HomeMy WebLinkAboutC-5936 - Amended and Restated Subsurface Pass-Through Easement (APN: 045-010-22)�o
RECORDING REQUESTED BY: '' Recoed in official Records, orange County
CITY OF NEWPORT BEACH 7 - 3 Hu jllhk N u+ylleln, clerk -Recorder
M II!!i ! ill II I�I II 11 ��III ����� ��� I f���� �1�� I��� NO FEE
WHEN RECORDED MAIL TO: $ R o a n a 9 8 5 7�llll7ill$ ����
City of Newport Beach 014000386644 8:41 am 09124/14
Attn: City Clerk's Office �417A21 s
100 Civic Center Drive ' :Qa 0.00 0.00 0.00 21.00 0.00 o.00 0.00
PO Box 1768
Newport Beach, CA 92658
WITH A COPY TO:
Ryan H. Dwight
Trustee of The Ryan H. Dwight Living Trust
22042 Catalina Circle
Huntington Beach, CA 92646
(Exempt from recoding fee per Government Code §§ 6103 and 27383
Documentary Transfer Tax Exempt per Rev. & Tax Code § 11922) _
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(Space above this line for the Recorder's use)
AMENDED AND RESTATED
SUBSURFACE PASS-THROUGH EASEMENT
(APN: 045-010-22)
RECITALS
A. Pursuant to that certain Subsurface Pass -Through Easement dated May 11,
1981 in reference to Parcel G-138, recorded in Book 14103, beginning on page
1054 ("Original Subsurface Pass -Through Easement") in the Official Records of
Orange County, California, SEASHORE APARTMENTS, a Limited Partnership
(as signed by Donald P. Novack as President for Vistar Financial, Inc., General
Partner), as the "Original Grantor," conveyed a perpetual easement and right of
way under and through the subsurface of that certain real property described in
Exhibit "A," ("Property") and incorporated herein by reference, for the purposes of
drilling for, producing, extracting, taking and removing oil, gas and other
hydrocarbon substances by the City of Newport Beach, a California municipal
corporation and chartered City ("City"), as Grantee.
B. The Original Subsurface Pass -Through Easement was entered on behalf of the
Original Grantor and is binding upon and inures to the benefit of the heirs,
executors, administrators, successors and assigns of the Original Grantor. On
February 5, 2014, RYAN H. DWIGHT, Trustee of The Ryan H. Dwight Living
Trust (hereinafter "Grantor") acquired title or retained title to the Property and
subsequently all of Original Grantor's interests in the Original Subsurface Pass -
Through Easement, pursuant to the Individual Quitclaim Deed recorded in the
Official Records of the Orange County Clerk -Recorder, Document Number
2014000047415.
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C. Grantor made the grant on condition that City, as compensation for the easement
and right of way granted under the Original Subsurface Pass -Through Easement,
pay to Grantor a sum equal to a percentage of the proportionate share of the
market value of all oil, gas and other hydrocarbon substances produced, saved
and sold by means of any and all oil wells drilled and/or operated by Grantee
("Easement Payments").
D. Grantor has elected to terminate all rights to Easement Payments conveyed by
the Original Subsurface Pass -Through Easement in exchange for a one-time
lump sum buyout option, wherein the City agrees to pay a one-time payment
equivalent to five (5) years of Easement Payments and Grantor grants to City a
perpetual assignment of the subsurface pass-through easement rights provided
in the Original Subsurface Pass -Through Easement to the City.
E. Upon the effective date of this Amended and Restated Subsurface Pass -Through
Easement ("Easement") the Original Subsurface Pass -Through Easement shall
be rescinded and of no further effect.
NOW THEREFORE, in consideration of the above and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the Grantor grants
Grantee a permanent subsurface easement as follows:
On this R day of ,. li_5�`2014, Grantor, owner(s) of that certain real property
commonly known as 204 David Drive, Assessor's Parcel No. 045-010-22 in the City of
Newport Beach, County of Orange, State of California, hereby grants, conveys, demises
and lets to the City of Newport Beach, a California municipal corporation and charter
city, a perpetual easement, right of way, drill through right and servitude to drill, test,
complete, equip, maintain, repair, clear, redrill, deepen, operate, produce, dismantle
(remove casing and other equipment from), plug and abandon under and through the
subsurface of that certain Property described herein in which Grantor has the right to
control subsurface pass-through easements at a depth not less than four hundred (400)
feet measured vertically below the surface thereof, a well or wells for the purpose of
exploring for, drilling for, producing, extracting, taking, removing and disposing
produced substances including, but not limited to, oil, gas and/or other hydrocarbon
substances and produced water; the easement and right of way granted herein shall lie
under that certain parcel of real property situated in the City of Newport Beach, County
of Orange, State of California, and more particularly described in Exhibit "A." The City
may assign its rights under this Easement to an operator which will carry out the oil and
gas operations described herein. The subsurface easement shall continue for as long
as oil, gas and/or other hydrocarbons are produced by any such well and so long
thereafter as drilling, remedial, secondary or tertiary recovery operations are being
planned or conducted with respect to any such well.
