HomeMy WebLinkAboutC-5637 - Easement Agreement (for Gateway Entry Monument Sign)WHEN RECORDED MAIL, TO:
CITY OF NEWPORT BEACH
Office of the City Clerk
100 Civic Center Dr.
PO Box 1768
Newport Beach, CA 92658
WITH A CONFORMED COPY TO:
NEULAND & vainNEY
A Professional Corporation
22342-A Avenida Empresa, Suite 100
Rancho Santa Margarita, CA 92688
Attention: Frederick T. Whitney, Esq.
CQ' 'P-OR 1UD copy
SCANNED
ziFtfedn4fi?ilcords, Orange County
Hugh Nguyen, Clerk -Recorder
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(exempt from recording fees pursuant to Govt. Code § 27383)
(Space above this line for Recorder's use)
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (the "Agreement") is made by and between CRYSTAL
COVE COMMUNITY ASSOCIATION, a California nonprofit mutual benefit corporation,
(hereinafter referred to as the "Association" or "Grantor") and the CITY OF NEWPORT BEACH,
a California municipal corporation and charter city ("Grantee").
RECITALS
A. Association owns and/or has an easement and the maintenance and repair
responsibility for all Common Area and Master Association Property, as those terms are defined
within the Association's Declaration of Covenants, Conditions and Restrictions (the "CC&Rs").
B. Grantee desires an easement to install and maintain a gateway entry monument sign
(the "Monument") in, over, under, along, and across said certain real property described in Exhibit
"A" and depicted in Exhibit `B" (`Basement Area"), both of which are attached hereto and
incorporated by this reference.
C. The Easement Area is subject to recorded CC&Rs, which were recorded on October
11, 2000 as Instrument No. 20000544580 of the Official Records of the County of Orange. This
Agreement is being established by the Grantor for the benefit of the Grantee and as a burden of real
property owned by the Association, including but not limited to: Lot D, Tract 16269, as shown on a
map recorded in Book 842, Pages 5 through 7, inclusive, of Miscellaneous Maps in the office of the
County Recorder for Orange County, California.
D. The Association desires to accommodate Grantee's request with the understanding
that Grantee assumes in full all obligations for maintenance, repair, modifications and upkeep of the
Monument, as well as all liability which arises out of, or is in any way connected with, the
performance of the work, or obligations under this Agreement. Such liability shall apply to any acts
or omissions, willful misconduct or negligent conduct, whether active or passive, on the part of
Grantee. Any repairs to the Easement Area due to the Monument installed or maintained pursuant
to this Agreement, however, shall be Grantee's obligation.
NOW THEREFORE, the undersigned hereby establish this Agreement, subject to the
covenants, conditions and restrictions contained in this Agreement.
ARTICLE I
TERMS AND CONDITIONS
Section 1.01 - Consent for Installation and Use.
(a) Association hereby consents to the installation, maintenance, repair, and replacement of
the Monument, in accordance with approved architectural plans, within the Easement Area, subject
to the terms and conditions of this Agreement. Association retains all of its ownership rights to the
Easement Area, as well as other rights over the Easement Area.
(b) Grantee agrees that: (i) Grantee shall submit to Association architectural plans depicting
the proposed Monument and obtain written approval from Association prior to construction of
Monument; (ii) Grantee shall, at Grantee's sole expense, install, maintain, insure, repair and replace
as necessary, the Monument installed by them upon or within the Easement Area; (iii) the
Monument shall be well maintained at all times to insure such area is safe, sanitary and well kept at
all times; (iv) no additional improvements of any kind may be made to the Easement Area without
the prior express written permission of the Association; (v) the Easement Area may not be used for
any purpose other than that expressly set forth in this Agreement; (vi) Association may periodically
inspect the Easement Area to assure that compliance with this Agreement is met by Grantee, and
the Association may enter upon the Easement Area to correct any violations of this Agreement
and/or the CC&Rs; and (vii) Grantee will, at Grantee's sole cost and expense, repair, maintain and
replace any and all damage to the Association Property and/or the Easement Area which occurs due
to the installation, use, maintenance, replacement or repair of the Monument.
Section 1.02 - Repair and Maintenance. Grantee shall have the obligation to maintain and keep in a
good state of repair and a first class condition the Monument within the Easement Area, or to pay
for that expense and be responsible for any increase in the costs of maintenance to the Association
occasioned by the Monument to the Easement Area, at the election of the Association. Should any
damage or injury to the Easement Area or the Association Property be caused by the installation or
existence of the Monument, Grantee agrees hereby to bear the full cost and expense of any repair.
