with
respect thereto shall burden and run with the property interests of the Grantors with respect to
their respective property, shall be appurtenant to and run with the Footprint Parcel and the
Building (including any replacement of same), and shall inure to the benefit of Grantee and any
38483.00014MCH0LMSVRVU 11000.1 3
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subsequent owner of the Building or the Footprint Property and their respective successors and
assigns. The benefit and burdens of the Easements and covenants contained in this Agreement
shall run with the referenced properties and property interests as covenants and equitable
servitudes running with the land.
(d) Exclusivity. The Easements granted hereunder are non-exclusive and
each Grantor reserves the right to use and grant other easement rights in and to the Easement
Areas, provided that such use and easement rights shall not materially interfere with the
Easement rights granted hereunder.
(e) Enforcement Rights.
(i) Any Party, or their successors as provided herein, may enforce the
provisions of this Agreement (i) by a suit for declaratory relief to determine the enforceability of
any of the terms hereof, (ii) by an action in equity or otherwise for specific performance to
enforce compliance with the terms hereof or for any injunction to enjoin the continuance of any
breach or violation thereof, or (iii) through any other right or remedy to which such Party may be
entitled at law or in equity.
(ii) The rights and remedies established under this Agreement shall be
deemed to be cumulative; and no one of such rights and remedies shall be exclusive of any other
right or remedy which any Party might otherwise have by virtue of the terms of this Agreement
or under law. The exercise of any particular right or remedy shall not impair the right to exercise
any other right or remedy.
(f) No Waiver. No waiver of any default hereunder shall be implied from
any omission by any Party to take any action with respect to such default, if such default
continues or is repeated. No express waiver of any default shall affect any default or cover any
period of time other than the default and period of time specified in such express waiver. A
waiver of any default in the performance of any provision contained in this Agreement shall not
be deemed to be a waiver of any subsequent default in the performance of the same provision or
any other provision contained herein.
(g) Mortgagee Protection. A breach of any or all of the terms, conditions,
covenants or restrictions of this Agreement shall not defeat or render invalid the lien of any
mortgage or deed of trust on the Easement Areas or the Footprint Property or the Building, but
such terms, covenants, conditions, and restrictions shall be binding upon and effective against
any parties whose title to such properties, or any portion thereof, is acquired by foreclosure,
trustee's sale or otherwise.
(h) Attorneys' Fees. In the event of any controversy, claim or dispute
relating to this Agreement or any breach thereof, the prevailing party shall be entitled to recover
from the other party or parties its reasonable attorneys' fees and costs.
(i) No Rights in Public. Nothing herein contained shall be deemed to create
any rights in the general public, nor be deemed to be a gift or a dedication of any portion of any
of any of the described property to or for the general public or for any public purpose
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whatsoever, it being the intention that this Agreement shall be strictly limited to and for the
purposes herein expressed.
0) General Interpretation.
(i) This Agreement shall be governed by, enforced and construed in
accordance with the laws of the State of California. If any term, provision or condition contained
in this Agreement (or the application of any such term, provision or condition) shall to any extent
be invalid or unenforceable, the remainder of this Agreement shall be valid and enforceable to
the fullest extent permitted by law. The exhibits attached hereto are incorporated herein by this
reference for all purposes.
(ii) When the context in which the words are used herein indicates that
such is the intent, words in the singular number shall include the plural and visa versa. All
pronouns and any variations thereof shall be deemed to refer to all genders, and the terms Owner,
Grantor, and Grantee shall include natural individuals, associations, trusts, estates and all other
form of business entities. The captions of the paragraphs and subparagraphs herein are for
convenience of reference only and shall not be considered or referred to in resolving questions of
interpretation or construction.
(iii) In all cases the language in all parts of this Agreement shall be
construed simply, according to its fair meaning under California law.
6. Counterparts. This Ingress/Egress Easement Deed may be executed in
counterparts and shall become effective upon execution by all the parties hereto and each such
counterpart shall be deemed to be an original.
7. Modifications. No alteration or variation of this term of this Agreement shall be
valid unless made in writing and signed by the parties hereto and recorded, and no oral
understanding or agreement not incorporated herein shall be binding on any of the parties hereto.
CONTINUED ON NEXT PAGE
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8. Attorneys' Fees. In the event of controversy, claim or dispute between the
parties hereto arising out of or relating to this Agreement or the breach thereof, the prevailing
party shall be entitled to recover from the other party reasonable expenses, reasonable attorneys'
fees and reasonable costs.
IN WITNESS WHEREOF, the parties hereto have executed this agreement on the dates
opposite their respective signatures.
"GRANTOR"
CITY OF
Dated: d�JlL� , 2003
Dated: UA -C, , 2003
Approved as to Form:
Dated: -4--ZS 2003
Dated: 5-7- Y' 2003
38483.0001 \MCH0LMS\IRV9 11000.1
Wyatt<19art, Chairman
ATTEST:
v
a are R. lonahan, City Cler
EST:
do, t/ V
la garet R. Mon an, Agency Secretary
"GRANTEE"
RALPH A. BERTOLINO, TRUSTEE OF THE
RAL A. BERTOLINO 1996 TRUS
Ra ph A. Beh o, Trustee
RALPH A. BERTOLINO, TRUSTEE OF THE
RALPH A. BERTOLINO 1996 TRUST DBA
CAPISTRANO PLAZA /%
State of California )
) ss.
