HomeMy WebLinkAboutC-9272-4 - East Coast Highway, 201 - Access and Parking Easement 2024 (Balboa Marina West - Public Docks)1144 56�A
RECORDING REQUESTED BY
FIRST AMERICAN TITLE CO.
NATIONAL COMMERCIAL SERVICES
RECORDED REQUESTED BY AND
WHEN RECORDED, RETURN TO:
City of Newport Beach
100 Newport Center Drive
Newport Beach, CA 92660
Attn: City Clerk
WITH A COPY TO:
Irvine Management Company
550 Newport Center Drive
Newport Beach, CA 92660
Attn: General Counsel's Office
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
R I I II I[ I 111 11 III 111111 II NO F E E
*$ R 0 0 1 4 8 6 1 4 2 3 $ *
2024000074776 10:14 am 03/27124
371 NC-5 E02 12
0.00 0.00 0.00 0.00 33.00 0.00 0.000.000.00 0.00
The undersigned declares that this document is recorded at the request of and for the benefit of the City of Newport Beach and is therefore
exempt from the payment of the recording fee pursuant to Government Code Section 6103 and from payment of the documentary transfer tax
pursuant to Revenue and Taxation Code Section 1922.
Space above this line for Recorder's Use Only
ACCESS AND PAMNG EASEMENT
(Public Docks Adjacent to Balboa Marina)
WHEREAS, THE IRVINE COMPANY LLC, a Delaware limited liability company
("Company") is the owner of land more particularly described on Exhibit "A" and depicted on
Exhibit "A-l" attached hereto (the "Land").
WHEREAS, in connection with its construction and dedication of land and improvements
(collectively, the "Public Docks") to the CITY OF NEWPORT BEACH, a California municipal
corporation and charter city ("City"), which Public Docks are to be used as a boat berthing
facility for free, public, transient use, City has requested an access and parking easement over the
Land in order to maintain and repair the Public Docks in the future. The dedication of the Public
Docks was made pursuant to that certain Gift Deed dated Fa&-Ra!2q IS 2-D29 by and between
Company and City and recorded in the Official Records of Orange County, California ("Official
Records") on MA" 2-7, 202y , as Instrument No. ZDL4I h060-714SSS (the "Gift Deed").
WHEREAS, subject to the terms and conditions set forth below, Company is willing to
grant to City (i) an access easement over a portion of the Land consisting of drive aisles between
Pacific Coast Highway and the Public Docks, as such drive aisles locations may be modified
from time to time by Company in its sole discretion (the "Access Easement Area"), and (ii) a
parking easement over a portion of the Land consisting of up to three (3) available parking
spaces, as such parking spaces locations may be modified from time to time by Company in its
sole discretion (the "Parking Easement Area"; collectively with the Access Easement Area, the
"Easement Areas"), and City is willing to accept the terms and conditions set forth in this
Access and Parking Easement.
58475_2
IM F&SA
RECORDING REQUESTED BY
FIRST AMERICAN TITLE CO.
NATIONAL COMMERCIAL SERVICES
RECORDED REQUESTED BY AND
WHEN RECORDED, RETURN TO:
City of Newport Beach
100 Newport Center Drive
Newport Beach, CA 92660
Attn: City Clerk
WITH A COPY TO:
Irvine Management Company
550 Newport Center Drive
Newport Beach, CA 92660
Attn: General Counsel's Office
The undersigned declares that this document is recorded at the request of and for the benefit of the City of Newport Beach and is therefore
exempt from the payment of the recording fee pursuant to Government Code Section 6103 and from payment of the documentary transfer tax
pursuant to Revenue and Taxation Code Section 1922.
Space above this line for Recorder's Use Only
ACCESS AND PARKING EASEMENT
(Public Docks Adjacent to Balboa Marina)
WHEREAS, THE IRVINE COMPANY LLC, a Delaware limited liability company
("Company") is the owner of land more particularly described on Exhibit "A" and depicted on
Exhibit "A-1" attached hereto (the "Land").
