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HomeMy WebLinkAboutAGMT - Terra Funding-Bixby Ranch LLC & PCPI Bixby LP (Old Ranch Parkway Easement Agreement)RECORDING REQUESTED BY AND WHEN RECORDED MAIL RETURN TO: PCPI Bixby, LP c/o Parallel Capital Partners 4105 Sorrento Valley Blvd. San Diego, CA 92121 Attn: Jim Ingebritsen (Space above this line for recorder's use only) EASEMENT AGREEMENT This EASEMENT AGREEMENT (this "Agreement") is made this _ day of February, 2022, by and between TERRA FUNDING-BIXBY RANCH, LLC, a Delaware limited liability company ("Land Owner"), PCPI BIXBY, LP, a Delaware limited partnership ("Improvements Owner" and together with Land Owner, "Owners"), and the CITY OF SEAL BEACH, a municipal corporation BACKGROUND FACTS A. Land Owner is the owner of the real property located in City of Seal Beach, County of Orange, State of California (the "Land"), which real property is more particularly described on Exhibit A attached hereto; B. Improvements Owner is the ground lessee of the Land, and the owner of all of the improvements located on the Land (the "Improvements," and, together with the Land, the "Pro e "); C. City is the owner of the real property located in the City of Seal Beach, County of Orange, State of California ("Parcel 6"), which real property is more particularly described on Exhibit B attached hereto; D. The Property is located on both sides of Parcel 6, and certain utility lines and associated pipes and conduit (including, without limitation, mechanical line sets (consisting of heating and cooling lines, pressurized air -lines and communication lines, electrical lines, telephone and telecommunication Lines, water lines for drinking water, irrigation water and fire line water, storm drain connections, sewer connections, and irrigation lines) (collectively, the "Facilities") currently cross Parcel 6, from one portion of the Property to another. E. City now desires to grant an easement across Parcel 6 to Owners, and the parties desire to provide for the use and maintenance of the Facilities thereafter, on the terms and conditions set forth herein. Page 1 AGREEMENT NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Easement. The City hereby grants to Owners a blanket non-exclusive easement (the "Easement"), across those portions of Parcel 6 where the Facilities are located (the "Easement Area"), for the purpose of installing, constructing, maintaining, repairing and replacing, from time to time, the Facilities below the surface of the Easement Area. The Easement shall include all incidental rights reasonably necessary for the use and enjoyment of the Easement for its intended purposes, including, without limitation, the right in favor of Owners and their employees, contractors, consultants and agents of ingress and egress in and over Parcel 6 for doing anything reasonably necessary for the use and enjoyment of the Easement; provided, in the event of any installation, construction, maintenance, repair and/or replacement of the Facilities that will interfere with City's use of the Easement Area, Owners will coordinate with City to minimize such interference, to the extent commercially practicable. 2. Limitations and Restrictions. (a) Non-exclusive. The Easement and all rights granted herein shall be non- exclusive. City shall, continue to enjoy the use of Parcel 6, including the Easement Area, for any and all purposes not inconsistent with the rights granted hereunder. (b) Damage. Notwithstanding anything herein to the contrary, to the extent that damage to the Easement Area or any other portion of Parcel 6 is caused by the activities of Owners in the exercise of their rights or obligations hereunder, Owners shall, promptly following such damage, at Owners' sole cost and expense, repair such damage to the Easement Area and/or other portion of Parcel 6, and restore the Easement Area and/or other portion of Parcel 6 to a condition substantially similar to that which existed prior to such damage. (c) Insurance. Prior to any entry by Owners onto Parcel 6 in connection with the exercise of their rights or obligations hereunder, Owners and/or any of their respective contractors or consultants ("Owners' Consultants") that access Parcel 6 shall provide evidence that it(they) maintain(s) commercial general liability insurance on an "occurrence" basis with a combined single limit for bodily injury and property damage of not less than One Million Dollars ($1,000,000), covering the entry and activities of Owners and/or Owners' Consultants, as applicable, upon Parcel 6. City shall be named as an additional insured under such insurance policy(ies). 