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HomeMy WebLinkAboutC-5612(A) - Donation Agreement for Corona del Mar Pocket ParkDONATION AGREEMENT WITH TJJ COX PROPERTIES, LLC FOR CORONA DEL MAR POCKET PARK THIS DONATION AGREEMENT ("Agreement") is made as of February 2, 2015, by and between TJJ COX PROPERTIES, LLC, a California limited liability company ("Donor"), and the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("Doneel, with reference to the following: RECITALS WHEREAS, Donor owns certain property in the Corona del Mar area of the City of Newport Beach located at 3140 East Coast Highway, Newport Beach, California ("Property"), which Property is approximately 14,265 square feet in size and is depicted in Exhibit "A", which is attached hereto and incorporated herein by this reference; WHEREAS, without any obligation to do so, Donor is willing to donate to Donee, without consideration, approximately 1,291 square feet of the Property for use by Donee (the "Gift Parcel"), as further described in the legal description attached hereto as Exhibit "B" and as further depicted in Exhibit "Cm. The donation of the Gift Parcel shall be completed upon recordation of a gift deed for said parcel (the "Gift Deed") in the Official Records of Orange County, a copy of which is attached hereto as Exhibit "F", attached hereto and incorporated herein by this reference. The portion Property remaining after the donation and conveyance of the Gift Parcel is sometimes referred to herein as the "Remaining Property"; WHEREAS, in conjunction with its donation of the Gift Parcel, Donor wishes to reserve a perpetual, non-exclusive easement and right to access over the Gift Parcel for purposes of accessing the existing mural wall located on the Remaining Property, maintaining lighting on the Gift Parcel for the mural wall, at Donors election, and to perform as -needed maintenance of such wall and lighting facilities from time to time at Donors election; WHEREAS, Donor and Donee wish to have Donee install a plaque on the Gift Parcel memorializing Donors donation thereof following recordation of the Gift Deed; WHEREAS, Donee has determined that Donor's donation of the Gift Parcel is a substantial benefit that enhances and preserves the character of Corona del Mar, and relieves the City of the burden of expending City funds for acquisition of such property; and WHEREAS, Donor and Donee each desire to acknowledge, confirm and memorialize Donors donation of the Gift Parcel for the purposes described above, as well as Donee`s obligations regarding donation, all on the terms and conditions set forth below. NOW, THEREFORE, Donor and Donee hereby acknowledge and agree as follows: AGREEMENT 1227664.4 1. Description of Gift Parcel: Conveyance. The Gift Parcel, as more particularly described and depicted on Exhibits "BO and "Go, will be, upon recordation of the Gift Deed, in substantially the form as attached hereto as Exhibit "F, donated by Donor to Dome pursuant to the Gift Deed. Prior to Closing (defined below), Donee, at its sole cost and expense, shall perform all work necessary to subdivide the Gift Parcel from the Property, such that the Gift Parcel shall be a separate legal lot pursuant to the California Subdivision Map Act (the "Map Act°), and a separate tax parcel. Donor agrees to donate, convey and transfer to Donee, and Donee agrees to receive and accept from Donor, without consideration, all of Donor's right, title and interest in and to the Gift Parcel, subject to the terms, conditions and provisions of this Agreement and the Gift Deed. 2. Donative Intent: Permitted Pumose. 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 brat the Gift Parcel has been donated by Donor to Donee for public purposes. Donee represents that it will not hold such property for speculative purposes, which would contravene the donation motives of Donor. Donee hereby acknowledges Donors gift of its interest in the Gift Parcel, effective upon recordation of the Gift Deed. Donee hereby confirms that Donors transfer of its interest in the Gift Parcel is a charitable 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 governmental agency. Donee acknowledges that the gift of its interest in the Gift Parcel is subject to the restriction that the Gift Parcel may only be used for public park purposes (the "Permitted Purpose"), and Donee agrees to use, and to permit others to use, the Gift Parcel exclusively for the Permitted Purpose and no other purposes. Donee acknowledges and agrees that neither the City, the public, nor any other third party shall have any right, title or interest, including any right of use or access, to all or any portion of the Remaining Property. 2.1 As -is Conveyance. Donee acknowledges and agrees that the Gift Parcel is being donated and conveyed on an "AS IS" "WHERE ISO basis, in its present state and condition, and Donor hereby disclaims any and all warranties and representations of any kind or nature, whether oral or written, express or implied, concerning the Gift Parcel or Donor, including without limitation, any warranty concerning suitability for Donee's intended use thereof, and any concerning the presence or absence of hazardous or toxic materials located in, on, under or about the Gift Parcel or the Remaining Property. 