WHEREAS, in connection with its construction and dedication of land and improvements
(collectively, the "Public Docks") to the CITY OF NEWPORT BEACH, a California municipal
corporation and charter city ("City"), which Public Docks are to be used as a boat berthing
facility for free, public, transient use, City has requested an access and parking easement over the
Land in order to maintain and repair the Public Docks in the future. The dedication of the Public
Docks was made pursuant to that certain Gift Deed dated %brtcary IS 2 2-'4 by and between
Company and City and recorded in the Official Records of Orange County, California ("Official
Records") on MAP -CH 2-7, 202y , as Instrument No. 2DIt bOOD-WSS5 (the "Gift Deed").
WHEREAS, subject to the terms and conditions set forth below, Company is willing to
grant to City (i) an access easement over a portion of the Land consisting of drive aisles between
Pacific Coast Highway and the Public Docks, as such drive aisles locations may be modified
from time to time by Company in its sole discretion (the "Access Easement Area"), and (ii) a
parking easement over a portion of the Land consisting of up to three (3) available parking
spaces, as such parking spaces locations may be modified from time to time by Company in its
sole discretion (the "Parking Easement Area"; collectively with the Access Easement Area, the
"Easement Areas"), and City is willing to accept the terms and conditions set forth in this
Access and Parking Easement.
58475_2
NOW, THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Grant of Access Easement. Company hereby grants to City a perpetual easement
(the "Access Easement") of ingress and egress over the Access Easement Area.
2. Grant of Parking Easement. Company hereby grants to City a perpetual easement
(the "Parking Easement"; together with the Access Easement, the "Easements") to park up to
three (3) maintenance or service vehicles in the Parking Easement Area.
3. Nature of Easements. The Easements conveyed hereunder are limited solely to
use by City and its employees, contractors, invitees and agents (collectively, the "City Parties")
in connection with City's maintenance, repair and replacement of the Public Docks, and only
between the hours of 7:OOam and 6:OOpm Monday thru Friday while maintenance and repair
work is being performed on the Public Docks. No rubbish, trash, garbage, refuse, debris or
materials of any kind shall be placed or abandoned by City on the Easement Areas. In the event
any such materials are left on the Easement Areas, City shall promptly clean the affected portions
of the Easement Areas to Company's reasonable satisfaction. The use of the Easements shall be
subject to Company's access and parking rules and regulations related to the Land, as such rules
and regulations may be modified from time to time by Company in its sole and absolute
discretion upon written notice thereof to City. If Company permits, in its sole and absolute
discretion, staging of equipment on any portion of the Land in connection with City's
maintenance, repair or replacement of the Public Docks, such staging of equipment will be part
of the Easements granted hereunder, and the location thereof will be part of the Easement Areas,
and subject to all terms and conditions of this Access and Parking Easement and any other terms
and conditions required by Company in connection with Company's consent to such staging of
equipment.
4. Subject to Matters of Record or Apparent. In addition to the terms and conditions
set forth in this Access and Parking Easement, the Easements conveyed to City hereunder shall
be subject to all easements, covenants, conditions, restrictions, reservations, rights and rights -of -
way of record prior to the date hereof or apparent or of which City has actual or constructive
notice.
5. Non -Exclusive Rights. City's use of the Easement Areas shall be non-exclusive,
and Company retains the rights to use and to grant to others the non-exclusive right to use the
property burdened by the Easements for any and all lawful purposes, to the extent such uses, or
any of them, do not unreasonably interfere with the exercise by City of the rights granted
hereunder.
6. Repairs & Maintenance Activities. The parties acknowledge that the Easements
affect land that is part of an existing marina operation (the "Marina") and, in order to minimize
inconveniences to the Marina operations arising from exercise of the rights and obligations under
these Easements to the extent reasonably possible, agree to the following with respect to City's
use of the Easement Areas:
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a. Minor Maintenance and Repair. Prior to entering the Easement Areas to perform
any maintenance or repair of the Public Docks that does not require use of a
staging area, City shall provide telephonic notice to Company's marina leasing
office (the "Marina Office") at least two (2) business days prior to
commencement of the proposed maintenance.
