Easement Agreement - Back Bay Center LTD - 2014-07-09Document Number: 2014000294491 Page: 1 of 16
NOW,THEREFORE, for valuable consideration, OWNER and DISTRICT agree as
follows:
1. Access to OWNER's Property. DISTRICT through its employees, agents,
contractors, subcontractors, and/or other representatives may enter upon OWNER's
property for purposes of installing, maintaining, and replacing an emergency generator(the
"WORK"). Notwithstanding the foregoing, OWNER shall first have approved in writing the
specifications for the WORK as set forth in Section 2 below, and the DISTRICT shall
perform the WORK in accordance with the other terms and conditions of this EASEMENT
AGREEMENT. OWNER shall use its best efforts to cause said approval to occur within
thirty (30) days or as the parties may agree.
2. Specifications for the WORK. All specifications for the WORK to be
performed by DISTRICT shall be submitted to the OWNER for review at least thirty (30)
days prior to starting the WORK for the purpose of assuring OWNER that the size,
location, and configuration of the emergency generator and any related equipment will be
installed in such a manner as to comply with the description of the WORK previously given
to OWNER by the DISTRICT and for the purpose of further assuring OWNER that the
WORK, once installed, will be aesthetically pleasing and will not interfere with, disrupt, or
otherwise impair the use of the property by OWNER and its tenants and their invitees on
the site.
3. Grant of Easement for Emergency Generator. Subject to the terms and
conditions of this EASEMENT AGREEMENT, OWNER hereby agrees to grant to
DISTRICT and does hereby grant to DISTRICT an easement for the installation,
maintenance, and service of the emergency generator and related appurtenances on
property described on Exhibit "A", attached hereto. The easement area will be described
on Exhibit "B" as follows: Exhibit "B-1", attached hereto, sets forth the legal description of
the Easement Area and Exhibit "B-2", attached hereto, is the Easement Plat.
4. Performance of Work/Restoration of the Site. OWNER grants the
DISTRICT the right to enter OWNER's property for purposes of performing the WORK and
maintaining the easement, and the DISTRICT agrees to use reasonable care to prevent
damage to OWNER's property and to perform WORK using commercially reasonable
efforts to cause the least inconvenience and interference with OWNER, its tenants and
their invitees, and other occupants of the property, and with proper consideration for others
on the site. Upon completion of the installation of the WORK, the location and surrounding
area of the WORK shall be left clean and in the original condition, with everything in
satisfactory repair and order. Safety is of paramount importance, and the DISTRICT shall
take all reasonable precautions and is responsible for the safety of, and shall provide
protection to prevent damage, injury, or loss to, all persons who should reasonably be
expected to be affected by the WORK, including members of the public who may be on the
property at any time during which the WORK is being performed. DISTRICT shall use its
best efforts to ensure access and parking spaces are preserved for OWNER's commercial
uses and shall use its best efforts to ensure that noise, vibration, dust, and other nuisance
Easement Agreement Revised 7/07/14
conditions be abated to a level that does not disrupt the commercial operation of the
property. The DISTRICT agrees and understands that all costs associated with performing
the WORK and restoring the property after the WORK is completed, including the repair of
any damages caused to the property occasioned by the WORK, shall be the sole
responsibility of the DISTRICT, who shall perform the WORK at no cost to OWNER.
5. Consent of Owner's Lender. The DISTRICT acknowledges that the
effectiveness of this EASEMENT AGREEMENT is subject to the prior written consent of
OWNER's Lender. OWNER shall promptly submit this EASEMENT AGREEMENT to the
Lender for review. The DISTRICT shall pay in advance any reasonable fees or deposits
required by OWNER's Lender to review and approve this EASEMENT AGREEMENT for
execution and recording. The DISTRICT shall promptly reimburse OWNER for any
subsequent fees or expenses charged to OWNER by Lender.