County of J-0-� ►LAC )
On V" ag —, 2003 before me, Liu (rt^TM
personally Reared K&�frpdn H • E�.P.rto- vz- `--
personally known to me ( me ) to be the
personVwhose name(*Osre subscribed to the within instrument and acknowledged to me that
(0&he/they executed the same if tfi 'her/their authorized capacity(ies), and that b i /their
signatureA on the instrument the person(J6, or the entity upon behalf of which the person( -8j
acted, executed the instrument.
WITNESS my hand and official seal. ����
Signature of the Notary ga'c" 4X�k — / Y
My Commission Expires lot 2DD
JACQUELINE MONTERREY JACQUELINE MONTERREY
Commission # 1373684
Commission # 1373884
Notary Public - California _ Notary Public - California
Los Angeles County ('
State of California ) MYComm.E)OtesSep10 M06 Los Angeles County
s . My Comm. E>�fresBaP 10, 2008
County of ) }
On v 2003 before me, *ht—
re- Up p
personally appeared ►�a X�J.4� Q f�2>'Cr(�wo
personally known to me ( ved t be the
person(a) whose name(4(5Ya subscribed to the within instrument and acknowledged to me that
(5she/they executed the same i�y /her/their authorized capacity(ies), and that byii her/their
signatureo on the instrument the person(4, or the entity upon behalf of which the persoro)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature of the Notary 9�y_
My Commission Expires p JOa at)6
JACQUELINE MONTERREY
Commission # 1373884
Notary Public - California 3
Los Angeles County
MY Corrin. E)0wSep 10.2006
38483.0001 \tACHOLMS\IRV \311000.1
PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT
State of California )
County of Orange ) ss.
City of San Juan Capistrano )
(Gov't Code 40814 & Civil Code 118 1)
On June 3, 2003 before me, Muret R. Monahan, City Clerk, personally appeared John S. Gelff,
personally known to me to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and that by his signature
on the instrument the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
R. Monahan, City Clerk
PUBLIC AGENCY FORM OF
State of California )
County of Orange ) ss.
City of San Juan Capistrano )
(Gov't Code 40814 & Civil Code 1181)
On June 3. 2003 before me, Margaret R. Monahan, City Clerk, personally appeared Wyatt Hart,
personally known to me to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and that by his signature
on the instrument the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
OC-
R. Monahan, Agency Secretary
0
38483.0001 \MCHOLMS\IRV \311000.1
EXHIBIT A
GRANTEE'S PROPERTY
RAYMOND R. TOAL, RCE 16889
OLAV S. MEUM, LS 4384
MICHAEL A. ROTH, IS 6211
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TOAL ENGINEERING, INC.
CIVIL ENGINEERS, LAND PLANNERS AND LAND SURVEYORS
139 AVENIDA NAVARRO - SAN CLEMENTE, CA 92672
(949) 492-8586 - FAX(949)498-9625
Exhibit A
LEGAL DESCRIPTION
MAILING ADDRESS
P.O. BOX 387
SAN CLEMENTE, CA 92674
In the City of San Juan Capistrano, County of Orange, State of California, being that
portion of Lot 4 in Tract 134, as shown on a map recorded in Book 11, Page 23 of Miscellaneous
Maps, records of said Orange County, more particularly described as follows:
Beginning at the most Southeasterly comer of said Lot 4; thence along the Southerly
boundary of said Lot 4 South 84°02'00" West 47.59 feet to the beginning of a curve concave
Northerly and having a radius of 17.00 feet; thence Westerly along said curve through a central
angle of 59°51'31" an arc length of 17.76 feet; thence non -tangent to said curve North 6°34'00"
West 51.55 feet; thence North 81°22'31" East 14.03 feet; thence North 4°50'36" West 3.92 fat;
thence North 84'32'12" East 48.07 feet to a point in the Easterly boundary of said Lot 4; thence
along said boundary South 6°34'00" East 64.17 feet to the POINT OF BEGINNING.
OLAV S.
MEUM
EXPIRES
9-30-05 x
N0.4384
�t Olav S. Meum LS 4384
AS:as
11145legal
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EXHIBIT B
EASEMENT PROPERTY
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The land is situated in the County of Orange, City of San Juan Capistrano, State of California, and is
described as follows:
Lot 1, 2, 3, 4, 5, 6 and 7 of Tract No. 134, in the City of San Juan Capistrano, County of Orange,
State of California, as per map recorded in Book 11, Page(s) 23, of Miscellaneous Maps, in the
Office of the County Recorder of said County.
Excepting therefrom that portion of Lot 7 lying Easterly of a line described as beginning at a point in
the Northerly line of said Lot 7, distance thereon 35 feet Westerly from the Northeast comer of said
Lot 7; thence South 2122'30" East to the Southerly line of said Lot 7.
38483.0001 WCHOLMSURV1317231.1