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HomeMy WebLinkAboutC-5810 - Grant of Easement for Storm Drain Diversion Purposes, Right of Entry, Maintenance, and Indemnity AgreementDocument -2369372 -Page -1 RECORDING REQUESTED BY: CITY OF NEWPORT BEACH WHEN RECORDED MAIL TO: City of Newport Beach City Clerk's Office 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 WITH A COPY TO: Big Canyon Country Club Attn: General Manager One Big Canyon Drive Newport Beach, CA 92660-5299 Exempt from recoding fee per Government Code §§ 6103 and 27383 Documentary Transfer Tax Exempt per Rev & Tax Code § 11922 Page 1 of 1 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder 11111111111111111111111111111111111111111111111�IIIilll111111111111111I IN NO FEE *$ R 0 0 0 8 8 8 0 1 9 1$+ 2016000598367 2:42 pm 11/28116 217 405 G01 15 0.00 0.00 0.00 0.00 42.00 0.00 0.00 0.00 GRANT OF EASEMENT FOR STORM DRAIN DIVERSION PURPOSES, RIGHT OF ENTRY, MAINTENANCE, AND INDEMNITY AGREEMENT This Grant of Easement for Storm Drain Diversion Purposes, Right of Entry, Maintenance, and Indemnity Agreement ("Agreement") is entered into as. of October a t, 2016 by and between Big Canyon County Club, a California non- , profit mutual benefit corporation, hereinafter referred to as "Grantor," and the City of Newport Beach, a California municipal corporation and charter city; hereinafter referred to as "Grantee.' RECITALS Grantor is the owner of record of that certain real property commonly known as Big Canyon County Club, Assessor's Parcel No.'s 442-032-53, 442- 032-60, and 442-032-69, located in the City of Newport Beach, County of Orange, State of California, a portion of which is known as Hole No. 4 of the.Biig Canyon Country Club golf course ("Property'); and Grantor and Grantee desire to enter into this Agreement whereby Grantee shall have the right to install, use, operate, inspect, maintain, repair and replace an at grade storm drain manhole with underground diversion structure ("Manhole and Diversion Link") and pipeline ("Pipeline") within the area of the Property about:blank 11/28/2016 RECORDING REQUESTED BY: CITY OF NEWPORT BEACH WHEN RECORDED MAIL TO: City of Newport Beach City Clerk's Office 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 WITH A COPY TO: Big Canyon Country Club Attn: General Manager One Big Canyon Drive Newport Beach, CA 92660-5299 Exempt from recoding fee per Government Code §§ 6103 and 27383 Documentary Transfer Tax Exempt per Rev & Tax Code § 11922 Space Above for GRANT OF EASEMENT FOR STORM DRAIN DIVERSION PURPOSES, RIGHT OF ENTRY, MAINTENANCE, AND INDEMNITY AGREEMENT This Grant of Easement for Storm Drain Diversion Purposes, Right of Entry, Maintenance, and Indemnity Agreement ("Agreement") is entered into as of October -F, 1, 2016 by and between Big Canyon County Club, a California non profit mutual benefit corporation, hereinafter referred to as "Grantor," and the City of Newport Beach, a California municipal corporation and charter city, hereinafter referred to as "Grantee." RECITALS Grantor is the owner of record of that certain real property commonly known as Big Canyon County Club, Assessor's Parcel No.'s 442-032-53, 442- 032-60, and 442-032-69, located in the City of Newport Beach, County of Orange, State of California, a portion of which is known as Hole No. 4 of the Big Canyon Country Club golf course ("Property"); and Grantor and Grantee desire to enter into this Agreement whereby Grantee shall have the right to install, use, operate, inspect, maintain, repair and replace an at grade storm drain manhole with underground diversion structure ("Manhole and Diversion Link") and pipeline ("Pipeline") within the area of the Property described on Exhibit "A" and depicted on Exhibit "B," each attached hereto and made a part hereof ("Easement Area"). AGREEMENT Therefore, Grantor and Grantee hereby agree as follows: THE EASEMENT For valuable consideration, receipt of which is hereby acknowledged, and subject to all of the terms and conditions of this Agreement, Grantor grants to Grantee a non-exclusive easement over and through the Easement Area to enable Grantee to install the Manhole and Diversion Link and the Pipeline and thereafter to use, operate, inspect, maintain, repair and replace the Manhole and Diversion Link and Pipeline in, on, or under the Easement Area; together with the right to enter and traverse upon Grantor's Property in order to obtain access to the Easement Area and to deposit tools, implements, and material thereon by Grantee, its officers, agents, and employees or by persons under contract to Grantee, when necessary to install, inspect, reconstruct, maintain, operate, repair, or replace the Manhole and Diversion Link, and Pipeline. The Manhole shall be at grade and the Diversion Link shall be underground. The portion of the Pipeline that is on the golf course