Section 1.03 - Indemnity. Grantee expressly agrees to defend, indemnify and hold the Association,
its Association Property and Common Area, its agents, employees, directors, officers, committees
and committee members, members, attorneys, insurers and the like, free and harmless from claims,
demands, suits, causes of action, damages, and losses which arise out of or are in any way
connected with the performance of work, maintenance of the Monument, or exercise of any other
right or obligation of Grantee expressed within or related to this Agreement. Grantee further
acknowledges that its indemnity set forth in the Agreement exists regardless of cause or
responsibility for negligence, whether passive or active, and that this indemnity applies, without
limitation, to any and all injury, damage, suits, actions, claims, demands, causes of action,
liabilities, expenses, attorney fees, consultant fees, expert fees and costs arising out of or in any way
connected to this Agreement. The obligation to indemnify shall be effective even if active or
Easement Agreement: Crystal Cove Community Association and City of Newport Beach Page 2
passive negligence or misconduct of Association contributes to the loss, claim or damage. This
indemnity will not extend to claims arising from the sole negligence or sole willful misconduct or
gross negligence of Association. This indemnity provision shall extend to claims occurring after
this Agreement is terminated as well as while it is in force.
Section 1.04 - Waiver.
(a) In consideration of the consent herein granted, Grantee hereby waives the right to claim
indemnity or contribution from Association, its agents, employees, directors, officers, committees
and committee members, members, attorneys, or insurers, for any acts or omissions concerning, or
damages of any kind arising from or out of the use, change, improvement, repair and/or
maintenance, or the lack thereof, of the Easement Area and/or the Monument thereon.
(b) Grantee further understands that serious accidents may occur during the installation,
maintenance, and repair of Monument allowed by this Agreement and that the Grantee and those
acting with the Grantee in the use of this Easement Area might sustain mortal or serious personal
injuries, and/or property damage, as a consequence thereof. Knowing the risks of using Easement
Area, Grantee nevertheless hereby agrees to assume those risks and to release and hold harmless all
of the persons or entities mentioned above who (through negligence or carelessness) might
otherwise be liable to the Grantee and those who use this Easement Area with or through Grantee,
for damages and/or any other claims which might arise as a result of this Agreement.
This waiver and release is given with full knowledge and understanding of Section
1542 of the California Civil Code which provides that:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her
favor at the time of executing the release, which if known
by him or her, must have materially affected his or her
settlement with the debtor."
ARTICLE II
EFFECT ON THE CC&Rs
Section 2.01 - Application of the CC&Rs. Since the Easement Area is a part of the Properties (as
defined in the CC&Rs), the provisions of the CC&Rs pertaining to the Subject Property, the
Easement Area and the Association Property, continue in full force and effect.
Section 2.02 - Liability Insurance. Grantee agrees to maintain the equivalent of general liability and
property damage insurance in the amount of $1,000,000 or more covering any and all liability of
Grantee in connection with Grantee's installation, use, maintenance, repair, replacement or
management of the Easement Area and the Monument placed thereon. Grantee's insurance shall
name the Association and the Association's management agent as additional insureds. Grantee's
insurance shall be primary to any Association or management policies and shall not require
contribution from any policy held by the Association or its management agent. Association shall be
given thirty (30) days written notice of any change in Grantee's insurance. Grantee shall provide
Easement Agreement: Crystal Cove Community Association and City of Newport Beach Page 3
Association with proof of the required insurance, to the Association's satisfaction, before the work
begins to construct any improvements and thereafter upon request, renewal or replacement of all
such policies.
ARTICLE III
GENERAL PROVISIONS
Section 3.01 - Enforcement. The Association shall have a right of action against Grantee, and
Grantee shall have a right of action against the Association to enforce by proceedings at law or in
equity, all restrictions, conditions and covenants now or hereafter imposed by the provisions of this
Agreement, or any amendment thereto, including the right to prevent the violation of such
restrictions, conditions and covenants and the right to recover damages for such violations. The
covenants, conditions and restrictions in this Agreement shall inure to the benefit of and be
enforceable by the Association and Grantee, and their respective legal representatives, heirs,
successors and assigns.
Section 3.02 - No Waiver. Failure by the Association or by Grantee to enforce any covenant,
condition or restriction herein contained in any certain instance or on any particular occasion shall
not be deemed a waiver of such right or any future breach of any covenant, condition and
restriction.
Section 3.03 - Cumulative Remedies. All rights, options and remedies of the Association and
Grantee under this Agreement are cumulative, and no one of them shall be exclusive of any other.
Association and Grantee shall have the right to pursue rights, options, remedies or any other relief
that may be provided by law, whether or not stated in this Agreement.
Section 3.04 - Non-Severability. Invalidation of any one or a portion of the covenants, conditions
or restrictions of this Agreement by judgment or court order shall terminate the entire Agreement,
unless the parties agree in writing that it should remain in full force or effect.
