HomeMy WebLinkAbout25 - Sunset Ridge Park Access AgreementCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 25
March 23, 2010
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Sharon Wood, Assistant City Manager
949 -644 -3222, or swood @newportbeachca.gov
Public Works Department
David Webb, Deputy Director of Public Works /City Engineer
949 -644 -3311 or dawebb @newportbeachca.gov
SUBJECT: ACCESS AGREEMENT REGARDING SUNSET RIDGE PARK
ISSUE:
Should the City enter into an agreement with Newport Banning Ranch, LLC ( "NBRLLC ")
to gain access to the Sunset Ridge Park property from West Coast Highway, at a point
approximately 1,000 feet west of the intersection of Superior Avenue and West Coast
Highway?
RECOMMENDATION:
Approve and authorize the Mayor, City Manager as appropriate, and City Clerk to execute
the Access Agreement between the City of Newport Beach and Newport Banning Ranch,
LLC Regarding Sunset Ridge Park.
DISCUSSION:
On June 10, 2008, the City Council approved the Concept Plan for the Sunset Ridge Park,
which showed that access would need to be provided through the south -east corner of the
Banning Ranch property, just west of the park property. After much review, staff has
concluded that the best location to access the park from the existing street system is along
West Coast Highway, approximately 1,000 feet west of the intersection of Superior Avenue
and West Coast Highway. This location allows safe access to the park from both directions
of West Coast Highway without excessive grading through steeply sloped areas, while also
minimizing the amount of impact on sensitive habitats in the area.
The attached documents outline the terms and conditions of the City's construction of a park
access road across the Banning Ranch property. The documents are comprised of the
Access Agreement and exhibits including a Grant of Easement for the Access Road
Improvements area; Grant Deed conveying land for West Coast Highway widening to the
City; and Temporary License Agreement for City contractors to use a specific area of the
Banning Ranch property during construction.
Sunset Ridge Park — Approval of Access Agreement with Banning Ranch
March 23, 2010
Page 2
The Access Agreement is the umbrella document, and its major provisions are as follows.
• NBRLLC will grant to the City, at no cost, an easement over a portion of their
property, on which the City may construct, operate and maintain an access road to
Sunset Ridge Park, landscaping, drainage, etc. ( "Access Road Improvements ").
NBRLLC will deliver the Grant of Easement to the City within 60 days of the City's
written request. If the City does not commence construction of the Access Road
Improvements within ten years, the City will reconvey the easement area to NBRLLC
(Section 3.3).
• NBRLLC will grant City staff and contractors, at no cost, the temporary right to use a
specific area of Banning Ranch property temporarily during the construction of
Sunset Ridge Park and the Access Road Improvements. This use will be subject to
the terms of the Temporary License Agreement (Section 3.3.1).
• NBRLLC and its contractors will have the right to use the Access Road
Improvements, at no cost (Section 3.3.2).
• The City will design, construct and maintain the Access Road Improvements at City
expense (section 3.4). The improvements will include the following:
• Access road from West Coast Highway to Sunset Ridge Park, following the
alignment of the proposed Bluff Road (as identified in the circulation element
of the General Plan); and
• Grading, landscaping, irrigation, drainage improvements and water quality
and erosion control.
• The City and NBRLLC will work cooperatively to minimize inconvenience to the
public for any temporary closure of the access road that may be needed for
operations and uses on the Banning Ranch property (Section 3.5).
• NBRLLC will allow the City to haul and permanently place on the Banning Ranch
property non - contaminated dirt exported from the park project's construction
(Section 3.6) in an effort to minimize haul off material from the site.
• The City will install a traffic signal at the intersection of proposed Bluff Road and
West Coast Highway, provided CalTrans approves the signal (Section 3.7).
• NBRLLC will convey title to property for the widening of West Coast Highway to the
City at no cost. The City will widen and improve the northerly side of West Coast
Highway from Superior Road to proposed Bluff Road (Section 3.8).
• The City will construct and pay for a new oil field security fence between the
easement area and the remainder of the Banning Ranch property (Section 3.9).
• NBRLLC will provide acreage on the Banning Ranch property tdi'l ttigate biological
impacts from construction of the Access Road Improvements. In addition, NBRLLC
will endeavor to provide up to ten acres to the City, at no cost, for habitat mitigation
required for construction of the park improvements (Section 3.10).
Environmental Review:
The activities contemplated by the Access Agreement and supporting documents were
studied in the EIR prepared for Sunset Ridge Park, the certification of which is a
previous item on this agenda for the City Council's consideration.
Sunset Ridge Park — Approval of Access Agreement with Banning Ranch
March 23, 2010
Page 3
Public Notice:
The Concept Plan for Sunset Ridge Park, which designated that access would need to be
provided through the south -east comer of the Banning Ranch property, as well as the Project
EIR which reviewed and analyzed the proposed routes for the park access road, have had
extensive public review and comments. Notice of proposed City Council review and action
on this Access Agreement has been provided at least 72 hours prior to the City Council's
meeting pursuant to the Brown Act.
Funding Availability:
The approval of the access agreement does not require any monetary compensation to the
NBRLCC. The development of the road though the Banning Ranch property will be funded
as part of the Sunset Ridge construction project and will be included in the Sunset Ridge
Park project plans and specifications.
Prepared by:
David Webb
Deputy Public Works Director/
City Engineer
Attachment: Access Agreement
Submitted by:
Sharon Wood
Assistant City Manager
ACCESS AGREEMENT BETWEEN THE CITY OF
NEWPORT BEACH AND NEWPORT BANNING
RANCH, LLC REGARDING SUNSET RIDGE PARK
1. PARTIES AND DATE.
This Access Agreement Regarding Sunset Ridge Park ( "Access Agreement ") is
entered into as of March _, 2010 ( "Effective Date ") by and between the CITY OF
NEWPORT BEACH, a municipal corporation and its successors, and assigns ( "City ")
and the NEWPORT BANNING RANCH LLC, a California limited liability corporation
( "NBRLLC "), as authorized agent for Aera Energy LLC and Cherokee Newport Beach,
LLC. City and NBRLLC are sometimes individually referred to herein as "Party" and
collectively as "Parties."
2. RECITALS.
2.1 NBRLLC owns and controls approximately 402 acres of real property
commonly referred to as Newport Banning Ranch ( "NBR Property ") located within the
boundaries of both the City and the County of Orange, State of California, and City
owns approximately 12 acres of real property adjacent to NBR Property, commonly
referred to as "Sunset Ridge Park" ( "SRP "), both of which are graphically depicted in
Exhibit "A" attached hereto and incorporated by this reference.
2.2 Parties desire to enter into this Access Agreement to facilitate City's
economical and efficient development of Sunset Ridge Park while not precluding
NBRLLC's access to and economical and efficient use of the NBR Property.
2.3 Subject to the terms of this Access Agreement, NBRLLC desires to grant
to City, and City desires to accept, a non - exclusive easement, to install security fencing,
and to construct, grade, improve and maintain an access road, sidewalks; curbs,
landscaping, irrigation systems, utilities, storm water drainage and erosion control
facilities in order to accommodate public access for pedestrian and vehicle ingress and
egress ( "Access Road Improvements ") as generally depicted in Exhibit "B ", attached
hereto and incorporated by reference. The Access Road Improvements are allowed
on, over, under and across a portion of the NBR Property at the general locations
depicted in Attachment "1" to Exhibit "C ", attached hereto and incorporated by reference
( "Easement Area "), Which City and NBRLLC acknowledge may change during the
regulatory permitting process for the SRP and /or the Access Road Improvements
(collectively "Project ").
2.4 City desires to construct said Access Road Improvements from West
Coast Highway over the Easement Area to connect to SRP, and NBRLLC desires, for
itself and its successors, in all or part of the NBR Property, and their respective
employees; and contractors to enjoy access rights to and from the NBR Property on
said Access Road Improvements over the Easement Area.
2.5 City desires and NBRLLC is willing to allow City to dispose of non -
contaminated dirt and earth generated from the Project on the NBR Property in a
location to be determined by NBRLLC and approved by the applicable
regulatory/permitting agencies.
2.6 NBRLLC shall provide acreage on the NBR Property to mitigate any
biological impacts attributable to the Access Road Improvements located within the
Easement Area, and will endeavor to provide City up to 10 acres of the lowland portion
of the NBR Property, subject to the provisions of Section 3.10 below (excluding those
lands designated for oil consolidation by NBRLLC), at no cost to the City, for mitigation
of the Project's biological impacts as identified in the relevant environmental documents
and as directed by the applicable regulatory/permitting agencies.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
benefits, obligations and agreements set forth herein, the Parties agree as follows:
3. TERMS.
3.1 Incorporation of Recitals. The Recitals contained herein are true and
correct and are incorporated into the operative part of this Access Agreement.
3.2 Term. The term of this Access Agreement shall commence on the date
indicated above and shall continue in full force and effect until terminated pursuant to
the terms of this Access Agreement.
3.3 Grant of Easement. Subject to the terms of this Access Agreement and
the terms and conditions set forth in the Grant of Easement attached hereto as Exhibit
"C ", NBRLLC agrees to grant to City, at no cost, and City agrees to accept the grant of a
non - exclusive easement to construct, improve, operate and maintain the Access Road
Improvements on, over, under and across the Easement Area. Notwithstanding the
foregoing, in the event of any conflict between this Access Agreement and the Grant of
Easement, this Access Agreement shall prevail. Subject to the provisions of Section 3.5
below, and provided the City is in full compliance with its obligations hereunder,
NBRLLC shall not take any action that interferes with the easement rights granted to
City, unless ordered by a governmental agency or required by law in which case
NBRLLC shall work with the City to minimize any interference. Within 60 calendar days
following NBRLLC's receipt of written notice from City, NBRLLC shall deliver to City for
recordation the Grant' of Easement, which Grant of Easement shall be in a form
substantially similar to Exhibit "C" attached hereto and incorporated by reference. The
Grant of Easement is conditioned upon the City constructing the Access Road
Improvements within 10 years from the date the Grant of Easement is recorded with the
County Recorder. If construction of the Access Road Improvements has not
commenced within 10 years the City agrees to reconvey, via a recordable quitclaim
deed, the Grant of Easement to NBRLLC. The foregoing shall not serve to preclude the
improvement of Bluff Road consistent with the requirements in the City of Newport
Beach General Plan Circulation Element and the Orange County Master Plan of Arterial
Highways.
