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1988-0628_MARBELLA DEVELOPMENT_Irrevocable Offer to Grant Access Easement_88-308036. 1 i 88_3 • ` RECORD FIRST AMERINGICAN TITLE INS. CQ REQUESTED BY RECORDING REQUESTED BY RECORDED IN OFFICIAL RECORDS AND WHEN RECORDED MAIL T0: OF ORANGE COUNTY, CALIFORNIA Pettis, Tester, Kruse & Krinsky E$29 1018881 Von Karman, 15th Floor -3 __ PM JUN 28'88 Irvine, California 92715 ) � Attn: Jeffrey A. Warmoth, Esq. Q.couNTY RECORDER (Space Above This Line For Recorder's Use) IRREVOCABLE OFFER TO GRANT ACCESS EASEMENT TABLE OF CONTENTS Page ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . 1 Section 1.01 - County . . . . . . . . . . . . . . . . . . . 1 Section 1.02 - Declaration . . . . . . . . . . . . . . . . . 1 Section 1.03 - Easement Area Owner . . . . . . . . . . . . . 2 Section 1.04 - Easement Users . . . . . . . . . . . . . . . 2 Section 1.05 - Marbella . . . . . . . . . . . . . . . . . . 2 Section 1.06 - Official Records . . . . . . . . . . . . . . 2 Section 1.07 - Other Easement Area Users . . . . . . . . . . 2 Section 1.08 - Rules and Regulations . . . . . . . . . . . . 2 ARTICLE II OFFER TO GRANT . . . . . . . . . . . . . . . 2 Section 2.01 - Offer to Grant . . . . . . . . . . . . . . . 2 Section 2.02 - Irrevocability of Offer to Grant . . . . . . 2 Section 2.03 - Acceptance of Offer to Grant . . . . . . . . 3 ARTICLE III TERMS AND CONDITIONS . . . . . . . . . . . . 3 Section 3.01 - Maintenance and Repair . . . . . . . . . . . 3 Section 3.02 - Control of Access . . . . . . . . . . . . . . 3 Section 3.03 - Rules and Regulations Applicable to Easement Users . . . . . . . . . . 3 Section 3.04 - Rules and Regulations Applicable to Easement Users and Other Easement Area Users . . 4 Section 3.05 - Limited Liability . . . . . . . . . . . . . . 4 ARTICLE IV GENERAL PROVISIONS . . . . . . . . . . . . . 4 Section 4.01 - Enforcement . . . . . . . . . . . . . . . . . 4 Section 4.02 - No Waiver . . . . . . . . . . . . . . . . . . 4 Section 4.03 - Cumulative Remedies . . . . . . . . . . . . . 4 i 06-22-00 F:\DOC\140\00060023.EAS Section 4.04 - Severability . . . . . . . Section 4.05 - Easement in Gross . . . . . Section 4.06 - Construction . . . . . . . Section 4.07 - Singular Includes Plural Section 4.08 - Attorneys' Fees . . . . . . Section 4.09 - Governing Law . . . . . . . Section 4.10 - Notices . . . . . . . . . . ii 06-22-08 F:\DOC\148\88060O23.EAS e?-3oao36 5 5 5 5 5 5 5 • • 8�-3080 IRREVOCABLE OFFER TO GRANT ACCESS EASEMENT THIS IRREVOCABLE OFFER TO GRANT ACCES EASEMENT (the "Offer to Grant") is made this � 'L -day of 1AweF , 1988 by MARBELLA DEVELOPMENT COMPANY, a Califo is general partnership, its successors and assigns (hereinafter "Company"). RF.0 TTAT.S A. Company is the owner and developer of that certain real property known as Marbella in the City of San Juan Capistrano (the "City"), County of Orange, State of California, a portion of which is described as: Lots Z, Q, S, T, V and Y of Tract No. 12954 as per map filed in Book 597, Pages 1 to 34, inclusive, of Miscellaneous Maps, records of said County (the "Easement Area"). B. The plan for the development of Marbella contemplates the establishment of a nonprofit mutual benefit corporation which will own the Easement Area in accordance with a recorded declaration of covenants, conditions and restrictions. C. The City has requested, and the Company has deemed it desirable, to offer to the City for the benefit of the Easement Users a non-exclusive limited access easement for automobile access over the Easement Area for the purpose of viewing the Horno Creek environment of Marbella as such terms are hereinafter defined in this Offer to Grant. NOW, THEREFORE, in consideration of the facts stated above, Company hereby irrevocably offers to grant to the City a non-exclusive limited access easement for automobile access over the Easement Area which shall be an easement in gross subject to the covenants, conditions and restrictions contained in this Offer to Grant. ARTICLE I DEFINITIONS Section 1.01 - County. "County" shall mean and refer to the County of Orange, State of California. Section 1.02 - Declaration. "Declaration" shall mean and refer to any declaration of covenants, conditions and restrictions recorded by or consented to by Company or Easement Area Owner which