2.2 Closing. The parties shall use their hest efforts to consummate and complete (the "Closing") the donation and conveyance of the Gift Parcel by recording the Gift Deed by Donor to Donee on or before February 9, 2015 or such earlier or later date as the parties may mutually approve in writing (the "Closing Date"). The parties may elect to effect the Closing through an escrow established with a title company mutually acceptable to both parties. Donee shall bear all usual and standard costs of Closing, including any escrow fees, premiums for any owners policy of title insurance desired by Donor, recording fees (if any), and documentary transfer fees (if any). At the request of Donor, the parties agree to prorate general and special real estate taxes and Donation Agreement Page 2 1rne".a assessments relating to the Gift Parcel, in cash, to the Closing Date, either outside or (if applicable) through escrow. Each party shall execute, acknowledge and deliver such documents as may be reasonably requested by the other party in order to effectuate the Closing and the purposes of this Agreement. 2.3 No Commissions. Each party represents to the other that it has not dealt with any broker or agent in connection with the transactions contemplated by this Agreement and is not aware of any commission or finder's fee that is or will become due to any such broker, agent or other person in connection with such transactions. 3. Acknowledgment of Receipt of G'rft 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, and by executing and delivering such forms and documents to Donor promptly following Donor's written request therefor. 4. Access Easement for Donor. Donor and Donee agree that Donoes donation and conveyance of the Gift Parcel to Donee shall be subject to Donor's reservation of a perpetual, non-exclusive easement and right of access ("Access Easement") upon, through, under, over and across the Gift Parcel for the purpose of accessing, maintaining, repairing, replacing, re -constructing, operating, changing, altering and removing (i) the existing mural wall ("Mural Wall) located on the Remaining Property along a portion of the common boundary line between the Gift Parcel and the Remaining Property and/or the mural or other artwork (Mural") currently painted on the Mural Wall, and (ii) any lights, electrical lines, and related facilities and equipment (collectively, "Lighting Facilities") currently located on the Gift Parcel that illuminate the Mural Wall. Donor may exercise such rights at any reasonable time, provided that Donor shall use commercially reasonable efforts to give Donee at least fire (5) business days' notice before undertaking any substantial work with respect to the Mural Wall, Mural or Lighting Facilities (except in the Case of an emergency). Without limiting the foregoing, Donor (and/or its tenant(s)) shall have the right from time to time to change, modify, rework, replace and/or remove all or any portion of the Mural on the Mural Wall in its sole discretion. The Access Easement reservation shall be set forth in the Gift Deed, and the Access Easement shall benefit the Remaining Property and burden the Gift Parcel. 5. Pocket Park Improvements: Existing Irrigation System. Donee intends to construct and install certain hardscape and landscape improvements ("Pocket Park Improvements} on the Gift Parcel following the Closing. Conceptual plans (Plans') for the Pocket Park Improvements prepared by Donee, and approved by Donor, are attached hereto as Exhibit "D". Donee shalt not make any material changes to the Plans without the prior written consent of Donor. In addition, as of the date of this Agreement, an irrigation system is bated on the Gift Parcel (the "Existing Irrigation System"), which is connected to, and served by, a water meter located on the Remaining Property. Following the conveyance to and acceptance of the Gift Parcel by Donee, and in conjunction with the other Pocket Park Improvements, Donee agrees that it will, without damage, unreasonable interruption or other interference to the irrigation or other water system serving the Remaining Property, the Existing Light Facilities, the Mural Wall or any other improvements on, or any tenants occx!Ung, the Remaining Donation Agreement Page 3 1227664A Property, terminate the Existing Irrigation System located within the Gift Parcel and install on the Gift Parcel a replacement irrigation system, which shall include the following: (1) removal of the Existing Irrigation System from the Gift Parcel; (2) capping or otherwise terminating the connection of the Existing Irrigation System to the Remaining Property; (3) ensuring that the Remaining Property is no longer providing water service to the Gift Parcel; and (4) installing a replacement irrigation system that connects to the City's municipal water system located in the median of East Coast Highway. Donee shall give Donor at least five (5) business days' notice of the commencement of any work relating to the Pocket Park Improvements, including the Existing Irrigation System CDonee's Work), and shall separately give Donor and its tenant at least three (3) business days' notice in advance of any irruption to the irrigation or other water system serving the Remaining Property (which interruption shall be no longer than four (4) consecutive hours). Donee shall undertake all of Donee's Work at its sole cost and expense, in a good and workmanlike manner, in accordance with all applicable laws, in substantial conformity with the Plans and otherwise in manner which will not materially obstruct the visibility of the Mural Wall and any Mural thereon, and without damage to the Remaining Property or interference with Donor's or its tenant's operations thereon. Donee shall promptly repair any damage to the Remaining Property or any improvements located thereon resulting from Donee's Work. Donee shall indemnify, defend, protect and hold harmless Donor, its tenant(s) and the Remaining Property from and against any claims, liens, losses, damages, liabilities, costs or expenses, including without limitation, reasonable attorneys' fees and costs, arising from or related to any of Donee's Work In addition and without limiting the foregoing, prior to commencement of any of Donee's Work, Donee shall obtain, provide and maintain at its own expense at all times policies of insurance of the type, amounts, terms and conditions as determined by the Risk Manager for the City of Newport Beach. At Donor's request, Donee shall provide certificates of insurance to Donor as evidence of the insurance coverage required, a" with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified for each coverage. 