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NBRLLC and City acknowledge that there may be a need for the Easement Area to be
modified as a result of requirements by the regulatory/permitting agencies during the
Project's approval process. Any such modifications shall be subject to the written
approval of the Parties, which approvals shall not be unreasonably withheld. Subject to
the limitations of Section 3.10 below, preconditions to an agreement to modify the
Easement Areas shall include that the essential terms and conditions of this Access
Agreement remain in force, and that the location and design of the new easement area
and new Access Road Improvements are substantially similar in location and design to
those of the original. If the preconditions are satisfied, NBRLLC agrees to grant City, at
no cost, a new easement ( "Replacement Easement ") with the modifications and City
agrees to accept the grant of the Replacement Easement. City shall release, by
recordable quitclaim deed that is acceptable to NBRLLC, the original Grant of Easement
concurrently with receipt from NBRLLC of the Replacement Easement.
3.3.1 NBRLLC shall grant to City's staff, agents, consultants, vendors,
subcontractors and contractor(s), at no cost, the additional temporary right, to use,
occupy, grade, landscape, maintain and store equipment, supplies and materials
pursuant to the Temporary License Agreement to be executed by City's agents,
consultants, vendors, subcontractors and contractor(s) in the form attached hereto
as Exhibit "D" on a portion of the NBR Property during the construction of the Project
("Temporary Construction License Area "). The Temporary Construction License
Area is confined to the area depicted in Attachment "l " to Exhibit "D" attached hereto
and incorporated by this reference, or such area as mutually agreed to by the
Parties. Prior to the commencement of construction on any portion of the NBR
Property, the Haul Routes and Fill Placement Areas shall be fenced off or otherwise
marked by the City to assist City's staff, agents, consultants, vendors,
subcontractors and contractor(s) to stay within the Temporary Construction License
Area.
3.3.2 NBRLLC, merchant builders, and their respective contractors,
subcontractors and vendors and their respective employees and agents shall have
the right to use, without charge, the Access Road Improvements for pedestrian and
vehicle ingress and egress to the Easement Area and NBR Property from West
Coast Highway.
3.3.3 City shall cause NBRLLC to be named as a dual obligee on
performance and payment bonds, and will provide NBRLLC with copies of all bonds
prior to the start of construction for any bonded scope of work.
3.4 A_ ccess Road Improvements. In general, City will design and construct the
Access Road Improvements from West Coast Highway to SRP to match the proposed
vertical and horizontal alignment of the east side of the proposed Bluff Road. The
Access Road Improvements shall be constructed, maintained and improved by City
pursuant to the designs, standards and specifications employed by City for the
construction, maintenance and improvement of similar public improvements.
Notwithstanding the above, the City proposes and agrees to allow a maximum
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longitudinal grade of 8% on Bluff Road to minimize environmental impacts related to
earthwork and alteration to the existing topography.
3.4.1 Prior to commencement of any fencing or construction in the
Easement Area or Temporary Construction License Area, City will provide NBRLLC
with copies of any permits that are legally required as a prerequisite for the
construction of all or any part of the Access Road Improvements and written
confirmation from the City that all required governmental approvals have been
obtained.
3.4.2 City will be responsible for any and all costs of construction and
Maintenance of the Access Road Improvements, including pavement, sidewalks,
curbs, landscaping, irrigation systems, utilities, storm water drainage and erosion
control facilities, construction water, electricity and miscellaneous costs, including
recordation costs, title costs, costs to obtain permits, bonds and insurance and
mitigation of identified environmental impacts and their associated cost, including but
not limited to restoration and on -going monitoring, as a result of the construction of
Access Road Improvements.
3.4.3 NBRLLC shall remediate at their cost any contaminated soil or
perform oil well abandonment in the Easement Area. Subject to applicable oversight
agency approval, if any, NBRLLC shall commence their remediation work or oil well
abandonment within ten (10) calendar days of receiving written notice from the City
that said remediation /abandonment work is necessary. NBRLLC shall diligently
pursue the remediation /abandonment work so as not to unnecessarily delay the City
from completing the Access Road Improvements.
3.4.4 City's preferred route for gaining access to the SRP will be
pursuant to the route referenced in the SRP Project EIR as EIR Option 1, which is
generally depicted in the attached Exhibit "B" which is incorporated herein by
reference. The EIR Option 1 grading plan utilizes 2:1 slopes, but may allow for
contour grading and some undulation to provide a more natural appearance.
3.4.5 Should conditions require the Access Road Improvements be built
according to any alignment, other than EIR Option 1, in order to permit the
construction of Access Road Improvements that are consistent with the City of
Newport Beach General Plan Circulation Element and the Orange County Master
Plan of Arterial Highways NBRLLC and City agree to the future relocation of all
portions of the Access Road Improvements that are not on the ultimate alignment of
Bluff Road.
3.4.6 City shall construct and pay for necessary water quality, erosion
control devices and drainage improvements to mitigate runoff from the Access Road
Improvements.
3.4.7 City shall install and pay for erosion control, including planting,
within the construction limits of the Project, or any other areas on NBR Property
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affected by construction of the Access Road Improvements at no cost to NBRLLC.
Subject to applicable oversight agency approval, City shall install drought tolerant
non - native, non - irrigated hydro -seed with binder in the impacted Easement Area
pursuant to Exhibit "B ". If an alignment other than EIR Option 1 is approved, City
shall install temporary landscaping along the access road into the SRP.
3.5 Temporary Access Road Closure(s). City acknowledges that the Access
Road Improvements and specifically the access road may be subject to temporary
closures or detours to allow for efficient operations and uses on NBR Property, including
the installation, maintenance, repair or replacement of utility lines, cables, conduits,
storm water systems and sewage systems. City shall work cooperatively with NBRLLC
or its successors, assigns or contractors to implement the necessary closure or detour
with the goal of minimizing inconvenience to the public.
3.5.1 In the event NBRLLC or its successors, assigns or contractors
disturbs, alters or otherwise damages the Access Road Improvements while performing
any of the activities allowed under this Access Agreement NBRLLC shall restore the
Access Road Improvements to their original approved condition within 10 calendar days
following completion of the work, unless some other repair standard or compliance
period is mutually agreed upon by the Parties.
3.6 Deposit of Dirt and Earth on NBR Property. NBRLLC will accept, allow the
hauling of, and permanent placement of clean, non - contaminated earth export material
from the Project onto the NBR Property. It is currently estimated that the amount of
export material will be approximately 35,000 cubic yards, with estimates indicating
approximately 5,000 cubic yards to be generated from the Easement Area and
approximately 30,000 cubic yards to be generated from SRP. To facilitate this, City
agrees to analyze two disposal locations on the NBR Property within SRP's EIR. The
first site is adjacent to City's utilities yard. This site may accommodate approximately
15,000 cubic yards without impacting habitat. The second site is north of the proposed
access road intersection with the future Bluff Road and will accept approximately 20,000
cubic yards of the remaining export from the entry road and SRP. Both Fill Placement
Areas are generally identified in Attachment "1" to Exhibit "D ". City agrees that the fill
will be placed as engineered fill and will be compacted to a standard of 90% and
documented at City's cost by a certified geologist acceptable to NBRLLC. The NBR
Property Fill Placement Areas will only be used upon any required regulatory agencies'
approval. Should the Fill Placement Areas on the NBR Property not be approved, or
modified pursuant to Section 3.3, or significantly delayed as to impact the Project's
construction schedule, Parties will confer on the most efficient process for handling the
export material. Each Party will be responsible for the cost to remove excess dirt and
earth from their respective properties.
3.7 West Coast Highway Traffic Signal. The proposed Bluff Road and West
Coast Highway intersection location shall be constructed as shown on Exhibit "B" or as
may be approved by NBRLLC and City. At least 30 days prior to the commencement of
construction of the Project, City will provide NBRLLC with final intersection geometry.
Provided the California Department of Transportation ( "Caltrans ") approves a
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signalized intersection, City will install a new signal at Bluff Road and West Coast
Highway.
3.8 West Coast Highway Widening. City will widen and improve the northerly
side of West Coast Highway from Superior Road to Bluff Road to its ultimate General
Plan width (to accommodate a double left turn lane on eastbound West Coast Highway)
as part of the Project. Caltrans requires the dedication in fee of any property that will
become part of West Coast Highway. NBRLLC owns and /or controls the fee interest in
this property, which is more particularly described in Exhibit "1" to Exhibit "E ", which is
attached hereto and incorporated by this reference ("WCH Property "). To facilitate
West Coast Highway's widening, at no cost to City, NBRLLC will convey title to City, for
public right -of -way purposes. This conveyance is subject to all: (i) all prior covenants,
conditions restrictions, easements, rights, encumbrances and other exceptions and
reservations of record; (ii) matters discoverable or that can be ascertained by physical
inspection or correct survey of the WCH Property; and (iii) zoning ordinances and
regulations and any other laws ordinances and governmental regulations restricting or
regulating the use, occupancy, and enjoyment of the WCH Property; and (iv) all terms,
conditions and reservations of the Grant Deed, provided, however, NBRLLC covenants
that this conveyance is free and clear of any and all monetary liens and encumbrances
other than the lien of real property taxes and assessments that are a lien not due and
payable.
NBRLLC shall transfer the WCH Property to City, via Grant Deed, within 60
calendar days from receipt of written notice from City requesting said transfer, in the
form attached hereto as Exhibit "E." City may then transfer the WCH Property in fee to
Caltrans as part of the permitting /approval process for West Coast Highway's widening.
3.8.1 NBRLLC for itself and its successors and assigns, hereby
covenants with City, and its successors and assigns, that NBRLLC has a good right to
convey to City the WCH Property; that NBRLLC and its successors and assigns and all
persons acquiring any interest in the WCH Property granted, through or for NBRLLC,
will, on demand of City, or its successor or assigns, and at the expense of NBRLLC, its
successors or assigns in and to the WCH Property, execute any instrument reasonably
necessary for the further assurance of the title to the WCH Property that may be
reasonably required by a title insurance company; and that NBRLLC and its successors
and assigns will, provided that the City's title insurance company refuses to defend the
title, forever warrant and defend all of the WCH Property so granted to City, its
successors and assigns, against every person lawfully claiming the same or any part
thereof is in violation of the covenant to convey "clean fee title ".