is applicable to the Easement Area. 06-22-88 F:\DOC\146\68060023.EAS X38-308036 Section 1.03 - Easement Area Owner. "Easement Area Owner" shall mean and refer to the owner in fee of the Easement Area. Section 1.04 - Easement Users. "Easement Users" shall mean and refer to any and all residents of the City and accompanied guests of such residents who comply with the Rules and Regulations. Section 1.05 - Marbella. "Marbella" shall mean and refer to the development comprised of Marbella Golf and Country Club and the adjacent residential community. Section 1.06 - Official Records. "Official Records" shall mean the Official Records in the office of the County Recorder of the County. Section 1.07 - Other Easement Area Users. "Other Easement Area Users" shall mean and refer to any and all persons who have access over the Easement Area other than the Easement Users, including but not limited to, owners of property within Marbella, members of the Marbella Golf and Country Club and respective guests of such persons. Section 1.08 - Rules and Regulations. "Rules and Regulations" shall mean and refer to the rules and regulations governing the use of the Easement Area by the Easement Users as set forth in Section 3.03 below and by Easement Users and Other Easement Area Users as set forth in Section 3.04 below. ARTICLE II OFFER TO GRANT Section 2.01 - Offer to Grant. Subject to the terms and conditions of this Offer to Grant, Company irrevocably offers to grant to City for the benefit of Easement Users a non-exclusive limited access easement for automobile access over the Easement Area for the purpose of viewing the Horno Creek environment of Marbella. It is the intent of this Offer to Grant to allow residents of the City reasonable access, free of undue or burdensome restrictions by Company, for the purpose of viewing this valuable scenic resource of the community. Section 2.02 - Irrevocability of Offer to Grant. This Offer to Grant may not be revoked, modified or amended by Company without the consent of the City. If City consents to modify or amend this Offer to Grant, then this Offer to Grant is terminated if the modified or amended offer to grant so provides, and such termination shall occur upon the recordation of the modified or amended offer to grant. 06-22-08 F:\D0C\140\88060023.EAS tion 2.03 - Offer to Grant may b the Official Records Irrevocable Offer to form attached hereto 88'308036 ance of Offer to Grant. Acceptance of this effected by the recordation by the City in of a Certificate of Acceptance of Grant Access Easement in substantially the as Exhibit "A". ARTICLE III TERMS AND CONDITI Section 3.01 - Maintenance and Repair. Easement Area Owner shall keep the Easement Area in a good state of maintenance and repair. Section 3.02 - Control of Access. Easement Area Owner shall have the right to manage, operate, control and maintain the Easement Area. Such right will include without limitation the right to construct and operate a guard house, card gates or other security systems at the entry to the Easement Area. Easement Area Owner shall have the right to restrict or prevent access of all Easement Users who do not comply with the Rules and Regulations. Notwithstanding anything to the contrary contained herein, Easement Area Owner shall have at all times the right to restrict or limit access for reasonable periods of time to perform maintenance on or to repair the Easement Area. reasonable rules Easement Area by shall include the les and Regulations Area Owner shall ha and regulations to the Easement Users, following: le to Easement ve the rignt to set govern the access to the which rules and regulations (a) Easement Users may be required to show a valid California driver's license to the gate guard proving residency in the City in order to enter upon the Easement Area; (b) Easement Users may be required to furnish proof of automobile liability insurance prior to entering upon the Easement Area; (c) Access shall be permitted to Easement Users between the hours of 8:00 A.M. and one-half hour before sunset, but in no event later than 8:00 P.M.; (d) Only automobiles shall be permitted access to the Easement Area; (e) Each automobile must contain at least one resident of the City; and (f) Easement Users shall not do or permit anything to be done in, on or about the Easement