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HomeMy WebLinkAbout15 - Grant Deed & Easement Agreement Salt-Water Marsh• November 8, 1999 CITY COUNCIL AGENDA ITEM NO. 15 TO: Mayor and Members of the City Council FROM: Public Works Department SUBJECT: ACCEPTANCE OF THE GRANT DEED AND EASEMENT AGREEMENT FOR THE SALT -WATER MARSH BETWEEN BAYVIEW WAY AND SAN DIEGO CREEK SOUTH OF FLETCHER JONES MOTOR CARS FROM THE TRANSPORTATION CORRIDOR AGENCIES (TCA) RECOMMENDATIONS: Authorize the Mayor and City Clerk to execute the Grant Deed and Easement Agreement. 2. Direct the City Clerk to have the Grant Deed and Easement Agreement recorded with the Orange County Recorder. • DISCUSSION: The City and TCA executed an agreement, dated February 12, 1996, that required the future acceptance of the salt water marsh between Bayview Way and San Diego Creek south of Fletcher Jones Motor Cars with an easement reservation to the San Joaquin Hills Transportation Corridor Agency for future construction of a proposed freeway flyover ramp. The agreement required the City to accept title to the salt water marsh 12 months after completion of construction by the Transportation Corridor Agency (TCA) if the construction was satisfactory. The salt -water marsh is currently being maintained by the California Corridor Consortium (CCC) and will continue to be maintained by the CCC until February 2000. At that time the TCA will be responsible for maintenance until the vegetation is established to meet the United States Fish and Wildlife Services (USFWS) performance criteria (see attached letter from TCA), which is anticipated to be mid 2001 or the beginning of 2002. At that time the salt -water marsh should need no additional maintenance and will be turned over to the City of Newport Beach. The only anticipated maintenance will be occasional trash pickup. The attached Grant Deed and Easement Agreement dedicates the salt water marsh to the City and requires the City to maintain the salt water marsh in perpetuity in accordance with standards that will ensure the long term environmental viability of the salt water • marsh. SUBJECT: Acceptance of the Grant Deed and Easement Agreement for the Salt Marsh Between Bayview Way and San Diego Creek South of Fletcher Jones Motor Cars from the Transportation Corridor Agencies (TCA) November B. 1999 Page 2 The Grant Deed and Easement Agreement also grants an easement to the San Joaquin Hills Transportation Corridor Agency for a Flyover Easement reserved for the construction and maintenance of a future freeway structure. It is recommended that the Grant Deed and Easement Agreement be accepted as offered. Tectfully u fitted, Webb Public Works Director By: Richard L. Hoft6dt, P.E. Development Engineer Attachments: Grant Deed and Easement Agreement Letter dated May 4, 1998 is Flyover Ramp and Salt Water Marsh Agreement dated February 12, 1996 f: \users%pbwAShared% coundl1hSMOMovember- &ca- marshdeed.acc.doc • RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: 0 The City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92658 -8915 Attention: City Clerk 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 the payment of the documentary transfer tax pursuant to Revenue and Taxation Code Section 11922. By: (Space above this line for Recorder's use only) GRANT DEED AND EASEMENT AGREEMENT FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged, this ab day of r�Lrkara , 1998, the SAN JOAQUIN HILLS TRANSPORTATION CORRIDOR AGENCY, a California joint powers agency ( "Grantor"), hereby grants to THE CITY OF NEWPORT BEACH, a charter city ( "Grantee "), that certain real property in the County of Orange, State of California, described on Exhibit A hereto (the "Property") and incorporated herein by this reference, subject to the terms and conditions set forth below in this Deed, and excepting and reserving to Grantor the Flyover Easement described in Article 1. ARTICLE 1 RESERVATION OF EASEMENT The Flyover Easement (as defined below) is hereby excepted and reserved from the grant of the Property. LAW0370034 -02119198 The Flyover Easement reserved hereby is an exclusive easement (the "Flyover Easement ") for the purpose of constructing, inspecting, reconstructing, maintaining, repairing, augmenting and retrofitting a ramp (the "Flyover ") for a controlled access or public highway and foundations, columns, pillars and other support facilities and improvements, together with incidental appurtenances, connections and structures in, on, over, along, through, across and under the portion of the Property described in Exhibit B attached hereto and incorporated herein by this reference (the "Flyover Easement Area "). The Flyover Easement Area is an easement in gross. ARTICLE 2 COVENANTS RUNNING WITH THE LAND 2.1 Use of Property by Grantee. (a) Grantee shall use the Property solely for purposes of salt water marsh preservation, protection, enhancement, creation and maintenance, and for "Environmental Mitigation Purposes" as defined in that certain Irrevocable Offer of Dedication [Newport Coast Mitigation Area] (the "Mitigation Lands IOD ") dated June 30, 1994 executed by The Irvine Company in favor of Grantor, and recorded on July 1, 1994 as Instrument No. 94- 0436936, subject to Grantor's rights under the Flyover Easement. (b) Grantee may not use the Flyover Easement Area in a manner which would interfere with, impede, hinder or prevent the safe and efficient construction, existence, operation, use, maintenance, repair or structural integrity of the improvements constructed by Grantor on the Flyover Easement Area. (c) The Grantee has no right to comment on or approve the engineering, architecture or aesthetics of the Flyover; provided, however, Grantee shall retain all rights it may have as a member agency of the Grantor. -2- LX980370034- 2119/98 • (d) Grantor or its successors, contractors or subcontractors shall have no obligation to construct any sound wall on, around or under the Flyover. (e) Grantee hereby assumes Grantor's obligation to use and maintain the Property in accordance with the terms, covenants and conditions of the Mitigation Lands IOD. 2.2 Maintenance. Grantee shall maintain in perpetuity the salt water marsh located on the Property (the "Salt Water Marsh ") in accordance with standards acceptable to any and all public agencies having jurisdiction over the salt water marsh to ensure the long term environmental viability of the salt water marsh. Grantee's minimum maintenance obligation includes periodic trash removal and weeding. As part of its weeding obligations, Grantee shall remove at a minimum the following species: poison hemlock, caster bean, tree tobacco, artichoke thistle, mustard, bur clover and sweet clover. Grantee shall not be responsible for repairing damage to the Salt Water Marsh caused by construction or maintenance of the Flyover. • 2.3 Transfer of Property. Grantee shall not sell, contract to sell, assign, lease C, J or in any other way transfer or convey all or any portion of the Property to a third party without the prior written approval of Grantor or its successor, which approval may not be unreasonably withheld if the proposed transferee