3.9 Security Fence. City shall construct and pay for a new oil field security
chain link fence on the West side of Bluff Road, from West Coast Highway to the north
side of the Access Road Improvements to the Newport Crest Community. Access gates
to the Easement Area will also be constructed at two locations to be determined by
NBRLLC and approved by City. In addition, City may install interim safety fencing at the
top of the bluff area as shown on Exhibit "B."
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3.10 Habitat Mitigation Area. Provided the proposed habitat mitigation
contained within the SRP Plan: 1) receives approval of regulatory agencies and the
California Coastal Commission; and 2) does not require any oil or hazardous materials
remediation measures by NBRLLC; NBRLLC shall provide acreage on the NBR
Property to mitigate any biological impacts attributable to the Access Road
Improvements located within the Easement Area. The amount of required acreage will
be determined by applicable regulatory agencies. Additionally, NBRLLC shall endeavor
to identify and to provide up to 10 acres within the lowland portion of the NBR Property
at no cost to City, in the form of a conservation easement or other mutually agreeable
means, to be used for all habitat mitigation restoration acreage required by the
regulatory/permitting agencies for approval of the Project. This mitigation acreage shall
be in addition to any mitigation restoration acreage that may be allowed on City's SRP
property. Subject to execution of a Temporary License Agreement in a form consistent
with Exhibit "U', attached hereto and incorporated by reference, such mitigation area(s)
shall be accessible to City or its designees for the establishment, maintenance and
required monitoring of restoration plant materials.
3.11 Engineering Improvement and Landscaping Plans City shall provide
60% completed drawings, plans and calculations and final engineering and landscaping
plans for the proposed Access Road Improvements' on the Easement Area to NBRLLC
for review, comment and approval. NBRLLC shall review, comment and /or approve the
plans in writing within 15 business days following receipt of the last of the data to be
provided. NBRLLC shall not unreasonably withhold its approval if the final engineering
plans are logical and consistent extensions of the 60% approved plans and meet the
spirit and intent of either EIR Option 1 or any other route. City shall build the Access
Road Improvements in accordance with the final engineering and landscaping plans
approved by the Parties pursuant to this section ( "Final Project Plans "). City agrees to
work cooperatively to address any concerns expressed by NBRLLC.
3.11.1 Within 30 days after the filing of the Notice of Completion for the
Project, City shall provide to NBRLLC record drawing plans of the Access Road
Improvements completed. The record drawing plans shall show the location and
physical features of the completed work. In addition, within 30 days after the filing of the
Notice of Completion for the Project, City shall provide to NBRLLC the soils compaction
reports prepared by a certified geologist documenting the Access Road Improvements
and the Fill Placement Areas were properly constructed in accordance with this Access
Agreement.
4. MISCELLANEOUS PROVISIONS.
4.1. Indemnification. To the fullest extent permitted by law, City, its successors
or assigns, agrees to indemnify, defend and hold harmless NBRLLC and its agents,
consultants and contractors and their respective members, managers, partners,
officials, officers, directors, shareholders, agents and employees ( "Indemnified
Parties ") from and against any and all claims (including, without limitation, claims for
bodily injury, death, mechanics liens, or damage to property), demands, obligations,
damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities,
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costs and expenses (including, without limitation, attorneys' fees, disbursements, costs
of litigation, investigation, appeal, expert witness fees and court costs) of every kind and
nature whatsoever (individually, a "Claim'; collectively, "Claims "), which arise from
City's, its contractors', agents', employees', invitees', and their respective employees
use of and /or presence on all or any of the Easement Area(s) and /or Temporary
Construction License Area. The foregoing shall not serve as authority for City or its
counsel to settle any Claim without the prior written consent of NBRLLC.
Notwithstanding the foregoing, nothing herein shall be construed to require City
to indemnify the Indemnified Parties from any Claim arising from the negligence or
willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be
construed as authorizing any award of attorneys' fees in any action on or to enforce the
terms of this Access Agreement.
4.2 Notices. All notices, demands, requests or approvals to be given under
the terms of this Access 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, certified or registered mail,
addressed as hereinafter provided. All notices, demands, requests or approvals from
NBRLLC to City shall be addressed to City at:
City of Newport Beach
Attn: City Manager
3300 Newport Boulevard
Newport Beach, California 92658
With a copy to:
City of Newport Beach
Attn: City Attorney
3300 Newport Boulevard
Newport Beach, California 92658
All notices, demands, requests or approvals from City to NBRLLC shall be
addressed to NBRLLC at:
Newport Banning Ranch LLC
Attn: George L. Basye
3030 Saturn Street, Suite 101
Brea, California 92821
With a copy to: Newport Banning Ranch LLC
Attn: Michael A. Mohler
Attn: Chris Yelich
1300 Quail, Suite 100
M
Newport Beach, California 92660
Cherokee Newport Beach LLC
Attn: Bret Batchelder
111 E. Hargett St., Suite 300
Raleigh, North Carolina 27601
4.3 Waiver. A waiver by either Party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
4.4 Integrated Agreement. This Access Agreement and the Exhibits attached
hereto represent the full and complete understanding of every kind or nature
whatsoever between the Parties hereto, and all preliminary negotiations and
agreements of whatsoever kind or nature are merged herein. No verbal agreement or
implied covenant shall be held to vary the provisions herein.
4.5 Interpretation. The terms of this Access Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either Party by reason of the authorship of the Access Agreement or any other
rule of construction which might otherwise apply.
4.6 Amendments. This Access Agreement may be terminated, modified or
amended only by a written document executed by both NBRLLC and City and approved
as to form by the City Attorney.
4.7 Severability. If any term or portion of this Access Agreement is held to be
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions of this Access Agreement shall continue in full force and effect.
4.8 Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it with venue in the County of Orange.
In the event City and NBRLLC cannot resolve any conflict which arises hereunder within
20 days following written demand of either Party, or such longer period as the Parties
may agree, then either NBRLLC or City shall have the right to submit the matter to a
reference judge for a final and binding decision, in the manner and subject to the
procedures set forth in Section 4.8.1 below.
4.8.1 In the event of any dispute between NBRLLC and City arising
under this Agreement, such dispute shall be heard by a reference proceeding from the
Orange County Superior Court pursuant to California Code of Civil Procedure Sections
638 et seq. NBRLLC and City agree that a single referee will try all issues, whether of
fact or law, and report a finding and judgment thereon, and issue all legal and equitable
relief appropriate under the circumstances of the controversy before him /her. The
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referee may be asked to issue orders for the settlement, cure, correction or remedy of
any default, controversy or deadlock, or to enforce any covenant or agreement herein,
to enter a final and binding judgment for damages, to issue mandatory or prohibitory
injunctions, to issue a writ of mandamus, issue a declaration in any declaratory relief
action, or to grant any other remedies consistent with the purposes of this Agreement.
From the date of the filing of a complaint or petition with respect to this Agreement until
the date upon which the one referee chosen by NRBLLC and City agree to serve and in
fact begins serving, the Orange County Superior Court Judge sitting as the writs and
receivers judge shall be the referee for the purposes of issuing all orders in any
proceedings hereunder. Any referee selected pursuant to this Section shall be
considered a temporary judge appointed pursuant to Article 6, Section 21 of the
California Constitution. Immediately upon the service of a complaint, counsel for
NBRLLC and City shall be obligated to cooperate in good faith to select and formally
retain the services of a referee, in writing, through the services of the Judicial Arbitration
and Mediation Service. If NBRLLC and City are unable to agree on the identity of a
referee within 10 days of the service of such a complaint, either Party may seek to have
one appointed pursuant to the California Code of Civil Procedure Section 640. The cost
of such referee proceeding shall be bome equally by the Parties.
4.9 Joint and Several Liability. Unless otherwise provided in this Access
Agreement the terms, covenants, and conditions contained herein shall apply to and
bind the heirs, successors, executors, administrators, and assigns of all the Parties
hereto, all of whom shall be jointly and severally liable hereunder.
4.10 Successors and Assigns. This Access Agreement, including the grant of
easement and all rights and duties of the Parties, shall run with the land and inure to the
benefit of and be binding upon the heirs, successors and assigns of the Parties hereto.
4.11 Permits. It shall be City's responsibility to comply with all applicable laws
during the construction, maintenance and improvement of the Access Improvements,
including the requirement to obtain all required city, county, state and federal permits.
4.12 No Attorneys' Fees. In any action or proceeding between the Parties to
enforce any provision hereof, the prevailing Party shall not be entitled to attomeys' fees
in addition to such other relief.
[SIGNATURES ON NEXT PAGE]
10
Approved as to Form:
�'c e of t he City ttomey
avid R. Hunt
City Attorney
City of Newport Beach
THE CITY OF NEWPORT BEACH
By: Keith Curry, Mayor
Dated:
City of Newport Beach
Attest:
Leilani Brown
City Clerk
City of Newport Beach
NEWPORT BANNING RANCH LLC
By:Z , c
Name: qor�c L. asy r
Title:
I�wu o k✓
Dated: uG� lZ to o
[END OF SIGNATURES]
[fl
EXHIBIT "A"
Property's Description
(Aerial Map of Property and SRP)
12
i
19TH STREET
T
f
� 9
4
2
t
2 18TH STREET
W
Z Z
W W
NEWPORT BANNING RANCH 17TH STREET
(NBR PROPERTY)
5
16TH STREET IIr
�D
1
SUNSET RIDGE PAR
(SRP) 0�
EXHIBIT A
SUNSET RIDGE PARK
BANNING RANCH
""" PROPERTY LOCATIONS
EXHIBIT "B"
Access Road Improvements
13
TRAFFIC SIGNAL -- -- --- -__
LEGEND
Fs Brown Area - Non - Irrigated, Non- Native, Hydro-seed Mix with Binder
Ffs Green Area - Irrigated, Native, California Friendly or Ornamental Landscape
*III 1
Exhibit B
EPTi _..I
.. r
EXHIBIT' C"
Grant of Easement
WHEN RECORDED, RETURN TO:
City of Newport Beach
3300 Newport Beach Blvd.
P.O. Box 1768
Newport Beach, California 92658 -8915
Attn: City Clerk
(Exempt From Recording Fees Pursuant to Government Code § 6103)
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
GRANT OF EASEMENT
This Grant of Easement ( "Easement ") is entered into as of , 2010
( "Effective Date ") by and between the Newport Banning Ranch LLC, a California limited
liability corporation ( °NBRLLC "), as authorized agent for Aera Energy LLC ( "Aera ") and
Cherokee Newport Beach LLC ( "Cherokee ") (NBRLLC, Aera, and Cherokee are
collectively referred to as "Grantor ") and the City of Newport Beach, a municipal
corporation and its successors, and assigns ( "Grantee "), with reference to the following
facts:
A. Grantor is the fee owner of certain real property located in the City of
Newport Beach and the County of Orange, State of California, which is commonly
referred to as Banning Ranch ( "Grantor's Property ").