Section 3.05 - Termination.
(a) Grantee shall have the right to terminate this Agreement upon the condition that it
restore the Easement Area to its original condition, but shall remain responsible as outlined in this
Agreement for the restoration of such areas and for indemnifying the Association and its agents as
set forth in this Agreement. If Grantee terminates this Agreement and restores the Easement Area,
then Grantee's obligation to indemnify, defend and hold the Association harmless shall not extend
to any claims, losses, demands, suits, damage, or causes of action that arise from the use of the
Easement Area following restoration.
(b) The Association shall have the right to terminate this Agreement: (1) in the event the
limited easement granted hereunder is determined to be invalid by a court of competent jurisdiction;
or (2) a finding by the Board that a breach of this Agreement by Grantee has occurred and has not
been remedied, corrected or removed within a reasonable time after notice of such breach was
given. In the event of such termination, Grantee shall have no recourse against the Association and
agrees to restore the Easement Area to its prior condition by removing the Monument, if requested
Easement Agreement: Crystal Cove Community Association and City of Newport Beach Page 4
to do so by the Association. If such restoration is performed by the Association, Grantee agrees to
reimburse all costs of restoration to the Association.
Section 3.06 - Construction. The provisions of this Agreement shall be liberally construed to
effectuate its purpose of shifting from the Association to Grantee the entire responsibility, liability
and financial obligation for the installation, repair, maintenance, insurance, use of, injury, damage
and harm of any kind to, any person or property which arises out of or is in any way connected with
Grantee's exercise of the rights and obligations presented by this Agreement. The Article and
Section headings of this Agreement have been inserted for convenience only, and shall not be
considered or referred to in resolving questions or interpretation or construction.
Section 3.07 - Singular Includes Plural. Whenever the context of this Agreement requires the same,
the singular shall include the plural and the masculine shall include the feminine and the neuter.
Section 3.08 - Nuisance. The result of every act or omission where any provision, condition, re-
striction or covenant, contained in this Agreement is violated in whole or in part, is hereby declared
to be and constitutes a nuisance, and every remedy allowed by law or equity against a private
nuisance, shall be applicable against every such result, and may be exercised by the Association or
Grantee. Such remedy shall be deemed cumulative and not exclusive.
Section 3.09 - Effect of Agreement. This Agreement is made for the purposes set forth in the
Recitals to this Agreement and the Association makes no warranties or representations, express or
implied, as to the binding effect or enforceability of all or any portion of this Agreement, or as to
the compliance of these provisions with applicable public laws, ordinances and/or regulations.
Section 3.10 - Amendments. Any amendments to this Agreement shall require the written consent
of Grantee and the Association. An amendment or modification of this Agreement shall be
effective when executed by any officer or officers authorized by the Board and when recorded in
the Official Records of the County of Orange. This Section shall not apply to a change in the
Association's CC&Rs, nor to its Rules and Regulations.
Section 3.11 - Effectiveness of Agreement. This Agreement shall be effective when executed by
Grantee and the Association and when recorded with the County Recorder of Orange County.
Section 3.12 - Survival of Promises. The applicable promises, covenants, terms, indemnifications
and conditions contained in this Agreement shall survive the execution and recording hereof and
shall remain effective even after this Agreement is terminated.
Section 3.13 - The Effect of Recitals. The recitals contained at the beginning of this Agreement are
an important and integral part of this Agreement and are hereby incorporated herein and made a
part hereof as though fully set forth again.
Section 3.14 — Notice. All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing, and
conclusively shall be deemed served when delivered personally, or on the third business day after
the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as
Easement Agreement: Crystal Cove Community Association and City of Newport Beach Page 5
hereinafter provided.
To the Grantee:
Attn: City Manager
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
To the Grantor:
Crystal Cove Community Association
c/o Keystone Pacific Property Management
16845 Von Karman Avenue, Suite 200
Irvine, CA 92606
Section 3.15 — Authority of Signatories. The undersigned certify that they are authorized to enter
into and execute this Agreement.
[SIGNATURES ON NEXT PAGE]
Easement Agreement: Crystal Cove Community Association and City of Newport Beach Page 6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates
written below.
CRYSTAL COVE COMMUNITY
ASSOCIATION
(ASSOCIATION/GRANTOR),
a California corooration
a
i
CITY OF NEWPORT BEACH
(GRANTEE),
a California municipal corporation
Date: 11
By: r?