shall be underground and the portion of the Pipeline that is west of the golf course shall be installed above ground in the location depicted in the attached Exhibit "C' and incorporated herein by reference. This Agreement is subject to any and all existing rights and encumbrances which may affect the Easement Area. Grantor makes no representation or warranty, express, implied or statutory, relating to the physical or title condition of the Easment Area. MAINTENANCE OF FACILITIES WITHIN EASEMENT AREA A. Grantee shall maintain the Manhole and Diversion Link and the Pipeline in good condition and repair and promptly repair any damage caused to the surface or subsurface of the Easement Area due to a failure of the Manhole and Diversion Link or the Pipeline. B. Except in the event of an Emergency Condition as described below, before Grantee shall have the right to enter upon the Property to install or to engage in repair, maintenance, inspection or replacement activities with respect to the Manhole and Diversion Link or the Pipeline, Grantee shall give Grantor not less than ten (10) days prior written notice ("Entry Request") of Grantee's desire to enter upon the Property specifying in detail the date or dates upon which such entry is desired, the nature and extent of the work to be undertaken by Grantee with respect to such entry and the proposed plan to restore the Property to its condition prior to the entry. The location of the route of access to the Easement Area shall be as reasonably prescribed by Grantor. Subsequent to such notice and prior to such entry, Grantee shall meet and confer with Grantor to discuss Big Canyon Country Club Page 2 the details of the Entry Request. Grantor may request such modifications or additions to the Entry Request, including but not limited to the point or points of access, as Grantor believes reasonably necessary to minimize disruption to Grantor's use of the Property and to ensure prompt restoration of the Property to its condition prior to the entry. Grantee shall make such modifications or additions requested by Grantor to the Entry Request as (1) are consistent with the objectives of the work to be undertaken by Grantee; and (2) will not unduly delay nor unreasonably increase the cost of the work to be undertaken by Grantee. Any such restoration shall be at the sole cost and expense of Grantee, provided, however, improvements placed in the Easement Area by Grantor other than landscaping, irrigation and drainage, without the written consent of Grantee shall be restored at Grantor's expense. Grantee acknowledges that dates Grantor's golf course is closed for play ((i) most Mondays (ii) in approximately the early Spring for two (2) days for maintenance; and (iii) in approximately late September and early October for one (1) week) are the preferred dates for routine repair, maintenance and inspections to occur and Grantee agrees to perform the work desired under the Entry Request during such dates to the maximum extent practicable. All work of Grantee shall be performed as expeditiously as practicable so as to not unreasonably interfere with the use of the surface of the Easement Area by Grantor and its members. C. Notwithstanding the provisions of Section II (B), if an Emergency Condition (defined below) exists, Grantee shall have the right to enter upon the Property for the purpose of inspecting, maintaining, repairing, or replacing all or portions of the Manhole and Diversion Link and/or the Pipeline upon reasonable notice in light of the Emergency Condition but shall not have to fully comply with the process described in Section II (B). An "Emergency Condition" shall be deemed to exist if (i) Grantee's Manhole and Diversion Link or Pipeline shall have been damaged or otherwise malfunctions to such an extent that the health or safety of the public is, or could be, endangered or (ii) the Manhole and Diversion Link or Pipeline shall have been damaged or otherwise malfunction to such an extent that the delay which would be caused by compliance with Section II (B) would result in a substantial increase in risk to human health or safety, environmental damage, damage to Grantor's golf course, irrigation, or any drainage facility through erosion or otherwise or a substantial increase to the costs to repair such damage. In such circumstances, Grantee shall give Grantor notice as described above and coordinate its work with Grantor to the maximum extent reasonably practicable. In any event, following such entry, Grantee, at its sole cost and expense, shall continuously and promptly restore the Property to its condition prior to such entry. D. The work of Grantee contemplates installing the Pipeline, in part, along the surface of the Easement Area, and anchoring the Pipeline into the slope of the Easement Area as described in Section I. In order to install the Pipeline