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HomeMy WebLinkAbout18 - CC-8 - Attachment 1 - 7/20/2021 Grant of Avigation Easement (John Wayne Airport) Page 1 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: County of Orange/John Wayne Airport 3160 Airway Avenue Costa Mesa, CA 92626 By:______________________ EXEMPT FROM FILING FEES, CAL. GOV'T CODE § 6103 (Space Above Line for Recorder's Use) GRANT OF AVIGATION EASEMENT (John Wayne Airport) ASSESSOR PARCEL NO. 427-091-12 RECITALS: 1. The City of Costa Mesa, California, a municipal corporation organized and existing under the laws of the State of California (the “City” or "Grantor"), is the owner of the fee simple estate in and to that certain real property situated in the County of Orange, State of California, commonly described as the Permanent Bridge Shelter Project at 3175 Airway Avenue, Costa Mesa, California, and more particularly described in Exhibit "A," attached hereto and incorporated by this reference ("Subject Property" or “Property”); 2. It is the desire of Grantor, for itself, its heirs, administrators, executors, successors, assigns, tenants, guests, and other persons in or using the Subject Property with the implied or express consent of Grantor, to grant to the County of Orange, a political subdivision of the State of California (the "County" or "Grantee"), an air and avigation easement, also known as a perpetual air, flight, or noise easement, on, upon, over, across, above, or in the vicinity of the Subject Property, and to all of the Airspace (as hereinafter defined) above the Subject Property, whereby Grantor relinquishes certain rights relative to the Subject Property, as described in this Grant of Avigation Easement ("Avigation Easement"); 3. The purpose of this Avigation Easement, and its acceptance by the County, includes granting the County an Avigation Easement permitting the unencumbered and unrestricted flight of aircraft to or from John Wayne Airport ("JWA"), owned and operated by the County, without liability to the County, to the aircraft operator, or to any other person lawfully operating aircraft to or from JWA in the navigable airspace of the United States (as defined at 49 U.S.C.S. §40102(a)(30) and as set forth herein below), and as that section of the United States Code (and the referenced regulations) existed on the effective date of this Avigation Easement, and in Attachment 1 Grant of Avigation Easement (John Wayne Airport) Page 2 accordance with relevant regulations of the United States of America and the State of California, pursuant to the authority granted to the County by the people and the State of California. NOW, THEREFORE, for valuable consideration, receipt of which is hereby acknowledged: WARRANTIES AND COVENANTS: Grantor warrants and covenants to the County that as of the date hereof: 1. Grantor holds the entire fee simple interest in the Subject Property; 2. Grantor shall not convey its interest in the Subject Property, or execute, deliver, or permit hereafter recordation of any interest in the Subject Property, or any lien or encumbrance against the Subject Property (or any interest therein), until the earlier of the following events: (i) this Avigation Easement has been properly executed by Grantor, accepted by the County, and recorded by the Orange County Recorder; or (ii) thirty (30) days have elapsed after Grantor has delivered this Avigation Easement to the County, properly and fully executed and notarized. 3. The person executing this Avigation Easement on behalf of the City as Grantor has been duly and lawfully authorized by the City to execute this Avigation Easement on behalf thereof. GRANT OF AVIGATION EASEMENT 4. The Grantor, individually and for its successors and assigns, and other persons in or using the property with the implied or express consent of Grantor, hereby grants, conveys and assigns to the County, its successors, and assigns, a perpetual non-exclusive and assignable Avigation Easement and the right to enter or penetrate into or transmit through the Airspace above, on or in the vicinity of the Subject Property for the unobstructed use, passage or operation of all types of aircraft and the right to create or generate all things and consequences to the Subject Property that may be, or may be alleged to be, incident to or resulting from the use and enjoyment of said Airspace and any and all related aircraft and airport operations, including, but not limited to, those impacts and effects described in Section 5. 5. This Avigation Easement shall be for air navigation, airport operations, aircraft sound and noise, aircraft avigation and flight in, to, over and through the Airspace above the Subject Property, as well as the imposition in, on, over, upon or in the vicinity of the Subject Property of noise, sound, vibration, fumes, fuel particles, dust, discomfort or other environmental effects incident to such aircraft operations and any and all resulting annoyance, inconvenience, or other interference with the use and enjoyment of the Subject Property and any consequent reduction in market value, all due to the operation of aircraft to and/or from JWA, including landing at, taking off from, taxiing, maintenance, or other aircraft or related facility operations at or on JWA. 6. This Avigation Easement is for the use of such airspace by any aircraft, present or future, in whatever form or type, during operations at, on, to, or from JWA, including any future Grant of Avigation Easement (John Wayne Airport) Page 3 change to or increase in JWA's boundaries and/or in the volume or pattern of aircraft traffic or aircraft noise, by all existing or future types of aircraft, including the imposition on the surface of the Subject Property and on any and all structures on the Subject Property of such noise, vibration, fumes, fuel particles, dust, discomfort or other environmental effects incident to such aircraft operations and any and all resulting annoyance, nuisance, inconvenience, taking of, or damage to the Subject Property, or any portion of the Subject Property, or other interference with the use and enjoyment of the Subject Property and any consequent reduction in market value. This Avigation Easement shall continue notwithstanding