B. Grantee is the fee owner of certain real property located in the City of
Newport Beach, County of Orange, State of California, which is adjacent to Grantors
Property and commonly referred to as Sunset Ridge Park ( "SRP ").
C. Grantee desires to construct Access Road Improvements, as described in
Paragraph "D" below, from West Coast Highway through a portion of Grantor's Property
to SRP and Grantor desires access rights to West Coast Highway.
D. Subject to the terms and conditions set forth herein, Grantor desires to
grant to Grantee a non- exclusive perpetual easement to install security fencing, and to
construct, grade, improve and maintain an access road, sidewalks, curbs, landscaping,
irrigation systems, utilities, storm water drainage and erosion control facilities in order to
accommodate public access for pedestrian and vehicle ingress and egress ( "Access
Road Improvements "), on, over, under and across that portion of Grantor's Property
that is depicted in Attachment "1 ", attached hereto and incorporated by reference
( "Easement Area ").
NOW, THEREFORE, in consideration of the mutual promises, covenants,
benefits, obligations and agreements set forth herein, the parties agree as follows:
1. Incorporation of Recitals. The Recitals contained herein are true and
correct and are incorporated into the operative part of this Easement.
2. Grant of Easement. Grantor grants to Grantee, and Grantee accepts the
grant of, a non - exclusive perpetual easement to construct, grade, improve and maintain
the Access Road Improvements on, over, under and across the Easement Area. This
Easement is subject to the terms and conditions contained in that certain Access
Agreement Between the City of Newport Beach and Newport Banning Ranch LLC
Regarding Sunset Ridge Park, dated concurrently herewith ( "Access Agreement "),
which Access Agreement is attached hereto as Attachment "2" and incorporated herein
by reference
2.1. The Access Road Improvements shall be constructed, maintained
and improved pursuant to the designs, standards and specifications employed by the
Grantee for the construction, grading, maintenance and improvement of similar public
improvements in the City.
2.2. Grantor, for itself and its employees, successors and assigns, and
their respective employees, contractors, sub - contractors, vendors and guests, reserves
the right to use the Access Road Improvements for pedestrian and vehicle ingress and
egress to West Coast Highway to and from Grantor's Property.
2.3 In the event that Grantor believes in good faith that an emergency
exists that may pose an imminent danger to person or property with respect to
construction or maintenance of the Easement Area or Access Road Improvements,
Grantor shall contact City and request corrective action within forty-eight (48) hours. If
City does not commence or make arrangements to commence corrective action(s)
within forty -eight (48) hours Grantor may initiate immediate remedial action, in which
event Grantee shall reimburse Grantor for all actual, reasonable costs thereof within
thirty (30) days after receipt of an invoice. .
3. Indemnification. To the fullest extent permitted by law, City, its successors
or assigns, agrees to indemnify, defend and hold harmless Grantor and its agents,
consultants and contractors and their respective members, managers, partners,
officials, officers, directors, shareholders, agents and employees ( "Indemnified
Parties ") from and against any and all claims (including, without limitation, claims for
bodily injury, death, mechanics liens, or damage to property), demands, obligations,
damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities,
costs and expenses (including, without limitation, attorneys' fees, disbursements, costs
of litigation, investigation, appeal, expert witness fees and court costs) of every kind and
nature whatsoever (individually, a "Claim'; collectively, "Claims "), which arise from
City's, its contractors', agents', employees', invitees', and their respective employees
use of and /or presence on all or any of the Easement Area(s) and /or Temporary
Construction License Area. The foregoing shall not serve as authority for City or its
counsel to settle any Claim without the prior written consent of NBRLLC.
Notwithstanding the foregoing, nothing herein shall be construed to require City
to indemnify the Indemnified Parties from any Claim arising from the negligence or
willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be
F)
construed as authorizing any award of attorneys' fees in any action on or to enforce the
terms of this Agreement.
4. Joint and Several Liability. Unless otherwise provided in this Easement,
the terms, covenants, and conditions contained herein shall apply to and bind the heirs,
successors, executors, administrators, and assigns of all the parties hereto, all of whom
shall be jointly and severally liable hereunder.
5. Limitations on Grant of Easement and Disclosure. This Easement is
subject to the matters of record set forth on Attachment "T' attached hereto; and, (ii) all
terms, conditions and reservations of this Easement, including the following:
5.1 Grantor reserves the right, but not the obligation, to enter onto the
Easement Area, to perform investigation and remediation in accordance with applicable
environmental laws in response to any assertion or claim by any private party or
government agency, that there first existed as of the date hereof, on or under the
Easement Area any condition of the soil, surface waters, or groundwater that: (i)
requires investigatory, corrective or remedial measures, and /or (ii) comprises a basis for
claims and /or liabilities.
5.2 Grantor's Property, including the Easement Area, for many years
was used in connection with production of crude oil /petroleum from wells located on or
near the Easement Area. Natural, shallow deposits of petroleum may exist in the soil
on or near the Easement Area as well as petroleum - related combustible gases.
Petroleum production involves other facilities, also, such as tanks, pipelines, and
production pits to store and transport oil that is produced. Petroleum production may
have resulted in some releases of petroleum into the soil on or near the Easement Area.
Petroleum, naturally occurring deposits of petroleum, and petroleum - related
combustible gases may remain in the soil on or near the Easement Area. Information
concerning historical petroleum producing operations can be obtained from the
California Department of Conservation, Division of Oil, Gas and Geothermal Resources.
6. Commencement of Easement. Subject to the terms of the Access
Agreement and Section 8 below, the Easement rights contained herein shall commence
upon recordation of this Easement in the Official Records of the County of Orange.
7. Taxes. The payment of any real property taxes and assessments relating
to the Easement granted herein shall be bome by the Grantee.
8. Permits. It shall be Grantee's responsibility to comply with all applicable
laws during the construction, grading, maintenance and improvement of the Access
Road Improvements, including the requirement to obtain all required city, county, state
and federal permits.
9. Permitted Use. Grantee shall use or permit the use of the Easement Area
solely for the purposes stated in this Easement.
10. Successors and Assigns. This Easement, including all rights and duties of
the parties, shall run with the land and inure to the benefit of and be binding upon the
heirs, successors and assigns of the parties hereto.
11. Miscellaneous Provisions.
11.1. There are no representations, warranties or other agreements
between the parties as to the matters described in this Easement except as expressly
stated herein, and this Easement fully states the agreement of the parties as to such
matters.
11.2 No change, amendment, alteration or revision of this Easement
shall be valid unless in writing and signed by the parties hereto.
11.3 In any action or proceeding between the parties to enforce
any provision hereof; the prevailing party shall not be entitled to attorneys' fees in
addition to such other relief.
11.4 This Easement shall be interpreted, enforced and governed
by the laws of the State of California. Venue shall be in Orange County, California.
