RECORDED AT THE REQUEST OF
AND WHEN RECORDED MAIL TO:
City Clerk of the City of Anaheim
WHEN RECORDED MAIL TO:
CITY CLERK
CITY OF ANAHEIM
P.O. BOX 3222
ANAHEIM, CA 92803
EXEMPT-GOVERNMENT AGENCY
(Government Code §§6103 & 27383)
Mail Tax Statements as shown above
THIS SPACE FOR RECORDER’S USE ONLY
By:________________________________
City Clerk, City of Anaheim
EASEMENT DEED
For valuable consideration, receipt of which is hereby acknowledged,
CITY OF ANAHEIM,
a municipal corporation,
hereinafter referred to as “GRANTOR,”
does hereby grant to
PACIFIC BELL TELEPHONE COMPANY,
California corporation dba AT&T California,
hereinafter referred to as “GRANTEE,” its, successor and assigns,
a non-exclusive easement for aerial and underground communication facilities in, on, under and across that certain real property in the city of Anaheim, county of Orange, state of California (hereinafter referred to as “Easement Area”) described in “Exhibit A,” and illustrated in “Exhibit B,” which exhibits are attached hereto and by this reference made a part hereof. GRANTOR and GRANTEE, may sometimes hereinafter be individually referred to as “Party” or jointly as “Parties”.
GRANTEE’S rights shall include right s to
construct, reconstruct, install, replace, reconfigure, operate, maintain, repair, relocate, remove, inspect, observe, and study aerial and underground communication facilities consisting of poles, anchors, guys, cables, wires, crossarms, braces, conduits, pipes, manholes, handholes, service boxes, aboveground markers, risers, service pedestals, underground and aboveground switches, fuses, terminals, terminal equipment cabinets, transformers with associated concrete pads, associated electrical conductors, underground terminals, necessary fixtures and appurtenances ( “Facilities”) and shall include reasonable access to the Easement Area for the purpose of exercising the rights herein granted.
It is understood and agreed by the Parties hereto and their successors and assigns that the easement and right of way herein granted in this easement deed (“Easement Deed”) shall be subject to the following terms, conditions, and reservations:
1. CONSTRUCTION AND MAINTENANCE
For the initial construction of the Facilities, GRANTEE shall have all construction and maintenance plans approved in writing by the GRANTOR’s Public Utilities General Manager, or designee, (hereinafter, “General Manager”), such approval shall not be unreasonably withheld and GRANTEE shall provide evidence of adequate insurance coverage, as determined by the GR ANTOR’s Risk Manager, prior to commencement of any construction of the Facilities in, on, under or about the Easement Area; and upon completion of any such work, GRANTEE shall immediately not ify the General Manager in writing of completion of any such construction.
GRANTOR’s approval of GRANTEE’S construction and/or maintenance plans shall not be deemed approval from the standpoint of structural safety, suitability for purpose or conformance with building or other codes or other governmental requirements.
Should it be necessary for GRANTEE to conduct any construction or excavation activities or otherwise disturb the surface of the Easement Area subsequent to the completion of the initial installation of the Facilities, different from the work approved under the initial maintenance plan, GRANTEE agrees to notify General Manager in writing thirty (30) days in advance of such planned activities and obtain General Manager’s written approval of all plans prior to commencement of any such activities. Said approval shall not be withheld unreasonably. Notwithstanding the foregoing, such notice and approval is not required in any emergency situation or in conducting routine maintenance activities which do not involve disturbance of the surface area.
However, GRANTEE shall notify General Manager within five (5) business days of comme ncing any emergency repair work. For purposes of this Easement Deed, routine maintenance shall mean those small - scale activities associated with regul ar (daily, weekly, monthly, etc. ) and general upkeep of the Facilit ies against normal wear and tear.