any future changes or increases in the type, volume, frequency, duration, or location of operations to, from, or at JWA. 7. This Avigation Easement also includes all things that may be alleged to be incident to or resulting from the use and enjoyment of this Avigation Easement, including, but not limited to, the Grantee's continuing right to prevent, prohibit, clear, and keep clear from the Airspace, as defined in Section 10, above the Property any buildings, portions of buildings, structures or improvements of any kind, and of trees, vegetation, or other objects that may cause interference with aircraft navigation and/or operations at JWA, including the right to request that Grantor remove or demolish those portions of such buildings, structures, improvements, trees, vegetation, or other objects which extend into the Airspace and that, in the reasonable judgment of the Grantee, may cause interference with aircraft navigation and/or operations at JWA, and, at the reasonable discretion of the Grantee, the right to mark and light, or cause or require to be marked and lighted, as obstructions or hazards to air navigation or aircraft operations, any and all buildings, structures, or other improvements, and trees, vegetation, or other objects, which extend into the Airspace above the Property. This Avigation Easement also includes the Grantee's right to inspect the Property, including the exterior of any building, structure, other improvements or vegetation on the Property and to require the removal by Grantee of any building, structure, other improvement, tree or vegetation (or portion thereof) which extends into the Airspace in violation of this Section, or to install such lighting, or marking of any such improvement or vegetation as permitted by this Section; and for all other purposes described in this Section at reasonable times and after reasonable notice. Grantee shall use reasonable efforts to minimize any disturbance of the occupants of the Property in exercising its rights hereunder. If any building, structure, other improvement, tree or vegetation (or portion thereof) extends into the Airspace in violation of this Avigation Easement, Grantee shall so notify Grantor, or its successors, of such violation and the requested corrective measure, which may include, but not be limited to, the installation of such lighting, or marking of any such improvement or vegetation, as required by law. If the Grantor, or its successors, do not correct such violation within thirty (30) days, or such shorter time period as may be required by Grantee due to an emergency or some other circumstance requiring more immediate action, the Grantee shall have the right of ingress to, passage within, and egress from the Property to remove any building, structure, other improvement, tree or vegetation (or portion thereof) which extends into the Airspace in violation of this Avigation Easement, or to install such lighting, or marking of any such improvement or vegetation, as required by law or as reasonably required by Grantee, provided, however, that the removal of any building or structure or portion thereof by Grantee on less than thirty (30) days’ notice to Grantor shall require an order therefor from a court of competent jurisdiction. Grant of Avigation Easement (John Wayne Airport) Page 4 8. The cost to remove any building, structure, other improvement, tree or vegetation (or portion thereof) which extends into the Airspace in violation of this Avigation Easement, or to install such lighting, or marking of any such improvement or vegetation as permitted by Section 7, shall be borne exclusively by Grantor. 9. As used in this Avigation Easement, the term "aircraft" shall mean any and all types of aircraft, whether now in existence or hereafter manufactured and developed, to include, but not be limited to, jet aircraft, propeller drawn aircraft, aircraft powered by other means, civil aircraft, military aircraft, commercial aircraft, helicopters and all types of aircraft or vehicles now in existence or hereafter developed for the purpose of transporting persons or property through the air, or, by whomever owned or operated. 10. As used in this Avigation Easement, the term "Airspace" shall mean the entire area above those certain imaginary surfaces over the ground surface of the Subject Property that are within the Title 14 of the Code of Federal Regulations ("14 CFR") Part 77 Surfaces, as specified in Advisory Circular 70/7460-1L (standards for obstruction marking and lighting), and any and all successor revisions or regulations by the Federal Aviation Administration, any successor agency, or any other agency of federal, State, or local government exercising comparable authority, except that “Airspace” shall not include any additional area below those certain imaginary surfaces over, and which shall in no event be less than one hundred fifty (150) vertical feet from, the ground surface of the Subject Property. 11. It is expressly intended by Grantor and the County that this Avigation Easement shall not supersede or impair any existing prescriptive, avigation other easements, rights, or interests of the County, in or applicable to the Subject Property, if any, all of which easements, rights, interests, and any remedies related thereto are expressly reserved by the County. Additionally, this Avigation Easement does not diminish any rights available to entities through Division 9, Part 1, Chapter 4, of the Public Utilities Code, including but not limited to Sections 21675.1 and 21678. 