6. Compliance with Law. The DISTRICT shall comply with all federal, state,
and local laws and regulations in performing this WORK at the property and shall perform
the WORK in an environmentally protective manner. The retention of contractors by the
DISTRICT shall not relieve the DISTRICT of its obligations under this EASEMENT
AGREEMENT. The DISTRICT shall be responsible for all work of contractors, and all
contractors shall be governed by the terms of this EASEMENT AGREEMENT. Further,the
DISTRICT shall pay in full all persons who perform labor upon or provide services or
materials in connection with the WORK, and the DISTRICT shall not create, permit, or
suffer any mechanic's or materialman's liens of any kind or nature to be created or
enforced against OWNER'S property, or any part thereof,for any such WORK performed.
The DISTRICT shall include all relevant provisions of this EASEMENT AGREEMENT in its
contracts with any contractor to ensure such contractor's compliance with the terms and
provisions of this EASEMENT AGREEMENT governing the performance of the WORK
upon the property.
7. Operation of Emergency Generator. OWNER understands and agrees that
the DISTRICT may from time to time operate the emergency generator for testing and
exercise purposes to determine that the emergency generator remains functional so that it
will properly operate during those emergency conditions for which it is designed to handle.
In that connection, the DISTRICT agrees that it will not operate the emergency generator
for more than thirty(30) minutes per month during non-emergency situations for purposes
of testing the emergency generator(the "EXERCISE TIME"). Further, the DISTRICT will
utilize its EXERCISE TIME in such a way as to not interfere with the operation of any of the
businesses located on the property and will use its best efforts to utilize such EXERCISE
TIME on occasions during which the businesses located on the property are not opened.
8. Compensation to Owner. In consideration of OWNER's agreement to grant
the DISTRICT this easement, the DISTRICT shall pay OWNER, concurrent with the close
of escrow and execution of the EASEMENT AGREEMENT, the sum of Thirty-Eight
Thousand Dollars($38,000.00), plus the sums described below. Total sums to be paid by
DISTRICT include:
Easement Agreement Revised 7/07/14
a. Thirty-Eight Thousand Dollars ($38,000.00) for this easement.
b. Said sum shall be in addition to the sum of Five Thousand Dollars
($5,000.00) previously paid to OWNER for legal review of this
AGREEMENT.
c. DISTRICT shall pay directly to OWNER's Lender Lender's fees to
review and approve this AGREEMENT.
•
d. The above sums shall be the sole compensation paid for the
easement and includes compensation, including, but not limited to,
legal fees, costs, severance damages, relocation benefits, and loss of
good will.
9. Escrow; Closing Conditions. DISTRICT and OWNER shall cause an
escrow to be opened for the consummation of the transaction contemplated by this
EASEMENT AGREEMENT at Long Beach Escrow and deposit a copy of this EASEMENT
AGREEMENT with escrow. Each party shall sign escrow instructions necessary to
establish an escrow for purposes of carrying out the obligations of the parties hereunder
with respect to the execution of this EASEMENT AGREEMENT and the payment of
compensation to OWNER required by the EASEMENT AGREEMENT. Each party shall
promptly deposit an executed original of this EASEMENT AGREEMENT, and the
DISTRICT shall deposit with escrow concurrently therewith the compensation required to
be paid to OWNER pursuant to the provisions this EASEMENT AGREEMENT. All costs of
escrow and necessary recording fees shall be paid by the DISTRICT.
10. Relocation of Easement Area. Should OWNER determine that it needs to
relocate the emergency generator for business necessity, which includes a desire to
reconstruct or remodel its commercial center, the parties agree that the following shall
govern their rights. OWNER agrees not to require relocation for five(5)years from date of
this EASEMENT AGREEMENT. Should OWNER or its successor in interest require
relocation for business necessity, including a desire to reconstruct or remodel its
commercial center, OWNER agrees that it will pay DISTRICT its reasonable cost to
construct the existing emergency generator and appurtenances for relocation and
installation of the equipment in accordance with the following schedule:
Years 6 - 15: 50% of cost
Years 16 - 20: 30% of cost
Years 25+: 0% of cost
OWNER further agrees to employ, at its sole cost, registered civil engineers
experienced in sewer pipeline construction and emergency generators to provide feasible
plans for an alternative location on OWNER's property that is acceptable to both parties.