is (a) approved by the U.S. Fish and Wildlife Service and the California Department of Fish and Game, (b) a public agency or a qualified organization at the time of transfer under Section 170(h) of the Internal Revenue Code, as amended, (c) authorized to acquire and hold a conservation easement under California Civil Code Section 815 et sea. (or any successor provision then applicable), and (d) is a permitted transferee under the Mitigation Lands IOD and that certain Amended and Restated Combined Irrevocable Offer of Dedication (San Joaquin Hills Transportation Corridor - Laguna Laurel and Newport Coast Segments) between The Irvine Company and Grantor, recorded on November 20, 1996 as Instrument No. 19960584100, as appropriate. -3- LA1980370034- 2/19/98 2.4 Restoration of Easement Area. Grantor shall cause its contractor who constructs the Flyover, as soon as reasonably possible after completion of construction of the Flyover, to restore the portions of the Salt Water Marsh which are damaged or removed as a result of the construction of the Flyover to a condition reasonably approximate to its condition prior to such construction, except to the extent the Flyover touches the surface of the Flyover Easement Area. 2.5 Covenants Run With the Land. The covenants set forth in Paragraphs 2.1 through 2.3 are hereby declared and agreed to be appurtenant to and run for the benefit of real property described on Exhibit C hereto. The burden of such covenants shall run with the Property and be binding upon any person or entity who acquires any right, title or interest in or to all or any portion of the Property. By executing this Deed, Grantee covenants and agrees that Grantee and its successors in interest to all or any portion of the Property shall be bound by the covenants set forth in Paragraphs 2.1 through 2.3. Every person or entity who now or hereafter owns or acquires any right, title or interest in or to any portion of the Property is and shall be conclusively deemed to have consented and agreed to the covenants contained in Paragraphs 2.1 through 2.3 herein, whether or not any reference to this instrument is contained in the instrument by which such person acquired an interest in the Property. The burdens of the covenants set forth in Paragraphs 2.1 through 2.3 do not nun with . the Flyover Easement, and the holder of the Flyover Easement shall not be bound by such covenants. 2.6 Amendment of Covenants. The covenants may be amended by mutual agreement of Grantor and Grantee and any applicable successor with respect to any covenant. Any such amendment shall be recorded in the Official Records of Orange County. 2.7 Default and Remedies. Because of the amount of planning, effort and time expended by Grantor in reliance upon the performance by Grantee of the covenants herein contained, monetary damages will not provide an adequate remedy for the damage resulting from a breach of the covenants set forth in Paragraphs 2.1 -4- LAU80370034- 2119/98 through 2.3. Therefore, in the event of any breach, violation or failure to comply with • any such covenant which has not been cured within 60 days after written notice from the Grantor to do so, then the Grantor shall be entitled to specifically enforce the performance of the covenant and to any other form of equitable or legal relief. 2.8 Waiver. Neither a waiver by'Grantor of a covenant set forth herein or a breach of any of the covenants nor a delay or failure to .enforce any of the covenants shall (i) be construed to be a waiver of any earlier or later breach of the same or other covenants, or (ii) be implied from any inaction or omission by Grantor to take any action on account of such breach or failure. No express waiver shall affect a breach or failure other than as specified in said waiver or shall apply with respect to any enforcing party other than the party or parties executing such waiver, and their subsequent successors. Grantor's consent to or approval of any act by Grantee requiring Grantee's consent or approval shall not be deemed to waive or render unnecessary such party's consent or approval to or of any subsequent similar acts by Grantee. • Grantor shall not be liable for any damage, loss or prejudice suffered or claimed 0 by Grantee or any user of the Property or neighboring property on account of the enforcement of or failure to enforce the covenants set forth in Paragraphs 2.1 through 2.3. ARTICLE 3 MISCELLANEOUS 3.1 Notices. Any notice, demand, request, covenant, approval, or other communication to be given by one party to the other shall be given by personal service, or Express Mail, Federal Express, UPS, DHL or any other similar form of 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: u198037003e- 2/IW98 -5- If to Grantor: San Joaquin Hills Transportation Corridor Agency 201 E. Sandpointe, Suite 200 Santa Ana, California 92707 Attn: Director of Design and Construction With a copy to: Nossaman, Guthner, Knox & Elliott, LLP Lakeshore Towers, Suite 1800 18101 Von Karman Avenue Irvine, California 92715 -1007 Attn: Robert D. Thornton, Esq. If to Grantee: City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92658 -8915 Attn: City Manager Any such notice shall be deemed to have been given upon delivery or 48 hours after deposit in the mail as aforesaid. Either party may change the address at which it desires to receive notice upon giving written notice of such request to the other parties. 3.2 Governing Law. This Deed shall be governed by and interpreted in accordance with the laws of the State of California. 3.3 Construction. Headings at the beginning of any article, section, paragraph and subparagraph are solely for the convenience of the parties and are not a part of this Deed. Any reference to an article includes all sections thereof and any reference to a section includes all subsections and paragraphs thereof. This Deed shall not be construed as if it has been prepared by either party, but rather as if both parties had prepared the same. 3.4 Modification/Waiver. Any modification of any provision of this Deed shall be effective only if in writing, signed by Grantor and Grantee. Any waiver of any rights under this Deed shall be effective only if in writing, signed by the waiving party. No W980370034- 2/19198 • waiver by either party hereto of any breach, default or condition shall be considered to be a waiver of any other or subsequent breach, default or condition. • 3.5 Severability. If any provision of this Deed, or the application thereof to any person or circumstances, is found to be invalid, the remainder of the provisions of this Deed, or the application of such provision to persons or circumstances other than those as to which it is found to be invalid, as the case may be, shall not be affected thereby. 3.6 Attorneys' Fees. In any proceeding between the parties hereto seeking enforcement of or attempting to construe any of the terms and provisions of this Agreement, including, without limitation, any proceeding seeking legal, declaratory or other relief, the prevailing party in such action shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs and expenses and reasonable attomeys' fees. 3.7 Counterparts. The parties may execute this Deed in two or more counterparts, which shall, in the aggregate, be signed by both parties. Each counterpart shall be deemed an original instrument. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. GRANTOR: SAN JOAQUIN HILLS TRANSPORTATION CORRIDOR AGENCY, a California joint powers agency/J Its: c C, O. L"80370034 -2!2M8 APPROVED AS TO FORM: Nwor,64 a, 4 9E /l,•a tt, LLP Legal Coun el to Agency -7- GRANTEE: CITY OF NEWPORT BEACH, a charter city By: Its: APPROVED AS TO FORM: Legal Counsel to City 0 -8- LAU80370034- 2/18/98 CERTIFICATE OF ACCEPTANCE • is C� This is to certify that the interest in real property conveyed by the within Grant Deed to the City of Newport Beach is hereby accepted by the undersigned on behalf of the City Council of the City of Newport Beach, pursuant to authority conferred by resolution of said City Council adopted on , and the City consents to recordation thereof by its duly authorized officer. LA1980370034- 2/19/98 CITY OF NEWPORT BEACH m Its: STATE OF CALIFORNIA ) SS: COUNTY OF ) On o"ua 19 Q i3 ,before me, a Notary Public in and for said State, personally appeared personally known to me ) o be the personM whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/sheAhey executed the same in his/herAhei; authorized capacity(iee), and that by hisA %44their signatures) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. TEBAEA TAMANAHA WITNESS my hand and official seal. NComm. ®1131034 A NOTARY iuKIC•CALIFORNIA O11 it Count My Comm. Ew Ir11 Mirth 23.2" Signature of Notary (SEAL) STATE OF CALIFORNIA ) SS: COUNTY OF ) On , before me, 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) 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. WITNESS my hand and official seal. Signature of Notary (SEAL) 9 LAX980370034- 2119/98 • u EXHIBIT "A" "PROPERTY" THOSE PORTIONS OF BLOCK 51 OF IRVINE'S SUBDIVISION IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA AS PER MAP FILED IN BOOK 1, PAGE 88, OF MISCELLANEOUS RECORD MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING ALL OF PARCEL NO. 300092 AS DESCRIBED IN THAT IRREVOCABLE OFFER OF DEDICATION AND RECORDED AS DOCUMENT NO. 94-0436936 ON JULY 1, 1994 OFFICIAL RECORDS, IN THE OFFICE OF SAID COUNTY RECORDER, ALONG WITH THAT PORTION OF PARCEL NO. 300094 AS DESCRIBED IN DOCUMENT NO. 19960584100 AND RECORDED ON NOVEMBER 20, 1996, OFFICIAL RECORDS OF SAID COUNTY LYING SOUTHWESTERLY OF THE FOLLOWING DESCRIBED LINE: COMMENCING AT THE MOST SOUTHEASTERLY CORNER OF SAID PARCEL 300094, SAID CORNER BEING THE SOUTHERLY TERMINUS OF A COURSE DESCRIBED AS SOUTH 02°20'26" EAST, 118.22 FEET, THENCE NORTHERLY ALONG THE EASTERLY LINE OF SAID PARCEL NO. 300094 THE FOLLOWING COURSES: NORTH 2020'17" WEST 119.15 FEET; NORTH 10000'26" EAST 87.87 FEET; NORTH 10 039'41" EAST 124.44 FEET; NORTH 13 °04'31" EAST 32.76 FEET TO THE TRUE POINT OF BEGINNING, THENCE LEAVING SAID EASTERLY LINE; NORTH 68 °47'54" WEST 112.96 FEET; THENCE SOUTH 51 °48' 14" WEST 33.01 FEET; THENCE NORTH 80°20'20" WEST 14.95 FEET TO THE WESTERLY LINE OF SAID PARCEL NO. 300094. THE BEARINGS AND DISTANCES USED IN THE ABOVE DESCRIPTION ARE CALIFORNIA COORDINATE SYSTEM OF 1983, ZONE 6. DIVIDE THE GRID DISTANCES SHOWN BY 0.99996374 TO OBTAIN GROUND DISTANCES. ALL OF THE OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY. 1. SUBJECT TO THE RESERVATIONS, RESTRICTIONS, COVENANTS, TERMS AND CONDITIONS SET FORTH IN THOSE CERTAIN OFFICIAL RECORDS HEREINABOVE DESCRIBED. 2. ALL COVENANTS, RESTRICTIONS, RIGHTS -OF -WAY AND EASEMENT OF RECORD AS WELL AS TO ANY SUCH MATTERS THAT ARE APPARENT. S02108BRDOC EXHIBIT `B" • "FLYOVER EASEMENT AREA" THAT PORTION OF PARCEL 10094 AS DESCRIBED IN THE CERTIFICATE OF ACCEPTANCE FROM THE IRVINE COMPANY TO THE SAN JOAQUIN HILLS TRANSPORTATION CORRIDOR AGENCY SITUATED IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED AS INSTRUMENT 93- 0598813 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF ORANGE, DESCRIBED AS FOLLOWS: THAT PORTION OF SAID PARCEL LYING SOUTHWESTERLY OF THE FOLLOWING DESCRIBED LINE: COMMENCING AT THE MOST SOUTHEASTERLY CORNER OF SAID PARCEL 10094, SAID CORNER BEING THE SOUTHERLY TERMINUS OF A COURSE DESCRIBED AS SOUTH 02 020'26" EAST, 188.22 FEET' THENCE NORTHERLY ALONG THE EASTERLY LINE OF SAID PARCEL, 10094 THE FOLLOWING COURSES: NORTH 02°21'46 "WEST, 119.03 FEET; NORTH 09 058'57" EAST, 87.87 FEET; NORTH 10038'12" EAST, 124.44 FEET; NORTH 13 003'02" EAST, 32.97 FEET TO THE TRUE POINT OF BEGINNING; THENCE • LEAVING THE EASTERLY LINE OF SAID PARCEL 10094 NORTH 68 °47'54" WEST, 112.75 FEET; THENCE SOUTH 51 048'14" WEST, 33.01 FEET; THENCE NORTH 80020'20" WEST, 14.95 FEET TO THE WESTERLY LINE OF SAID PARCEL 10094. THE ABOVE DESCRIBED PARCEL CONTAINS A GRID AREA OF 1.2194 ACRES MORE OR LESS. THE BEARINGS AND DISTANCES USED IN THE ABOVE DESCRIPTION ARE CALIFORNIA COORDINATE SYSTEM OF 1983, ZONE 6. DIVIDE THE GRID DISTANCES BY 0.99996374 TO OBTAIN GROUND DISTANCES. TS0217A.DOC • EXHIBIT C • w (Benefited parcels of the Salt Water Marsh) THOSE PARCELS OF LAND IN THE UNINCORPORATED TERRITORY OF THE COUNTY OF ORANGE, STATE OF CALIFORNIA, ALSO IN THE CITIES OF LAGUNA BEACH, IRVINE, AND NEWPORT BEACH, BEING PORTIONS OF BLOCKS 50, 51, 51, 58, 91, 92, 98, 178, 134, 135, 160, 161, 168 AND 180 OF IRVINE'S SUBDIVISION PER MAP RECORDED IN BOOK 11 PAGE 88, OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: SECTION 3.1 PARCEL 300085 -1 OF DOCUMENT #19960584100, RECORDED 11/20/96 PARCEL 300085 -2 OF DOCUMENT #19960584100, RECORDED 11/20/96 PARCEL 300086 -1 OF DOCUMENT #19960584100, RECORDED 11/20/96 SECTION 3.2 PARCEL 300086 -1 OF DOCUMENT #19960584100, SECTION 3.3 11/20196 PARCEL 300086 -1 OF DOCUMENT "19960584100, RECORDED 11120/96 PARCEL 300086 -2 OF DOCUMENT #19960584100, RECORDED 11/20/96 SECTION 4.1 PARCEL 300086 -2 OF DOCUMENT #19960584100, RECORDED 11/20/'96 PARCEL 300086 -24 OF DOCUMENT #19960584100, RECORDED 11/20/96 PARCEL 300090 -1 OF DOCUMENT #19960584100, RECORDED 11/20/96 PARCEL 300090 -3 OF DOCUMENT #19960584100, RECORDED 11/20/96 SJH1115.6BBgk Page 1 of 2 ALL OF THE OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDED OF ORANGE COUNTY. 1. SUBJECT TO THE RESERVATIONS, RESTRICTIONS, COVENANTS, TERMS AND CONDITIONS SET FORTH IN THOSE CERTAIN OFFICIAL RECORDS HEREINABOVE DESCRIBED. 