Area which will in any way conflict 3 06-22-86 P:\D0C\148\88060023.SAS or interfere with the quiet enjoyment of Other Easement Area Users, or which shall in any way injure or annoy Other Easement Area Users. Section 3.04 - Rules and Regulations Applicable to Easement Users and Other Easement Area Users. Neither Easement Users nor Other Easement Area Users shall use the Easement Area nor permit anything to be done in, on or about the Easement Area which will in any way conflict with any law, statute, ordinance or governmental rule or regulation or requirement of duly constituted public authorities now in force or which may hereafter be in force. Easement Area Owner shall have the right pursuant to the Declaration to promulgate additional rules and regulations to be applied to Easement Users and Other Easement Area Users, subject to prior approval by the City. Section 3.05 - Limited Liability. Nothing contained in this Offer to Grant will create liability in Company or any other Easement Area Owner for any damage or injury to or loss of any type to persons or property of any Easement User unless caused by the gross negligence or willful misconduct of Company or such other Easement Area Owner, respectively. ARTICLE IV GENERAL PROVISIONS Section 4.01 - Enforcement. The easement rights and the covenants, conditions and restrictions contained in this Offer to Grant may be enforced by any available remedy by Easement Area Owner and by City for the benefit of Easement Users. Section 4.02 - No Waiver. Failure to enforce any covenant, condition, restriction or reservation contained in this Offer to Grant in any certain instance or on any particular occasion shall not be deemed a waiver of such right on any such future breach of the same or any other covenant, condition, restriction and reservation. Section 4.03 - Cumulative Remedies. All rights and remedies under this Offer to Grant are cumulative, and no one of them shall be exclusive of any other, and Easement Area Owner and the City for the benefit of Easement Users shall have the right to pursue any one or all of such rights, options and remedies or any other remedy or relief which may be provided by law, whether or not stated in this Offer to Grant. 4 06-22-00 P:\DOC\140\00060023.EAS 4t8-308036 Section 4.04 - Severability. Invalidation of any portion of this Offer to Grant by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. Section 4.05 - Easement in Gross. The non-exclusive limited access easement for automobile access over the Easement Area shall be an easement in gross which shall burden the Easement Area. Section 4.06 - Construction. The Article and Section headings have been inserted for convenience only, and shall not be considered or referred to in resolving questions of interpretation or construction. Section 4.07 - Singular Includes Plural. Whenever the context of this Offer to Grant requires the same, the singular shall include the plural and the masculine shall include the feminine and the neuter. Section 4.08 - Attorneys' Fees. In the event action is instituted to enforce any of the provisions contained in this Offer to Grant, the party prevailing in such action shall be entitled to recover from the other party thereto reasonable attorneys' fees and costs of such suit as determined by the court or by arbitration as part of the judgment. Section 4.09 - Governing Law. This Offer to Grant shall be construed in accordance with the laws of the State of California. Section 4.10 - Notices. Any notice to be given to the City, Company or other Easement Area Owner under the provisions of this Offer to Grant shall be in writing and shall be deemed to have been properly delivered when personally delivered or delivered to a common carrier for personal delivery to the addressee, or placed in the United States mail, postage prepaid or delivered to a person giving such notice by electronic means. Any such notice shall be directed to the address of the party to whom intended as follows: If to City: If to Company: 06-22-80 F:\DOC\148\88060023.EA8 City of San Juan Capistrano, California 32400 Paseo Adelanto San Juan Capistrano, California 92675 to the business office of Company, which as of the recordation of this Offer to Grant is: 33971 Selva Road, #130 Laguna Niguel, California 92677 88-308036 If to any other Easement