[SIGNATURES ON NEXT PAGE]
4
Dated: GRANTEE
Approved as to Form:
Office of the City Attorney
David R. Hunt
City Attorney
City of Newport Beach
David Kiff
City Manager
City of Newport Beach
Attest:
Leilani Brown
City Clerk
City of Newport Beach
Dated: GRANTOR
By:
Name:
Title:
By:
Name:
Title:
ATTACHMENT " 1" to Easement
Easement Area Legal Description
NEWPORT BANNING \
RANCH (NBR) \
ACCESS IMPROVEMENTS \
EASEMENT
\
• A
a
<x
WEST COAST HIGHWAY WIDENING
PER SEPARATE INSTRUMENT
a—�r -
GRANT OF EASEMENT
LEGAL DESCRIPTION i
SET RIDGE
ARK (SRP)
WAY
GRANT OF FEE TITLE PER SEPARATE
LEGAL DESCRIPTION
ATTACHMENT 1
LEGAL DESCRH'TION
GRANT OF ACCESS EASEMENT
PARCELI
THAT CERTAIN PARCEL OF LAND SITUATED IN THE UNINCORPORATED
TERRITORY OF THE COUNTY OF ORANGE, STATE OF CALIFORNIA, BEING A
PORTION OF LOT 1 OF TRACT NO. 463 AS SHOWN ON A MAP FILED IN BOOK 32
PAGES 2 THROUGH 3, INCLUSIVE, OF MISCELLANEOUS MAPS TOGETHER WITH A
PORTION OF LOT I OF TRACT NO. 2250 AS SHOWN ON A MAP FILED IN BOOK 104
PAGES 6 THROUGH 7, INCLUSIVE, OF MISCELLANEOUS MAPS TOGETHER WITH A
PORTION OF LOT D OF THE BANNING TRACT AS SHOWN ON A MAP FILED IN
SUPERIOR COURT CASE NO. 6385 OF LOS ANGELES COUNTY, ALL RECORDS IN THE
OFFICE OF THE ORANGE COUNTY RECORDER, MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
BEGINNING AT THE SOUTHWESTERLY CORNER OF TRACT NO. 7817 AS SHOWN ON
A MAP FILED IN BOOK 308 PAGES 33 THROUGH 34, INCLUSIVE, OF
MISCELLANEOUS MAPS IN THE OFFICE OF THE ORANGE COUNTY RECORDER;
THENCE NORTHERLY ALONG THE WESTERLY LINE OF SAID TRACT NO. 7817
NORTH 0 °18'11" EAST 266.52 FEET, THENCE SOUTH 89 °40'50" EAST 50.13 FEET TO
THE BEGINNING OF A CURVE, CONCAVE NORTHEASTERLY, HAVING A RADIUS OF
15.00 FEET; THENCE NORTHWESTERLY ALONG SAID CURVE 19.62 FEET THROUGH
A CENTRAL ANGLE OF 74 °56'59" TO THE BEGINNING OF A REVERSE CURVE,
CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 250.86 FEET, A RADIAL LINE
OF SAID CURVE TO SAID BEGINNING BEARS NORTH 75 °16'09" EAST; THENCE
NORTHWESTERLY ALONG SAID CURVE 190.87 FEET THROUGH A CENTRAL ANGLE
OF 43035'37" TO THE BEGINNING OF A REVERSE CURVE, CONCAVE
NORTHEASTERLY, HAVING A RADIUS OF 50.00 FEET, A RADIAL LINE OF SAID
CURVE TO SAID BEGINNING BEARS SOUTH 31040'32" WEST; THENCE ALONG SAID
CURVE 32.97 FEET THROUGH A CENTRAL ANGLE OF 37046'55 " THENCE NORTH
63050' l7" WEST 72.27 FEET TO THE BEGINNING OF A NON - TANGENT CURVE,
CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF 1191.00, A RADIAL LINE OF
SAID CURVE TO SAID BEGINNING BEARS NORTH 63043'04" WEST; THENCE
SOUTHWESTERLY ALONG SAID CURVE 273.53 FEET THROUGH A CENTRAL ANGLE
OF 13009'31 "; THENCE SOUTH 13007'25" WEST 144.18 FEET TO THE BEGINNING OF A
CURVE, CONCAVE WESTERLY, HAVING A RADIUS OF 2509.00 FEET; THENCE
SOUTHERLY ALONG SAID CURVE 1 10.91 FEET THROUGH A CENTRAL ANGLE OF
2031'58" TO THE BEGINNING OF A REVERSE CURVE, CONCAVE EASTERLY, HAVING
A RADIUS OF 1033.00 FEET, A RADIAL LINE OF SAID CURVE T'O SAID BEGINNING
BEARS NORTH 74020'37" WEST; THENCE SOUTHERLY ALONG SAID CURVE 16.37
FEET THROUGH A CENTRAL ANGLE OF 0054'29"; THENCE SOUTH 14044'54" WEST
9555 FEET TO THE BEGINNING OF A CURVE, CONCAVE WESTERLY, HAVING A
RADIUS OF 967.00 FEET; THENCE SOUTHERLY ALONG SAW CURVE 94.85 FEET
THROUGH A CENTRAL ANGLE OF 503TI I" TO THE BEGINNING OF A COMPOUND
CURVE, CONCAVE WESTERLY, HAVING A RADIUS OF 251595 FEET, A RADIAL LINE
OF SAID CURVE TO SAID BEGINNNG BEARS SOUTH 69-37'55- EAST, THENCE
SOUTHERLY ALONG SAID CURVE 18.74 FEET THROUGH A CENTRAL ANGLE OF
0025'36" TO THE BEGINNING OF A COMPOUND CURVE, CONCAVE
NORTHWESTERLY, HAVING RADIUS OF 95.00 FEET, A RADIAL LINE OF SAW
CURVE TO SAID BEGINNING BEARS SOUTH 69012' l9" EAST;
THENCE SOUTHWESTERLY ALONG SAID CURVE 74.84 FEET
THROUGH A CENTRAL ANGLE OF 45008' 15" TO THE BEGINNING OF A REVERSE
CURVE, CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF 105.00 FEET, A RADIAL
LINE OF SAID CURVE TO SAID BEGINNING BEARS NORTH 24004'04" WEST; THENCE
SOUTHWESTERLY ALONG SAID CURVE 7129 FEET THROUGH A CENTRAL ANGLE
OF 38053'57",- THENCE SOUTH 66010'10" EAST 99.84 FEET; THENCE SOUTH
20-35'39-EAST 32.20 FEET; THENCE SOUTH 65001'11" EAST 85.14 FEET TO THE
BEGINNING OF A CURVE, CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF
1669.00 FEET, THENCE SOUTHEASTERLY ALONG SAID CURVE 342.19 FEET
THROUGH A CENTRAL ANGLE OF if 044'50" TO THE WESTERLY LINE OF PARCEL I
AS DESCRIBED IN A GRANT DEED RECORDED FEBRUARY 14, 1966 IN BOOK 7839
PAGE 739 OF OFFICIAL RECORDS; THENCE NORTHERLY ALONG SAID WESTERLY
LINE OF PARCEL 1 NORTH 0018'11" EAST 671.62 FEET TO ITS INTERSECTION WITH
THE NORTHWESTERLY PROJECTION OF THE SOUTHWESTERLY LINE OF SAID
TRACT NO. 7817; THENCE SOUTHEASTERLY ALONG SAID NORTHWESTERLY
PROJECTION OF THE SOUTHWESTERLY LINE OF SAID TRACT NO. 7817 SOUTH
62014'52" EAST 112.69 FEET TO THE POINT OF BEGINNING,
CONTAINING: 7.404 ACRES MORE OR LESS
EXHIBIT "B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART
HEREOF.
SUBJECT TO: COVENANTS, CONDITIONS, RESTRICTIONS, RIGHT OF WAY AND
EASEMENTS OF RECORD.
PREPARED UNDER THE SUPERVI!%@N OF:
ez� l�z�ia
S. BORCHARD, LS 7705 ;r
'RATION EXPIRES: 12/31/10 *
.
16' N7576 09'E
7. PRCI - -
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/ /1-15a f3
LOT I
TRACT Iva. 453
M.M. 3212 ---3
TRACT Na. 7817
M.M. 308133 -34
WEWERL Y UNE OF
-77?ACT NO. 7817
M.M. 3081-T3 -34
LOT 3
3B• �N627452 -W� -
Z 11269' SOUTHfiESTERLY LIN£ OF
G °s 7RACT NO. 7817
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� - M.M. 308133 -34
09.E PARCEL 1 q
10.91' 7.404 Act a °
420 - _ '^
,29- N7 ���- .� z
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444'54°£ TRACT Iva. 2250 A�
95.55' M.M. 104/5 -7' a SCAB 1 =r2o'
Q =
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RA--5 --967 �' � WESTERLY LINE OF PARCEL 1
L =94.85' W 7839 PG 739
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L =18.74' °o
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R= 95.00' (P�)
N74.84' LOT D
?3357' '(PRRCI a4NN/NG TRACT
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PACIFIC _ EXHIBIT '�B„
A LE44L OESOPI qM RV
CITY OF &-KPMT BMW
ACCESS EASEMENT
CONTANVIAfa 7.404 AC t
U[Q1 WR) LA CO. SUPERIOR COU m�
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4= 174450• A' "-
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SHEET 1 OF 1
IIU /I AV / AAfA
ATTACHMENT "2" to Easement
Access Agreement
EXHIBIT INTENTIONALLY OMITTED
(WILL BE INSERTED FOLLOWING EXECUTION AND PRIOR
TO RECORDATION)
ATTACHMENT "3" to Easement
Matters of Record
I
ATTACHMENT "3" to Easement
Matters of Record
1. AN EASEMENT FOR STORM DRAIN AND INCIDENTAL PURPOSES,
RECORDED AUGUST 28, 1974 IN BOOK 11231, PAGE 650 OF OFFICIAL
RECORDS, ORANGE COUNTY.
2. AN EASEMENT FOR CONSTRUCTION OF EXCAVATION AND /OR
EMBANKMENT SLOPES AND DRAINAGE AND INCIDENTAL PURPOSES,
RECORDED JANUARY 14, 1994 AS INSTRUMENT NO. 94- 0032786 OF
OFFICIAL RECORDS, ORANGE COUNTY.
CERTIFICATE OF ACCEPTANCE
This CERTIFICATE OF ACCEPTANCE is to certify that the interest in real property,
described in Attachment "1" attached hereto and incorporated herein by reference, by
and between the City of Newport Beach, a municipal corporation, as Grantee, and _
Aera Energy LLC, a California Limited Liability Company, and Cherokee Newport
Beach LLC, a Delaware Limited Liability Company, as Grantor, is hereby accepted on
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 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
David R. Hunt,
City Attorney
ATTEST:
Leilani I. Brown,
City Clerk
10
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
David Kiff,
City Manager
EXHIBIT "D"
Temporary Construction License Agreement on NBR Property
15
TEMPORARY LICENSE AGREEMENT
THIS TEMPORARY LICENSE AGREEMENT ( "License Agreement ") is made
and entered into as of 20_, by and between Newport Banning Ranch
LLC, a California limited liability company, as authorized agent for Aera Energy LLC
and Cherokee Newport Beach, LLC (`Owner "), and , a California licensed
general contractor ( "Contractor "), with reference to the following:
RECITALS:
A. Owner is the owner of that certain real property consisting of
approximately 402 acres located in the County of Orange, State of California ( "NBR
Property ").
B. The City of Newport Beach, California ('City ") is the owner of that certain
real property comprising approximately 12 acres located in the City of Newport Beach,
State of California, commonly referred to as "Sunset Ridge Park" ( "SRP" or "SRP Site ").
C. City desires to install security fencing, and to construct, grade, improve
and maintain an access road, sidewalks, curbs, landscaping, irrigation systems, utilities,
storm water drainage and erosion control facilities in order to accommodate public
access for pedestrian and vehicle ingress and egress ( "Access Road Improvements "),
on, over, under and across a portion of the NBR Property pursuant to the Access
Agreement entered into between City and Owner on ( "Access
Agreement "), a copy of which has been received by the Contractor.
D. To accommodate the City's desire to construct or cause to be constructed
the SRP and Access Road Improvements Owner has agreed to allow Contractor to enter
upon NBR Property pursuant to the terms and conditions in this License Agreement.