b. Major Maintenance, Repair or Replacement. Prior to entering the Easement Areas
to perform repair or replacement or maintenance of the Public Docks that will
require the use of staging area(s), City shall provide written notice (each, a
"Maintenance Notice") to the Marina Office at least five (5) business days prior
to such entry (except in case of emergency, in which event City shall provide such
notice to the Marina Office within three (3) business days after such entry
detailing the nature and time of such entry). Each Maintenance Notice shall
contain a description of the matters listed on Exhibit `B" attached hereto and
incorporated herein by this reference. Prior to commencement of City's use of the
Easement Areas pursuant to a Maintenance Notice, City's representative and
Company's General Manager of the Marina Office (or such other representative of
Company as designated from time to time) shall meet and coordinate with respect
to the final locations for staging, parking and other matters set forth in the
Maintenance Notice in order to reasonably minimize inconvenience to Marina
operations arising from the proposed work.
C. Cleanup & Other Obligations During Maintenance & Repair Activities. City shall
clean the staging area(s) of the Easement Areas at the end of the period of its entry
and shall clean the vehicle parking areas of the Easement Areas at the end of each
day during the period of its entry, and shall comply with all applicable laws,
ordinances and regulations, including but not limited to those regarding surface
drainage, groundwater and surface water quality applicable to such cleanup
activities. In exercising its rights under this Access and Parking Easement, City
will cooperate with the Company's General Manager of the Marina Office to
minimize interference with the use, access, ingress and egress over the Easement
Areas and other Marina operations.
7. Damage to Company Improvements. If any of the City Parties damage any
improvements on the Land, City shall reimburse (or shall cause the applicable City Parties to
reimburse) Company for the cost of replacement and restoration of any such damaged
improvements (whether "standard" or "non-standard"). City shall make (or cause the applicable
City Parties to make) such reimbursement to Company within thirty (30) days of City's receipt of
Company's invoice and backup documentation, if any, substantiating the replacement and
restoration work performed.
8. Liens. City shall not suffer, cause or permit any liens of any kind related to City's
activities or City's repair work to be filed against the Easement Areas or any other portion of the
Land or any improvements thereon. If any such lien is filed, City shall, at its sole cost and
5847s_2 3
expense, promptly take such actions as are necessary to cause the lien to be satisfied and
discharged or to cause such lien to be removed of record.
9. Insurance. City shall require its contractors that utilize the Easement Areas to
obtain, provide and maintain at all times during such use of the Easement Areas, at no cost or
expense to Company, policies of liability insurance of the types and amounts described below.
Certification of all required policies shall be signed by a person authorized by that insurer to bind
coverage on its behalf and must be filed with Company prior to use of the Easement Areas. Said
policies shall be for the following coverages and shall be issued by companies authorized or
licensed to do business in California and assigned Best's A- VII or other rating acceptable to
Company:
a. Workers compensation insurance, including a "Waiver of Subrogation" clause,
covering all employees of such contractor, per the laws of the State of California.
b. Commercial general liability insurance, including additional insured and primary
and non-contributory wording, covering third parry liability risks, in a minimum
amount of one million dollars ($1,000,000) combined single limit per occurrence
for bodily injury and property damage. If commercial general liability insurance
or other form with a general aggregate is used, either the general aggregate limit
shall apply separately to the work to be performed under this Access and Parking
Easement, or the general aggregate limit shall be twice the occurrence limit.
C. Commercial auto liability insurance, covering any owned, hired and non -owned
vehicles of such contractor in a minimum amount of one million dollars
($1,000,000) combined single limit per accident for bodily injury and property
damage.
Company may, from time to time and upon prior written notice to City, require increases in the
amounts of coverage specified above to conform with the levels of insurance required by
Company in contracts for similar maintenance work.
City shall require its contractors to provide Company with an endorsement to contractor's
commercial general liability policy providing ongoing and completed operations coverages for
the additional insureds listed below and shall contain the following language or otherwise
include the following coverages generally:
"It is understood and agreed that coverage afforded by this policy shall also apply to The Irvine
Company LLC, Irvine Management and all persons and entities controlling, controlled by, or
under common control with such entities, and any lender with an interest in the Land and/or any
improvements thereon, together with their respective owners, shareholders, partners, members,
divisions, officers, directors, employees, representatives and agents, and all of their respective
successors and assigns, as additional insureds, but only with respect to legal liabilities or claims
caused by, arising out of or resulting from the acts or omissions of the named insured or of others
performed on behalf of the named insured. This insurance is primary and any other insurance
maintained by such additional insureds is excess and shall not be required to contribute with this
58475_2 4
insurance as respects claims or liability arising out of or resulting from the acts or omissions of
the named insured, or of others performed on behalf of the named insured. Any of such
additional insureds may, at his/her/its election, pay any self -insured retention or deductible
amount in connection with any claim or liability for which coverage is or may be provided by
such insurance notwithstanding any other provision of the policy."