6. Gift Plaque. Within ninety (90) days after recordation of the Gift Deed, and as part of the Pocket Park improvements, Donee shall install on the Gift Parcel, and shall thereafter repair, maintain, and replace as and when reasonably necessary, in perpetuity, at Donee's sole coat and expense, an outdoor metal plaque and monument (the "Plaque') of a size and type, in a location, and bearing an inscription acceptable to Donor which memorializes the donation of the Fee Property to Donee_ A Donor - approved representative sample of the Plaque is attached hereto as Exhibit "E", and any material changes thereto shall be subject to Donor's prior written approval. 7. No Third Party Beneficiaries. No person or entity other than the parties to this Agreement (and their respective successors and assigns) 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. 8. Miscellaneous. Donation Agreement Page 4 1227664.4 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; provided, however, that Donee's right to sell or otherwise transfer all or any portion of or interest in the Gift Parcel shall be restricted by the Gift Deed, which restrictions are incorporated herein by reference. b. Goveming 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. 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. d. Entire Agreement. This Agreement constitutes the entire understanding between the parties hereto with respect to the subjects and issues addressed herein. e. Compliance with Law. Donee represents, warrants, agrees and acknowledges that (i) this Agreement, the Gift Deed and the conveyance of the Gift Parcel pursuant hereto comply with all local, state and federal laws, including without limitation, the Map Act, and (ii) Donee's acceptance of the conveyance of the Gift Parcel is not prohibited under and does not violate any provisions of local, state or federal laws. f. Authority. Donor and Donee each warrant to the other that each person executing this Agreement and the Gift Deed of their behalf are duly authorized to do so. g. Effect of Recitals. The Recitals above are deemed true and correct, are hereby incorporated in this Section as though fully set forth herein, and each party to this Agreement acknowledges and agrees that such party is bound by the same. h. Attorneys' Fees. In the event of any dispute or legal action arising under or related to this Agreement, the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorneys' fees and court and other costs incurred. L Relationship of the Parties. Notwithstanding any provisions to the contrary in this Agreement, the parties agree that their relationship with respect to the donation of the Gift Parcel is one of donor and donee only, and no provision of this Agreement or the Gift Deed shall be construed to create any other type of status or relationship between the parties with respect to such donation. j. No Waiver. The failure of either party to insist, in any one or more instances, upon a strict performance of any of the terms and conditions of this Donation Agreement Page 5 1227664.4 Agreement, or to exerciseor fait to exercise any option or right contained herein, spatl not be construed as a waiver or a relinquishment for the future of such right or option, but the same shall continue and remain in full force and effect. k. Survival. All agreements, representations, warranties and indemnifications hereunder shall be considered to have ben reiieed upon and shall survive the execution and delivery of this Agreement and the conveyance of the Gift Parcel. 1. Notices. All notices, consents, demands, requests and other communications provided herein shall be in writing and all 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, pie prepaid, to the other party at the following respective address: If to Donor. TJJ COX PROPERTIES, LLC Attn: Timothy Cox, Manager 4661 Pannonia Road Carlsbad, CA 92008 If to Donee: City of Newport Beach Attn: City Manager 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 or at such other address as the Donor or Donee may designate to the other in writing. M. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute -one (1) and the same instrument. [SIGNATURES ON FOLLOWING PAGE] Donation Agreement Page 6 1227664A IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first above written. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE By: u/ k-. - Aaron C. Harp Vq 1 City Attorney ATTEST: BrownWETI'm 31, 1tPLJ7,0,g1LW City Clerk CITY OF NEWPORT BEACH, a California municipal corporation By: ^- ve Kiff City Manager OWNER: TJJ COX PROPERTIES, LLC a California limited liability company By: Name: Its: Sioned in counterpart By: Name: Its: Attachment: Exhibit "A" —Depiction of 3140 East Coast Highway, Newport Beach Exhibit "B"—Legal Description of Gift Parcel Exhibit "C"— Depiction of Gift Parcel Exhibit "D"— Pocket Park Conceptual Plans Exhibit "E"— Sample of Plaque Exhibit "F"— Gift Deed [END OF SIGNATURES] Donation Agreement Page 7 1227664A IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year fist above written. APPROVED AS TO FORM: CITY ATTORNErS OFFICE BY: Aaron C_ Harp City Attorney ATTEST: By: Leilani 1. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation By: Dave Kiff City Manager OWNER: TJJ COX PROPERTIES, LLC a California limited liability company By: Name: Its: Attachment: Exhibit "AA -Depiction of 3140 East Coast Highway, Newport Beach Exhibit "B"—Legal Description of Gift Parcel Exhibit "C"— Depiction of Gift Parcel Exhibit "D — Pocket Park Conceptual Plans Exhibit "EA- Sample of Plaque Exhibit "F = Gift Deed [END OF SIGNATURES) Donation Agreement Page 7 1227664.4 EXHIBIT "A" DEPICTION OF PROPERTY 3140 EAST COAST HIGHWAY, NEWPORT BEACH 3 S �w �w w Y lty. .w .4 tt� ,k k Donation Agreement Page A 9 1227664.4 EXHIBIT B LEGAL DESCRIPTION OF GIFT PARCEL Cum EXHIBIT A THAT PORTION OF PARCEL 1, IN THE CITY of NEWPORT BEACH. COUNTY OF ORANGE, STATE OF CALIFORNIA AS PER MAP RECORDED IN BOOK 129. PAGES 34 AND 36 OF PARCEL MAPS: IN THE OFFICE OF THE COUNTY RECQRI)ER OF SAID COUNTY, DESCRIBED AS FOLLOWS. MGM NG AT THE NORTHWESTERLY CORNER OF SAID PARCEL 1 THEME ALONG THE NORTHWESTERLY LINE OF SAID PARCEL NORTH 74'36't?D3' EAST 58,62 FEET: THENCE LEAVING SAID NORTI I1r&STERLY LINE SOUTH 39'44 52" WEST 1473 FEET: THENCE SOUTH 4W2W34' EAST 0-65 FEET, THENCE SOUTH 3lr5l'14' WEST 2541 FEET; THEME SOUTH ,Nrl7'2T EAST 0.75 FEET; THENCE SOUTH 3VM22" WEST 22L36 FEET. THENCE SOUTH 50"11'4IY EAST 7.00 FEET-P, THENCE SOUTH 40°M'4(Y WEST 11_79 FEET TO THE SOUTHWESTERLY LINE OF SAID PARCEL 1: REM A P014T ON A NONTANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RAVILM OF 2060.00 FEET, A RADIAL SEAMIG TO SAID PONT BEARS SOUTH 71°2$'S8` WES % THENCE NORTHWETrERLY 4944 FEET ALONG SAID CURVE AND SAID SOUTHWESTERLY ME THROUGH A CENTRAL ANGM OF 01'2ZW TO THE POINT OF BEGIININING. CONTAINING 1,291 SQUARE FEET. MORE OR LEM ALL AS MORE PARTICULARLY SHOV01 ON EXHIBIT B ATTACHED HP-RETO AND IYWE A PART HEREOF. DATED THIS 7T" DAY OF AUGUST, W13 4 GWEN-VERA DEL CASTILLO, PLS 5100 1, _= Cb& Donation Agreement Page B-1 1227664.4 EXHIBIT "C" DEPICTION OF GIFT PARCEL Y. P_Q Q_ i ti i S l S� i 3 i S BEARING DISTANCE I N74' :X' Qn- F 56. 62, '6J9" 4<' jE' k 14. 73' 3 S48ty' P6' 34' E C. G 4 ��7'.7_' 14-i1 2:-. 44_a a SOU' 1 J' 27- E C. 75' 6 139' 34' 22, ;i «. GG, 7 C 0' 1 -" ' 4" E 7. O, 9 S4(J' 3e' 4t6- u 11. 79' 0 N74' 36' 03' E SG. 14' r a,�7� fl L�,L-� `] 1 S 39' 3P' t7 , Si 5C. 79' h,57'2i'I ' "E / i2 SW- 22' o�-E 132. G:)' iH4L Y:C 69 f 1:1 C 39' 1?P' 03 ",i i tk�'. 25' RADIUS DELTA LENGTH 14 13. Cta' i - 7- 49= 4' 2�a �z- .= '- ib e(yjJ. l,;tJ` 51 24- 39- 153 6CT - l SE Y ♦1a-6II66 Donation Agreement Page C-1 1227664.4 EXHIBIT"D" POCKET PARK CONCEPTUAL PLANS Donation Agreement Page D-1 1227664A O© O O©000000® 01� 7 � P EXHIBIT "E" SAMPLE OF GIFT PLAQUE Donation Agreement Page E-1 1227664.4 Exhibit "DA PARK PROPERrFY DONATED BY rillE MYRTLE Col JANUARY 2015 i t Tn EXHIBIT "F" GIFT DEED Donation Agreement Page F-1 1227664.4 City CL-fk City of Newport Beach #0t Givic CenterDrive ' • Box 1768 1Ja­:&ort Beach, CA 92658 With a Copy to: THE UNDERSIGNED GRANTOR DECLARES: This Document -s electronically recorded by CR mouth County C Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder 1111111111111111111111111111111111111111111111111111111111111111111 111INO FEE 2015000076528 09:27am 02/11/15 143 401 1310 15 0.00 0.00 0.00 0.00 42.00 0.00 0.00 0.00 (Space above this fine for Recorders use) This document is recorded at the west of and for the benefit of the City of Newport Beach, and therefore is exempt from the payment of a recording fee pursuant to California Government Code §§ 6103 and 27383 and from payment of documentary transfer tax pursuant to Cardornia Revenue and Taxation Code § 11922. GIFT DEED (Corona del Mar Pocket Park) TJJ COX PROPERTIES, LLC, a California limited fabifity company ("Grand, hereby grants to the CITE( OF NEWPORT BEACH, a California municipal corporation and charter City ("Grantee'), the following: Beach,Fee title to that certain real property located in the City of Newport of Orange, State of California, • described on i • ' and depicted B' attached - e`s a e- ' s This conveyance shall be subject to the following recitals, representations, warranties, covenants, and agreements. RECITALS WHEREAS, Grantor owns certain property in the Corona del Mar area of the City of Newport Beach located at 3140 East Coast Highway, Newport Beach, Califomia ('Property ; s12117s.1 WHEREAS, without any obligation to do so, Grantor is witting to donate to Grantee, without consideration, approximately 1,291 square feet of the Property (i e., Fee Property) for use by Grantee for public purposes as permitted herein. The Fee Property is more specifically described in the legal descricn attached hereto as Exhibit W and depicted in Exhibit "BA, both attached hereto and incorporated herein by this reference. The donation of the Fee Property shall be completed upon recordation of this deed ("Gift Deed) in the Official Records of Orange County. The portion Property remaining after the donation and conveyance of the Fee Property is sometimes referred to herein as the "Remaining Property; is t - -. Xf = F' R a a - s . I h a s-. - 4-4 • - C,-..