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HomeMy WebLinkAboutC-8360-1 - Temporary Non-Exclusive Easements in GrossDocument -2767664 -Page -1 about:blank 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 92660 WITH A COPY TO: California Recreation Company C/O: The Irvine Company LLC 550 NewportCenter Drive Newport Beach, CA 92660 Attn: General Counsel's Office Page 1 of 1 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder IIIIIIII!IIIIIIIIIII�IIIIIIIIIIIIIIIRIIIIIIIIIIIIIIIIIINIIIIIIIIIIIII NO FEE x$ R 0 0 0 9 0 4 3 8 5 4$ x 20170000505101:21 pm 02/03117 634061)1 F13 22 0.00 0.00 0.00 0.00 63.00 0.00 0.00 0.00 Exempt from recoding fee per Government Code §§ 6103 and 27383 Documentary Transfer Tax Exempt.per Rev 8 Tax Code § 11922 - (Space above this line for the Recorder's use) TEMPORARY NON-EXCLUSIVE EASEMENTS IN GROSS THIS TEMPORARY NON-EXCLUSIVE EASEMENTS IN GROSS ("Restatement") is made as of this 16T day of tFcer4Ll%E L 2016, by the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("Owner"), as owner of that certain real property, Assessor's Parcel No. 117-801-10, commonly known as "Lower Castaways," located at 100 Dover Drive in the City of Newport Beach, County:of Orange, State of California, legally described in Exhibit "A" and depicted in Exhibit "B" which exhibits are attached hereto and incorporated herein ("Property"). ARTICLE I RECITALS A. Pursuant to the reservations made within the certain Grant Deed dated October 1, 2008 and recorded on October 17, 2008 as Instrument No. 2008000480499 ("Grant Deed"), the. Property contains temporary, non-exclusive easements in gross of approximately 15,995 square feet, on, over, under, and across the portion of the Property as approximately depicted on Exhibit "C" attached hereto and Incorporated herein ("Easements") for the purposes of use, operation, and maintenance of a trailer, storage sheds, and parking area used by CALIFORNIA RECREATION COMPANY LLC ("Grantee"), an affiliate of THE IRVINE COMPANY LLC, in connection with its marina maintenance and operations activities, together with access across such portions of the Property as may be 02/03/2017 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 92660 WITH A COPY TO: California Recreation Company C/O: The Irvine Company LLC 550 Newport Center Drive Newport Beach, CA 92660 Attn: General Counsel's Office Exempt from recoding fee per Government Code §§ 6103 and 27383 Documentary Transfer Tax Exempt per Rev & Tax Code § 11922 (Space above this line for the Recorder's use) TEMPORARY NON-EXCLUSIVE EASEMENTS IN GROSS THIS TEMPORARY NON-EXCLUSIVE EASEMENTS IN GROSS ("Restatement") is made as of this 16T day of t we ErAmfii 2016, by the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("Owner"), as owner of that certain real property, Assessor's Parcel No. 117-801-10, commonly known as "Lower Castaways," located at 100 Dover Drive in the City of Newport Beach, County of Orange, State of California, legally described in Exhibit "A" and depicted in Exhibit "B" which exhibits are attached hereto and incorporated herein ("Property'). ARTICLE I RECITALS A. Pursuant to the reservations made within the certain Grant Deed dated October 1, 2008 and recorded on October 17, 2008 as Instrument No. 2008000480499 ("Grant Deed"), the Property contains temporary, non-exclusive easements in gross of approximately 15,995 square feet, on, over, under, and across the portion of the Property as approximately depicted on Exhibit "C" attached hereto and incorporated herein ("Easements") for the purposes of use, operation, and maintenance of a trailer, storage sheds, and parking area used by CALIFORNIA RECREATION COMPANY LLC ("Grantee"), an affiliate of THE IRVINE COMPANY LLC, in connection with its marina maintenance and operations activities, together with access across such portions of the Property as may be required to access the trailer, storage sheds, and parking area ("Reserved Uses"). B. In accordance with the reservations under subsection (ii) of the Grant Deed, this Restatement shall serve to clarify the rights and obligations associated with Grantee's use of the Easements. C. Further, Grantee acknowledges and is aware of Owner's 36" water transmission main running through the Property and the area of the Easements ("Water Main") that is more particularly depicted on Exhibit "D," attached hereto and incorporated herein. Grantee shall allow Owner or any of its employees, agents, contractors, or subcontractors full access to the Water Main and Grantee shall ensure that the Water Main is protected, safeguarded, and not disturbed to the best of its ability. ARTICLE II RIGHTS AND OBLIGATIONS FOR EASEMENTS IN GROSS 1. Grantee's Rights. 