3. Description of Easement Area. Owners and/or City may supplement this Agreement with a specific metes and bounds or other legal description identifying the specific location of the Facilities and/or the Easement Area. City and Owners shall cooperate with each other to prepare such legal description(s) and record a supplement to this Agreement reflecting such legal description(s). 4. Construction and Maintenance. Owners shall, at their sole cost and expense, install, construct, maintain, repair and replace the Facilities. City shall cooperate with Owners, as Page 2 reasonably necessar construct, maintain, required approvals to time, in connectic of the Facilities. O exercise of their rigl 6 or any portion ther any work, Owners sl to permit City to po by Owner, as provi4 lien, Owners shall c release bond or othe released and remove City may take such duty to investigate I and the cost of any 1 such lien shall be dt therefor is received contest the validity City shall not take a defend and protect tl judgment that may 1 5. Inder against any and all materialmen's liens, losses, or damages c from or caused by C 6. Rerr. party hereto of any party shall be entit. and equitable reme due, payment of dir The remedies speci at law or in equity. Notwithstanding th party be liable for sl damages. to allow such surface access as is necessary to permit Owners to install, :pair and replace the Facilities, from time to time. Owners shall obtain all i permits from the applicable governmental agencies, as needed from time with the installation, construction, maintenance, repair and/or replacement iers shall not allow any liens arising from the activities of Owners in the or obligations hereunder to exist, attach to, be placed on, or encumber Parcel f, by operation of law or otherwise. At least seven (7) days before beginning ll give City written notice of the expected commencement date of such work and record a notice of non -responsibility. Subject to any permitted contest I below, if any such lien attaches or if Owners receive notice of any such ise the lien to be released and removed of record, by recordation of a lien rise, within twenty (20) days after receipt of notice thereof. If the lien is not within twenty (20) days after Owners' receipt of notice of such lien, then tion as is reasonably necessary to release and remove the lien, without any validity of such lien. All expenses (including reasonable attorneys' fees nd) actually and reasonably incurred by City in connection with removal of and payable by Owners within ten (10) business days after written demand y Owner. Notwithstanding the foregoing, if Owners shall, in good faith, any such lien, then Owners shall notify City of such contest (in which case, ion to release and remove the lien), and Owners shall, at their sole expense, mselves and City against the same and shall pay and satisfy any such adverse rendered thereon before the enforcement thereof. inity. Owners agree to defend, indemnify and hold City harmless from and costs, claims, or liabilities, including but not limited to, mechanic's and and reasonable attorney's fees and court costs, relating to accidents, injuries, or to any person or property (collectively, the "Losses") to the extent arising wners' activities conducted pursuant to this Agreement. ies and Enforcement. In the event of a breach or threatened breach by any the terms, covenants, obligations, restrictions or conditions hereof, the other to full and adequate relief by injunction and all such other available legal s from the consequences of such breach, including payment of any amounts damages suffered by or incurred by such party, and/or specific performance. d herein shall be cumulative and in addition to all other remedies permitted ny immunity from liability otherwise available to a party is hereby waived. megoing or anything to the contrary contained herein, in no event shall either ;ulative, consequential, special, incidental, exemplary, lost profits or punitive 7. Covenants to Run with Land. It is intended that the easement, covenants, conditions, restrictions, rights and obligations set forth herein shall run with the land and create equitable servitudes in favor of the Property and Parcel 6, and shall bind and inure to the benefit of