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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
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Beach Disclaimer: Every reasonable effort has been made to assure the
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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
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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
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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