1.1. Grantee shall have the right to use the Easements for its Reserved Uses, as defined in Recital "A." 1.2. Pursuant to the reservations made within the Grant Deed, the Easements shall expire upon sixty (60) days' prior written notice from either Owner or Grantee to the other, in accordance with the notice provisions within the Grant Deed and restated herein. 2. Grantee's Obligations. 2.1. Pursuant to the reservations made within the Grant Deed, Grantee shall, at its own cost and expense, restore and repair any areas of the Property that may be damaged by the exercise of the Easements. Further, at Grantee's own cost and expense, Grantee shall remove all improvements and equipment as a result of termination of the Easements. Grantee shall have sixty (60) days to complete any of these tasks in this Section 2.1. 2.2. Rent. 2.2.1. In exchange for the Grantee's right to use the Easements for its Reserved Uses, Grantee shall pay to Owner rent, as defined herein, with the first rent payment due to Owner no later than thirty (30) calendar days after the Commencement Date of �)eL�oibcr l ,2016. Restatement and Clarification of Temporary Non -Exclusive Easements in Gross Page 2 2.2.2. The rent shall be established at the fair market value rate of Thirty Five Thousand One Hundred Eighty Nine Dollars and 00/100 ($35,189.00) per year ("Rent"). Rent shall be paid, in advance, in equal monthly installments on the first day of each month (e.g., Two Thousand Nine Hundred Thirty Two Dollars and 42/100 ($2,932.42) per month). Rent for any partial month shall be prorated in accordance with the actual number of days in that month and shall be due on the first day of that month that falls within the Term, which is defined as commencing with the Commencement Date through and including the date of expiration as described in Section 1.2. 2.2.3. Annually, upon each successive anniversary date of the Commencement Date thereafter, Rent shall be adjusted in proportion to changes in the Consumer Price Index, subject to the maximum adjustment set forth below. Such adjustment shall be made by multiplying Rent by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month four (4) months preceding the calendar month for which such adjustment is to be made, and the denominator of which is the value of the Consumer Price Index for the same calendar month immediately prior to the Commencement Date. The Consumer Price Index to be used in such calculation is the "Consumer Price Index, All Items, 1982-84=100 for All Urban Consumers (CPI -U)", for the Los Angeles -Riverside -Orange County Metropolitan Area, published by the United States Department of Labor, Bureau of Labor Statistics. If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables included in such new index. In no event, however, shall the amount payable under this Restatement be reduced below the Rent in effect immediately preceding such adjustment. 2.2.4. Payment Location. All payments of Rent shall be made in lawful money of the United States of America and shall be paid to Owner online at www.newportbeachca.gov, in person or by United States' mail, or overnight mail service, at the Cashier's Office located at 100 Civic Center Drive, Newport Beach, California 92660, or to such other address as Owner may from time -to -time designate in writing to the Grantee. The Grantee assumes all risk of loss and responsibility for late charges and delinquency rates if Rent is not timely received by the Owner regardless of the method of transmittal. 2.2.5. Late Payment. Grantee hereby acknowledges that the late payment of Rent or other sums due hereunder will cause Owner to incur costs not contemplated by this Restatement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sum to be paid by Grantee not paid within ten (10) calendar days of its due date shall be Restatement and Clarification of Temporary Non -Exclusive Easements in Gross Page 3 subject to a ten percent (10%) late charge. Owner and Grantee agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to Owner for its loss suffered by such late payment by Grantee. 2.2.6. Interest on Unpaid Sums. Unpaid sums due to Owner under this Restatement shall bear interest at the rate of ten percent (10%) per annum on the unpaid balance, including but not limited to late payment penalties, from the date due until paid. 2.2.7. No Partnership Created. Owner and Grantee shall in no event be construed or held to be partners, co-owners, joint ventures or associates of one another in the conduct of Grantee's business on the Easements. The relationship between Owner and Grantee is and at all times shall remain that of property owner and easement grantee for all purposes. 