2. ALL COVENANTS, RESTRICTIONS, RIGHTS -OF -WAY AND EASEMENT OF RECORD AS WELL AS TO ANY SUCH MATTERS THAT ARE APPARENT. E SJHI115.M& Page 2 of 2 0 O Y EXHIBIT "C -1" O 1 G O ti pa -�C 0 ..t Am Q X' a Z8 Fm g! ¢a .d o� F Em m� ¢a CID JZ �4 N FN t V R m O 714 436 9848 11-'13/98 FRI 10:19 FAX 714 436 9848. TCA San Joaquin Mills FOOthNilEastern Candor Agency Corridor Agency A4AL Choornon . Choltmon' Amer earls Mrke word TRANSPORTA77ON CORRIDOR AGENCIES Casio Meta kOne Don Webb Public Works Director Public Works Department City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658-8915 Attn: Rick Hoffstadt 001 Wrrsam W009oft —M Chief Ere'cufiye OAD Wolter D. Kletiften Chief ODerarng Officer Colleen E. Cork C1119t Flnanclal oRcor Jolly E. 8onneff Chief Engineer May 4, 1998 -- post•lt •brand fax transmittal meLn�o,76/1 ° o1 pe9ec� Vt °"Z eiYV a / ti��'L Subject. Salt Water Marsh Transfer to City of Newport Beach Dear Mr. Hoffstadt: In response to our phone conversation of April 23, 1998, this letter is to confirm TCA's • ongoing maintenance of the San Diego Creek Salt Water Marsh. The TCA, its contractor California Corridor Constructors and landscape maintenance contractor Nakae & Associates will maintain the marsh until the USFWS performance criteria are met. The performance criteria specified by the USFWS are as follows;(a) 75% cover by desired native species; (b) cover after ten years can be projected to be 95%,- and (c) vegetation is self - sustaining. TCA anticipates these criteria will be met no later than 2001. Based on the current performance of the site, it is likely that the performance criteria will be met prior to 2001. According to the 1997 performance report (enclosed), the site already has 84 -96% native species cover. The site will continue to be maintained and monitored until it is self - sustaining and is able to resist invasion by non - natives. I will forward future performance reports to you as they.become available. With the above clarification, it is the TCA's understanding that the City of Newport Beach will now accept and record the Grant Deed sent to Don Webb by letter dated February 26, 1998- If you have further questions on this matter, I can be reached at (714) 5133482 Sincerely, f Laura Coley , Visenberg Principal Environmental Ana yst 201 E SANDPOINTE AVE.. SUITE 200, PO 80x 28870. S4NTA ANA. C4 92799 -0670 7141436.9800 F4X 7141436.9846 hftPj1 srtcogenNos -Cam Memben: AnonNm . Casio Meso • county of Orange • Dona Point . lr n • Lake Forest . Lagt/na Hills . Laguna Mgu9l. Mission Ifalo . Orange . N9ws)Vt ffslocn s Santo Ana • Son Cfomonto • son Juan CODbfrona . rusfin . yorgo Llnoo 0 Agreement No. AGREEMENT (FLYOVER RAMP AND SALT WATER MARSH) This Agreement is entered into this 12th day of February, 1996 between the San Joaquin Hills Transportation Corridor Agency (the "Agency") and the City of Newport Beach (the "City") with respect to the following facts: A. Pursuant to authority granted in Government Code Section 66484.3, Agency is constructing a highway known as the San Joaquin Hills Transportation Corridor (the "Corridor') from Interstate 5 in the city of San Juan Capistrano northerly to the terminus of Route 73 near Jamboree Road in the City. B. The City desires to facilitate development of an automobile dealership on. property located in the City of Newport Beach commonly known as San Diego Creek 0 North and depicted on Exhibit A hereto (the "Property"). 11 C. By means of an Offer of Dedication from The Irvine Company recorded March 16, 1993 as Instrument No. 93- 0174937 (the "Offer of Dedication "), the Agency acquired fee title to a strip of the Property (the "Strip"). The Agency has accepted the Offer of Dedication. In connection with the Corridor, Agency intends to construct over a the Strip a flyover ramp known as the Jamboree Flyover or JR -5 (the "Flyover). D. The City desires to accommodate the desire of Fletcher Jones Motorcars ( "Fletcher Jones") to use the area underneath the Flyover to park cars sold by its dealership. Such use will require that the Flyover be constructed as a bridge rather than on fill. Design and construction of the Flyover as a bridge will be significantly more expensive to the Agency than if it were designed and constructed on fill. iAL96WJW74-2R&N Agreement No. E. Construction and operation of the Corridor impacts salt water marsh habitat, and Agency desires to mitigate this impact by creating a new salt water marsh habitat (the "Salt Water Marsh ") in the area shown as such on Exhibit A F. The City has an easement for street and highway purposes for University . Drive North (the "Old Easement ") over which a road has not been constructed. The location of the Old Easement no longer matches the intended alignment of Bayview Way, and it is in the area Agency desires to use for the Salt Water Marsh. G. City is acquiring an easement for the intended alignment of Bayview Way from The Irvine Company ('TIC'). H. Agency and City have previously executed that certain Memorandum of Understanding dated August 10, 1995, and Agency, City and Fletcher Jones Motorcars have previously. executed that certain Memorandum of Understanding dated August 10, 1995. Such memoranda of understanding contemplate that the City and Agency will enter into a formal agreement regarding the matters set forth therein. NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Agency and City agree as follows: 1. Vacation of Old Easement. The City shall vacate the street contemplated Decomlrcr 1 by the Old Easement no later thanes 1996. Following such vacation, within 60 days of a written request from Agency, the City shall execute a quitclaim or other documents which may be necessary in order that the Old Easement not affect title to the area covered by the Salt Water Marsh. (a) City shall design, construct and obtain by December 31, 1999 all permits or environmental clearances necessary for the construction of Bayview Way from Jamboree to approximately 600 feet east of Jamboree Road. _2_ u\vsoaw ?4 -2/i5W Agreement No. . (b) Subject to Paragraph 3 below, City shall construct a portion of the easterly extension of Bayview Way which is to provide a connection to MacArthur Boulevard (identified as the HOV Access Point in the EIR/EIS for the Corridor). The portion of Bayview Way to be constructed by the City is the section from Jamboree Road to a point approximately 600 feet east of the edge of Jamboree Road. 3. Grading of Bayview Way. Agency shall require California Corridor Constructors ( "CCC ") to grade the full width of Bayview Way (also referred to as University Drive North) from Jamboree Road to approximately 600 feet east of Jamboree Road, as requested by the City and agreed to by Agency. The City shall grade or cause to be graded the rest of Bayview Way within the City of Newport Beach. 4. Quitclaim Deed. Within five days after satisfaction of the conditions precedent set forth in Paragraph 5 hereof, Agency shall execute, acknowledge and deliver to City a Quitclaim Deed and Easement Agreement in the form of Exhibit B • hereto (the "Quitclaim Deed "). The Quitclaim Deed affects the Strip. 