Except in areas in which such activities require regulatory agency approval, or are otherwise designated as environmentally sensitive, GRANTEE shall have the right to cut such roots as may endanger or interfere with the Facilities; provided, however, that any excavation shall be made in such a manner as will reasonably cause the least injury to the surface of the ground and any improvements and/or landscaping around such excavation, and that, to General Manager’s reasonable satisfaction, (1) the earth so removed shall be replaced; and (2) any damaged surface, improvements and/or landscaping around such excavation shall be promptly restored by GRANTEE at its expense to the same condition as existed prior to the excavation, reasonable wear and tear excepted.
GRANTOR also grants to GRANTEE the right to cut, fill or otherwise change the grade of said property and to place such drainage and retaining structures thereon; provided (1) the construction and/or maintenance plans of those structures have been reviewed and approved by GRANTOR; and (2) GRANTEE fully restores the Easement Area to GRANTOR’s satisfaction.
GRANTEE shall, at no cost to GRANTOR , maintain in good repair and in safe conditions all Facilities constructed, used or placed within the Easement Area by or on behalf of GRANTEE pursuant to this Easement Deed.
2. REMOVAL AND/OR ABANDONMENT
GRANTEE agrees that in the event (a) Facilities are no longer required, or (b) GRANTEE’S use of said Facilities ceases for a period of more than one (1) year without written notice from GRANTEE to GRANTOR of the circumstances affecting such suspension and of GRANTEE’S intention to resume usage of the Facilities,
General Manager may request written concurrence and evidence of the cessation from GRANTEE . If GRANTEE does not respond within forty-five (45) days of said notice, GRANTEE shall, upon request and at no cost to GRANTOR , remove and/or abandon said F acilities within one hundred and fifty (150) days after receipt of written notice to remove and/or abandon. Whether to remove or abandon said Facilities under this Section 2, will be within the sole discretion of GRANTEE. Following such removal and/or abandonment, GRANTEE shall, at no cost to GRANTOR, restore the Easement Area to the condition that existed prior to the granting of this Easement Deed, to General Manager’s reasonable satisfaction, reasonable wear and tear excepted.
GRANTEE shall also execute and deliver to GRANTOR , within one hundred and fifty (150 ) days of such removal and/or abandonment, for recordation in the Official Records of Orange County, California, a Quitclaim Deed sufficient to remove the encumbrance of this Easement Deed from title.
3. RELOCATION
GRANTEE agrees that in the event Facilities shall at any time materially interfere with the operation, maintenance, replacement, or improvement of the Grantor’ s facilities as reasonably determined by General Manager, GRANTEE shall, within three hundred sixty-five (365) days of receipt of written notice (“Notice to Relocate”) from GRANTOR, either (1) relocate at GRANTEE’S expense GRANTEE’S Facilities to a site designated by General Manager; or (2) remove the Facilities as set forth below.
The General Manager shall, upon written request, meet and confer with GRANTEE to determine whether the Facilities can remain in place or whether modifications to the Facilities may be made to avoid the need for relocation. If, after the meet and confer process, the General Manager determines a relocation outside of the Easement Area is required, t he General Manager shall utilize reasonable efforts to find other property owned by the GRANTOR available to GRANTEE for the purpose of relocating the conflicting Facilities. If the General Manager and GRANTEE mutually agree upon a relocation site on GRANTOR property outside of the Easement Area, the Parties agree to amend the Easement Deed to reflect the new Easement Area location and to quitclaim the Easement Area no longer encumbered by this Easement Deed. To the extent GRANTEE cannot mitigate interference with GRANTOR ’s operations to the reasonable satisfaction of the General Manager; GRANTOR may terminate this Easement Deed three hundred sixty-five (365) days from the date of the Notice to Relocate, and Grantee shall remove all Grantee Facilities within thirty (30) days of the termination date of the this Easement Deed.
4. COMPLIANCE WITH REGULATORY AUTHORITIES
GRANTEE shall, at its own cost and expense, promptly and at all times observe, comply with and carry out all present and future orders, regulations, directions, rules, laws, ordinances, permits and requirements of all governmental authorities, including but not limited to environmental regulatory authorities, with jurisdiction in, on, over and about the Easement Area, which arise from GRANTEE’S use of or performance of any activities permitted to be conducted in, on, over, or across the Easement Area.