2.2.8. Possessory Interest Tax. Grantee understands that this Restatement may create a possessory interest and Grantee shall pay directly to the appropriate taxing authorities all taxes applicable under this Restatement, including but not limited to any real estate tax, levy or assessment on the Easements. Grantee shall pay before delinquency: (i) all taxes assessed by any taxing authority which are attributable to Grantee's operations, (ii) all personal property taxes assessed on Grantee's fixtures, equipment and machinery, and (iii) any possessory interest tax, levied pursuant to California Revenue and Taxation Code Section 107.6, which Owner has advised Grantee may be assessed based on the amount of Rent payable hereunder. Except as otherwise provided herein, Grantee shall pay before delinquency all taxes and/or assessments assessed by any taxing authority (including sales taxes) which are related to Grantee's occupancy or use of the Property or Easements, including, without limitation: (a) personal property, fixtures or equipment taxes assessed against Grantee's property; (b) franchise taxes assessed against Grantee; (c) taxes on Grantee's gross rents or profits; (d) inheritance, state, gift, income, transfer or excess profit taxes assessed against Grantee; (e) sales taxes payable by Grantee; and (f) real property taxes and assessments, including, but not limited to, any fees, interest and penalties arising from any such tax or assessment, assessed against all or any portion of the land or other improvements located on the Property, including, but not limited to, any such taxes and assessments attributable to the Easements or any portion thereof. 2.3. Indemnity and Exculpation. 2.3.1. Hold -Harmless Clause. Grantee agrees to indemnify, defend and hold harmless the Owner, its City Council, Boards, Commissions, Committees, officers, agents, volunteers, and employees (collectively, the "Indemnified Restatement and Clarification of Temporary Non -Exclusive Easements in Gross Page 4 Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a "Claim"; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to Grantee's possession, occupation or use of the Property or Easements, specifically including, without limitation, any claim, liability, loss, or damage arising by reason of: (a) The death or injury of any person or damage to personal property caused or allegedly caused by the condition of the Easements or an act or omission of Grantee or an agent, contractor, subcontractor, supplier, employee, servant, or sublessee of Grantee; (b) Any work performed on the Property or Easements or materials furnished to the Property or Easements at the request of Grantee or any agent or employee of Grantee; and/or (c) Grantee's failure to perform any provision of this Restatement or to comply with any requirement of any applicable law or any requirement imposed on the Easements by any duly authorized governmental agency or political subdivision. Grantee's obligations pursuant to this subsection shall not extend to any Claim proximately caused by the sole negligence, willful misconduct, or unlawful or fraudulent conduct on the part of the Indemnified Parties. This indemnity shall apply to all Claims and liability regardless of whether any insurance policies are applicable. 2.3.2. Exculpation of Owner. Except as otherwise expressly provided in this Restatement, Owner shall not be liable to Grantee for any damage to Grantee or Grantee's property or equipment from any cause other than the negligence, intentional or willful acts of the Indemnified Parties. Except as otherwise expressly provided in this Restatement, Grantee waives all claims against the Indemnified Parties arising for any reason other than the negligence, intentional or willful acts of the Indemnified Parties. Owner shall not be liable to Grantee for any damage to the Property or Easements, Grantee's property, Grantee's goodwill, or Grantee's business income, caused in whole or in part by acts of nature such as earthquakes, floods, fire or other natural disaster. Restatement and Clarification of Temporary Non -Exclusive Easements in Gross Page 5 2.4. Insurance. 2.4.1. Without limiting Grantee's indemnification of Owner, Grantee shall obtain, provide and maintain at its own expense during the Term of this Agreement, a policy or policies of insurance of the type, amounts and form acceptable to Owner. The policy or policies shall provide, at a minimum, those items described in Exhibit "E" attached hereto and incorporated herein by this reference. 