The alternative location and all sewer and generator construction work shall be in
accordance with DISTRICT's Standard Plans and Specifications and shall be subject to
approval by the District Engineer for technical feasibility, which approval shall not be
Easement Agreement Revised 7/07/14
unreasonably withheld or delayed. All work must be in compliance with DISTRICT's
Standard Plans and Specifications and subject to DISTRICT inspection as the job
progresses. The parties acknowledge that any Emergency Generator relocation related
construction work may be subject to prevailing wage laws.
OWNER shall give the DISTRICT at least sixty (60) days notice of its intent to
relocate, and DISTRICT shall thereafter use due diligence to negotiate with the OWNER
and other agencies to determine if the relocation site is possible. Within said sixty (60)
days, DISTRICT shall advise OWNER that the relocation site is tentatively approved and
will use reasonable diligence to process all approvals necessary for the relocation.
DISTRICT shall allow OWNER to review the specifications for the work in accordance with
Section 2 above. Once it is determined that all approvals have been secured, DISTRICT
shall bid the construction project and shall cause that construction project to be
implemented with all due diligence. The parties agree that DISTRICT shall be excused by
impossibility of performance and that performance may be delayed by force majeur and
Acts of God.
OWNER agrees that it will offer alternative property for the site of the generator at
no cost to the DISTRICT should OWNER need DISTRICT to relocate the generator.
The parties further agree that DISTRICT retains all rights of eminent domain should
the parties not be able to agree on the above when negotiating the relocation after having
used commercially reasonable efforts to do so.
11. Indemnification. As a material inducement for entering into this EASEMENT
AGREEMENT, the DISTRICT agrees to indemnify, defend, and hold harmless OWNER
and its officers, agents, employees, successors, and assigns from any and all claims,
litigation, demands, liability, losses, damages, and expenses(including attorney's fees and
costs)for injury or death to all persons, and for loss and damage to the property belonging
to any person arising in any manner in the performance of this EASEMENT AGREEMENT
and the grant of the easement or arising out of the performance of any the WORK,
installation, maintenance, or servicing of the pump station and emergency generator. The
DISTRICT's indemnification obligation hereunder is expressly intended to include
indemnification for all claims, including those caused or alleged to be caused by the partial,
concurrent, or sole negligence of the DISTRICT's employees and its agents, contractors,
subcontractors, and other persons performing the WORK,whether active or passive. This
indemnification is intended to require indemnification in the broadest form allowed by law
whether arising out of tort, contract or otherwise. Said defense shall be with counsel
reasonably acceptable to OWNER.
12. Insurance. Prior to any work being performed on OWNER's property, and so
long as this EASEMENT AGREEMENT is in effect, the DISTRICT must require that all
contractors, subcontractors, and persons performing services for the DISTRICT, at their
sole expense, shall maintain with insurance companies authorized to transact business in
the State of California, the following insurance coverage, naming OWNER as additional
insured on all liability policies:
Easement Agreement Revised 7/07/14
(a) Commercial General Liability coverage, on an occurrence basis, insured
against any and all claims for bodily injury, personal injury, damage and destruction to
persons or property and for the loss of life (including products and completed operations
coverage)with minimum coverage of Two Million Dollars($2,000,000)per person and Four
Million Dollars ($4,000,000) per occurrence;
(b) Automobile Liability Insurance on all vehicles used in connection with the
services performed hereunder, with minimum combined limits of One Million Dollars
($1,000,000), including hired and non-owned liability; and
(c) Workers' Compensation Insurance to the extent required by California
Law.
DISTRICT shall not do or permit to be done anything which invalidates the
insurance policies required by this Section 12. Further, DISTRICT shall, prior to any work
being performed on OWNER's Property, deliver to OWNER certified copies of policies of
such insurance or certificates with copies of the required endorsements evidencing the
existence and amounts of the required insurance. No such policy shall be cancellable or
subject to modification except after thirty (30) days prior written notice to OWNER.
DISTRICT shall, at least ten (10) days prior to the expiration of such policies, furnish
OWNER with evidence of renewals or "Insurance Binders" evidencing renewal thereof.