Dave Kiff
City Manager
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 4 -19-13
By: 1
Aaron C. arp
City Attorney
ATTEST: 1
Date: 1�• �� 3
By: Aft + V
Leilani I. Brown
City Clerk
�CI Fo AT'�
Easement Agreement: Crystal Cove Community Association and City of Newport Beach Page 7
ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF 016
On o2 ,; S , before me, r0Gc.�%np (here insert name
and title of the officer), personally appearedy oV►rn 'g%C,4.M.A "a"4
who proved to me on the basis of satisfactory evidence to be the personxwhose nameXis/q(
subscribed to the within instrument and acknowledged to me that he/s>ktwy executed the same
in his/Wh-K authorized capacity( and that by his/hK//t signature on the instrument
the person or the entity upon behalf of which the person(( 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.�''°°�°�'"'"
D E B 0 R A H MARINO
COMMISSION #1966032
Notary Public - California
ORANGE COUNTY c
Signature: d �}�'f e My Commission Expires
JANUARY8, 2016
ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF O c-c"-!�
On C '71)t'> , before me, rz.L 1 (here insert name
and title of the officer), personally appeared ! r
who proved to me on the basis of satisfactory evidence to e the persongwhose nameeis/pT<
subscribed to the within instrument and acknowledged to me that $/she/tb)@,�F executed the same
in/her/thy authorized capacity(iKI and that by /her/tb�Kr signature(( on the instrument
the person(*(, or the entity upon behalf of which the person(jq 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.
Signature: (Seal)
d.8�Gh1.a.l .v1.n�.-
DEBORAH MARINO
as COMMISSION #1966032
Notary Public -California
r ORANGE COUNTY a
My Commission Expires
JANUARY 8, 2016
CERTIFICATE OF ACCEPTANCE
This CERTIFICATE OF ACCEPTANCE is to certify that the interest in real property
conveyed by Crystal Cove Community Association's grant of Easement dated
2013, is hereby accepted on /O - 3 i , 2013, by the undersigned officer on behalf of the
City of Newport Beach pursuant to authority conferred by Resolution No. 1992-82 of the City
Council adopted on July 27, 1992. The City of Newport Beach consents to the recordation of
said document in the Office of the Recorder of Orange County, State of California.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Date: `-101't3
By: 1
Aaron C.lHarp
City Attorney
ATTEST:
Date: i O• �� /�
f
By:
Leilani I. Brown
City Clerk
L11-I Foams
CITY OF NEWPORT BEACH,
a municipal corporation
Date: c%1 Z3 12
By:z�
Dave kiff
City Manager
RECOMMENDED FOR
ACCEPTANCE:
PUBLIC WORKS DEPARTMENT
Date: q—-� % 3
By: ,
David A. Webb
Public Works Director
Easement Agreement: Crystal Cove Community Association and City of Newport Beach Page 8
rI:�-:-ir: 4�:1
LEGAL DESCRIPTION
Easement Agreement: Crystal Cove Community Association and City of Newport Beach Page 9
Coast Surveying, Inc.
March 27, 2013
EXHIBIT A
LEGAL DESCRIPTION
THAT PORTION OF LOT D OF TRACT NO. 16269, IN THE CITY OF NEWPORT
BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED
IN BOOK 842, PAGES 5 THROUGH 7, INCLUSIVE OF MISCELLANEOUS MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS
FOLLOWS:
COMMENCING AT THE SOUTHERLY CORNER OF SAID LOT D, SAID POINT BEING
ON THE NORTHEASTERLY RIGHT OF WAY LINE OF EAST COAST HIGHWAY (60
FEET HALF WIDTH); THENCE ALONG THE SOUTHWESTERLY LINE OF SAID LOT D
NORTH 5201 9'33"WEST 82.39 FEET TO THE TRUE POINT OF BEGINNING; THENCE
CONTINUING ALONG SAID SOUTHWESTERLY LINE NORTH 52019'33" WEST 20.00
FEET; THENCE LEAVING SAID SOUTHWESTERLY LINE NORTH 37°40'27" EAST
10.00 FEET TO A LINE PARALLEL WITH AND 10.00 FEET NORTHEASTERLY OF SAID
SOUTHWESTERLY LINE; THENCE ALONG SAID PARALLEL LINE SOUTH 52019'33"
EAST 20.00 FEET; THENCE LEAVING SAID PARALLEL LINE SOUTH 37040'27" WEST
10.00 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING 200 SQUARE FEET, MORE OR LESS.
ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT B ATTACHED HERETO AND
MADE A PART HEREOF.
DATED THIS 28TH DAY OF MARCH, 2013
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GWEN-VERA DEL CASTILLO, PLS 5108
JN 113-010 Easement
EXHIBIT "B"
EASEMENT AREA
Easement Agreement: Crystal Cove Community Association and City of Newport Beach Page 10
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SCALE: 1"=40' -EASEMENT 18031 PARKWAY LOOP. SUI7C 8
SHEET 1 OF 1 1 TUSTIN. CA 92780-6527 (714) 918-6256