3. Notice. Pursuant to the Grant Deed section 3 under the heading, "Miscellaneous," all notices, consents, demands, requests, and other communications provided herein shall be in writing and shall be deemed to have been duly given if and when personally served or 48 hours after being sent by United States registered mail, return receipt requested, postage prepaid, to the other party at the following respective address: If to Owner: City of Newport Beach Attn: Real Property Administrator 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92660 If to Grantee: California Recreation Company LLC C/O: The Irvine Company LLC Attn: General Counsel's Office 550 Newport Center Drive Newport Beach, CA 92660 [SIGNATURES ON NEXT PAGE] Restatement and Clarification of Temporary Non -Exclusive Easements in Gross Page 6 IN WITNESS WHEREOF, the party below has caused this Restatement to be executed on the date(s) written below. APPROVED AS TO FORM: THE CITY ATTORNEY'S OFFICE Date: 1 ZA.// OWNER: CITY OF NEWPORT BEACH, a California municipal corporation Date: t(Glr1 By: �r' t By: l Aaron C. Harp orM "'0Cl"° Dave -Riff City Attorney City Manager ATTEST: �� Date: GRANTEE: CALIFORNIA RECREATION COMPANY LLC, a California limited liability co pany Date: l24/04LClly Attachments: Exhibit A — Property Legal Description Exhibit B — Property Depiction Exhibit C — Easements Depiction Exhibit D — Owner's 36" Water Transmission Main Depiction Exhibit E — Insurance Restatement and Clarification of Temporary Non -Exclusive Easements in Gross 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 Orange On December 16, 2016 before me., personally appeared Ralph Grippo Brian J. Von Helmolt (insert name and title of the officer) 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. Signature BRIAN JAMES VON HELMOLT COMM. A` 2138281 = Z WTMY ruxa-G UFOPMA; ORSCOLWN Mrco�ear«o�«atix�+t (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 Orange On December 16, 2016 before me, personally appeared John Doane Brian J. Von Helmolt (insert name and title of the officer) 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. BRIANJAAESVONHELUOLT COMM, x 2138281 = z ! NOTARY T UKJC • CMNOR/MA 3 ORANGE COURTY My Cann E*W9Oar71,IOM (Seal) ►_111113 24 ► [6]1, til 4 =IBM 1'114 ► k l r 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 .101.1vAtrLy S, 201"1 before me, Jennifer Ann Mulvey, Notary Public (insert name and title of the officer) personally appeared DRVE IKIFF who proved to me on the basis of satisfactory evidence to be the persons} whose name(o is/are subscribed to the within instrument and acknowledged to me that he/&he4liey executed the same in his/hQ4W4@-ir authorized capacity(ies), and that by his/h&A44e1r signature(s) 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. JENNIFER ANN MULVEY WITNESS my hand and official seal.< Commission +12045022 ILz Z a� _ Notary Public - California Z Z Orange County 4 Comm. Ex fres Oct 12,201 Signature Irte j./'')C=n� (Seal) EXHIBIT A PROPERTY LEGAL DESCRIPTION Lower Castaways (APN 117-801-10) Lot 1 of Tract No. 1125 in the City of Newport Beach, County of Orange, State of California as shown on a map thereof filed in Book 39, Pages 7 and 8 of Miscellaneous Maps, in the Office of the County Recorder of said Orange County. EXCEPTING THEREFROM those portions of said Lot 1 described in the Grant Deeds to the State of California recorded January 18, 1979 in Book 13004, Page 1183 and in Book 13004, Page 1187, both of Official Records, in the Office of the County recorder of said Orange County. Restatement and Clarification of Temporary Non -Exclusive Easements in Gross Page A-1 EXHIBIT B PROPERTY DEPICTION [See Following Page] Restatement and Clarification of Temporary Non -Exclusive Easements in Gross Page B-1 Exhibit B-1 Exhibit B -2 a A, r, »p. f � a J A t — r f t!A+i 0 to t. Newport Beach Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of GIS0 Newport Beach and its employees and agents disGaim any and all responsibility from or relating to dEWPOkr any results obtained in its use. ° ° 0 100 200 Imagery: 2009-2013 photos provided by Eagle u w - _ Feet Imaging www.eagleaedal.com EXHIBIT C EASEMENTS DEPICTION [See Following Page] Restatement and Clarification of Temporary Non -Exclusive Easements in Gross Page C-1 Exhibit C-1 Exhibit C-2 e EXHIBIT D OWNER'S 36" WATER TRANSMISSION MAIN DEPICTION [See Following Page] Restatement and Clarification of Temporary Non -Exclusive Easements in Gross Page D-1 Exhibit D 1 1 l iN �� ♦ 1 \ l v 1 l 1 Jp Jl 1 1 �m '^ r WATER • ­l4 m� _ `36"MLCCSP FHC2314 tt 1 100 —4 > I I I 0 I I I I I OFH1460 awl I ISI I c`� rir U fl � II I H rr Ir r Jlh Mst+• — CRB Vain Domestc J ! 