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HomeMy WebLinkAbout2003-06-13 - Easement CITY OF HUNTINGTON BEACH • {f �` ' i 1{ ;'0 a ' RECORDlNG,REQIJE STED;BY This:Document)W, 4�lectronically recorded by "' p FIDELITY NNTIONALTITLE " Fidelity , ..onal Major Accounts I{,� + Record Off cial jRecords,iCou,'nty''fl orange 3 � � RECOUNG+REQUESTED1'B ToniDaly, Clerk Recorder AND WHEN RECORDED MAIL TO: t�� .,�,I. NO FEE Crty Clerk . q 2003000690324 04:30pm 06.112/03 Crty of�Huntington Beach ` O+ 117 27 E01 18 ' ;I''z 20.00 Main Street "`1�I;E1 �s{1�� 3 '7., �o 00 000 0 00_0 000 0010'000 00 0 00 i, 1i{Lai �li=r1.:{ {#. e ti; k c 1 ie ,°{°YBuii Illif ' II {IJ4' ti+ s HuntonBeach, C ,,92648A. ' (Space Above For Recorder's Use) Df Huntington Beaetia' as 00n1mw 7,o�,geT �SSS�9. plated under GovenimentCode TEMPORARY CONSTRUCTION-EASEMENT see.9103 OfMDNIdto! :,. a 41 /N t?e®of .Co T �3d l , THIS TEMPORARY CONSTRUCTION EASEMENT (this "Agreement"). is entered { ' into; aslofll 1v,u1P 2003, by andi between the CITY OF HUNTINGTON BEACH, a r C public body,ji l corporate,. and politic (the "City'r), and PLC/LYON WATERFRONT . RESIDENTIAL •LLC, a Delaware limited`11 liability 'company ("Waterfront"). The City :and Waterfront are eachre'ferred to herein individually from time. to time as a "Party" and collectively, as the "Parties" 1�I I'!i' 0111J1i 11 i lit, t, l� R�E°C j T A,..L�S A Waterfront is the owner of certain real property,situated in,the City of Huntington { irtkularl' desc Beach ',county of Orange, State of C alifornia as more pa y ribs& on Exhibit "A" attached hereto'and mco orate&herein by this reference (the "Waterfront_Proerty"-).I i. ;61 1!'yC.113 I�1 I rlu{I z1o�t�i lira F,�,'. B The City°is the owner of certain real property situated ajacent to the Waterfront Property as more particularly described on Exhibit "B" attached hereto and incorporated herein 1 I b 'f its{fr�efi"'6& �(the"CitySuffer Property"). 1 � i {;A�{ C. The City Buffer Property acts as a buffer between the Waterfront Property and designated wetland areas..located to thesoutheast of the Waterfront Property. D As a Condition of Approval for the development of the Waterfront Property as a resid`entiall subdiwa,slon the City and/or the.Redevelopment Agency of the City of Huntington " ! Beacch,=a public ibod'y,4 corporate and politic (the "Agency") are requiring certain improvements to be constructe&b`.y Waterfront on the City Buffer Property. E. :The City,is willing to grant ;certain temporary access, egress and construction easements' and frights across,and within the imits,,o ,the,C ; B,u }i�i rope, ,forjhe benefit of the ;Waterfront' Proper idn exchange for the agreements and co�eriants of Waterfront set forth herein 'till{1�, i 41 NOW, THEREFORE, incorporating the foregoing recitals, and for,other fair and valuable con'saderation; {the receipt and adequacy of which ,.1i hereby) iacknowledged, the City and Waterfr` agree as fol,loWS ryry II �i'iltli� ��II 1�,�` ai C 1066/01.7963-0002 364096.01 a06/04/03 1. Granting of Construction, Maintenance and Access/Egress Easement. As of the execution of this Agreement, the City hereby grants to Waterfront a temporary appurtenant easement for the benefit of the Waterfront Property (the "Easement") upon, in, over, under and along the City Buffer Property (the "Easement Area"), together with all necessary and convenient means of ingress and egress to and from such area* for the purposes .of the construction, reconstruction, replacement, service, maintenance, and .repair of any and all ; improvements required to be constructed on the City Buffer Property under the Conditions of Approval as imposed by the City and/or the Agency (collectively. the "Improvements"). The foregoing Easement.includes,-without.limitation, the right of Waterfront to conduct..such grading activities as may be required in connection with the construction of the Improvements. . Waterfront shall be.responsible for the costs associated with the construction and installation of the Improvements, Storm Water Pollution Prevention Permitting, notification and other related requirements. 