-- WHEREAS, Grantee has determined that Grantors donation of the Fee Property is a substantial benefit that enhances and preserves the character of Corona del tar, and relieves the City of the burden of expending City fends for acquisition of such property; and Grantorice- each desire to acknowledge, confirm and t a� a;.Lrj�as well as Grantor's .� obligations :a. a' • donation, a conditions-.. rth below. NOW, THEREFORE, in consideration of the mutual promises, Grantor and Grantee hereby agree as follows: A. Conveyance. The conveyance of the Fee Property shall be SUBJECT TO ALL OF THE FOLLOMNG: 1. Taxes and Assessments. General and special real property taxes and supplemental assessments, if any, for the current fiscal year, provided, however, that Grantor shall pay for any such taxes and assessments applicable to the Fee Property prior to the date of recordation of this Gift Deed. 2. Encumbrances. All covenants, conditions, restrictions, reservations, rights, rights of way, easements and other matters of record or apparent other than monetary liens created by Grantor, inducting, but not limited to (i) all exceptions to tift set forth on that certain preliminary report dated as of January 7, 2014, order no. 997-23041378-PP2, issued by Fidelity National Title Company (the Mlle Company"), a copy of which is attached hereto as Exhibit "C"e and (H) the Access Easement 3. Customary Tate Exceptions. usual and customary exceptions to title insurance consistent with ALTA policies with Regional Exceptions (Standard Coverage) issued by the Trice Company in Grange County, California - Gift Deed Page 2 3121179.1 4. Condition of Property. The requirement, and Grantee's acknowledgment, acceptance and agreement, that the Fee Property is being donated and conveyed on an "AS IS" "WHERE IS" basis, in its present state and condition. Grantor hereby disclaims any and all warranties and representations, of any kind or nature, whether oral or written, express or implied, concerning the Fee Property or Grantor, including without limitation, any warranty concerning suitability for Grantee's intended use thereof, and any warranty concerning the presence or absence of hazardous or tonic materials located in, on, under or about the Fee Property or tt Remaining Property. S. Access Easement Grantor hereby reserves, for the benefit of the Remaining Property and Grantor's successors and assigns (including any tenants, subtenants, licensees or others persons lawfully occupying all or part of the Remaining Property), a perpetual, non-exclusive easement and right of access ($Access Easement) upon, through, under, over and across the Fee Property for the purpose of accessing, maintaining, repairing, replacing, re -constructing, operating, changing, altering and removing (i) the existing wall (`Dural Walr) located on the Remaining Property along a portion of the common boundary line between the Fee Property and the Remaining Property and/or the mural or other artwork rMural") currently painted on the Mural Wall, and (ii) any lights, electrical lines, and related facilities and equipment (collectively, "Lighting Fac iliiiesl currently located on the Fee Property that illuminate the Mural Wall_ Grantor may exercise such rights at any reasonable time, provided that Grantor shall use commercially reasonable efforts to give Grantee at least five (b) business days' nonce before undertaking any substantial work with respect to the Dural Wall, plural or Lighting Facilities (except in the case of an emergency). Without limiting the foregoing, Grantor (and/or its tenant(s)) shall have the right from firne to time to change, modify, rework, replace and/or remove all or any portion of the Mural on the Mural Wall in its sole discretion. This conveyance of the Fee Property is made by Grantor and accepted by Grantee expressly subs to the Access Easement. 6. Covenants. The following covenants, conditions, rights, restrictions and all other terms and conditions set forth in this Gift Deed (collectively, the "Covenants"), shall remain in full force and effect in perpetuity from the date of recordation of this Gift Deed, unless terminated or modified as hereinafter provided. This conveyance of the Fee Property is made by Grantor and accepted by Grantee upon and expressly subject to these Covenants. Upon Grantee's execution of the Certificate of Acceptance attached hereto and recordation of this Gift Deed, Grantee shall be deemed to have accepted and agreed to all of the terms and conditions of this Gift Deed. Upon the occurrence of any breach or violation of arty of the Covenants without being cured within the times provided below, Grantor shall be entitled to avail itself of the remedies specified below and any other rights and remedies available at taw or in equity. (a) List of Covenants. (i) Covenant °I: Permitted Use of Fee Properly. The Fee Property shalt be utilized for public park uses only CPemmitted Use7), and Grantee shall not use, or permit any other person or entity to use, the Fee Property for any other use or purpose other than the Permitted Use_ Gift Deed Page 3 (li) Covenant 2: Maintenance and Repairs. Grantee shall repair and maintain the Fee Property in safe condition and in accordance %VAh applicable laws, ordinances and regulations appble to the Fee Property, and shall keep the Fee Property in dean and attractive condition, free from garbage and debris- (M) Covenant 3: No 'transfer of Fee Property. Grantee acknowledges that upon acceptance of the Fee Property (evidenced by the recordation of this Gift ), it shall not abandon the Fee Property nor thereafter sell, lease, exchange or in any other way transfer or convey all or any portion of the Fee Property or any interest therein