Loading...
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: 584752 2 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