in such area, Grantee may remove vegetation along the route of the Easement Area. No other vegetation may be removed under the terms of this Agreement. Upon completion of such installation, Grantee shall install vegetation Big Canyon Country Club Page 3 over any area denuded by Grantee's installation of the Pipeline (the "Revegetation Area"), including providing temporary irrigation to enable the Revegetation Area to again grow vegetation. Once the vegetation has established itself, irrigation to the Revegetation Area shall be turned off. Grantor shall have no duty to inspect, irrigate, or ensure the vegetation planted by Grantee is and remains established. E. IfGrantee exercises its rights under this Agereement, and thereafter, the the slope in the Easement Area where vegetation is removed and the Pipeline is installed subsequently sloughs off or otherwise erodes, Grantee shall replace and recompact such dirt and/or replant the Revegetation Area at the sole cost and expense of Grantee. Access to the Revegetation Area shall be in a location prescribed by Grantor. Ill. RESERVATION BY GRANTOR Grantor hereby reserves for itself such surface and subsurface rights in the Easement Area as needed to use, maintain, repair, reconstruct, replace, improve, or enlarge Grantor's facilities located on the Property, or the facilities of others necessary or appropriate to serve Grantor's facilities, provided such actions do not unreasonably interfere with Grantee's use of the Easement Area. Grantee acknowledges that the surface and subsurface of the Easement Area is presently improved with golf course, irrigation facilities, and drainage structures and other improvements, and those improvements are acceptable to Grantee and will not interfere with the Grantee's proposed use of the Easement area under the terms of this Agreement. Except for replacements of existing improvements, Grantor shall refrain from subsequent activities, and refrain from installation of subsequent facilities and encumbrances that unreasonably interfere with Grantee's use of the Easement Area. Upon mutual agreement, Grantor and Grantee may agree to modify the location of the Easement Area. IV. INDEMNITY Grantee's use of the Easement Area shall be at its sole risk. Grantor shall not be liable or responsible for the personal injury or death of any person, or damage to property of any person, including that of Grantee or any of its employees, contractors, subcontractors, material suppliers, elected or appointed officers, agents, officials, volunteers, or the invitees of any of them, as a result of Grantee's exercise of any rights regarding the Easement Area or Grantee's use of the Easement Area or the Property, except that Grantor agrees to indemnify and hold Grantee and its elected or appointed officers, employees, directors, agents, officials, successors, and assigns harmless from and against any and all liability, claims, damages, losses and demands, including attorneys' fees and related litigation costs, whether resulting from court action or otherwise, arising out of the negligent acts or omissions or intentional misconduct of Grantor, its officers, contractors, subcontractors, material suppliers, employees or agents in Grantor's use of the Property or Easement Area except for such liability, claims, Big Canyon Country Club Page 4 damages, losses or demands to the extent arising out of the negligence or intentional act of Grantee, its employees, contractors, subcontractors, material suppliers, elected or appointed officers, agents, officials, successors, or assigns. Grantee agrees to indemnify and hold Grantor and its officers, employees, directors, shareholders, members, agents, successors and assigns harmless from and against any and all liability, claims, damages, losses and demands, including attorneys fees and related litigation costs, whether resulting from court action or otherwise, arising out of the negligent acts or omissions or intentional misconduct of Grantee, its elected or appointed officers, employees, contractors, subcontractors, material suppliers, employees or agents in Grantee's entry onto the Property, or Grantee's use of the Easement Area, or Grantee's access thereto except for such liability, claims, damages, losses or demands to the extent arising out of the negligence or intentional acts of Grantor, its employees, successor or assigns. V. INSURANCE Prior to entering the Property and at all times Grantor or its agents, employees or contracors are on the Property, Grantee shall provide or cause its contractor to procure general liability and property damage insurance with a reputable and financially solvent insurance company licensed to do business in the State of California with a Best's Insurance Report rating of not less than A/VII with combined single limit coverage of not less than Five Million Dollars ($5,000,000). Grantor shall be named as an additional insured under such policy and shall be provided with written evidence of such coverage. Such coverage shall not be cancelled without at least thirty (30) days prior written notice to Grantor. VI. REIMBURSEMENT TO GRANTOR Within thirty (30) days after being presented with documentation by Grantor, Grantee shall reimburse Grantor for all costs incurred by Grantor in having its engineers review the design of the Manhole and Diversion Link and Pipeline, for reviewing Exhibits A and B hereto, legal fees to prepare or review this Agreement, and any damage done to the Property not repaired timely and properly by Grantee. VII. GENERAL PROVISIONS None of the terms of this Agreement shall affect or modify the terms and conditions of Grantee's existing easements upon the Property while such existing easements are in effect. This Agreement shall continue in full force and effect and shall be binding upon and inure to the benefit of the Grantor and Grantor's successors and assigns and of Grantee and Grantee's successors and assigns. Big Canyon Country Club Page 5 Except upon order of a court of competent jurisdiction for termination of this Agreement, the amendment, modification, abandonment, or termination of this Agreement or the Easement shall be in writing, signed, and acknowledged by the Grantor and Grantee, and duly recorded in the Official Records of the County Recorder of the County of Orange, State of California. The prevailing party in any action between Grantor and Grantee shall be entitled to reasonable attorneys' fees and costs in such action. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any legal action relating to or arising out of this Agreement shall be shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. This Agreement (including the attached Exhibits) contain the entire agreement between Grantor and Grantee regarding the terms of the easement in the Easement Area, including all representations and warranties between them. Any waiver of a provision of this Agreement by a party must be in writing. The failure of any party to (i) observe a provision of this Agreement; (ii) insist upon strict performance of a provision of this Agreement; or (iii) exercise any remedy, privilege, or election of that party, will not be considered as a waiver of (a) that provision in the future or (b) the right to duly enforce the Agreement or to exercise any privilege, election, or remedy if there is a later breach of the same or of any other provision in this Agreement. No waiver of any provision of this Agreement will be considered to be a waiver of any other provision, whether or not similar, nor as any continuing or succeeding waiver of that provision. Notices relating to this Agreement must be in writing and sent to the addresses set forth below. A party may change its address for notices by giving notice as required by this Section. A written notice shall be considered given (i) when personally delivered, (ii) two (2) business days after deposit in the United States Mail as first class mail, certified or registered, return receipt requested, with postage prepaid, or (iii) one (1) business day after deposit with a reputable overnight delivery service for next business day delivery. The parties' addresses for notices are as follows: To Grantor: To Grantee: Big Canyon Country Club Attn.: General Manager One Big Canyon Drive Newport Beach, CA 92660-5299 City of Newport Beach Attn.: Public Works Department Big Canyon Country Club Page 6 100 Civic Center Drive Newport Beach, CA 92660 Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective party. EXECUTED IN THE County of Orange, State of California, as of the date set forth above. APPROVED AS TO FORM: CITY A7f RNEY'S OFFICE Date:I . By: f V ' nn `�A Vy--- Aaron C. Harp City Attorney ATTEST: Date: go Leilani I. Brown City Clerk ATTACHMENTS: CITY OF NEWPORT BEACH, a California municipal corporation Date: 0 Diane B. Dixon Mayor OWNER(S): BIG CANYON COUNTRY CLUB, a California non-profit mutual benefit corporation Date: By.,— Charles H. Fedalen, Jr. Assistant Secretary [END OF SIGNATURES] Owners must sign in the presence of notary public Exhibit A — Property Description Exhibit B — Property Depiction Exhibit C — Pipeline Depiction Big Canyon Country Club Page 7 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Dezr ae- }ss. On f��ko .