2`. Termination of Easement; Maintenance of Improvements. Until the City or the Agency has agreed in writing to accept responsibility for maintenance of the Improvements, Waterfront.shall be responsible for maintaining the Improvements in good condition and repair. Upon completion of construction of the Improvements in accordance with City standards and requirements, the City shall, by written agreement, accept maintenance of the Improvements and release Waterfront from any further liability for the maintenance obligations.in relation thereto. At such time as the City assumes such maintenance responsibilities, the rights and access under the Grant of Temporary Construction Easement shall terminate and Waterfront. shall have no further obligation under this Agreement with respect to such matters. 3. Standards Governing Construction and Use. Waterfront shall construct and maintain .the Improvements in compliance with all applicable laws, rules, regulations, governmentally approved improvement plans and programs_ and governmental permits. Construction of the Improvements shall be, completed no later than December'31, 2004; provided, however, such date for completion shall be extended on a day for day basis for the duration of any force majeure events. A "force majeure event" shall mean and refer to acts of God, inclement weather, material or labor shortages, strikes, governmental moratoria or delays, and other matters beyond Waterfront's reasonable control (financial inability excepted). For . purposes of this Agreement, the Improvements shall be deemed to be "completed," and "completion"' shall be deemed to have occurred, when the physical construction- of the Improvements has been substantially completed in accordance with the City's approved plans for the construction of such Improvements, as evidenced by a certification provided by City's engineer. 4. . Indemnification, Defense, Hold Harmless; Insurance: Waterfront hereby agrees . to protect, defend, indemnify and hold harmless CITY, its officers, elected or appointed officials, employees, agents, and volunteers from and against any .and all, claims, damages, losses, expenses, judgments, demands defense costs, and consequential damage or liability of any kind or nature, however caused, including. those resulting from death or injury to Waterfront's employees and damage to Waterfront's property, arising directly or indirectly out of the actions of Waterfront on the City Buffer Property in connection with the Improvements, caused in whole or in part by any negligent act or omission of Waterfront, any subcontractors, anyone directly or 1066/017963-0002 364096.01 a06/04/03 -2- indirectly employed by any of them or anyone for whose acts any of them may be liable, including but not limited to concurrent active or passive negligence, except where caused by the active negligence, sole negligence, or willful misconduct of the CITY. Waterfront will conduct all defense at its sole cost and expense and CITY shall approve selection of Waterfront's counsel. This indemnity shall apply to.all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Waterfront. Pursuant to California Labor Code. Section 1861, .Waterfront acknowledges awareness of Section 3700 et seq. of this Code, which requires every employer to be insured against liability for workers' compensation; Waterfront covenants that it will comply with such provisions prior to commencing performance of the work on the City Buffer Property in connection with the Improvements. Waterfront shall obtain and furnish to City workers' compensation and employer's liability insurance in an amount of not less than the State statutory limits. Waterfront shall require all subcontractors to provide such workers' compensation and employer's liability insurance for all of the subcontractors' employees. Waterfront shall furnish to CITY a certificate of waiver of subrogation under the terms of the workers' compensation ,and .employer's liability insurance and. Waterfront shall, similarly require all subcontractors to waive subrogation. In addition to the workers' compensation and employer's liability insurance and Waterfront's covenant to defend, hold harmless and indemnify CITY, Waterfront shall obtain and furnish'to CITY, a policy of general public liability insurance, including motor vehicle coverage,-covering all of Waterfront's activities on the City Buffer Property in connection with the Improvements. This policy shall