Such policies shall be for a term of at least one(1)year, or the length of the remaining term
of this EASEMENT AGREEMENT, whichever is less. If DISTRICT shall fail to cause all
contractors, subcontractors, and persons performing services for the DISTRICT to procure
and maintain the insurance required to be carried hereunder, OWNER may, but shall not
be required to, procure and maintain such insurance, and DISTRICT shall immediately
reimburse OWNER for all costs in connection thereof plus legal fees and administrative
costs incurred by OWNER in connection therewith.
13. Legal Review. DISTRICT has provided OWNER with a deposit in the sum of
Five Thousand Dollars ($5,000.00) so that OWNER may have this EASEMENT
AGREEMENT reviewed by its legal counsel. OWNER agrees to provide DISTRICT with
copies of the legal bills showing the tasks performed, dates work was performed, and
hourly rate with billing in tenth-of-an-hour increments. The deposit shall be used by
OWNER to pay its attorney fees incurred for the review, necessary modifications to the
EASEMENT AGREEMENT, and correspondence and negotiations with the DISTRICT as
necessary to finalize a satisfactory agreement. OWNER agrees to provide DISTRICT with
an accounting of the deposit and refund the balance to DISTRICT within thirty(30)days of
the last legal services having been rendered on this matter.
14. Remedies. In addition to all other remedies allowed by law, the parties and
their successors and assigns, shall have the right to seek injunctive relief for the
enforcement of the terms and conditions of this EASEMENT AGREEMENT.
Easement Agreement Revised 7/07/14
15. Entire Agreement. This EASEMENT AGREEMENT constitutes the entire
agreement between the parties with respect to the subject matter described herein. No
modification or alteration of the terms hereof shall be binding unless such modification or
alteration is in writing and executed by the parties. If any provisions of this EASEMENT
AGREEMENT are determined to be invalid, illegal, or unenforceable, the remaining
provisions of this EASEMENT AGREEMENT remain in full force and effect.
16. Successors. This EASEMENT AGREEMENT shall be binding upon and
inure to the benefit of the parties hereto and their respective successors in interest.
17. Governing Law. This EASEMENT AGREEMENT shall be governed by and
construed in accordance with the laws of the State of California.
18. Authority to Sign. Each party signing warrants that they have the authority
to execute this document and bind the party on whose behalf they sign.
19. No Waiver. The failure of a party to insist upon strict performance of the
terms and conditions hereof shall not constitute or be construed as a waiver or
relinquishment of either party's right to thereafter enforce the same in accordance with this
EASEMENT AGREEMENT in the event of a continuing or subsequent default on the part
of a party.
[This part intentionally left blank]
[Signatures on following page]
Easement Agreement Revised 7/07/14
IN WITNESS WHEREOF, the parties hereto have caused this EASEMENT
AGREEMENT to be executed this day and year first above written.
COSTA MESA SANITARY BACK BAY CENTER LTD, A
DISTRICT CALIFORNIA LIMITED
PARTNERSHIP
By: Capital Back Bay, LLC, a California
l�l'l�
By: limited liability company, General Partner
Jails Ferryman, President
-�— � - By:
Arthur Perry, Secretary Steven E. Wise, Manager
ATTEST:
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district CI-rk
APPROVED AS TO FORM:
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District Counsel
EXHIBIT"A"
LEGAL DESCRIPTION OF BACK BAY CENTER PROPERTY
Real property in the unincorporated area of the County of Orange,State of California, described as
follows:
Parcels 1 and 2 of Parcel Map#82-127,as per map recorded in Book 178, Pages 29 and 30 of Parcel
Maps, in the Office of the County Recorder of said Orange County.