Area Owner: to the address of its principal place of business. Any party may change the address to which such communications are to be directed to it by giving a written notice to the other parties in the manner provided for the delivery of notices in this Section. IN WITNESS WHEREOF, Company has executed this instrument the day and year first herein above written. MARBELLA DEVELOPMENT COMPANY, a California general partnership By: THE FAIRWAY'iE"D COMPANY, a Delaware corp ration, Partner By: BACCARAT ELECTRONICS, INC., a California corporation, Partner By: By: 6 06-22-88 F:\D0C\748\88060023.EAS 88-308036 STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On June 27 , 1988 before me, the undersigned, a Notary Public in and for said State, personally appeared Jon T. Brown , personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) who executed the within instrument as President on behalf of THE FAIRWAY LAND COMPANY, the corporation that executed the within instrument on behalf of MARBELLA DEVELOPMENT COMPANY, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as a partner and that such partnership executed the same. WITNESS my hand and official seal. STATE OF CALIFORNIA ss. COUNTY OF ORANGE N tary Public in and f / said State v On , 1988 before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) who executed the within instrument as on behalf of BACCARAT ELECTRONICS, INC., the corporation that executed the within instrument on behalf of MARBELLA DEVELOPMENT COMPANY, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as a partner and that such partnership executed the same. WITNESS my hand and official seal. Notary Public in and for said State [SEAL] 06-22-88 F:\DOC\148\88060023.E0S If to any other Easement Area Owner: to the address of its principal place of business. Any party may change the address to which such communications are to be directed to it by giving a written notice to the other parties in the manner provided for the delivery of notices in this Section. IN WITNESS WHEREOF, Company has executed this instrument the day and year first herein above written. MARBELLA DEVELOPMENT COMPANY, a California general partnership By: THE FAIRWAY LAND COMPANY, a Delaware corporation, Partner By: By: By: BACCARAT ELECTRONICS, INC., a California corporation, Partner By: G �- By: 6 06-22-88 F:\D0C\748\88060023.EAS STATE OF CALIFORNIA ss. COUNTY OF ORANGE 88-308036 On , 1988 before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) who executed the within instrument as on behalf of THE FAIRWAY LAND COMPANY, the corporation that executed the within instrument on behalf of MARBELLA DEVELOPMENT COMPANY, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as a partner and that such partnership executed the same. WITNESS my hand and official seal. Notary Public in and for said State [SEAL] STATE OF CALIFORNIA ) ss. COUNTY OF '.SANTA ) CLARA 24th On June , 1988 before me, the undersigned, a Notary Public in and for said State, personally appeared JOHN D. SALERA , personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) who executed the within instrument as Vice Presidenton behalf of BACCARAT ELECTRONICS, INC., the corporation that executed the within instrument on behalf of MARBELLA DEVELOPMENT COMPANY, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as a partner and that such partnership executed the same. WITNESS my hand and official seal. am L SEAL. BELLAc-CaliforniaA COUNTY Nov. 13, 1990 Not Public in and for said State Comm. Expires 11-13-90 [SEAL] 06-22-88 F:\DOC\148\88060023.EAS Exhibit "A" CERTIFICATE OF ACCEPTANCE OF IRREVOCABLE OFFER TO GRANT ACCESS EASEMENT This is to certify that the attached Irrevocable Offer to Grant Access Easement is hereby accepted by the City as of the day of , 1988. CITY OF SAN JUAN CAPISTRANO, a municipal corporation By: Anthony L. Bland, Mayor Dated: , 1988 ATTESTED: Mary Ann Hanover, City Clerk Dated: , 1988 APPROVED AS TO FORM: By: 06-22-88 F:\DOG\148\88060023.EAS John R. Shaw, City Attorney - 88-308036 CERTIFICATE OF ACCEPTANCE This is to certify that the attached document is hereby accepted for purposes of recordation only. This acceptance is not to be construed in any way as an acceptance of the Offer to Grant embodied in the within document. Dated: � , 1988 By: Joh . Shaw, Ci Attorney 06-22-88 F:\DOC\148\88060023.EAS