to a third party without the prior written approval of Grantor, which may be granted or withheld in Grantor's sole and absolute discretion; provided, however, that Grantee may: (A) transfer an interest in any portion of the Fee Property in connection with a utility installation required in connection with Grantee's Permit Use of the Fee Property; and (P) transfer any portion or all of the Fee Property to another public or quasi -public agency, maintenance district or non-profit corporation or entity that shall operate and maintain such portion or all of the Fee Property in accordance with the Permitted Use and the terms, conditions and restrictions specified in this Gift Deed. (iv) Pocket Park Improvements. This Gift Deed is being executed, delivered, accepted and recorded by the parties pursuant to the terries and conditions of that certain Donation Agreement dated as of February 2, 2015 ("Donation Agreement`), between Grantor and Grantee, the terms and conditions of Mich are incorporated herein by reference. Promptly after recordation of this Gift heed, Grantee shall undertake, construct t and install on the Fee Property the Pocket Park Improvements, including the Existing Irrigation System work, and perform the other Done's Work (as such terms are defined in the Donation Agreement), as and when described in the Donation Agreement (v) Gift Plaque. Within ninety (90) days after recordation of this Gift Deed, and as part of the Pocket Park Improvements, Grantee shall install on the Fee Property, and shall thereafter repair, maintain, and replace as and when reasonably necessary, in perpetuity, at Grantee's sole cost and expense, Y an outdoor metal plaque and monument of a size and type, in a location, and bearing an inscription acceptable to Grantor which memorializes the donation of the Fee Property to Grantee. (b) Matters Related to Covenants. (i) General Purpose. The Covenants are hereby declared and agreed to be part of a general plan for the purpose of assuring the enhancement and protection of the value, desirability, and attractiveness of the Remaining Property, more particularly described on Exhibit "C' attached hereto_ The Covenants shall run and pass with each and every portion of the Fee Property and be birWing upon and burden all ins or entities having or acquiring any right, title or interest in the Fee Property (during their ownership of such interest), or any part thereof, and their successors and assigns, and shall inure to the benefit of the Remaining Property and all persons or entities having or acquiring any right, title or interest in the Gift Deed Page 4 3121179.1 Remaining Property (during their ownership of such interest), or any part them, and their successors and assigns. (h) Run IVilith the Remaining Property. The Covenants shall inure to the benefit of the Remaining Property and the owners of the Remaining Property and their successors and assigns, and the Remaining Property shall be deemed the dominant tenement for purposes of the Coves. In the event that any portion of the Remaining Property is conveyed by Grantor or its affiliates to a third party (each parcel of the Remaining Property so transferred is hereinafter referred to as a Transferred Parcel), the Covenants shall continue to benefit the Transferred Parcel whether or not any reference to this instrument is contained in the instrument conveying the Transferred Parcel from Grantor to the transferee. Every person or entity who now or hereafter owns or acquires any right, title or interest in or to any porn of the Fee Property or any improvements thereon is and shall be conclusively deemed to have consented and agreed to every covenant, condition and restriction contained herein, whether or not any reference to this instrument is contained in the instrument by which such person acquired an interest in the Pee Property or any such improvements. (e) Amendment The Covenants may be amended by mutual agreement of the then record fee title owners of the Fee Properly and the Remaining Property. Any amendment must be recorded in the Official Records of Grange County, California, Covenants with and bind the Property i shall inure to +he benefit o and be enforceable by "_ is successors o, assigns. Unless Grantor, its successors or assigns record a decl�,� terminating the Covenantsasto the Remaining Property "s portion thereof owned 1the recording party), the Covenants shall be binding absolutely and perpetually on Grantee and the Fee Property. (e) Indemnification. To the fullest extent permitted by law, Grantor, its successors and assigns shall indemnify, defend, protect and hold harmless Grantee, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Grantee Affiliates'), 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, crests and expenses (including, without limitation, attorneys, fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collecWely, "Claims'), which may arise under this Agreement or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Grantor, its successors, assigns, affiliates or its principals, officers, agents, employees, contractors, or anyone employed ding or indkecly by any of them for whose act they may be liable, or any or all of them, except to the extent any such Claim aria from the negligence, recklessness or willful misconduct of the person or entity to be indemnified. To the fullest extent perm tl d by law, Grantee, its successors and assigns shall indemnify, defend, protect and hold harmless Grantor, its members, managers, officers, agents, and employees (collectively, the Grantor Gift Deed Page 5 