5. Conditions Precedent to Delivery of Quitclaim Deed. Agency's obligation to execute, acknowledge and deliver the Quitclaim Deed shall be subject to the following condition precedent: An amendment to the Offer of Dedication shall have been recorded permitting Agency to execute and deliver the Quitclaim Deed. In the alternative, Agency shall have received a release reasonably satisfactory to Agency and executed and acknowledged by The Irvine Company, releasing the restrictions in the Offer of Dedication which prohibit executing and delivering the Quitclaim Deed. 6. Design of Flyover. Provided that the conditions precedent set forth in Paragraph 5 have been satisfied, the Agency shall conform the design and construction of the Flyover to a bridge structure soffit profile for the area between Bayview Way and . Bristol Street which provides a minimum 18 foot clearance above grade at the _3_ 1AWSOOSW4-2/15M Agreement No. centerline of Bayview Way. The soffit profile shall also provide for a minimum 20 foot clearance above the easterly top of curb elevation on Jamboree Road northerly of Bayview Way to Bristol Street. The soffit profile will be provided to City and City may provide comments designed to maximize the views of the automobile dealership from Jamboree Road. Other than as stated in the previous sentence, the City shall have no' rights to comment on or approve the architecture or aesthetics of the Flyover, provided, ? however, that the City shall retain such rights it may have as a member of Agency. The Agency shall also conform the design and construction of the Flyover such that the span between the support columns of the Flyover shall not be less than 100 feet, the support columns shall be round, and the Flyover structure shall be a cast in place box girder bridge conventionally reinforced or post tensioned. 7. Salt Water Marsh. Contingent upon recording the Quitclaim Deed, the City shall accept title to the Salt Water Marsh, and the City, its successors or assigns shall maintain it in perpetuity. City shall be entitled to review and comment on the design documents for the Salt Water Marsh, and Agency shall use good faith efforts to incorporate the City's material comments into the final design documents for the Salt Water Marsh. Agency and City agree that City will only accept title to the Salt Water Marsh if the City is reasonably satisfied that the design will provide adequate capacity for tidal flows in and out of the Salt Water Marsh thereby ensuring that long term maintenance will not be a significant financial burden. Agency shall enforce its contract with CCC which requires CCC to maintain the Salt Water Marsh for 12 months after completion of construction of the Salt Water Marsh to Agency's satisfaction. Agency Will cause CCC to make any repairs, modifications, enhancements or additions to the Salt Water Marsh which may be required by any public agency having jurisdiction over the Salt Water Marsh (including City or Agency) to ensure the long term environmental Viability of the Salt Water Marsh. City shall not be required to accept title to the Salt Water Marsh until such repairs, enhancements, modifications and additions are completed. Upon City accepting title to the Salt Water Marsh, Agency and CCC shall _4_ rAMOOM742115M Agreement No. • have no further obligations with respect to the maintenance, repair, modification, enhancements or additions to the Salt Water Marsh. If for any reason whatsoever the City does not accept title to the Salt Water Marsh, the City shall provide Agency other consideration reasonably acceptable to Agency. 8. Caltrans• The City shall, at no cost to the Agency, provide the rights and condition of title Caltrans will require for the construction and use of the Flyover. 9. Conveyance of Fee to Fletcher Jones. In the event the Agency decides not to construct the Flyover, the Agency will consent to the City conveying fee title to the Strip to Fletcher Jones. 10.' Indemnification. City agrees to indemnify Agency, its agents, successors or assigns from any cost, expenses or loss associated with Agency executing that certain Deed Restriction recorded January 19, 1996 as Instrument No. 96- 0028355 of • the Official Records of Orange County. 11. Miscellaneous. (a) Controlling Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California. (b) Notices. Any notice, demand, request, covenant, approval, or other communication to be given by one party to the other shall be given by personal service, telegram, or express mail, Federal Express, DHL, UPS or any other similar form of airbome/ovemight 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: v��soosoo�o -any °5° or damage to any personal property resulting from any negligent act or omission or intentional misconduct in the course of performance of its activities upon the Flyover Easement Area, or breach of the covenants in this Deed, by Agency or its agents, or the officers, partners, or employees of any of the foregoing, or resulting from the negligent activities of any third parties granted access by Agency. Notwithstanding the foregoing. Agency shall not be obligated hereunder to protect, defend, indemnify or hold harmless City or its officers, employees and agents for any Liabilities to the extent such Liabilities are caused by or arise out of any act or failure to act by or on behalf of, City or its officers, employees and agents, or for any activities for which.the City is providing a release pursuant to Paragraph 4.3 hereof. 4.3 City releases the Agency and its directors, officers, employees, agents, contractors and subcontractors and the respective employees thereof from all losses, costs, damages and liabilities of every name, kind or description as a result of noise, vibrations, dust, curing water, diesel or steam from pile driving operations, sandblasting, or damages to the structures or personal property on the Flyover Easement Area or the Dealership Property, or any other damage or loss in connection with construction, repair or maintenance of the Flyover, or for loss of visibility during construction, repair or maintenance of the Flyover. Notwithstanding the foregoing, City and its assigns and lessees do not release the Agency and its directors, officers, employees, agents, contractors and subcontractors and the respective employees thereof from liability arising from their reckless misconduct or gross negligence, and Agency shall use its good faith efforts to minimize the construction- related inconveniences described in this Paragraph 4.3. I -IZAIN 1 5.1 Notices. Any notice, demand, request, covenant, approval, or other communication to be given by one party to the other shall be given by personal service, or Express Mail, Federal Express, UPS, DHL or any other similar form of -8_ LA1952890031 -2856 L 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 Agency: San Joaquin Hills Transportation Corridor Agency 201 E. Sandpointe, Suite 200 Santa Ana, California 92707 Attn: Ms. Kathy Besnard With a copy to: Nossaman, Guthner, Knox & Elliott Lakeshore Towers, Suite 1800 18101 Von Karman Avenue Irvine, California 92715 -1007 Attn: Robert D. Thornton, Esq. If to City: City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92658 -8915 Attn: City Manager With a copy to: Carelli & Miller 302 East Carson, Suite 830 Las Vegas, Nevada 89101 -5964 Attn: Howard M. Miller, Esq. Any such notice shall be deemed to have been given upon delivery or 48 hours after deposit in the mail as aforesaid. Either party may change the address at which it desires to receive notice upon giving written notice of such request to the other parties. 