the parties hereto, the parties' successors and assigns, executors, heirs and personal representatives and every person having any fee, leasehold or other interest in the Property or in Parcel 6, from time to time. The grantee of title to any real property (or portion thereof) subject to Page 3 this Agreement, by property, shall acct easements, covenai acceptance, any su( personal representat observe, comply wil the property so acqu will have liability h period of time that i .cceptance of a deed or other document conveying any interest in such real )t such deed or other document upon and subject to each and all of the .s, conditions, restrictions and obligations contained herein. By such i grantee shall, for itself and its successors, assigns, executors, heirs and ves, covenant, consent and agree to and with the other party hereto to keep, i and perform the obligations and agreements set forth herein with respect to red by such grantee. An owner of any real property subject to this Agreement reunder only in respect of the real property owned by it and only as to the owns such real property. 8. Attorney,. In the event a party hereto institutes any legal action or proceeding for the enforcement of any right or obligation herein contained, the prevailing party shall be entitled to recover its costs and reasonable attorneys' fees incurred in the preparation and prosecution of such action or proceeding, including, but not limited to, all post judgment and appellate fees and costs. 9. No Waiver. No waiver of any default of any obligation by any party hereto shall be implied from any omission by the other party to take any action with respect to such default. 10. Exhibits. All of the exhibits referenced herein and attached hereto are, by this reference, incorporated into and made a part of this Agreement. 11. 12. Nc party hereto upon of this Agreement other party in this Section 12 (provi( methods). Any p, the other party no To City: To Owners Time is of the essence of this Agreement. -s. Any notice or election required or permitted to be given or served by any other party shall be deemed given or served in accordance with the provisions ten delivered either personally or by courier service, to the address(es) of such ction 12, or via electronic delivery to the applicable e-mail address(es) in this any notice given by e-mail shall also be given by one of the other permitted may change its address for the purpose of giving notice hereunder by giving thereof in accordance with the provisions of this Section 12. City of Seal Beach 211 Eighth Street Seal Beach, California 90740 Attn.: City Clerk Email: cityclerk@sealbeachca.gov PCPI Bixby LP c/o Parallel Capital Partners 4105 Sorrento Valley Blvd. San Diego, CA 92121 Attn: Jim Ingebritsen Email: jingebritsen@parallelcp.com Page 4 and: 13. Sev� held to be invalid, jurisdiction, the re provision and cove 14. C conflicts of law this Agreement. 15. Cour be deemed to be an PCPI Terra Funding -Bixby Ranch, LLC 841 Bishop Street, Suite 1700 Honolulu, Hawaii 96813 Attn: Kim Aquino Email: kaquino@shidler.com Afily. If any term, provision, covenant or condition of this Agreement is id or otherwise unenforceable, to any extent, by any court of competent inder of this Agreement shall not be affected thereby, and each term, I shall be valid and enforceable to the fullest extent permitted by law. ring Law. The laws of the State of California (without regard to such state's ) shall govern the interpretation, validity, performance and enforcement of This document may be executed in counterparts, each of which will but all of which together will constitute one instrument. [Remainder of Page Intentionally Blank] Page 5 IN WITIN date first set forth WHEREOF, the parties have executed this Easement Agreement as of the PCPI BIXBY, LP, a Delaware limited partnership By: PCPI Bixby Office Park, LLC, a California limited liability company Its General Partner By: Name: Title: CA) TERRA FUNDING-BIXBY RANCH, LLC, a Delaware limited liability comp9n By: .�� Name: KiAe'rly F. A ui o Title: Authorized Sig atory CITY OF SEAL BEACH, an By Na Tit By Na Tit [Signature page to Easement Agreement] ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of County On /I ZV before me, Lraia �'Il,�l.