� a1 20 t6 before me, 6�- Lem Notary Public, personally appeared C°"e5 Fk - a ea1eti . , 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 signatures(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. LAUNA LEE WNSTEa WITNESS my hand and official seal: cnmmbsronN xollss� < Nalery Pu01k !County my Comm.msJul 12m.2laU18s Signature, (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of U La- Iss. On 20_(,& before me, N) 0Notary Public, personally appeared l proved to me on the basis of satisfactory evidence o be the person(j) whose name(j)is subscribed to the within instrument and acknowledged to me that beAhey executed the same in t terHfteir authorized capacity(iesj and that by is erfttieir signatures( on the fs instrument the person(), or the entity upon behalf of which the person() acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. ANNE MANSOUR W ESS my hand and official seal. commission # 2115355 a Notary Public -California z z Orange County Si at re M Comm. WPAgul 11, 2019 Big Canyon Country Club Page 8 EXHIBIT A PROPERTY DESCRIPTION Big Canyon Country Club Page A-1 EXHIBIT "A" LEGAL DESCRIPTION PERMANENT UTILITY EASEMENT Parcel I In the City of Newport Beach, County of Orange, State of California, being that ponion of Block 56 of Irvine's Subdivision per Map recorded in Book I, Page 88, of Miscellaneous Record Maps, records of said County, granted to Big Canyon Country Club by Corporation Grant Deed on December 30, 1974 in Book 11314, page 857, Official Records of the Office of the County Recorder of said County, described as follows: Commencing at the westerly most corner of Lot I of Tract Map No. 8444 per map filed in Book 374, pages 39 through 43, inclusive, of Miscellaneous Maps in the Office of the County Recorder of said County, thence along the southeasterly right-of-way line of Jamboree Road, a public street, said line shown as North 27°15'08" East on said Map; thence, Along said southeasterly right-of-way line, South 27'19'16" West 40.65 feet to the True Point or Beginning; thence, Leaving said southeasterly right-of-way line, South 66012'26" East 7.15 feet; thence, South 2347'34" West 20.19 feet; thence. South 84°48'46" East 164.03 feet; thence, North 7305'50" East 15.48 feet; thence, North 21'46'58" East 17.10 feet; thence, South 6813'02" East 16.00 feet; thence, South 21'46'58" West 24.66 feet; thence, North 84'48'46" West 203.03 feel to a point on said southeasterly tight -of -way line of Jamboree Rd.; thence, Along said southeasterly right-of-way line North 27'19'16" East 29.60 feet to the True Point or Beginning. Containing 1,755 square feet. Subject to conditions, covenants, rights, restrictions, easements, licenses, permits, leases, and rights-of-way, if any As more particularly shown on Exhibit "B" attached hereto and made a part hereof. This real property description has been prepared by me or under my direction in conformance with the professional land surveyor's act. rPL c: St Ie�6C Igor ebourn, PL. 395 Date *$395 Page I of I EXHIBIT B PROPERTY DEPICTION Big Canyon Country Club Page B-1 1 1 ul W a 1 m .�.'` 6fi 1 WESTERLY MOST CORNER OF LOT 1, TRACT No. 6444 AND POINT OF COMMENCEMENT t 1 S27'19'16"W 40.65"-� i 1 N27'19'16"E 29.60'c'� SOUTHEASTERLY RIGHT Z WAY UNE OF JAMBOREE RD -- LAND DESCRIBED HEREIN CONTAINING 1,755 SQFT EXHIBIT "B" SKETCH TO ACCOMPANY LEGAL DESCRIPTION LOT 1 TRACT NO. 8444 MMS74/39-43 S21'46'58"W 24.66' S6T13'02"E 16.00'x--, N21'46'58"E 17.1 N73'05'50"E 15.48' BLOCK 56 IRVINE'S SUBDIVISION MRM 1-88 TRUE POINT OF BEGINNING S66'12'26"E 7.15' 523'47'34"W h 20.19' S% PARCELI 1,755 SOFT BLOCK 56 IRVINE'S SUBDIVISION MRM 1-88 GRAPHIC SCALE ( IN FEET ) 1 inch = 40 fit. PERMANENT UTILITY EASEMENT nt tec CITY OF NEWPORT BEACH COUNTY OF ORANGE STATE OF CALIFORNIA DATE: 07.20.2016 PROJECT No. 2042511700 SCALE: V" 40' SHEET: loll EXHIBIT C PIPELINE DEPICTION Big Canyon Country Club Page C-1 H 441 Mli. at f� FA EXHIBIT C 7 ƒ ¥ � CD ®�> CERTIFICATE OF ACCEPTANCE This CERTIFICATE OF ACCEPTANCE is to certify that the interest in real property conveyed by the Grant of Easement for Storm Drain Diversion Purposes, Right of Entry, Maintenance, and Indemnity Agreement, as more particularly described in Exhibit A to the Grant of Easement dated 11411 2016 from BIG CANYON COUNTRY CLUB, a California non-profit mutual benefit corporation, as Grantor and the CITY OF NEWPORT BEACH, a California municipal corporation and charter city, as Grantee, is hereby accepted on Ot,7 z f 2016, 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 County Recorder of the County of Orange, State of California. APPROVED AS TO FORM: CITY ATTO NEY'S OFFICE Date: IIS rilfo By�Q " 11/1, k Aaron C. Harp City Attorney ATTEST:' Date: CITY OF NEWPORT BEACH, A California municipal corporation Date: 11-22 4,e By:C` l�✓1\ Dave Kiff City Manager RECCOMMENDED FOR ACCEPTANCE: Public Works Department Date: %�' l—Za1 By: C �'" r"` �" B y: i/i ,t Leilani I. Brown David A. Webb City Clerk Director of Public Works A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of ORANGE ) On 1\lNyni-�)Ftz 2-L 2016 before me, �i (�yN1FEi2 �tyty (�V�V 1 Notary Public, personally appeared DAVE KIFF, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. JENNIFER ANN MULVEY Commission 8 2045022 a: °.,; Notary Public - Califbmia (Seal) i orange County 0 M Camm. Expires Oct 12 201