5.2 Governing Law. This Deed shall be governed by and interpreted in accordance with the laws of the State of California. -9- 5.3 Construction. Headings at the beginning of any article, section, paragraph and subparagraph are solely for the convenience of the parties and are not a part of this Deed. Any reference to an article includes all sections thereof and any reference to a section includes all subsections and paragraphs thereof. This Deed shall not be construed as if it has been prepared by either party, but rather as if both parties had prepared the same. 5.5 Modifiication/Waiver. Any modification of any provision of this Deed shall be effective only if in writing, signed by Agency and City. Any waiver of any rights under this Deed shall be effective only if in writing, signed by the waiving party. No waiver by either party hereto of any breach, default or condition shall be considered to be a waiver of any other or subsequent breach, default or condition. 5.6 Severability. If any provision of this Deed, or the application thereof to any person or circumstances, is found to be invalid, the remainder of the provisions of this Deed, or the application of such provision to persons or circumstances other than those as to which it is found to be invalid, as the case may be, shall not be affected thereby. 5.7 Attorneys' Fees. In any proceeding between the parties hereto seeking enforcement of or attempting to construe any of the terms and provisions of this Agreement, including, without limitation, any proceeding seeking legal, declaratory or other relief, the prevailing party in such action shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs and expenses and reasonable attorneys' fees. 5.8 Counteparts. The parties may execute this Deed in two or more counterparts, which shall, in the aggregate, be signed by both parties. Each counterpart shall be deemed an original instrument. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. -'to- LAV5289MI- 2/15198 AGENCY: SAN JOAQUIN HILLS TRANSPORTATION • CORRIDOR AGENCY, a California joint powers agency • CJ By: Its: APPROVED AS TO FORM: Legal Counsel to Agency CITY: CITY OF NEWPORT BEACH, a charter city APPROVED AS TO FORM: Legal Counsel to City -11- LA195289=1- 2115196 - K#-A I I; R : • This is to certify that the interest in real property conveyed by the within Quitclaim Deed and Easement Agreement to the City of Newport Beach is hereby accepted by the undersigned on behalf of the City Council of the City of Newport Beach, pursuant to authority conferred by resolution of said City Council adopted on July 27, 1992, and the City consents to recordation thereof by its duly authorized officer. CITY OF NEWPORT BEACH 1yCi, �.,...., ' L- LAG5289=1- 2115!88 • 0 • 0 EXHIBIT A THAT PORTION OF BLOCK 51 OF THE IRVINE'S SUBDIVISION, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN. ON A MAP THEREOF RECORDED IN BOOK 1, PAGE 88, OF MISCELLANEOUS RECORD MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, ? DESCRIBED AS FOLLOWS: THAT PORTION OF PARCEL 10094 GRANTED TO THE SAN JOAQUIN HILLS TRANSPORTATION CORRIDOR AGENCY BY A DEED RECORDED SEPTEMBER 3, 1993, AS INSTRUMENT NUMBER 93- 0598813 OFFICIAL RECORDS OF SAID ORANGE COUNTY LYING NORTHERLY OF THE FOLLOWING DESCRIBED LINE: BEGINNING AT A POINT IN COURSE NO. 6 IN THE SOUTHEASTERLY LINE OF SAID PARCEL 10094, DESCRIBED AS "SOUTH 13 °03'02" WEST, 163.41 FEET' IN SAID DEED, FOR THE PURPOSE OF THIS DESCRIPTION, THE BEARING WILL BE SOUTH 13 005'41" WEST, SAID POINT BEING SOUTH 13 °0641" WEST, 15.84 FEET FROM THE NORTHEASTERLY TERMINUS THEREOF; SAID POINT ALSO BEING THE NORTHEASTERLY TERMINUS OF A COURSE IN THE NORTHWESTERLY LINE OF PARCEL NO. 300092 GRANTED TO THE SAN JOAQUIN HILLS TRANSPORTATION CORRIDOR AGENCY BY A DEED RECORDED JULY 1, 1994, AS INSTRUMENT NO. 94 -0436936 OF SAID OFFICIAL RECORDS, SAID COURSE DESCRIBED AS "NORTH 13 °03'02" EAST, 147.57 FEET' IN SAID DEED; THENCE DEPARTING FROM SAID COURSE NO. 6, NORTH 68 °28'13" WEST 121.20 FEET, THENCE NORTH 14 °2747" WEST 28.85 FEET; THENCE NORTH 73 °59'06" WEST 15.00 FEET TO THE NORTHWESTERLY LINE OF SAID PARCEL 10094. ALL AS IIIIORE PARTICULARLY SHOWN ON SHEET 2 OF 2, EXHIBIT A, ATTACHED HERETO AND BY REFERENCE MADE A PART HEREOF. UNLESS OTHERWISE NOTED, ALL BEARINGS AND DISTANCES IN THIS DESCRIPTION ARE GRID BASED ON CALIFORNIA COORDINATE SYSTEM (NAD 83), ZONE 6, 1988 ORANGE COUNTY ADJUSTMENT. J. P. KAPP, P.E. EXPIRES: SEPI J.16606ww "doles ANCES, DIVIDE THE GRID DISTANCE SHOWN HEREIN 2015 30, 1997 No. 22015 Exp. 9,30.97 SHEET 1 OF 2 SCALE: 1" = 150' EXHIBIT A SHEET 2 OFD TO ACCOMPANY LEGAL DESCRIPTION OF A PORTION OF BLOCK 51 OF OF IRVINE'S SUBDIVISION IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA S'ly CORNER OF THE N%Yly 1/2 ' OF THE SE'ly 1/2 OF BLOCK 50 OF IRVINE'S SUBDIVISION A O 6`4.� rr �B9 � ASL Consulting Engineers on i0 m smmr aare nM Tr MK M.1 , 0 h� o .o w ra ago �3 e • �q 0/ SAN EXHIBIT "B" Is. 7-FL YOVER EASEMENT YOYER RAMP yF O,p�i Y O[D UN/VERS /T DRo86OA463 ) DIEG0 4TER MARSH .043693& 3000921 _ CHANNEL eftEEK i 9 @a i SAN EXHIBIT "C" /' a I/ CORRIDOR PROPERTY T.G.A. OU/TCLA /M TO C/TY OF NEWPORT BEACH 'SALT WATER Al fO..P. 94- O45691 PARCEL 300092) DIEGO CNANNEt CREEK EXHIBIT "D" o .o ao zo a'O / b�4 TEMPORARY EASEMEWr CONSTRUCT /ON EASEMENT �(OR. 9(,- 009386/1 � OLD UN /YERS /TY ` DAP /YEEASEMENT ------ /0860 - 463 0W SALT WATER MARSH laR. 94-0436936 PARCEL 3W092) cll*01L CItEEK pIE60 so EXHIBIT '%E" 0 +0 so 90 210 %TV Of NEWPORr HEACN DEALERS141P w1 / PROPERTY O° R° 96-0093891) / 'vF _ F OLD UN /VERS%T DR/YEEASEA,E (/0660 -¢630. R) SALT WATER MARSH (D.A' 94-0436S36 PARCEL J00092) c//pNIVEL CREEK DIEGO SN'I EXHIBIT T" / / .0 40 eo ro as 00 / MA 0111M AIM TO C 1TYL3FNEWPDRT BEACH DEAL ERSN/P PROPERTY /O.R. 96-0093861) ` BAYV/EW WAY OLD UN /YERS /Ty DR /YE EASEMENT 110,660 - SALT WATER MARSH (O.R. 94- 04 36 936 PARCEL 300092) cNANNEL WtffK DIEGO SAN Agreement No. If to City: 0 The City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92658 -8915 Attn: City Manager If to Agency: San Joaquin Hills Transportation Corridor Agency 201 E. Sandpointe Avenue, Suite 200 Santa Ana, California 92707 Attn: Kathy Besnard With a copy to: Nossaman, Guthner, Knox & Elliott Lakeshore Towers, Suite 1800 18101 Von Karman Avenue Irvine, California 92715 -1007 Attn: Robert D. Thornton, Esq. Any such notice shall be deemed to have been given upon delivery or forty -eight (48) hours after deposit in the mail as aforesaid. Either party may change the address at which it desires to receive notice upon given written notice of such request to the other parties. (c) Severability. If any provision of this Agreement, or the application thereof to any person or circumstances, is found to be invalid, the remainder of the provisions of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is found to be invalid, as the case may be, shall not be affected thereby. (d) Modification. A modification of any provision herein contained, or any other amendment to this Agreement, shall be effective only if the modification is in writing and signed by the parties. -6- uAN9soosW7422115 s Agreement No. • (e) Construction. Headings at the beginning of any section, paragraph and subparagraph are solely for the convenience of the parties and are not a part of this Agreement. Any reference to a section herein includes all paragraphs and subparagraphs thereof. This Agreement shall not be construed as if it had been prepared by either party, but rather as if both parties had prepared the same. (f) Counterparts and Duplicate Originals. The parties may execute this Agreement in