�6—' a Notary Public, personally ap reemo^ who proved to me on a basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon be of which the person acted, executed the instrument. I certify under PE ALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ,+ LORNAT. IGNACIO, Notary Public - California = T San Diego county + Commission # 2364743 My Comm. Expires Jul 7, 2025 r Signature STATE OF HAWAII SS CITY & COUNTY OF HONOLULU On this 25th day of January, 2022, before me appeared Kimberly F. Aquino, to me personally known, who, being by me duly sworn, did say that she executed the foregoing instrument as her free act and deed, and if applicable, in the capacity shown, having been duly authorized to execute such instrument in such capacity. Notary Puty, S ate of Hawaii (Seal) Notary Certification Doc. Date: Joy M. Hessenflow _ Name of Notary Public (Printed or Typed) My Commission Expires: Pages: 11 Name: Joy M. Hessenflow First Circuit 12/17/22 `�����• v1ES00 S� L *:. 67571=* N. no N ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of LC6 On be the person whose executed the same in or the entity upon be I certify under foregoing para€ WITNESS my hand Signature 0, before me, Am- WIL , a Notary Public, -��Q, who proved to me on the basis of satisfactory evidence to aegis subscribed to the within instrument and acknowledged to me that he authorized capacity, and that by his signature on the instrument the person, 'of which the person acted, executed the instrument. LTY OF PERJURY under the laws of the State of California that the true and correct. official seal. - YVONNE RUIZ Notary Public - California Los Angeles County i °�•°� My Commission # 2359095 Comm. Expires May 26, 2025 CALIFORNIA CERTIFICATE OF ACKNOWLEDGMENT OVM1ECG,A WMEMKwMiFDGMFMMNNpVM1FItLMEMKmOWL[[wMFMKn+IM1EttMFMK/.xOxlEtGMEMKwOWtFOGMEMACYN MGMEMA[KxOwiID4MFMACYNOWIIDGWMKWOxM1EDGMFNiKIWOWIFtII.v.FMACExOWtFWUFMACM,OvnE04MEM MKANOWlf1GMlMKYN(MlEf4MFMKYN[rvM1E OYh[CGMEMACMlOWIFIXJAFMKYI:OwI I this certificate verifies only the identity of R A notary public or other officer completing the individual who signed the document the truthfulness, accuracy, or validity to which this certificate is attached, and not of that document. R ) � State of California County of On ��Y� 2-(�ZZbefore R R me, S Y (here insert narffe and title of the officer) I + personally appeared y?'t R F who proved to me on the basis of satisfactory evidence to be the person Vwhose name is/are-subscribed to the within instrument and acknowledged to me that he/she/they executed the same in los/her/their 3 authorized capacity*), and that by 44/her/thsignature96 on the instrument the person(/; or the entity eir upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY ' under the laws of the State of California that the foregoing paragraph is true and correct. DANA ENGSTROM _ . o COMM. #2235978 Z Notary Public - California X Z WITNESS m hand and Y R Orange County ° official seal. M Comm. Ex ices Apr. 5, 2022 s � Signature fiA1&L14L" Seal >~,MM„MMM.LM�,AMMrwEM�3,Mo.,,��,M,�M,MriEM,EM3�,u.M.,t,3 ©ptional Information ! Although the information in this section islnot required by law, it could prevent fraudulent removal and reattachment of this acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document. Description of Attached Document The preceding Certificate of Acknowledgment is attached to a document titled/for the purpose of containing pages, and The signer(s) capacity or aut ❑ Individual(s) ❑ Attorney -in -Fact ❑ Corporate Officer(s) ❑ Guardian/Conservator ❑ Partner - Limited/General ❑ Trustee(s) ❑ Other: representing: is/are as: ritle(s) Name(s) of Person(s) or Entity(les) Signer is Representing Method of Signer Identification Proved to me on the basis of satisfactory evidence: Q form(s) of identification 0 credible witness(es) Notarial event is detailed in notary journal on: Page # Entry # Notary contact: Other ❑ AdditionalSigner(s) ❑ Signer(s)Thumbprint(s) ® Copyright 2007-2017 Notary Rotary, PO Box 41400,IDes Moines, IA 50311-0507. All Rights Reserved. Item Number 101772. Please contact your Authorized Reseller to purchase copies of this form. Real property in the follows: PARCELS 1, 2,3 A ORANGE, STATE INCLUSIVE, OF P. COUNTY. EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY of Seal Beach, County of Orange, State of California, described as 4 OF PARCEL MAP 86-280, IN THE CITY OF SEAL BEACH, COUNTY OF CALIFORNIA, AS PER MAP FILED IN BOOK 226 PAGES 9 TO 14, ELS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID EXCEPT THEREFROM THAT PORTION OF SAID PARCEL 1 DESCRIBED IN THE GRANT DEED TO ORANGE COUNTY TRANSPORTATION AUTHORITY, A PUBLIC