Specifically, Contractor is authorized to enter upon the Easement Area and the Fill
Placement Areas and the Haul Routes depicted in Attachment "1 ", attached hereto and
incorporated by reference. Contractor bears California State Contractors License
Number
E. Contractor acknowledges that failure to comply with the terms and
conditions contained in this License Agreement or the Access Agreement may result in
the termination of this License Agreement and Contractor's removal from the NBR
Property.
F. Any initially. capitalized terms that are not defined in this License
Agreement shall have the meanings ascribed in the Access Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Owner and Contractor agree as follows:
1. Term. The term of this License Agreement shall commence upon the
execution of this License Agreement by Owner and Contractor and shall automatically
terminate when the City files its Notice of Completion for the SRP Site and Access
Road Improvements.
2. Construction Process and Requirements. Contractor shall, subject to the
provisions of this License Agreement, have a non - exclusive license to enter upon and
use the Easement Area, Fill Placement Areas, and the Haul Routes to and from the Fill
Placement Areas solely for the purpose of constructing its scope of work relating to the
Project in accordance with the Final Project Plans, all code requirements and pursuant
to all requisite approvals. Neither Contractor or any duly authorized representative,
agent, independent contractor, or subcontractors of Contractor or any of their
respective employees (collectively "Contractor Parties ") shall enter upon the NBR
Property, or any part thereof, or commence or cause to be commenced the actual
construction of the Project without at least fifteen (15) days advance written notice to
Owner ( "Notice to Proceed "), which Notice to Proceed must be acknowledged by
Owner as having met the criteria set forth in the following sentence. The following
conditions shall be satisfied prior to issuing a valid Notice to Proceed: (i) Owner has
received copies of the required insurance endorsements evidencing that the insurance
requirements are in place; (ii) Contractor has provided Owner with a written notice
affirming that all requisite permits, consents, authorizations or approvals (collectively,
the "Approvals ") required from federal, state or local government or quasi - government
agencies, departments, regulatory authorities or other entities authorized to approve
and or issue permits for all or any of its scope of work relating to the Project to be
constructed and which is set forth in the Final Project Plans (collectively, the
"Governmental Authority(ies) ") have been obtained and paid for in full; and (iii) copies
of Approvals have been delivered to the Owner.
2.1 Liens. Contractor shall not suffer or permit to be enforced against
the Easement Area, Fill Placement Areas, Haul Routes or other portions of the NBR
Property, or any part thereof, any mechanics' liens or any claim for damage arising
from its scope of work relating to the Project. Contractor shall pay or cause to be paid
all such liens or claims before any action is brought to enforce the.same against the
Easement Area, Fill Placement Areas, Haul Routes or other portions of the NBR
Property. Contractor expressly agrees to indemnify, defend (with counsel reasonably
satisfactory to Owner) and hold Owner Parties (as defined in Section 3 below) and the
Easement Area, Fill Placement Areas, Haul Routes or other portions of the NBR
Property free and harmless from all liability for any and all such liens and claims,
together with reasonable attorneys' fees and all costs and expenses of litigation,
investigation and appeal in connection therewith.
2
2.2 Lien Contest. Notwithstanding anything to the contrary set forth
above, if Contractor shall in good faith contest the validity of any such lien or claim,
then Contractor shall, at its expense, defend itself and Owner against the same and
shall pay and satisfy any adverse judgment that may be rendered thereon before any
enforcement thereof against Owner or the Easement Area, Fill Placement Areas, Haul
Routes or other portions of the NBR Property. In such event and if Owner shall so
require, Contractor shall procure and record and furnish to Owner a surety bond in
accordance with California Civil Code Section 3143 or other acceptable security
satisfactory to Owner in an amount at least equal to one hundred and fifty percent
(150 %) of such contested lien or claim indemnifying Owner against liability for the
same, and holding the Easement Area, Fill Placement Areas, Haul Routes or other
portions of the NBR Property free from the effect of any such lien or claim. Owner
reserves the right at any time and from time to time to post and maintain on the
Easement Area, Fill Placement Areas, Haul Routes or other portions of the NBR
Property such notices of non - responsibility or otherwise as may be necessary to
protect Owner against liability for all liens and claims.
2.3 Owner Payment of Claims. Whenever under any provision of this
License Agreement, Contractor shall be obligated to make any payment or
expenditure, or to do any act or thing or to incur any liability whatsoever or make
delivery to Owner, if Contractor fails, or refuses or neglects to perform as herein
required within the periods of time set forth in any written notice from Owner, then
Owner shall be entitled, but shall not be obligated, to make any such payment or
expenditure, or to do any such act or thing, or to incur any such liability, all on behalf of
and at the cost and the account of Contractor. In such event the amount thereof shall
be due and payable from Contractor to Owner upon demand. Any payments to be so
made by Contractor to Owner, if not paid when due, shall bear interest at the rate of
ten percent (10 %) per annum but in any event, not in excess of the highest rate
allowable by California law to be charged by non - exempt lenders in business related
transactions, ( "Interest "), which Interest shall accrue from the respective dates that
payment was due until paid in full.
2.4 Contractor's Failure to Pay Claims. In addition to and not in
limitation of Owner's other rights and remedies under this License Agreement, should
Contractor fail within thirty (30) days of a written request from Owner eitherto pay and
discharge any lien or claim arising out of Contractor's use of the Easement Area and /or
NBR Property or to have bonded around such lien or claim, or to indemnify and defend
the Owner Parties from and against any lien, loss, damage, injury, liability or claim
arising out of Contractor's or Contractor Parties use, or alleged use or improvement of
the Easement Area, fill areas, hall routes and /or any other portion of the NBR Property
or provision of material thereto, then in any such case, Owner may, at its option, pay
any such lien, loss, damage, injury, liability or claim, or settle or discharge any action
therefor or satisfy any judgment thereon and to terminate this License Agreement. All
costs, expenses and other sums incurred by Owner in connection therewith (including,
but not limited to, reasonable attorneys' fees and costs of litigation, investigation,
expert witness fees and costs, and costs of appeal) shall be paid to Owner by
3
Contractor upon written demand, together with Interest thereon from the date incurred
or paid until repaid. Any default either in such initial failure to pay or subsequent
repayment to Owner shall, at Owners option, constitute a breach under this License
Agreement.
3. Indemnity. To the fullest extent permitted by law, Contractor and
Contractor's Parties, their successors or assigns, agrees to indemnify, defend and hold
harmless NBRLLC and its agents, consultants and contractors and their respective
members, managers, partners, officials, officers, directors, shareholders, agents and
employees ( "Owner Parties ") from and against any and all claims (including, without
limitation, claims for bodily injury, death, mechanics liens, or damage to property),
demands, obligations, damages, actions, causes of action, suits, losses, judgments,
fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys'
fees, disbursements, costs of litigation, investigation, appeal, expert witness fees and
court costs) of every kind and nature whatsoever (individually, a "Claim'; collectively,
"Claims "), which arise from Contractor and /or Contractors Parties, its contractors',
agents', employees', invitees', and their respective employees use of and /or presence
on all or any of the Easement Area(s) and /or Temporary Construction License Area.
The foregoing shall not serve as authority for Contractor and Contractors Parties or its
counsel to settle any Claim without the prior written consent of NBRLLC.
Notwithstanding the foregoing, nothing herein shall be construed to require
Contractor and /or Contractors Parties to indemnify the Owner Parties from any Claim
arising from the negligence or willful misconduct of the Owner Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorneys' fees in any action
on or to enforce the terms of this License Agreement.
4. Insurance. At all times while the Project is being performed, Contractor
and Contractor Parties shall maintain, the types and minimum amounts of insurance set
forth below:
4.1 General Liability. General liability for any general contractors
engaged in construction shall be for a minimum limit of not less than Five Million Dollars
($5,000,000) per occurrence per project, and Five Million Dollars ($5,000,000) in the
annual aggregate.
4.2 Automobile Liability. Limits for automobile liability for any general
contractors engaged in construction shall be for a minimum. limit of not less than Five
Million Dollars ($5,000,000) per accident without annual aggregate. Limits for
automobile liability for all other contractors including those providing services shall be
for a minimum limit of not less than Two Million Dollars ($2,000,000) per accident
without annual aggregate.
4.3 Workers' Compensation and Employers' Liability. Statutory
workers' compensation coverage as required by the State of California and employers'
liability limits of not less than One Million Dollars ($1,000,000) bodily injury by accident,
4
One Million Dollars ($1,000,000) bodily injury by disease, and One Million Dollars
($1,000,000) bodily injury by disease each employee.
4.4 Deductibles and Self- Insured Retentions. Contractor's and
Contractor Parties' insurance deductibles or, elf- insured retentions must be declared to
Owner if they are in excess of Ten Thousand Dollars ($10,000), in which event the prior
written approval of Owner shall be required.
provisions: 4.5 Additional Provisions. Policies shall include the following
(a) The coverages shall contain no special limitations on the scope of
protection afforded to Owner Parties. For general liability coverages, the additional
insured clause shall be no more restrictive than the coverage afforded by ISO Form No.
CG 20 26 07 04 entitled "Additional Insured - Designated Person or Organization ". For
automobile liability coverages the additional insured clause shall be no more restrictive
than ISO endorsement number CA 20 48 02 99 "Designated Insured Endorsement ".
Excess and umbrella liability policies may include following form additional insured
provisions in lieu of specific endorsement language.
(b) A provision stating that the policy shall be primary and non - contributing
with respect to claims covered thereby and any self - insurance program or separate
insurance carried by Owner Parties shall be excess and noncontributing with respect to
such claims.
(c) A provision similar to the ISO "separation of insureds" provision or
other commonly used "severability of interests" provisions. This provision shall apply
the coverage separately to each insured (except with respect to the limits of liability).
(d) Language stating that any failure to comply with the reporting
provisions of the policies shall not affect the coverage provided Owner Parties.
(e) No cross suits exclusions (generally excluded in the excess policies).
(f) With regard to all property coverages, the following:
(i) Contractor shall notify all of its insurers of the terms of the
following mutual waiver of subrogation clause. Contractor and Owner each hereby
waive any rights of recovery against the other and their respective employees for loss to
real and personal property, including loss or use thereof, and on behalf of their
respective insurance companies any right of subrogation that either may have against
the other and their respective employees. Contractor shall require that its insurance
policies be properly endorsed, if necessary, to prevent the invalidation of said insurance
by reason of the waiver.