indemnify Waterfront, its officers, employees and agents while acting within the scope of their duties, against any and all claims arising out or in connection with Waterfront's activities on the City Buffer Property in connection with the Improvements, and shall provide coverage in not less than the following amount' combined single limit bodily injury and property damage, including products/completed operations liability and 'blanket contractual liability, of One Million Dollars ($1,000,000) per occurrence. If ' coverage is provided under a form which includes a designated general" aggregate limit; the aggregate limit must be no less than One Million Dollars ($1,000,000) for Waterfront's activities on the City Buffer Property in connection with the Improvements. This policy shall name CITY,, its officers, elected or appointed officials, employees, agents, and volunteers as Additional Insureds, and shall specifically provide that any other insurance coverage which may be applicable to Waterfront's activities on the City Buffer Property in connection with the Improvements shall be deemed excess coverage and that Waterfront's insurance shall be primary. Under no circumstances shall said above-mentioned insurance contain a self- insured:retention, or a "deductible" or any other similar form of limitation. on the required coverage. 1066/017963-0002 364096.01 a06/04/03 -3- Prior to commencing performance of the work hereunder, Waterfront shall furnish to 'CITY certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by this Agreement; the certificates shall: 1. provide the name and policy number of each carrier and policy; 2.. state that the policy is currently in force;and 3. promise to provide that such policies will not"be canceled or modified without thirty (30) days'.prior written notice of CITY. Waterfront shall maintain the foregoing insurance coverages in force until the activities performed by Waterfront on the City Buffer Property in connection with,, the Improvements is fully completed and accepted by CITY. The requirement for carrying the foregoing insurance coverages shall not derogate from the Waterfront's defense, hold harmless and indemnification obligations as set forth under Ahis Agreement. CITY or its representative shall at all times have the right to demand the original or a copy of all the policies of insurance. Waterfront shall pay; in a prompt and timely manner,.the.premiums-on all insurance hereinabove required. Waterfront shall provide a separate copy of the additional insured.endorsement to each of Waterfront's insurance policies, naming CITY, its officers, elected and appointed officials; employees, agents and volunteers as Additional Insureds, to the City Attorney for approval prior to the commencement of any of Waterfront's activities on the City Buffer Property in connection with the Improvements. 5. Successors and Assigns; Covenants Running With the Land. The rights and obligations of the Parties hereunder shall constitute covenants, benefits and burdens which run with the land and which shall be binding upon, and inure to the benefit of, the .successors and assigns ,of each Party hereto as the owners of the Waterfront Property and the City Buffer Property, respectively. Each Party shall, from and after the transfer of all or a portion of the real property owned by that Party which is subject to the terms hereof, .be ,released from all obligations hereunder which accrue with respect to the real property so transferred;after the'date of such transfer. 6. Notice. In the event that any notice is given under this Agreement, it shall be personally delivered, in which case it shall be effective upon delivery, or may be mailed by certified mail, which notice shall become effective three (3) days after mailing, to the addresses set forth below: To Waterfront: PLULYON WATERFRONT RESIDENTIAL LLC C/o PLC Land Development Company 19 Corporate Plaza Drive Newport Beach, CA 92660 Attn: Christopher Gibbs 1066/017963-0002 364096.01 a06/04/03 -4- To.City: CITY OF HUNTINGTON BEACH 2000 Main Street Huntington Beach, CA 92648 Attn: Robert F. Beardsley Director of Public Works Either party may change its address for notices by giving notice to the other party in the manner herein provided or may request that not more than two (2) additional copies of any notice be sent to addresses specified in a notice to the other party given pursuant to this paragraph. 