1, PURPOSE
The above Recitals are true and correct and incorporated herein by reference.
The rights granted herein to Grantee are for the purpose of exploring for, drilling for,
producing, extracting, taking, removing, and disposing of produced substances,
including, but not limited to, oil, gas and other hydrocarbon substances and produced
water and injecting substances to stimulate oil and gas production by means of slant
holes or wells drilled from well holes outside that certain Property that bottom beneath
the lands and tide waters in the Pacific Ocean and connecting waters; provided,
however, that the provisions of this instrument shall not entitle the Grantee, in any of its
operations hereunder, to use any part of the Grantor's Property between the surface of
the lands described in Exhibit "A" attached hereto and the depth above-specified, or to
bottom any well within the boundaries of the Grantor's Property. This grant is made on
the condition that Grantee, in its drilling and production operations, shall use and install
materials of good quality and condition, and all wells shall be drilled and maintained by
Grantee in the best workmanlike manner and in accordance with good oil field practice,
and all water sands encountered therein shall be, effectively and in a proper manner,
plugged off; all drilling and other operations of Grantee hereunder shall at all times be
conducted in a good and workmanlike manner and so as to prevent and avoid danger of
any injury or damage therefrom to the property of Grantor; and Grantee shall take all
reasonably necessary precautions to prevent the discharge or escape of mud, oil,
debris or other matter onto the beach or adjoining property or into the waters of the
Pacific Ocean.
2. COMPENSATION
2.1 Grantor further makes this grant on condition that City, as compensation
for the easement and right of way granted hereunder, shall pay to Grantor a one-time
lump sum equal to One Thousand, Three Hundred and Sixty -Nine Dollars and 551100
($1,369.55).
2.2 Grantee shall make the payment to Grantor by check payable to Grantor
mailed to the address set forth below.
Ryan H. Dwight
Trustee of The Ryan H. Dwight Living Trust
22042 Catalina Circle
Huntington Beach, CA 92646
2.3 Grantor hereby agrees that should it be determined that Grantor does not
own the rights granted herein, Grantee's obligation to pay the consideration provided for
hereunder shall terminate, and Grantee shall be entitled to recover the amount of
compensation previously paid to Grantor. Furthermore, if it should be determined that
Grantor owns less than all of the rights to provide Grantee the easement right and right
of way conveyed herein, Grantee shall be entitled to accept such rights as are granted
herein by Grantor, and prorate the compensation paid to Grantor accordingly. Grantor
shall, at no cost to Grantee, acquire whatever rights Grantor does not own in the
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Property and convey those rights to Grantee so that the Easement conveyed herein is
fully effective.
3. EFFECTIVE DATE
This Amended and Restated Subsurface Pass -Through Easement shall be and
become effective from and after the date that Grantor executes the same.
4. CLAIMS
4.1 Grantor hereby agrees to make no claims in eminent domain against
Grantee relating to the herein described Property, including without limitation any claims
for fees, costs, attorneys' fees, abandonment costs, interest, those claims which may
arise out of Grantee's immediate possession of Grantor's Property and any claims
pursuant to California Code of Civil Procedure Sections 1036, 1263.410, 1263.420,
1268.620 and 1268.710. Grantor also agrees and consents to the dismissal of any
eminent domain action in the Superior Court wherein Grantor's Property is included.
4.2 Grantor further understands the purpose for which this Easement is being
made and Grantor, for itself, its heirs, executors, administrators, successors and
assigns, hereby waives any and all claims for damage to such Grantor's Property
hereby conveyed for the purposes described herein.
5. RUNS WITH THE LAND
This Easement and each and all of its provisions shall be binding upon and inure
to the benefit of the heirs, executors, administrators, successors and assigns of the
Grantor(s) and Grantee(s).
6. GENERAL PROVISIONS
6.1 This Easement may be executed in counterparts which taken together
shall constitute a single agreement with the same force and effect as if the parties had
signed the same document.