Said policy or policies shall be endorsed to state that coverage shall not be subject to
cancellation or non -renewal without thirty (30) days prior written notice to be delivered to
Company. All contractors providing insurance as required hereunder shall give Company prompt
and timely notice of claim made or suit instituted arising out of contractor's use of the Easement
Areas. Each contractor shall also procure and maintain, at its own cost and expense, any
additional kinds of insurance that in its own judgment may be necessary for its property
protection and prosecution of the work.
Each contractor will be required to agree that in the event of loss due to any of the perils
for which it has agreed to provide commercial general and automotive liability insurance,
contractor shall look solely to its insurance for recovery. The commercial general and workers'
compensation policy and any other policy pertaining to the Easement Areas carried by each
contractor will contain a waiver of subrogation with respect to Company as to any claims that
may be asserted against Company by virtue of the payment of any loss under such insurance.
10. Indemnity. City shall defend, indemnify, protect and hold harmless Company and
the additional insureds described in Section 9 (individually, an "Indemnitee"; collectively, the
"Indemnitees") from all losses, claims, liens, suits, costs, damages, expenses (including actual
attorneys' fees), liabilities and actions of any name, kind or description (individually, a "Claim";
collectively, "Claims"), whether incurred by or made against any Indemnitee or made by any
third party, arising out of or related to injuries to or death of any person or damage to any
property resulting from or caused by (a) use of the Easement Areas (as well as any activity
related to or connected with said use) by City, its employees, contractors, and agents, and the
respective employees thereof, or (b) breach of any of the terms of this Access and Parking
Easement by City. Notwithstanding the foregoing, nothing herein shall be construed to require
City to indemnify the Indemnitees from any Claim arising from the sole negligence or willful
misconduct of the Indemnitees. Nothing in this indemnity shall be construed as authorizing any
award of attorney's fees in any action on or to enforce the terms of this Access and Parking
Easement. This indemnity shall apply to all claims and liability regardless of whether any
insurance policies are applicable. The policy limits of any such insurance policies shall not act as
a limitation upon the amount of indemnification to be provided by City. Payment of any Claim
shall not be a condition precedent to enforcement of the indemnity obligations contained herein.
t 1. Relocation of Easement Areas. If Company desires to relocate the Easement
Areas in the future, Company may relocate the Easement Areas in its sole and absolute discretion
and unilaterally record an amendment to this Access and Parking Easement to identify the new
location of the Easement Areas without City's countersignature thereto, but Company shall
provide prior written notice to City. Notwithstanding the foregoing, any such relocation of the
Easement Areas shall continue to provide City with access to, and parking for, the Public Docks
through and on the Land.
58475_2 5
12. Termination of Easements. In the event City stops operating the Public Docks for
more than two (2) consecutive calendar years, the Easements shall terminate automatically. If
requested by Company, City promptly will execute and notarize a document in recordable form
that acknowledges the termination and quitclaim of such Easements.
13. Controlling Law. This Access and Parking Easement shall be governed by and
interpreted in accordance with the laws of the State of California. Any action brought relating to
this Access and Parking Easement shall be adjudicated in a court of competent jurisdiction in the
County of Orange.