Affiliates', from and against any and all Claims of every kind and nature whatsoever which may arise under this Agreement or in any manner relate (directly or indirectly) to the negligence, recklessness, or wilful misconduct of the Grantee, its successors, assigns, affiliates or its principals, officers, agents, employees, contractors, or anyone employed directly or indirectly by any of them for whose acts they may be liable, or any or all of them, including without limitation, arising from or retating to any 's Work, except to the extent any such Claim armies from the negligence, recklessness or willful miseanduct of the person or entity to be indemnified. These indemnities shall apply to all Claims regardless oe whether any insurance policies are applicable. Any such policy limits shall not act as a limitation upon the amount of indemnification to be provided hereunder. Insurance. i- ,, limiting ! Y 1 i Grantor and Grantor's Affiliates, and prior to commencement of work on the Fee Property, Grantee shall obtain, provide and maintain at its own expense at all times policies of insurance of the type, amounts, terms and conditions as determined by the Risk Manager for the City of Newport Beach. Upon GrantDes request Grantee shall provide certificates to Grantor as evidence the insurancecoverage required,of subrogation endorsement for alongcompensation and other endorsements as specified for each coverage. B. MISCELLANEOUS. I. Captions. The captions used herein are for convenience only and are not a part of this instrument and do not in any way limit or amplify the scope or intent of the terms and provisions hereof 2. Application to Grantor. Notwithstanding anything herein contained to the contrary, if Grantor or any successor to Grantor who then owns title to the Remaining property or any portion thereof reacquires title to the Pee Property or any portion thereof, the provisions of this instrument shall automatically ease and terminate as to such reacquired property and be of no further ford or effect as to Grantor or such successor. 3. Notices. All notices, consents, demands, requests and other communications provided herein shall be in writing and all be deemed to have been duly given if and when personally serf 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: i Gift Deed Page 8 3121 l79_t If to Grantor: TJJ COX PROPERTIES, LLC Attn: Timothy Cox, Manager 4661 Pannonia Road Carlsbad, CA 92008 Grantee:If to fiBeach Attn:Manager 100 Civic Center ,! Box 1768 Newport Beach, CA 92658 or at such other address as the Grantor or Grantee may designateto the ocher in writing. 4. Exhibits. The following exhibits are attached to this Gift Deed and incorporated herein by this reference: (a) Exhibit A Legal Description of the Fee Property. (b) Exhibit 8 Depiction of the Fee Property. (c) Exhibit C Legal Description of the Remaining Property. 5. Compliance with Law. Grantee represents, warrants, agrees and acknowledges that Gift .':'e.' and conveyance of the FeeProperty pursuant hereto comply with all local, state and federal laws, irK*x1ing without limitation, tim California Subdivision Map Act and (ii) Grantee's acceptance of the conveyance of the Fee Property not prohibited underand does not violate .. y provisions of local,a t' or et 6- Authoft. Grantor represents and warrants that each person executing this Gift Deed on behalf of ; duly authorizedto execute oft �� •_« 1 till.. -- Effect _ of RecitaW. The Recitals af>t deemed true and correct are hereby incorporated in this Section as though fully set forth herein, and Grantor - - each acknowledges agrees that such partybound by 1, 8. Attorneys' Fees. In the event of any dispute or legal action arising under or related to this Gift Deed, the prevailing patty shall be entitled to a judgment against the other for an amount equal to reasonable attorneys' fees and court and other costs incurred. 9. Controlling Law and Benue. The laws of the State of California shall govern this Gift Deed and all matters relating to it and any action brought relating to this Gift Deed shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. Gift Deed Page 7 3121179.1 i' Counterparts. Thisd may be executed in two or e counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. 11. Relationship of the Parties. Notwithstanding any provisions to the contrary in this Gift Deed, the parties agree that their relationship with respect to the donation of the Fee Property is one of donor and donee only, and no provision of ... Gift :-ed shall e construed createother- ! M type if status _ relationship between 12. No Waiver. The the parties with respect to such donation. failure of either party one or more irtstances, upon a strict perfiormance of any of the terms and conditiorm of this Gift Deed, or to exercise or fail to exercise a= = or r_iqht contained I, rs, ,a rs75rardat Tor me Mure ot sucht or option, but thesame shall continue•remain in full - and effect. 