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Home My WebLink AboutC-4876 - Donation Agreement (Back Bay Parcel behind Park Newport)DONATION AGREEMENT (Back Bay Parcel behind Park Newport) This DONATION AGREEMENT ( "Agreement") is made as of July 26 , 2011, by and between THE IRVINE COMPANY LLC, a Delaware limited liability company ( "Donor "), and the CITY OF NEWPORT BEACH, a municipal corporation organized under the laws of the State of California ( "Donee "), with reference to the following: RECITALS WHEREAS, Donor owns certain property in the City of Newport Beach located between the back of the Park Newport Apartment site and the Upper Newport Bay, which property is approximately 3.8 acres in size and is more specifically described as the "Fee Property" on Exhibit A and depicted on Exhibit B attached hereto and incorporated herein by this reference; WHEREAS, without any obligation to do so, Donor is willing to donate to Donee, without consideration, (a) the Fee Property for use by Donee for open space, habitat protection and resource conservation purposes, and (b) an easement for ingress and egress to the Fee Property as more specifically described as the "Easement" on Exhibit A and which is located within the "Park Newport Property" depicted on Exhibit B attached hereto. The Fee Property and the Easement are collectively referred to herein as the "Gift Parcel." The donation of the Gift Parcel shall be completed upon recordation of the deed for said parcel (the "Gift Deed") in the Official Records of Orange County. WHEREAS, Donee has determined that Donor's donation of the Fee Property for open space, habitat protection and resource conservation purposes and the Easement for access to the Fee Property is a substantial benefit that enhances and preserves the natural environment around the Upper Newport Bay and relieves the City of the burden of expending City funds for acquisition of such property; and WHEREAS, Donor intends that the donation of the Gift Parcel qualify as a charitable contribution under Internal Revenue Code Section 170, and Donee qualifies under Internal Revenue Code Section 170(c)(1) as a political subdivision of the State of California; and, WHEREAS, Donor and Donee each desire to acknowledge, confirm and memorialize Donor's donation of the Gift Parcel for the purposes described above, as well as Donee's obligations regarding donation. NOW, THEREFORE; Donor and Donee hereby acknowledge and agree as follows: JRC0 0209.023 1 13983 77.4 7/13/2011 AGREEMENT 1. Description of Property. The Gift Parcel, as more particularly described and depicted on Exhibits A and B' will be, upon recordation of the Gift Deed, donated by Donor to Donee pursuant to the Gift Deed. 2. Donative Intent. Donor and Donee have determined that conveyance of the Gift Parcel to Donee will substantially benefit the public at large, and such parties acknowledge and agree that the Gift Parcel has been donated by Donor to Donee for public purposes to enhance and preserve the natural environment around the Upper Newport Bay. The Fee Property has been held by Donor for investment purposes. Donee represents that it will not hold such property for speculative purposes, which would contravene the donative motives of Donor. Donee hereby acknowledges Donor's gift of its interest in the Gift Parcel, effective upon recordation of the Gift Deed. Donee hereby confirms that Donor's transfer of its interest in the Gift Parcel is a gift to Donee, without consideration, and that the gift is not a condition of any past, current or future approval, entitlement or benefit sought by Donor from Donee or any other governmental agency. 3. Acknowledgement of Receipt of Gift. Donee agrees to cooperate with Donor by acknowledging receipt of the donation of the Gift Parcel hereunder on Internal Revenue Form 8283 (Non -Cash Charitable Contributions) and on any other tax - related forms or documents reasonably requested by Donor including, without limitation, a contemporaneous written acknowledgment that complies with applicable requirements of the Internal Revenue Code. 4. No Third Party Beneficiaries. No person or entity other than the parties to this Agreement shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement, either express or implied, is intended to confer upon any person or entity, other than the parties to this Agreement and their respective successors and assigns, any rights; remedies, obligations or liabilities under or by reason of this Agreement. 5. Miscellaneous. a. Successors and Assigns. The provisions of this Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and assigns. b. Governing Law and Jurisdiction. This Agreement shall be construed in accordance with and be governed by the laws of the State of California, and each party hereto consents to the jurisdiction of the courts of California, for the County of Orange, for the purpose of any action to enforce or interpret this Agreement. C. Authority to Sign. Each person signing this Agreement on behalf of a party hereto represents and warrants to the other party that he /she has all requisite power and authority to execute and deliver this Agreement for such party and that this Agreement, when so JR030209.0231\398377.4 7/13/2011 2 executed and delivered, will be a binding obligation of, and enforceable against, such party in accordance with its terms. d. Amendment. This Agreement may not and shall not be deemed or construed to have been modified, amended, canceled, rescinded, terminated or waived, in whole or in part, except by written instrument signed by both parties. e. Entire Agreement. This Agreement constitutes the entire understanding between the parties hereto with respect to the subjects and issues addressed herein. IN WITNESS WHEREOF, Donor and Donee have entered this Agreement as of the day and year first above written. DONOR: THE IRVINE COMPANY LLC. a Del are limited liability company By: Daniel T. Miller Senior Vice President Entitlement & Government Affairs N By: LLA AO — - Hilary A. S ally Assistant Ucretary DONEE: CITY OF N PORT BEACH, a Californialmunicinal co Dorati APPROVED AS TO FORM: City Attorney By: ° � ATTEST: S& D' N�- 3RC30209.0231\398377.4 7/13/1011 0 Exhibit A Legal Description of Gift Parcel The following real property located in the City of Newport Beach, County of Orange, State of California, described as follows: Fee Property: Parcel 2 of Lot Line Adjustment N.B.L.L.A. 94 -1, recorded February 8, 1994, as Instrument No. 94- 0092253, in the Office of the County Recorder, County of Orange, State of California. 2. Easement: A non - exclusive easement appurtenant to the Fee Property over (a) all private and public roadways (including driveways and parking areas) from time to time located on that certain real property located in the City of Newport Beach, County of Orange, State of California, described as "Parcel A" (the "Park Newport Property ") on Exhibit A to that certain Grant Deed recorded in the Official Records of Orange County, California ( "Official Records ") on March 1, 1994, as Instrument No. 94- 0148365 (the "Park Newport Grant Deed'), and (b) those landscape areas between the Fee Property and the nearest roadway, for vehicular and pedestrian ingress and egress to and from the Fee Property for inspection, maintenance, repair and restoration of the Fee Property, all as more specifically described in, and subject to the terms and conditions contained in, Section D on page 2 of the Park Newport Grant Deed. 1R030209.0231\398377.4 7/13/2011 Exhibit B: Depiction of the Gift Parcel 6L LEGEND N Fee Property ® Park Newport Property 0 225 aso