13. Notices. Any notice, demand or other communication to be given by either party
to the other hereunder shall be given by personal service, or Express Mail, Federal Express,
DHL, UPS or any other similar form of reputable airborne/overnight delivery service, or mailing
in the United States mail, postage prepaid, certified and return receipt requested, addressed to the
parties at their respective addresses as follows:
IF TO CITY: City of Newport Beach
100 Newport Center Drive
Newport Beach, CA 92660
Attention: Harbor Department
With copy to: City of Newport Beach
100 Newport Center Drive
Newport Beach, CA 92660
Attention: City Attorney's Office
IF TO COMPANY: CRC Marinas - Newport Beach
1137 Bayside Drive
Newport Beach, CA 92625
Attn: General Manager
With copy to: Irvine Management Company
550 Newport Center Drive
Newport Beach, CA 92660
Attn: General Counsel's Office
Any such notice shall be deemed to have been given upon delivery or, if mailed, upon actual
receipt or the date on which actual receipt is rejected. Either parry may change the address where
it desires to receive notice upon giving written notice of such request to the other parry.
14. Waiver; Remedies. No delay on the part of any parry hereto in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the
part of any party hereto of any right, power or privilege hereunder operate as a waiver of any
other right, power or privilege hereunder, nor shall any single or partial exercise of any right,
58475_2 6
power or privilege hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder.
15. Run with the Land. This Access and Parking Easement and the terms, conditions
and covenants contained herein shall be perpetual in nature and shall run with the Public Docks,
Easement Areas and the Land, and shall be binding upon and inure to the benefit of Company
and City and each of their respective successors and assigns, whether the interest held by such
parry is in fee or otherwise.
16. Incorporation of Exhibits. Exhibits A and B, as attached hereto, are hereby
incorporated herein by this reference.
17. Authority. The parties to this Access and Parking Easement represent and warrant
that this instrument has been duly authorized and executed and constitutes the legally binding
obligation of their respective organization or entity, enforceable in accordance with its terms.
18. No Attorneys' Fees. In the event of any dispute arising under this Access and
Parking Easement, the prevailing party shall not be entitled to its attorneys' fees.
19. Entire Agreement. This Access and Parking Easement, together with the Exhibits
attached hereto, constitutes the entire agreement between the parties pertaining to the subject
matter hereof, and all prior and contemporaneous agreements, representations, negotiations and
understandings of the parties, whether oral or written, are hereby superseded and merged herein.
[signature on following page]
58475_2 7
IN WITNESS WHEREOF, the parties hereto have executed this Access and Parking
Easement as of M UT�A 5 2024.
"Company"
THE IRVINE COMPAMNY LLC,
a Delaware limited liability company
By:
Name: Roger-Ploum
Title: Division President
Corporate Business Properties
By: 4��— C�vk�.
Name: Just' Kim
Title: Vice President
Finance & Administration
"City"
CITY OF NEWPORT BEACH,
a California municipal corporation APPROVED AS TO FORM:
By: By:
G c . Leung a4Attoey
Manager
ATTEI�
ma
58475_2 8
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ORANGE
On February 15, 2024, before me, Kindra Chenier-Gladish, a Notary Public, personally appeared Roger
Mum and Justin Kim, who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in h-isilwf/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal. ; --
KINDRA CH ElIE,A-CLADISH 'Notary Public
Notary Public - California
(SEAL) Orange County
Commission u 2352959
My Comm. Exoires Mar 25, 2025
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ORANGE
On 1MAQU-1 5 1 2024, before me,JENN1f6Q— ANN3 Yy1VLVC--f a Notary Public,
personally appeared &AAck Y . LtVh6u , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that
by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
(SEAL)
JENNIFER ANN MULM
y Notary Public California
Orange County
Commission # 2375299
•�•' My Comm. Expires Oct 12, 2025
58475_2 9
Exhibit "A"
Description of the Land
PARCELS 1, 2 AND 3 OF PARCEL MAP NO. 93-206, IN THE CITY OF NEWPORT
BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, PER MAP FILED IN BOOK
289, PAGES 1 THROUGH 7, INCLUSIVE, OF PARCEL MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
APNs: 050-451-01, -02, -03, and -60; 440-132-39 and -51
58475 2
58475 2
Exhibit "B"
Contents of Maintenance Notice
Each Maintenance Notice provided by City under Section 6.b of this Access and Parking
Easement shall specify or contain the following information:
1. The proposed dates when the work will take place (estimated start and completion dates).
2. Location of the proposed staging area.
If work crews will require parking of their vehicles for more than one (1) day, the
proposed location of such parking.
4. City's proposed plan for such work.
58475_2