6.2 This document contains all of the agreements between the parties and no
prior representations or statements, verbal or written, have been made modifying,
adding to or changing the terms of this Easement. No amendments, modifications or
revisions hereof shall be effective unless made in writing and signed by both parties
hereto.
0
IN WITNESS WHEREOF, the party(ies) hereto have caused this Amended and
Restated Subsurface Pass -Through Easement to be executed on the date(s) written
below.
GRANTOR:
Date:
By:
Ryan H. Dwight
Trustee of The Ryan H. Dwight Living
Trust
*Grantors must sign in the presence of a notary public.
[END OF SIGNATURES]
Attachments:
Exhibit "A"—Property Legal Description
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NOTARY ACKNOWLEDGMENT
State of California
County of Orange )
On IZ , 2014, before met J
_eNotfeV_ A\�W I�1U� +``f , notary public,
personally appeared t-i(Ay flOnl ic'i-L OVA (41 .) who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to within instrument and who acknowledged to me that he/she/they
executed the same in their authorized capacity(ies), and by his/her/their signature(s) on
the instrument the person(s), or 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.
(Sign
State of California
County of Orange
JENNIFER ANN MULVEY
Commission # 2045022 Z
a "•r Notary Public - California
z Orange County
Seal) My Comm,, Expires W 12, 2017
NOTARY ACKNOWLEDGMENT
On , 2014, before me, , notary public,
personally appeared who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
islare subscribed to within instrument and who acknowledged to me that helshelthey
executed the same in their authorized capacity(ies), and by his/her/their signature(s) on
the instrument the person(s), or 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.
(Seal)
(Signature of Notary)
N
EXHIBIT "A"
PROPERTY LEGAL DESCRIPTION
An easement for Property in the City of Newport Beach, County of Orange, State of
California, described as follows:
PARCEL 1:
LOT 5 IN BLOCK 11 OF SEASHORE COLONY TRACT, AS PER MAP RECORDED IN
BOOK 7, PAGE 25 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, TOGETHER WITH THE SOUTHEASTERLY HALF
OF THE ALLEY ADJOINING SAID LOT ON THE NORTHWEST, VACATED BY
RESOLUTION NO. 5833 OF THE CITY COUNCIL OF THE CITY OF NEWPORT
BEACH, RECORDED AUGUST 14, 1963 AS DOCUMENT NO. 12947, 1N BOOK 6673,
PAGE 813 OF OFFICIAL RECORDS.
EXCEPT THEREFROM 50 PERCENT OF ALL GAS, OIL, HYDROCARBONS AND
MINERALS LYING BELOW 100 FEET FROM THE SURFACE IN OR UNDER SAID
LAND, WITHOUT RIGHTS UPON THE SURFACE, AS RESERVED 1N DEEDS OF
RECORD.
PARCEL 2:
AN EASEMENT FOR INGRESS AND EGRESS OVER DAVID DRIVE (PRIVATE
STREET), HAVING WIDTHS OF 15.00 FEET AND 50.00 FEET, AS SHOWN ON A
PARCEL MAP FILED IN BOOK 86, PAGES 28 AND 29 OF PARCEL MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM, THAT PORTION INCLUDED WITHIN PARCEL 1 ABOVE
DESCRIBED.
APN: 045-01022
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CERTIFICATE OF ACCEPTANCE
This CERTIFICATE OF ACCEPTANCE is to certify that the interest in real property
conveyed by the Amended and Restated Subsurface Pass -Through Easement for
purposes of drilling for, producing, extracting, taking, and removing oil, gas and other
hydrocarbons, from and through the subsurface of the real property commonly referred
to as 204 David Drive, Newport Beach, California 92663 by RYAN H. DWIGHT, Trustee
of The Ryan H. Dwight Living Trust as Grantor and the City of Newport Beach, a
California municipal corporation and charter city, as Grantee, is hereby accepted on
2014, by the undersigned officer on behalf of the City of Newport Beach
pursuant to authority conferred by Resolution No. 92-82 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 ATTORNEY'S OFFICE
Date: K /I SM - -- -
Aaron C. Harp cru+ 9111011"
City Attorney
ATTEST: n �� )r r
Date: `�'
� r
By: A
Leilani I. Brown
City Clerk
State of California )
County of ORANGE j
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
By:
Davi6-tCiff
City Manager
_ORNIA
On 1 ��C 2014 before me, J�"IrE�+U i��'�Y 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.
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.
Signatu e
(Seal)
8
JENNIFER ANN MULVEY
:F Cpmmission #E 2045022
Q
:�� Notary Public - California s
Orange County
My Comm. Ex fres Oct 12, 2017