(ii) Each policy shall be endorsed to state the coverage, shall not
be cancelled or reduced in coverage or amounts by the insurance company except after
thirty (30) days' prior written notice by certified mail, return receipt requested, has been
given to Owner, Any notice of cancellation due to non - payment of premium shall at a
minimum comply with the requirement set forth by California law but in no event be less
than ten (10) business days. Contractor shall notify Owner of any material change in
policy terms and conditions that may impact the Owner, including any reduction in
coverage or limits.
5
(iii) The mailing address for all notices pertinent to these policies
shall be sent to Owner at the addresses set forth in this License Agreement.
(iv) The exclusive forum for the resolution of disputes arising out of
such insurance shall be in the United States District Court for the Central District of
California or the Orange County Superior Court.
(v) Insurance shall be placed with insurers licensed to do business
and admitted in the State of California and having an A.M. Best Company (Best's Key
Rating Guide) rating of no less than A -8.
(h) All policies, other than workers compensation, shall name NBR LLC, a
California limited liability company, Aera Energy LLC, a California limited liability
company, Cherokee Limited Partners, LLC, Lucas Austin & Alexander, LLC, a
California limited liability company, d /b /a Brooks Street, and West Newport Oil
Company as additional insureds.
5. Termination and Remedies.
5.1 Termination. The right of entry and other rights granted to
Contractor by this License Agreement shall, at Owner's option, terminate immediately
upon the first to occur of any one of the following events:
5.2 The expiration or termination of the Access Agreement between
City and Owner; or
5.3 In the event Owner reasonably determines Contractor is in breach
of any of its obligations under this License Agreement or the Access Agreement the
Owner shall promptly notify City of said breach. Upon the mutual written consent of
both City and Owner acknowledging said breach, City may instruct Contractor to
immediately cease construction activities. If Contractor shall be in breach of any of its
obligations under this License Agreement or the Access Agreement and should
Contractor fail to cure such breach within fifteen (15) days following written notice from
Owner and City specifying the nature of such breach unless the nature of the breach
reasonably requires more than fifteen (15) days to complete the cure so long as
Contractor commences the cure in a material manner within such fifteen (15) day
period and diligently prosecutes the cure to completion.
6. As is and General Release
6.1 AS IS. CONTRACTOR ACKNOWLEDGES AND AGREES THAT
CONTRACTOR IS ACCEPTING THE LICENSE DESCRIBED HEREIN ON AN "AS IS,"
"WHERE IS" AND "WITH ALL FAULTS" BASIS, SUBJECT TO ANY CONDITION
WHICH MAY EXIST ON THE. NBR PROPERTY, WITHOUT ANY REPRESENTATION
OR WARRANTY BY OWNER. CONTRACTOR HEREBY ASSUMES THE RISK THAT
CERTAIN CONDITIONS MAY EXIST ON THE NBR PROPERTY AND HEREBY
RELEASES OWNER AND OWNER PARTIES FROM ANY AND ALL CLAIMS,
6
ACTIONS, DEMANDS, RIGHTS, DAMAGES, COSTS OR EXPENSES THAT MIGHT
ARISE OUT OF OR IN CONNECTION WITH ANY SUCH CONDITION OF THE NBR
PROPERTY, THAT IS RELATED TO CONSTRUCTION OF THE ACCESS ROAD
IMPROVEMENTS. CONTRACTOR HEREBY EXPRESSLY ACKNOWLEDGES AND
AGREES THAT (1) CONTRACTOR SHALL BE SOLELY RESPONSIBLE FOR
DETERMINING THE STATUS AND CONDITION OF THE NBR PROPERTY,
INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL CONDITIONS,
ENVIRONMENTAL REGULATIONS, ZONING CLASSIFICATIONS, BUILDING
REGULATIONS AND GOVERNMENTAL ENTITLEMENT AND DEVELOPMENT
REQUIREMENTS APPLICABLE THERETO AND (II) CONTRACTOR IS RELYING
SOLELY UPON CONTRACTOR'S INSPECTIONS, EXAMINATION, AND
EVALUATION OF THE NBR PROPERTY.
6.2 GENERAL RELEASE. Without limiting the generality of the
foregoing Contractor hereby expressly waives, releases and relinquishes any and all
claims, causes of action, rights and remedies Contractor may now or hereafter have
against Owner, and the Owner Parties, whether known or unknown, with respect to the
condition of the NBR Property, the condition of the improvements, if any, on the NBR
Property (including defects in the improvements) and for any past, present or future
presence or existence of hazardous materials or petroleum products, including crude
oil, on, under or about the NBR Property or with respect to any past, present or future
violations of any rules, regulations or laws, now or hereafter enacted, regulating or
governing the use, handling, storage, release or disposal of hazardous materials,
petroleum products or crude oil.
THE ABOVE RELEASE IS INTENDED TO BE A FULL GENERAL RELEASE OF ALL
CLAIMS KNOWN AND UNKNOWN. CONTRACTOR HEREBY ACKNOWLEDGES
THAT CONTRACTOR HAS READ AND IS FAMILIAR WITH THE PROVISIONS OF
CALIFORNIA CIVIL CODE SECTION 1542, WHICH IS SET FORTH BELOW:
"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."
BY INITIALING BELOW, CONTRACTOR HEREBY WAIVES THE PROVISIONS OF
SECTION 1542 IN CONNECTION WITH THE MATTERS WHICH ARE THE SUBJECT
OF THE FOREGOING WAIVERS AND RELEASES:
Contractor's Initials
The waivers and releases by Contractor contained in this Section shall survive the
expiration and termination of this License Agreement.
7
7. Notices. Any notice, request, direction, demand, consent, waiver,
approval or other communication required or permitted to be given hereunder shall be
in writing and shall be personally delivered or sent by registered or certified mail,
postage prepaid, return receipt requested, or overnight courier, or electronic
transmission as defined below.
Notices or other communications shall be addressed as follows:
To Owner: Newport Banning Ranch LLC
Attention: George L. Basye
3030 Saturn Street, Suite 101
Brea, California 92821
Facsimile: (714) 577 -9149
E -mail: GLBasye @aeraenergy.com
With a copy to: Newport Banning Ranch LLC
Attention: Mike Mohler
1300 Quail, Suite 100
Newport Beach, California 92660
Facsimile: (949) 833 -1960
E -mail: Mohler @brooks - street.com
To Contractor:
Attention:
To City: City of Newport Beach
Attention: City Manager
3300 Newport Blvd..
Newport Beach, California 92658
Any party may change its information for notice purposes at any time by
providing written notice to the other parties.
Communications shall be deemed effective upon (i) the date of delivery to the
address of the person to receive such notice, if delivered personally or by messenger or
overnight courier as shown by the addressee's return receipt if by certified mail, and as
�3
confirmed by the courier service if by courier; provided, however, that if such actual
delivery occurs after 5:00 p.m. (local time where received) or on a non - business day,
then such notice or demand so made shall be deemed effective on the first business
day following the day of actual delivery (ii) three (3) business days after the date of
posting by the United States Post Office if by mail; or (iii) when received by recipient if
given by facsimile or e-mail (collectively, "electronic transmission "), as evidenced by
written acknowledgment from the recipient of the electronic transmission, for example
by return e -mail or by answerback if by facsimile.
8. Non - liability of City, City Officials and Employees. No official or employee
of City, or the City itself, shall be personally liable to Owner in the event of any default
or breach by Contractor and /or Contractor's Parties under the terms hereof.
9. Successors and Assigns. This License Agreement shall bind and inure to
the benefit of the parties and their respective successors and assigns; provided,
however, that Contractor shall not have the right to assign its rights or obligations
hereunder without the consent of Owner, which may be granted or withheld in Owner's
sole and absolute discretion.
10. Interpretation. All section headings are inserted for convenience only and
shall have no effect on the construction or interpretation of this License Agreement.
Each party acknowledges that such party and its counsel, after negotiation and
consultation, have reviewed and revised this License Agreement. As such, the terms of
this License Agreement shall be fairly construed and the usual rule of construction, to
the effect that any ambiguities herein should be resolved against the drafting party,
shall not be employed in the interpretation of this License Agreement. The recitals of
this License Agreement are, by this reference, incorporated in, and made a part of, this
License Agreement.
11. Partial Invalidity. Each and every provision of this License Agreement is,
and shall be construed to be, a separate and independent covenant and agreement. If
any provision of this License Agreement, or the application thereof, shall to any extent
be held to be invalid or unenforceable, the remainder of this License Agreement, or the
application of such provision to circumstances other than those to which it is invalid or
unenforceable, shall not be affected hereby, and each provision of this License
Agreement shall be valid and shall be enforced to the extent permitted by law.
12. Applicable Law. The laws of the State of California shall govem the
interpretation and enforcement of this License Agreement.
13. Further Assurances. The parties shall execute and deliver any and all
additional documents and other assurances, and shall do any and all other acts and
things, reasonably necessary to carry out the purposes of, and the intent of the parties
under, this License Agreement.
14. Modifications. All modifications of, or amendments to, this License
Agreement shall be in writing and signed by the parties.
E
15. No Partnership. Nothing contained in this License Agreement shall be
deemed or construed to create a partnership, tenancy in common, joint tenancy, joint
employer liability, joint venture or co- ownership by or between Owner and City, or
Owner and Contractor. Owner shall have no responsibility or liability in connection with
City's rights and obligations with respect to the Project, including Owner's approval of
any Final Project Plans. Subject to its compliance with the terms and conditions of this
License Agreement, Contractor shall be free to determine its own policies and practices
in the conduct of its business and activities concerning the Project.
16. Prior Agreements. This License Agreement, the Access Agreement and
all exhibits thereto contain all of the agreements of the parties with respect to the
transaction contemplated hereby, and no prior agreements or understandings
pertaining to any such transaction shall be effective for any purpose and all preliminary
negotiations and agreements of whatsoever kind or nature are merged herein. No
verbal agreement or implied covenant shall be held to vary the provisions herein. In the
event of any conflict between the terms of this License Agreement and the Access
Agreement, the terms of the Access Agreement shall govern.