7.- Attorneys' Fees. In the event that a dispute arises between the parties under this- .Agreement, the prevailing party in such dispute shall not.be entitled to recover from the other party its reasonable attorneys' fees and out-of-pocket costs. Each party shall bear its own attorneys' fees and costs. 8. ' Integration; Governing Law. This Agreement shall be construed in accordance with its fair.meaning and as if prepared by both Parties hereto. This Agreement shall be construed in accordance with the laws of the State of California. Titles and captions are for convenience only and shall not constitute a portion of this Agreement. 9. Counterparts. This Agreement may be executed in any,number of counterparts which, when taken together, shall constitute a fully-executed original. [Signature Page Follows] 1066/017963-0002 364096.01 a06/04/03 'S- IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above. PLC/LYON WATERFRONT RESIDENTIAL, LLC, a Delaware limited liability company By: PLC Waterfront LLC, A Delaware limited liability company, its managing member By: WB IV/PLC Homes, LLC, a Delaware limited liability company, its sole member / By.: Christopher C. Gibbs, President By: 4 Daniel O'Bannon, Secretary By: Lyon Waterfront LLC, a Delaware limited liability company By: William Lyon Homes, Inc., a Californ rporation By: Richard S. Robinson Its: Senior Vice President By: Thomas J. Mitchell Its: Senior Vice President "Waterfront" [Signature Page Continues on Next Page] 1066/017963-0002. 364096.01 a06/04/03 -6- THE C OF H TINGTON B H BY: Its. �: + -/ • _'V�C ��I�i City" ATTEST"= E a' By:�VJ F APPROVED-AS i'O FORM: By y3.. co f U3 Its: 1066/017963-0002 364096.01 a06/04/03 —7— STATE OF.CALIFORNIA ) ss. COUNTY OF On J 1)rl e, 4 200, before me, I{� �I � � , Notary Public, personally appeared ,s f r C. (a 1126-,5 pincl i drl icll O`Bo17mon personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s)� are ubscribed to the within instrument and acknowledged to me that lie/shqq��e]D executed the same in hi-& t e>r uthorized capacity(ies), and that by-h�&/heraUEE�signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. a Commission#F 1415241 i Notary -cambMI0 Notary Pub MYConwn•ExP"M0V 3.2007 r [SEAL] STATE OF CALIFORNIA ) ss. COUNTY OF DY-0 h�e' ) On Z U u e 5 2003. before me,So_�q 0 MenOL VJ , Notary Public, personally appeared CtV, S . dl1JSo MM"CL -T}4oM kS J• t I C1k E LL personally known to me (or 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. Witness my hand and official seal. ) f Notary Public MENARD OFFICIAL SEAL NOTARY PUBLLIIC-CALIFORNIA [SEAL] N@,My COMMISSION#1234018 C ORANGE COUNTY Commission Exp.Sept 5,2003 1066/017963-0002 364096.01 a06/04/03 -8- STATE OF CALIFORNIA ) ss. COUNTY OF 0-&14q 7e-- ) On . 9 2003, before me, . I V�� h � � , Notary Public, personally appeared F,QS6XU' E ,/eA:iqMW personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(-s-) whose name(s) is/ar-o subscribed to the within instrument and acknowledged to me that he/sheA4+ey executed the same in his/herfth4ak authorized capacity(ies), and that by his/her/the4 signatures) on,the instrument the personH or the entity upon behalf of which the person(}acted, executed. the instrument. Witness my hand and official'seal. � + KATHt.EE-N HEI.SON Commhslon*12M758 Notary Publi ftt M PkA tC•CQVWft y i�►(�xrtnE�1etoarw C L+dvi,9�t [SEAL] STATE OF CALIFORNIA ss. COUNTY OF ) On 200, before me, , Notary Public, personally appeared personally known to me (or 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. Witness my hand and official seal. Notary Public [SEAL] 1066/017963-0002 364096.01 a06/04/03 -9- EXHIBIT "A» t THE WATERFRONT PROPERTY THIS LAND. DESCRIBED HEREIN IS SITUATED IN -THE CITY OF HUNTINGTON BEACH,- COUNTY OF ORANGE, STATE OF CALIFORNIA; BEING A PORTION OF SECTION 14, TOWNSHIP 6 SOUTH, RANGE, 11 WEST OF THE RANCHO LAS 'BOLSAS, AS PER MAP RECORDED IN BOOK 51, PAGE 14 OF MISCELLANEOUS MAPS, RECORDS OF THE COUNTY OF ORANGE:. BEING ALL OF THE LAND AS SHOWN ON THE MAP,OF' TRACT NO. 155499 RECORDED IN 842, -PAGES 28 THROUGH 44, INCLUSIVE, OF_ MAPS, RECORDS.OFTHE COUNTY OF ORANGE. EXCEPTING THEREFROM ALL OF LOTS "AA" AND "BB" OF SAID MAP. i NNW 'ROW EXHIBIT W -THE WATERFRONT PROPERTY BEACH BLVD i LOT 'AA' / i LOT 'BB' TR 15549 mmi LOT J 9L JWjW 7901 fI fl-6 J L� L� --- �� ,<let t�, \ Z_ � . �I ) J r r G` �� r ,�5, 0 50' 100' 200' 400'rri IJ53 lWiW 7901 fl 4-60 GRAPHIC SCALE L� N FUSCOE ENGINEERING SAN DIEGO INC. 6390 GREENWICH DR. STE. 170 / L J r J \_ SAN DIEGO, CA 92122 JVMJIB 5007 rl r1-fl PHONE (858) 554-1500 EXHIBIT "B>; THE CITY BUFFER PROPERTY THIS, LAND DESCRIBED HEREIN IS SITUATED IN THE CITY OF HUNTINGTON BEACH; COUNTY OF ORANGE, STATE OF. CALIFORNIA; BEING A PORTION OF SECTION 14, TOWNSHIP 6 SOUTH; RANGE I WEST OF THE RANCHO LAS BOLSAS, AS PER MAP RECORDED IN BOOK 519 PAGE 14,OF MISCELLANEOUS MAPS, RECORDS OF THE COUNTY OF . ORANGE... LOT "BB" AS SHOWN ON THE MAP OF TRACT NO 15549, RECORDED IN BOOK-842, PAGES 28 THROUGH 44, INCLUSIVE, OF MAPS; RECORDS OF THE,COUNTY OF.ORANGE. EXHIBIT 'B' THE CITY BUFFER PROPERTY SUNRISE DRIVE I -�— — _ I I . I I I I 1 0 I LOT "BB' Q TR 15549 MMBZ - 4-4- ca U I .oq . m I, I \ II I N . . r 0 50, 100, 200' 400' FUSCOE ENGINEERING SAN DIEGO INC. 6390 GREENWICH DR. STE. 170 GRAPHIC SCALE SAN DIEGO, CA 92122 PHONE (858) 554-1500 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of C44 FDxNi County of enpfiqG-� On .5un e- 11. )-O n3 before me, ),Do's e— /R�i C Date Name and Title of Officer(e.g.,'Vane Doe,Notary Public') personally appeared Sontl t Y'a�kA-,JA-,� Name(s)of Signer(s) personally known.to me-OR-❑p l caved to we to be the person(W whose nameW(9/are subscribed to the within instrument and acknowledged to me that he/ hthey executed the _ same in his/ g�r their authorized capacity(+", and that by his/kq/their signature(<on the instrument the person(s} or the entity upon behalf of which the person(sj acted, executed the instrument. KELCommission LoUinE 137289 WITNESS•m hand and official seal Commission# 1372899 Z Y ,.� Notary Public California Z Orange County My Comm.Expires Sep 1,2006 Signature of Nota lic - OPTIONAL Though the information below is not required bylaw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document / Title or Type of Document: 4Clu i Document Date: S vn-P 4<)y 3 Number of Pages: &,pr y'A �1 -Y 4�P Signer(s) Other Than Named Above: t Capacity(ies) Claimed by Signer(s) Signer's.Name: C n oiyl S ov ez*l, - Signer's Name: El Individual - ❑ Individual -Corporate Office ❑ Corporate Officer- Title(s): �.�� Cl,,L h Title(s): ❑ Partner. ❑ Limited ❑ General. ❑ Partner—❑ Limited ❑ General. El Attorney-in-Fact ❑ Attorney-in-Fact ❑ Trustee ❑ Trustee Guardian or Conservator ❑ Guardian or Conservator ❑ Other: Top of thumb here ❑ Other: Top of thumb here Signer Its Representing: Signer Is Representing: �r v� • ©1995 National'.Notary Association•8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309-7184 Prod.No.5907 Reorder:Call Toll-Free 1-800-876-6827 Government Code 27361 .7 I certify under the penalty of perjury that the notary seal on . this document read as follows: Name of Notary: Tracy L. Gemmill - Date Commission Expires: 05/03/07 County where bond is Filed: Orange Commission No.: 1415241 Manufacturer/Vendor No.: NNA1 Place of execution - Newport Beach Date - June 1.2, 2003 FIDELITY NATION 1TLE COMPANY Government Code 27361 .7 I certify under the penalty of perjury that the notary seal on this document read as follows: Name'of Notary: Susan E. Menard Date Commission Expires: 09/05/03 County where bond is Fired: Orange Commission No.: 1234016 Manufacturer/Vendor No.:_ SIU 1 Place of execution - Newport Beach Date June 12, 2003 FIDELITY NATIONAL T LE COMPANY Government Code 27361 .7 I certify under the penalty of perjury that the notary seal on this document read as follows: Name of Notary: Kathleen Nelson Date Commission Expires: 06/25/04 County where bond is'Filed: Orange Commission No.: 1268758 Manufacturer/Vendor No.: NNA1 Place of execution - Ne ort Beach Date - June 12, 2003 FIDELITY NATION T TILE COMPANY Government Code 27361 .7 I certify under the penalty of perjury that the notary seal on this document read as follows: Name of Notary: Kelly Louise Mandic Date Commission Expires: 09/01/06 County where bond is Filed: Orange Commission No.: 1372899 Manufacturer/Vendor No.: NNA1 Place of execution - Newport Beach Date - June 12, 2003 FIDELITY NATION L TI LE CO PANY I i