12. In furtherance of this Avigation Easement, and rights herein granted, Grantor, and the heirs, administrators, executors, agents, successors, and assigns of Grantor, hereby covenant at all times hereafter, that it will not take any action or knowingly cause any electronic, light, or other transmissions or emissions, construct or grow any obstruction, or discharge any fumes, dust, or smoke on the Subject Property which would conflict or interfere with or infringe on the County's rights herein granted, or to otherwise impair the usability or function of JWA. 13. The rights, easements, benefits, restrictions, covenants, and agreements granted herein, including this Avigation Easement, shall continue notwithstanding any increase or other change in the type, boundaries, volume of operations, frequency, duration, noise, or pattern, location of air traffic to, from, or at JWA. This Avigation Easement may not be modified, amended, terminated, or abandoned except by execution and delivery of an instrument executed and acknowledged by the County, which execution and acknowledgement shall not be unreasonably withheld, or its agents, successors, or assigns, and Grantor agrees that, in the absence of such an instrument, no conduct or use of the Subject Property by Grantor for any period of time shall be construed to establish prescriptive rights in Grantor or its successors or assigns, nor shall Grant of Avigation Easement (John Wayne Airport) Page 5 any conduct by the County, or its agents, successors, or assigns, or increase, diminution, or change in use of this Avigation Easement, or the operation or use of JWA by Grantee, constitute an overburdening of this Avigation Easement or a termination or abandonment of this Avigation Easement. Provided, however, and notwithstanding any other provisions of this Agreement to the contrary, that should the Property cease being utilized as a Permanent Bridge Shelter or other Noise Sensitive Land Use as defined in Public Utilities Code Section 21669.5 or any successor section thereto, the parties hereby agree that all rights, easements, benefits, restrictions, covenants, and agreements granted herein, including this Avigation Easement, may be unilaterally withdrawn, terminated and/or abandoned by Grantor, however, Grantor shall first provide 60 days’ written notice to County’s Chief Real Estate Officer and Director of John Wayne Airport specifying the new use of the Property and the manner and/or reasons in which the Property will cease to be a Permanent Bridge Shelter or other Nosie Sensitive Land Use. Grantor acknowledges that a new use may be subject to review by the Airport Land Use Commission for Orange County. 14. The parties to this Avigation Easement acknowledge and agree that the easement, and all the rights, easements, benefits, restrictions, covenants and agreements set forth herein shall run with the land of the Grantor and the County, and any grantee, heir, agent, successor or assign of the Grantor who acquires any estate or interest in or right to use the Subject Property shall be bound by this Avigation Easement for the benefit of JWA and the County, and its agents, successors and assigns, including, without limitation, the tenants and licensees of the County, and all users of JWA. This Avigation Easement and all rights pertaining hereto are hereby vested in the Grantee, its successors, and assigns, forever and without limit in time, and shall be binding upon the successors and assigns of Grantor, except as otherwise provided for in this Agreement. 15. Grantor, and the grantees, heirs, agents, successors, and assigns of Grantor, hereby fully waive and forever release, and covenant not to assert or bring any right or cause of action, which it or they might now have, or which it or they may have in the future, against the County, its agents, successors, or assigns, or against the tenants, licensees, permittees, or users of JWA, caused by or relating to the use of this Avigation Easement or the exercise of rights under this Avigation Easement. This grant of this easement shall not operate to deprive the Grantor, its heirs, agents, successors, and assigns, of any rights which may from time to time arise against any air carrier or private operator for negligent or unlawful operation of aircraft. 16. In the event that any one or more covenant, condition, right or other provision contained in this Avigation Easement is held to be invalid, void, or illegal by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Avigation Easement and shall in no way affect, impair, or invalidate any other covenant, condition, right or other provision contained in this Avigation Easement. 17. This Avigation Easement constitutes an enforceable restriction pursuant to the provisions of California law, including, but not limited to, Section 21652 of the California Public Utilities Code, and shall bind Grantor and the grantees, heirs, administrators, executors, lessees, tenants, permittees, agents, successors, and assigns of Grantor, and each and all of them, and shall be appurtenant to, and for the benefit of, the real property commonly known as JWA, which is more particularly described John Wayne Airport, approximately 504 total acres, in the Grant of Avigation Easement (John Wayne Airport) Page 6 unincorporated area of the County of Orange to, from and on which aviation activities take place, generally south of Interstate 405, north of State Route 73, west of MacArthur Boulevard and Campus Drive, and east of Red Hill Avenue. GRANTOR: Date: By: Lori Ann Farrell Harrison City Manager Grant of Avigation Easement (John Wayne Airport) Page 7 CERTIFICATE OF ACCEPTANCE In accordance with Section 27281 of the California Government Code, this is to certify that the interest in real property conveyed by this Grant of Avigation Easement, dated ______________________ 20 _____ from the City of Costa Mesa, California, a municipal corporation organized and existing under the laws of the State of California, to the COUNTY OF ORANGE, a political subdivision of the State of California, is hereby accepted by the undersigned officer on behalf of the Board of Supervisors of the County of Orange, and the Grantee consents to recordation thereof by its duly authorized officer. DATED: ________________________ COUNTY OF ORANGE By_________________________________ ACKNOWLEDGMENT STATE OF CALIFORNIA) ) ss. COUNTY OF ORANGE ) On _______________, 20__, before me _______________________ _______________________________________________________ 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. Signature ____________________________________ EXHIBIT "A" (Subject Property Legal Description) For APN/Parcel ID(s): 427-091-12 PARCEL 4, IN THE CITY OF COSTA MESA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 34, PAGE 13 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT THEREFROM THE MINERALS, OIL, GAS, AND OTHER HYDROCARBON SUBSTANCES LYING BELOW THE SURFACE OF SAID LAND.