17. Recording. This License Agreement shall not be recorded or filed by
Contractor or Owner, or their successors or assigns, in or with any public or
governmental office, officer, agency or records repository without the prior written
consent of Contractor and Owner. This License Agreement may be included within the
bid package to prospective Contractor Parties to ensure that they are fully aware of the
terms, conditions and obligations of this License Agreement.
18. Counterparts. This License Agreement may be executed in any number
of counterparts, each of which, when executed and delivered, shall be deemed to be an
original, and all of which, taken together, shall be deemed to be one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this License Agreement as of the
date first above written.
OWNER
Newport Banning Ranch LLC,
a California limited liability corporation
Contractor
By:
By:
Name:
Name:
Its:
Its:
[SIGNATURES CONTINUED ON NEXT PAGE]
10
Newport Banning Ranch LLC,
a California limited liability corporation
By: By:
Name: Name:
Its: Its:
[END OF SIGNATURES]
it
Attachment " 1 "
Fill Placement Areas and Haul Routes
Temporary Construction License
Sunset Ridge Park EIR
600 300 0 600
Feet
Attachment 1
C 0.. al.a
YI. .. .._� Y s�:tiaw{uv��6GS1oV N�M1e�� Cw�vimlvvaf
EXHIBIT "E"
Grant Deed and West Coast Highway Legal Description
RECORDED AT REQUEST OF,
AND WHEN RECORDED MAIL TO:
City of Newport Beach
Attn: City Manager
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, CA 92658 -8915
SPACE ABOVE THIS LINE FOR RECORDER'S USE
MAIL TAX STATEMENTS TO: This document is exempt from filing fees per Govt.
Code § 6103, recording fees per Govt. Code §
27383 and is exempt from Document Transfer
Tax per Rev. & Taxation Code § 11922
A.P. No.: 114-170-***
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Aera Energy
LLC, a California Limited Liability Company, and Cherokee Newport Beach LLC, a Delaware
Limited Liability Company, hereinafter referred to as "GRANTOR ", hereby grant to the City of
Newport Beach, a body corporate and politic, hereinafter referred to as "CITY," fee interest in the
real property (the "Property ") described in Attachment "1," attached hereto and by reference
made a part hereof, solely for the purpose of constructing and maintaining a public right -of -way.
This conveyance is subject to : (i) all prior covenants, conditions restrictions, easements, rights,
encumbrances and other exceptions and reservations of record; (ii) matters discoverable or that
can be ascertained by physical inspection or correct survey of the Property; (iii) zoning ordinances
and regulations and any other laws ordinances and governmental regulations restricting or
regulating the use, occupancy, and enjoyment of the Property; and (iv) all terms, conditions and
reservations of this Grant Deed.
GRANTEE'S ACCEPTANCE
By acceptance and recordation of this Grant Deed, CITY i) acknowledges that a portion or
portions of the Property and adjacent nearby real properties may have been previously used to
produce, treat and store crude oil, gas, and other petroleum products, and that residual
contamination is commonly found on properties that have been in such use and may remain on
the Property and adjacent and nearby real properties, ii) acknowledges GRANTOR'S right hereby
reserved, but not the duty, subject to approval of all applicable permits to enter onto the Property
and perform. investigation and remediation in accordance with applicable environmental laws in
response to any assertion or claim that there exists on the property any condition of the soil,
surface waters, or ground waters that (1) requires investigatory, corrective, or remedial measures,
and /or (2) comprises a basis for claims of and /or liabilities in respect of the current or prior
ownership or operation of the Property. The agreed upon standard for any remediation shall be
no more stringent than that which is required by applicable environmental laws and any
government agency with jurisdiction to enforce such laws, iii) covenants that, as of the effective
date of this Grant Deed,, the Property , is acquired and accepted by CITY "AS-IS", without any
representations or warranties whatsoever express, statutory, or implied on the part of the
GRANTOR, and iv) covenants that property will be used solely for the purposes of constructing
and maintain a public right -of -way
IN WITNESS WHEREOF, this instrument is duly executed this _day of , 20_
GRANTOR: GRANTOR:
AERA ENERGY LLC, CHEROKEE NEWPORT BEACH, LLC
A California Limited Liability Corporation A Delaware Limited Liability Corporation
By: By:
Its: Attomey -In -Fact Its:
STATE OF CALIFORNIA
COUNTY OF
On 20 , before me, , the
undersigned Notary Public in and for said County and State, personally appeared
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.
Notary Public
STATE OF CALIFORNIA
COUNTY OF
On 20_ , before me, , the
undersigned Notary Public in and for said County and State, personally appeared
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.
Notary Public
GRANTEE:
CERTIFICATE OF ACCEPTANCE
This CERTIFICATE OF ACCEPTANCE is to certify that the fee interest in real property, described
in Attachment "1 " attached hereto and incorporated herein by reference, by and between the City
of Newport Beach, a municipal corporation, as Grantee, and _ Aera Energy LLC, a California
Limited Liability Company, and Cherokee Newport Beach LLC, a Delaware Limited Liability
Company, as Grantor, is hereby accepted on 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 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
By:
David R. Hunt,
City Attorney
ATTEST:
By:
Leilani I. Brown,
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
David Kiff,
City Manager
Attachment "I"
Real Property Description
ATTACHMENTI
LEGAL DESCRIPTION
RIGHT OF WAY DEDICATION
PARCEL 1
THAT CERTAIN PARCEL OF LAND SITUATED IN THE UNINCORPORATED
TERRITORY OF THE COUNTY OF ORANGE, STATE OF CALIFORNL4, BEING A
PORTION OF LOT D OF THE BANNING TRACT AS SHOWN ON A MAP FILED IN
SUPERIOR COURT CASE N0.6385 OF LOS ANGELES COUNTY, ALL RECORDS IN THE
OFFICE OF THE ORANGE COUNTY RECORDER, MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE WESTERLY LINE OF PARCEL 1 AS
DESCRIBED IN A GRANT DEED RECORDED FEBRUARY 14,1966 IN BOOK 7839 PAGE
739 OF OFFICIAL RECORDS OF ORANGE COUNTY WITH THE NORTHEASTERLY
RIGHT OF WAY LINE OF PACIFIC COAST HIGHWAY AS DESCRIBED IN PARCEL NO.
73170.1 OF THE FINAL ORDER OF CONDEMNATION OF ORANGE COUNTY
SUPERIOR COURT CASE NO. 667539 RECORDED JANUARY 14, 1994 AS INSTRUMENT
NO. 94-0032796 OF OFFICIAL RECORDS. SAID INTERSECTION ALSO BEING THE
SOUTHEASTERLY TERMINUS OF THAT CERTAIN COURSE OF SAID PARCEL NO.
73170 -1 DESCRIBED AS "NORTH 54°21'51" WEST 32.70 FEET"; THENCE ALONG SAID
NORTHEASTERLY RIGHT OF WAY LINE OF PACIFIC COAST HIGHWAY THE
FOLLOWING COURSES:
NORTH 54028' 16" WEST 32.70 FEET TO THE BEGINNING OF A CURVE, CONCAVE
SOUTHWESTERLY, HAVING A RADIUS OF 907.00 FEET THENCE NORTHWESTERLY
ALONG SAID CURVE 186.83 FEET THROUGH A CENTRAL ANGLE OF 11048'081';
THENCE NORTH 66905'17" WEST 216.91 FEET; THENCE NORTH 65001'11- WEST 136.77
FEET;
THENCE LEAVING SAID NORTHERLY RIGHT OF WAY LINE NORTH 24058'56° EAST
5.00 FEET; THENCE NORTH 69 °44'51" EAST 18.46 FEET; THENCE NORTH 24-14'17"
EAST 23.68 FEET TO THE BEGINNING OF A NON - TANGENT CURVE, CONCAVE
SOUTHEASTERLY, HAVING A RADIUS OF 112.00 FEET, A RADIAL LIME OF SAID
CURVE FROM SAID BEGINNING BEARS NORTH 66°02' 18" WEST; THENCE
NORTHBASTERLY ALONG SAID CURVE 5.61 FEET THROUGH A CENTRAL ANGLE
OF 2'52'16", THENCE SOUTH 66010' 10" WEST 106.85 FEET; THENCE SOUTH 20035'39"
EAST 32.20 FEET; THENCE SOUTH 65001' 11" EAST 85.14 FEET TO THE BEGINNING OF
A CURVE, CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 1669.00 FEET,
THENCE SOUTHEASTERLY ALONG SAID CURVE 342.19 THROUGH A CENTRAL
ANGLE OF 11044'50" TO SAID WESTERLY LINE OF PARCEL 1; THENCE SOUTHERLY
ALONG SAID WESTERLY LINE OF PARCEL I SOUTH 0018' 11" WEST 10.01 FEET TO
THE POINT OF BEGINNING.
CONTAINING: 0.316 ACRES MORE OR LESS
EXHIBIT `B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART
HEREOF.
SUBJECT TO: COVENANTS, CONDITIONS, RESTRICTIONS, RIGHT OF WAY AND
EASEMENTS OF RECORD.
PREP UNDER THE SYPERVIS NOR
3 Z ra 5F,O.I.AND Sp9G
GRECqRY S. BORCHARD, IS 7705 �� GREGORY S F`
MY GISTRATIONEXPIRES: 12/31/10 7 00 CHAS 9
* aw. mall /o
90.7705 ti
LOT D
PAC/F /C
EXHIBI T "B"
6
A �T SFACH
PCHRI��i
RIGHT OF WAY 0E01CAnoN
W roBlNO: 0.316 AQ f
SCALE., 11.60'
BANNING TRACT
LA CO. SUPERIOR
WESTERLY LINE OF PARCEL 1
COURT CASE #6355 PER 8K 7839 PAGE 739 O.R.
44'50"
G* 1 -1669.00, fL36 43'39 =E(
ota ar L. v -- \
N2343'36�(�j/
(N5421'51 -W 32.70 PER INST. NO. 9
COAST H/GHW_AY
SHEET 1 OF 1 SHEET
JANUARY 4. 2010 UR114122