two or more counterparts, which shall, in the aggregate, be signed by both parties. Each counterpart shall be deemed an original instrument as against any party who has signed it. This Agreement may be executed in any number of duplicate originals, all of which shall be of equal force and effect. (g) No Third Party Beneficiaries. No person or entity other than the parties to this Agreement shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to confer upon any • person or entity, other than parties to this Agreement (and their respective successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth below. SAN JOAQUIN HILLS TRANSPORTATION CORRIDOR AGENCY, a joint powers agency -7- William V0001W. , Chief Executive Officer Agreement No. APPROVED AS TO FORM: By: Agency's Counsel THE CITY OF NEWPORT BEACH AS TO FORM: By: _g_ ta1960090074-2/ISM 0 11 o b 17 EXHIBIT "A" 0 FIN m Ul P OPERTY (Alf PRW ,r �Z BAmmWAYEASEMENT 3 (MWERSRYORR'EEASEMENT SALTWATER MARSH JR -S FLYOVER RAMP FLYOVER EASEMENT TEMAMMYCAV EASEMENT 6 .THE OEALERSN /P PROPERTY RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: The City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92658 -8915 Attention: 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 the payment of the documentary transfer tax pursuant to Revenue and Taxation Code Section 11922. Kevin Murphy City Manager of Newport Beach (Space above this line for Recorder's use only) QUITCLAIM DEED AND EASEMENT AGREEMENT This Quitclaim Deed and Easement Agreement (the "Deed') is made and entered into as of this 12th day of February, 1996 by and between the SAN JOAQUIN HILLS TRANSPORTATION CORRIDOR AGENCY, a California Joint powers agency ( "Agency'), and THE CITY OF NEWPORT BEACH, a charter city ( "City'). Agency hereby remises, releases and forever quitclaims to City all its right, title and interest in and to the real property located in the County of Orange, State of California, more particularly described on Exhibit hereto (the °Property'), excepting and reserving to Agency the easements described in Article 2. 1 A1952890031- 4175!96 ARTICLE 2 RESERVATION OF EASEMENTS The Flyover Easements and the Temporary Construction Easement (both as defined below) are hereby excepted and reserved from the quitclaim of Agency's interest in the Property. 2.1 Flyover Easemebt. An exclusive easement (the "Flyover Easement ") for the purpose of constructing, inspecting, reconstructing, maintaining, repairing, augmenting and retrofitting a ramp for a controlled access or public highway and foundations, columns, pillars and other support facilities and improvements, together With incidental appurtenances, connections and structures in, on, over, along, through, across and under the portion of the Property depicted in Exhibit B attached hereto and incorporated herein by this reference (the "Flyover Easement Area "). The Flyover Easement Area is appurtenant to the real property in Orange County on which the highway known as the San Joaquin Hills Transportation Corridor is located (the "Corridor Property ") and runs with the land. The Corridor Property is depicted on Exhibit C hereto. The Flyover Easement is subject to the right of the City, or its lessee, to use the surface of the Flyover Easement Area in accordance with the covenants of Paragraphs 3.1 and 3.2 to the extent such use does not interfere with the full and free exercise of the Flyover Easement by the Agency, its successors, contractors and subcontractors. The boundary of the Flyover Easement Area shall be 15 feet from the driplines of the Flyover and is depicted on Exhibit B hereto. Upon completion of the construction of the Flyover, as soon as reasonably possible after the written request of the City, the Agency shall execute and record a quitclaim deed as to those portions of the Flyover Easement Area outside of the area 15 feet from the driplines of the Flyover. The Agency shall prepare the legal description for such quitclaim deed. The Agency shall LAWS2890031- 2/15/96 -2- execute and record such quitclaim deed within one year after the Flyover is constructed and opened to the general public, but in no event, less than 20 years from the date of 40 this Deed. 2.2 Tem op raq/ Construction Easement. A temporary easement (the "Temporary Construction Easement ") for purposes incidental to the construction of the Flyover, in, on, over, along, through, across and under that portion of the Property 1 depicted in Exhibit D attached hereto and incorporated herein by this reference (the "Temporary Construction Easement Area"). The Temporary Construction Easement is subject to the right of the City to use the surface of the Temporary Construction Easement Area in a manner which does not interfere with the full exercise of the Temporary Construction Easement by Agency, its successors, contractors and subcontractors. The Temporary Construction Easement shall terminate automatically without further action by Agency or City the earlier of when the Flyover is constructed and open for traffic to the public, or 20 years from the date of this Deed. ARTICLE 3 COVENANTS RUNNING WITH THE LAND - u-I 3.1.1 City or its lessee may use the Flyover Easement Area solely for the purpose of parking vehicles in conjunction with the automobile dealership, vehicular and pedestrian ingress and egress from the property depicted on Exhibit E hereto (the "Dealership Propert)O, landscaping, paving, installation of curbs, landscape and signage, and the maintenance of the above all in a manner that does not interfere with Agency's use of the Flyover Easement. 3.1.2 City or its lessee may not use the Flyover Easement Area in a manner which would interfere with, impede, hinder or prevent the safe and efficient -3- LAU528W031- 2115198 I' construction, existence, operation, use, maintenance, repair or structural integrity of the iimprovements constructed by Agency on the Flyover Easement Area (the "Flyover"). 3.1.3 The City may not use the Flyover Easement Area for the manufacture or storage of flammable, volatile, explosive or corrosive substances, provided, however, City or its lessee may park or display vehicles which contain in their fuel tanks gasoline or other petroleum substances within the Flyover Easement area. 3.1.4 There shall be no, objectionable smoke, fumes, vapors, dust or odors on the Flyover Easement Area, except in connection with construction of the Flyover or with the written consent of the Agency. 3.1.5 The City has no right to comment on or approve the engineering, architecture or aesthetics of the Flyover, provided, however, City shall retain all rights it may have as a member of the Agency. 3.1.6 Agency or its successors, contractors or subcontractors shall have ino obligation to construct any sound wall on, around or under the Flyover. 0 3.1.7 The portion of the Property depicted on Exhibit F ( "Bayview Way Area ") may be used only for the purpose of constructing, inspecting, repairing, reconstructing and maintaining a public street (Bayview Way) and related facilities and improvements, together with incidental appurtenances and connections. 