CORPORATION, 29, 2010 AS INSTRUMENT NO.2010000200698, OF OFFICIAL RECORDS, RECORDED APRIL SAID PORTION BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST EASTERLY CORNER OF SAID PARCEL 1, BEING THE SOUTHERLY TERMINUS OF THAT CERTAIN COURSE SHOWN ON SAID PARCEL MAP AS HAVING A BEARING AND DISTANCE OF "NORTH 050 12'32" WEST, 5.76 FEET;" THENCE SOUTH 37° 27'33" WEST, ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL 1, A DISTANCE OF 8.54 I EET; THENCE CONTINUING ALONG SAID SOUTHEASTERLY LINE, SOUTH 450 03'20'1 WEST, A DISTANCE OF 3.49 FEET; THENCE DEPARTING SAID SOUTHEASTERLY RINE, NORTH 01° 22'0 1 " WEST, A DISTANCE OF 15.45 FEET TO THE BEGINNING OF A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 28.00 FEET AND HAVING AT SAID POINT A RADIAL LINE WHICH BEARS NORTH 64° 30'23" EAST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 130 5233", A DISTANCE OF 6.78 FEET; THENCE SOUTH 54° 4335" WEST, A DISTANCE OF 2.75 FEET; THENCE NORTH 500 12'08" WEST, A DISTANCE OF 23.46 FEET; THENCE NORTH 37° 44' 17" EAST, A DISTANCE OF 5.00 FEET TO THE NORTHEASTERLY LINE OF SAID PARCEL 1; THENCE SOUTH 50° 12'08" EAST, ALONG SAID NORTHEASTERLY LINE, A DISTANCE OF 36.84 FEET; THENCE CONTINUING ALONG SAID NORTHEASTERLY LINE, SOUTH 05° 39'26" EAST, A DISTANCE OF 5.73. FEET TO THE POINT OF BEGINNING. EXCEPT THEREFROM, ALL BUILDINGS AND IMPROVEMENTS SITUATED ON THE AFOREMENTIONED LAND, WHICH BUILDINGS AND IMPROVEMENTS ARE AND SHALL REMAIN REAL PROPERTY. Assessor's Parcel Numbers: 086-011-56 and 57 Ex A-1 Real property in the PARCEL 6 OF PAI ORANGE, STATE INCLUSIVE, OF P COUNTY. NAI -15163407610 EXHIBIT B LEGAL DESCRIPTION OF PARCEL 6 of Seal Beach, County of Orange, State of California, described as follows: .L MAP NO. 86-280, IN THE CITY OF SEAL BEACH, COUNTY OF CALIFORNIA, AS PER MAP FILED IN BOOK 226, PAGES 9 THROUGH 14, -EL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID RESOLUTION 7253 A RESOLUTION OF THE SEAL BEACH CITY COUNCIL APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN EASEMENT AGREEMENT WITH TERRA FUNDING — BIXBY RANCH, LLC AND PCPI BIXBY, LP WHEREAS, TERRA FUNDING — BIXBY RANCH, LLC ("Land Owner') is the owner of the real property located in City of Seal Beach, County of Orange, State of California (the "Land"), which real property is more particularly described on Exhibit A; and, WHEREAS, PCPI BIXBY, LP ("Improvements Owner") is the ground lessee of the Land, and the owner of all of the improvements located on the Land (the "Improvements," and, together with the Land, the "Property"); and, WHEREAS, the City of Seal Beach ("City") is the owner of the public right of way known as Old Ranch Parkway located in the City of Seal Beach, County of Orange, State of California ("Parcel 6"), which real property is more particularly described on Exhibit B; and, WHEREAS, the Property is located on both sides of Parcel 6, and certain of Owner's Improvements in the form of utility lines and associated pipes and conduit (the "Facilities") currently cross Parcel 6, from one portion of the Property to another under various permits and grants; and, WHEREAS, City now desires to grant a non-exclusive easement across Parcel 6 to Owners for the Facilities where located as of the date of this grant of easement, and the parties desire to provide for the location, use, and maintenance of the Facilities thereafter. NOW, THEREFORE, THE SEAL BEACH CITY COUNCIL DOES HEREBY RESOLVE: Section 1. The City Council hereby approves the Easement Agreement with TERRA FUNDING — BIXBY RANCH, LLC, AND PCPI BIXBY, LP. Section 2. The City Council hereby authorizes the City Manager to execute the Easement Agreement. Section 3. The City Clerk is hereby directed to record the Easement Agreement with the Orange County Clerk -Recorder. PASSED, APPROVED AND ADOPTED by the Seal Beach City Council at a regular meeting held on the 14th day of February, 2022 by the following vote: N AYES: Council Members Kalmick, Moore, Sustarsic, Varipapa, Massa-Lavitt NOES: Council Members ABSENT: Council Members ABSTAIN: Council Members .Ine Imick, Mayor STATE OF CALIFORNIA } COUNTY OF ORANGE } SS CITY OF SEAL BEACH } 1, Gloria D. Harper, City Clerk of the City of Seal Beach, do hereby certify that the foregoing resolution is the original copy of Resolution 7253 on file in the office of the City Clerk, passed, approved, and adopted by the City Council at a regular meeting held on the 14th day of February, 2022. Moria D" F rper, City Clerk__,_