13. Survival. AD agreements, representations, warranties and indemnifications hereunderll to considered to have ben relied upon and shall survive the execution, delivery and recordation of this Gift Deed and the conveyance of the Fee •tIN WITNESS WHEREOF, Grantor has executed this Gift Deed as of February 2, 2015. This Gift Deed shall not be effective for any purpose unless and until the Acceptance below has been duly executed by Grantee. - N 91M TJJ COX PROPERTIES, LLC, A Cacti is limited liability company By BY, — Name: Its - Attachments: Exhibit B: Depiction of Fee Property Exhibit C: Legal Description of Remaining Property Gift Deed Page 8 3121179.1 EXHISIT "An LEGAL DESCRIPTION OF FEE PROPERTY NEI BEGINNING Ali{ THE NORTMES Y CORNER OF SAID PARCEL 1; THENCE ALONG "CITE NORT`IMESTERLY LIME QI' GNU PARCEL NMTH 74"3UW EAST 5,$2 FEET. THENCE LEAVINGS SAID Y LIM SOM 39 4tSr 1NEST 14.73 FEET. THENCE SOUTH 26`34' EAST 0-66 FEET. T"ENCE SOUTH WSTW WEST 25.41 FEET, 'HENCE . UM W1727' EAST 0.75 FEET; THENCE SOUTH 3I '22" WEST 2 FEET; THEE SOUTH 5W11`4(r EAST 7.00 FEET; THENCE SOUTH `*r WEST 11.79 FEET TO THE SOUTHWESTERLY LINE OF SAID PEEL 1r BEING A. POINT ON A NONTANGENT CURVE CONCAVE NORTHEASTERLY HA%RNG A RRAERUS OF 2060 00 FEET, A RAMAL BEARING TO SAM POINT SEARS SOWN 71-2M— WEST ; WENCE NOM E RLY 4944 FEET ALONG SAID CUfM AND SAID SOLITItNESTERLY LINE THROUGH A CENTRAL ANGLE OF 01"ZZW TO THE POINT OF BEGINNING. ALL AS MORE PARTICULARLY $ ON EXIT B ATTACHED HERETO AND MADE A PART HEREOF, DATED THIS 7 r" DAY OF AUGUST, 2013 2..� p ��ry 4A GVVEN-VERA DEL CASTILLO, PL5 5108 Gift Deed Page A_1 3121179.1 EXHIBIT "W DEPICTION OF FEE PROPERTY ll f 4 t i 1 gL (VM) } e0. R� i FCARIMs DISTACE I N74" .36' or:- F SR. 62, sue" 4E1 521 w 14. 73' i 3 S4y0a' ?C'16' 34' F C. 6�' J7� •S_' 14' °d 2:-. 41, swl l!' VIE C. 75- 6 S.",1- c 2' °r 2L. Grr 7 090' 1 ` ° 4C' F 7, OY 6 S 40' n' 43` U t I . 79' 10 N74` 3i6' € 0, E 6C. 14' Bil ra YMill,1.231 135 "UR- CML 1 S39' :?p' M-I °tt rC. 79' y 12 Si' d2' 03—E 132, 00' t�s� ��► 13 S 39 Wi l 0 'd l tl' . 23, f RADIUS DELTA LENGTH 9 PO a2 tel, 44 s' V� 2U`.l 3 Ur Y 24' 193. i0:- � a _ Gift Deed Page B-1 3121179.1 EXHIBIT "C" LEGAL DESCRIPTION OF REMAINING PROPERTY Gift Deed Page G1 3121179-1 cma smvcvm. Inc. Au&L%i 5, 20L3 PARCEL 1, IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA AS PER MAP RECORDED IN BOOK 129, PAGES 34 AND 35 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THEREFROM THAT PORTION DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWESTERLY CORNER OF SAID PARCEL 1, THENCE ALONG THE NORTHWESTERLY LINE OF SAID PARCEL NORTH 74"36'GW EAST 58.62 FEET, THENCE LEAVING SAID NORTHWESTERLY LINE SOUTH 39°44'52* WEST 14.73 FEET, THENCE SOUTH 48°26'34$ EAST 0.65 FEET; THENCE SOUTH 39051'14" WEST 25.41 FEET, THENCE SOUTH 59'17'27" EAST 0.75 FEET, THENCE SOUTH 39034'22" WEST 22.66 FEET, THENCE SOUTH 50011'40a EAST 7.00 FEET; THENCE SOUTH 40®3W40" WEST 11.79 FEET TO THE SOUTHWESTERLY LINE OF SAID PARCEL 1, BEING A POINT ON A NONTANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 2050_00 FEET, A RADIAL BEARING TO SAID POINT BEARS SOUTH 71*28`588 WEST; THENCE NORTHWESTERLY 49.44 FEET ALONG SAID CURVE AND SAID SOUTHWESTERLY LINE THROUGH A CENTRAL ANGLE OF 01°22'5W TO THE POINT OF BEGINNING. CONTAINING 12,987 SQUARE FEET, MORE OR LESS. ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT B ATTACHED HERETO AND MADE A PART HEREOF. DATED THIS 7m DAY OF AUGUST, 2013 GIN-VERA DEL CASTILLO, PLS 5108 �',� L.S. 5108 �. of CA'-® JN II3-M u za u % a a 0 v (RA®) C;o , P.Q.B. 1 6 8 N712 *58" (RAD) t ® P. M. . 129 PARCEL I BEARING DISTANCE re, 1 N74° 36' 00@ E 58. 62' 2 S39' 44' 52' W 14. 73' 3 S48.26' 34' E 0. 65' 4 S39' 51' 14' W 25. 41' 0 5 S50' 17' 27' E 0. 75' 6 S39° 34' 22' W 22. 66' 7 S50' 1 1' 40' E 7. 00' 8 S40' 38' 40' W 11. 79'- 11 N39' 38' 00' E 109. 25` 12 N50" 22' 00' W 132, 00' 13 N39° 38' OWE 50. 79' ' 14 S740 36' 00' W 27. 52' N6727'14DE 15 N74' 36' 00' E 86. 14' (RA® PCc) RADIUS DELTA LENGTH 9 2050, 00' 4* 01' 44' 144, 15' 10 10, 00' 117.49' 14' 20. 56' 16 2050, 00' 5` 24' 39' 193. 60' 17 2050. 00' 1 ' 22' 55' 49. 44' �: ii3-426 PSCALE: 1 30'I 1 J I WR%VMG. INco 1501 PARWAY tom, SME s CA 92M -OW (714) SIB-6s this certificate verifies only the identity of the 1 this certificate is attached, and not the i A notary public or other officer completing individual who signed the document to which $!vMfulness, accuracy, or validity of thata do State Of {r8�fa County of a n who proved to me on the basis of satisfactory evidence to be the person(s) whose nameW Care subscribed to the within instrument and acknowledged to me that 19Ahelthey executed the same in her/their authorized calpadtyi , and that by lherltheir signatuEeaK on the instrument the person, or the entity upon behaff of which the person aced, executed the instrument. t certify under PENALTY OF PERJURY under the laws of the State of Catiforr>ia that the foregoing paragraph is true and correct. rAtt STEPHANI 0i 8 N�MULD0WNEY Commission #F 1966696 Notary Public a C>ilNornia 6Sap Diego County r M Comm. Expires Jan 14. 2016 (real) 3121179-1 CERTIFICATE OF ACCEPTANCE This CERTIFICATE OF ACCEPTANCE is to certify that the interest in real property conveyed by the Gift Deed for property located adjacent to 3140 East Coast Highway, Newport Beach, California, which property is approximately 1,291 square feet in size and is more specifically described in the Legal Description attached hereto as Exhibit "A" and depicted in Exhibit "B" dated February 2, 2015 from TJJ COX PROPERTIES, LLC, a California limited liability company, as Grantor and the City of Newport Beach, a 1ifornia municipal corporation and charter city, as Grantee, is hereby accepted on , 2015, by the undersigned officer on behalf of the City of Newport Beach purs ant 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 Recorder of Orange County, State of California. APPROVED AS TO FORM: CITY ATTO N Y' OFFICE Date: By. \j% Aaron C. Harp City Attorney ATTEST: �•1� Date: By: Leilani I. Brown City Clerk F"A 3121179.1 CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Dave Ki City Manger RECOMMENDED FOR ACCEPTANCE: PUBLIC WORKS DEPARTMENT Date: m� By: David A. Webb Public Works Director