3.2 Transfer of Proms. City shall not sell, contract to sell, assign, lease or in any other way transfer or convey all or any portion of its interest in the Property to a third party without the prior written approval of Agency or its successor, which approval may be withheld in such party's sole discretion, except that approval is herewith granted by Agency for a ground lease with Fletcher Jones Motorcars providing for the use of the Flyover Easement Area consistent with the provisions of Section 3.1.1 and subject to the restrictions set forth in this Deed. -4- LAW28WWI -2fI5W Upon any conveyance of the Property, whether expressly permitted under this Paragraph 3.3 or otherwise approved by Agency or its successor, the party acquiring the Property shall take the Property subject to all of the terms, reservations, restrictions and powers of termination and the covenants and obligations of the City hereunder, and all references to the City hereunder shall thereafter be deemed to refer to such transferee. 3.3 Restoration of Easement Areas. The Agency shall cause its contractor who constructs the Flyover, as soon as reasonably possible after the written request of the City, to restore the improvements to the Flyover Easement Area and Temporary Construction Easement Area which are damaged or removed as a result of the construction of the Flyover to a condition reasonably approximate to their condition prior to such construction, except to the extent such improvements were not permitted under this Agreement or are removed to permit maintenance and operation of the Flyover. 3.4 Covenants Run With the Land. The covenants set forth in Paragraphs 3.1 and 3.2 are hereby declared and agreed to be appurtenant to and run for the benefit of the Corridor Property. The burden of such covenants shall run with the Property and be binding upon any person or entity who acquires any right, title or interest in or to any applicable portion of the Property. It is intended that the dominant tenement shall be the Corridor Property for the covenants set forth in Paragraphs 3.1 and 3.2 and that the servient tenement shall be the Property. By executing this Deed, City covenants and agrees that City and its successors in interest (including lessees) to all or any portion of the Property shall be bound by the, covenants set forth in Paragraphs 3.1 and 3.2. Every person or entity who now or hereafter owns or acquires any right, title or interest in or to any portion of the Property is and shall be conclusively deemed to have consented and agreed to the covenants contained in Paragraphs 3.1 and 3.2 herein, whether or not any reference to this instrument is contained in the instrument by which such person acquired an interest in the Property. The burdens of the covenants set forth in Paragraphs 3.1 and 3.2 do not run with the Flyover Easement, and the holder of the Flyover Easement shall not be bound by such covenants. -5- LAA95289M1- 2J15r96 3.5 Amendment of Covenants. The covenants may be amended by mutual • agreement of Agency and City and any applicable successor with respect to any covenant. Any such amendment shall be recorded in the Official Records of Orange County. 3.6 Default and Remedies. Because of the unique nature and scope of the Agency's use of the Corridor Property, as well as the amount of planning, effort and a time expended by Agency in reliance upon the anticipated uses of the Corridor' Property, monetary damages will not provide an adequate remedy for the damage with respect to the planning efforts and design and construction resulting from a breach of the covenants set forth in Paragraph 3.1 and 3.2. Therefore, in the event of any breach, violation or failure to comply with any such covenant which has not been cured within 60 days after written notice from the enforcing party to do so, then the enforcing party shall be entitled to specifically enforce the performance of the covenant and to any other form of equitable or legal relief. ® 3.7 Waive . Neither a waiver by any enforcing party of a covenant set forth herein of a breach of any of the covenants nor a delay or failure to enforce any of the covenants shall (i) be construed to be a waiver of any earlier or later breach of the 11 same or other covenants, or (ii) be implied from any inaction or omission by any enforcing party to take any action on account of such breach or failure. No express waiver shall affect a breach or failure other than as specified in said waiver or shall apply with respect to any enforcing party other than the party or parties executing such waiver, and their subsequent successors. An enforcing party s consent to or approval of any act by the City or Agency requiring an enforcing party's consent or approval shall not be deemed to waive or render unnecessary such party's consent or approval to or of any subsequent similar acts by the City or Agency. Agency shall not be liable for any damage, loss onprejudice suffered or claimed by City or any lessee, licensee or other occupant or user of the Property or the Dealership Property on account of the enforcement of or failure to enforce the -6- LAN952MMI- ?/75/98 covenants set forth in Paragraphs 3.1 and 3.2. The City shall not be liable for any damage, loss or prejudice suffered or claimed by Agency or its successor on account of the enforcement a failure to enforce the covenant set forth in Paragraph 3.3. 3.8 Release of Abutter's Rights. Without limiting any covenants of City in this Deed, City hereby releases and relinquishes any and all abutter's rights, including access rights appurtenant to the Flyover and the freeway structure on the Flyover 0 Easement Area. INDEMNITIES AND RELEASES 4.1 City shall defend, indemnify, protect and hold harmless Agency and its directors, officers, employees and agents, and the respective employees thereof, and its and their respective successors and assigns, from all losses, claims, suits, costs, liabilities or actions of every name, kind or description (including, without limitation, reasonable attorneys' fees) (collectively, "Liabilities "), including those incurred or brought for or on account of injuries to or death of any person, or damage to any personal property resulting from any negligent act or omission or intentional misconduct in the course of performance of activities upon the Flyover Easement Area, or breach of the covenants in this Deed, by the City, its assigns, lessees and their agents, contractors, subcontractors, or the officers, partners, or employees of any of the foregoing, or resulting from the negligent activities of any third parties granted access to the Property by City. Notwithstanding the foregoing, City shall not be obligated hereunder to protect, defend, indemnify or hold harmless Agency. or its officers or employees for any Liabilities to the extent such Liabilities are caused by or arise out of any act or failure to act by or on behalf of Agency or its officers or employees. 4.2 Agency shall defend, indemnify, protect and hold harmless City and its directors, officers, employees and agents and the respective employees thereof, from all Liabilities incurred or brought for or on account of injuries to or death of any person, _7e LAL95289=1- 2115196 E