AP N: 439-101-40
EXHIBIT "B1"
GENERATOR AND CONDUIT EASEMENT TO CMSD
LEGAL DESCRIPTION
THOSE PORTIONS OF PARCELS 1 AND 2 OF PARCEL MAP NO. 82-127, IN THE
UNINCORPORATED TERRITORY OF THE COUNTY OF ORANGE, STATE OF CALIFORNIA,
PER MAP FILED IN BOOK 178, PAGES 29 AND 30, OF PARCEL MAPS, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
STRIP 1
A STRIP OF LAND, 2.50 FEET WIDE, THE CENTERLINE OF SAID STRIP BEING DESCRIBED
AS FOLLOWS:
COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 1;
THENCE ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL 1 NORTH 39°47'55" EAST,
48.66 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHEASTERLY,
HAVING A RADIUS OF 1,050.00 FEET;
•
THENCE NORTHEASTERLY CONTINUING ALONG SAID SOUTHEASTERLY LINE AND ALONG
SAID CURVE THROUGH A CENTRAL ANGLE OF 04°54'10" AN ARC LENGTH OF 89.85 FEET
TO THE TRUE POINT OF BEGINNING;
THENCE LEAVING SAID SOUTHEASTERLY LINE NORTH 50°06'19"WEST, 122.43 FEET;
THENCE SOUTH 39°44'05" WEST, 43.85 FEET;
THENCE SOUTH 11°04'55" EAST, 3.05 FEET;
THENCE SOUTH 39°43'56"WEST, 96.73 FEET;
THENCE NORTH 49°41'30"WEST, 33.98 FEET;
THENCE SOUTH 39°49'47" WEST, 5.09 FEET TO A POINT HEREINAFTER REFERRED TO AS
"POINT A".
SIDELINES OF SAID STRIP SHALL BE LENGTHENED OR SHORTENED TO TERMINATE
SOUTHEASTERLY ON SAID SOUTHEASTERLY LINE OF PARCEL 1 OF PARCEL MAP NO. 82-
127.
STRIP 2
A STRIP OF LAND, 7.00 FEET WIDE, THE CENTERLINE OF SAID STRIP BEING DESCRIBED
AS FOLLOWS:
BEGINNING AT SAID "POINT A";
THENCE SOUTH 39°49'47"WEST, 20.00 FEET.
Page 1 of 2
SUBJECT TO COVENANTS, CONDITIONS, RESERVATIONS, RESTRICTIONS, RIGHTS OF
WAY, AND EASEMENTS OF RECORD, IF ANY.
ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT"B2", ATTACHED HERETO AND MADE A
PART HEREOF.
THIS DOCUMENT HAS BEEN PREPARED BY ME, OR UNDER MY DIRECTION, IN
CONFORMANCE WITH THE PROFESSIONAL LAND SURVEYOR'S ACT.
, 41t [41414.
ROBIN B. HAMERS, R.C.E. 31720 DATE
REGISTRATION EXPIRES 12/31/14
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RCE31720
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Page 2 of 2
PLAT TO ACCOMPANY EXHIBIT "B2" SHEET 1 OF 1 SHEET
LEGAL DESCRIPTION
GENERATOR AND CONDUIT EASEMENT TO CMSD
IN THE UNINCORPORATED TERRITORY OF THE
COUNTY OF ORANGE, STATE OF CALIFORNIA
(N 3072'13" W)
•R MESA DRIVE
1
(rikOFESS/04,ON a Hq� 1(
P F� S PREPARED BY ME OR UNDER MY DIRECTION:
N0. G?
44- .
0 RCE 31720 m 6/3114 VARIES
ttil EXP. 4/2014 ROBIN B. HAMERS, R.C.E. 31720 DATE
■S', C _,�P EXPIRES: 12/31/14
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PARCEL 1
PARCEL MAP NO. 82-127 LLI
P.M.B. 178 / 29 AND 30
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g6 _ 122.43' Z
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S 11174 55' E I STRIP 1 a ;)
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LINE TABLE 3 t 1
LINE BEARING LENC7H w
1.1 N 4941'30" W 33.98' M
to if P.O.C.
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MOSTS'LY § w 72' I
S 39'49 4r W y PARCEL 1
5.09' 2.
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S 39'49'47' W .4N STRIP 2
20.00'
3.5 PARCEL 2
7' .T5' PARCEL MAP NO. 82-127 1
P.M.B. 178 / 29 AND 30
LEGEND
(XXXX) INDICATES RECORD DATA PER
PARCEL MAP NO. 82-127
P.M.B. 178/29 AND 30