24" MLCCSP / 2q'MLGCSP !LCr / 24' M ! 59 AC W CSP 24"MLCCSP FHv 1b µL`� 24" MLCCSP piLCC5P VC SV 24 ML CCSP LCCSP 14 M t, Newport Beach Disclaimer: Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of GIS Newport Beach and its employees and agents disclaim any and all responsibility from or relating to any results obtained in its use. A 0 100 200 Imagery: 2009-2013 photos provided by Eagle 6 Feet I maging www.eagleaerial.com �4aoa�a af4nol EXHIBIT E INSURANCE 1. Insurance. Without limiting Grantee's indemnification of Owner, Grantee shall obtain, provide, and maintain at its own expense during the Term or Option Terms of this Agreement, a policy or policies of insurance of the type, amounts and form acceptable to Owner. The policy or policies shall provide, at a minimum, those items described below. (a) Certificates of Insurance. Grantee shall provide certificates of insurance with original endorsements to Owner as evidence of the insurance coverage required herein. Insurance certificates must be approved by Owner's Risk Manager prior to execution of this Agreement by the Owner. Current certification of insurance shall be kept on file with Owner at all times during the term of this Agreement. (b) Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. (c) Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the Owner's Risk Manager. (d) Coverage Requirements. Workers' Compensation Coverage. Grantee shall maintain Workers' Compensation Insurance at statutory limits and Employer's Liability Insurance at One Million Dollars and 001100 ($1,000,000.00) for his or her employees in accordance with the laws of the State of California. Should the Workers' Compensation policy be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy provisions. The insurer shall agree to waive all rights of subrogation against Owner, its officers, agents, employees and volunteers for all losses that relate in any way to this Agreement. ii. General Liability Coverage. Grantee shall maintain commercial general liability insurance in an amount not less than Two Million Dollars and 001100 ($2,000,000.00) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed Restatement and Clarification of Temporary Non -Exclusive Easements in Gross Page E-1 under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Grantee shall maintain automobile insurance covering bodily injury and property damage for all activities of the Grantee arising out of or in connection with the services to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than Two Million Dollars and 00/100 ($2,000,000.00) combined single limit for each occurrence. iv. Fire and Extended Coverage. Grantee shall maintain fire and extended coverage insurance, together with insurance against vandalism, theft and malicious mischief, on the improvements and fixtures, alterations, trade fixtures, signs, equipment, personal property and inventory on or upon the Premises from loss or damage in an amount not less than the replacement cost at the time of loss. (e) Endorsements. Each applicable insurance policy shall be endorsed (or otherwise cover pursuant to the policy form) per the following: The Owner, its elected or appointed officers, officials, employees, agents and volunteers, and the State of California, its elected or appointed officers, officials, employees, agents and volunteers, are to be covered as additional insureds, with respect to liability arising out of work performed by or on behalf of the Grantee. ii. This policy shall be considered primary insurance as respects to Owner, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Grantee's operations or services provided to Owner. Any insurance maintained by Owner, including any self- insured retention Owner may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against Owner, its elected or appointed officers, officials, employees, agents and volunteers. V. Reserved. Restatement and Clarification of Temporary Non -Exclusive Easements in Gross Page E-2 vi. Should the policy be cancelled before the expiration date thereof, notice will be delivered in accordance with the policy provisions. (f) Timely Notice of Claims. Grantee shall give Owner prompt and timely notice of claim made or suit instituted arising out of or resulting from Grantee's performance under this Agreement. (g) Additional Insurance. Grantee shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. Restatement and Clarification of Temporary Non -Exclusive Easements in Gross Page E-3