No approvals or consents given hereunder by GRANTOR, as a Party to this Easement Deed, shall be deemed approval as to compliance or conformance with applicable governmental codes, laws, rules or regulations.
5. HOLD HARMLESS
GRANTEE hereby agrees to indemnify, defend (with counsel approved in writing by GRANTOR ), and hold harmless, GRANTOR and its elected and appointed officials, officers, agents, employees and contractors against any and all claims, losses, demands, damages, cost, expenses or liability for injury to or death of any persons or damage to or loss of property, arising out of the maintenance, use of or operations or activities conducted in, on, under, over or about the Easement Area, and/or the exercise of the rights under this Easement
Deed by GRANTEE, its agents, officers, employees, invitees or licensees, except for liability arising out of the concurrent active or sole negligence or willful miscon duct of GRANTOR and its elected and appointed officials, officers, agents, employees or contractors including the cost of defense of any lawsuit arising therefrom. If GRANTOR is named as co-defendant(s) in a lawsuit, GRANTEE shall notify General Manager of such fact and shall represent GRANTOR in such legal action unless GRANTOR undertake(s) to represent itself as co-defendant(s) in such legal action, in which event, GRANTEE shall pay to GRANTOR its litigation costs, expenses, and attorneys' fees. If judgment is entered against GRANTOR and GRANTEE by a court of competent jurisdiction because of the concurrent active negligence or willful misconduct of GRANTOR and GRANTEE, GRANTOR and GRANTEE agree that liability will be apportioned as determined by the court.
6. GRANTEE’S LIABILITY FOR HAZARDOUS OR TOXIC MATERIALS (PMES8.2S) GRANTEE shall comply with local, California state and federal law pertaining to “Hazardous Material,” as hereinafter defined, to the extent any such materials may be brought upon, generated, kept, stored, released or used in or about the Easement Area (which for purposes of this Section shall include the subsurface soil and ground water), whether intentionally and otherwise consistent with the purposes for which this Easement is granted or inadvertently . If GRANTEE breaches the obligations stated herein, or if contamination of the Easement Area by Hazardous Material otherwise occurs for which GRANTEE is legally liable to GRANTOR for damage resulting therefrom, then GRANTEE shall indemnify, defend with counsel approved in writing by GRANTOR, and hold harmless, GRANTOR and its elected or appointed officials, officers, agents, and employees from any and all claims, judgments, damages, penalties, fines, costs, liabilities, or losses (including, without limitation, damages for the loss or restriction of use of rentable or usable space or any amenity of the Easement Area or damages arising from any adverse impact on marketing and diminution in value of the Easement Area, sums paid in settlement of claims, attorney fees, consultant fees, and expert witness fees) which result from GRANTEE’S use of the Easement Area as a result of such contamination. This indemnification includes, without limitation, costs incurred by GRANTOR in connection with any investigation of site conditions or any cleanup, remediation, removal, or restoration work required by any federal, state, or local governmental entity or agency because of Hazardous Material being pr esent in the soil or ground water under the Easement Areas as result of GRANTEE’s breach of the obligations stated herein or contamination of the Easement Area by Hazardous Material for which GRANTEE is legally liable to GRANTOR for resulting damage. GRANTEE shall promptly take all action, at its sole cost and expense, as is necessary to comply with law regulating Hazardous Material and remediate and restore the Easement Area to its condition prior to the introduction of such Hazardous Material by GRANTEE, provided GRANTEE shall first have obtained written approval from the General Manager and the approval of any necessary governmental entities or agencies for any such remedial action.
As used herein, the term “ Hazardous Material” means any hazardous or toxic substance, material, product, byproduct or waste which is or shall become regulated by any governmental entity or agency, including, without limitation, the state of California or the United States government.
7. RESERVATIONS (PMES9.1S)
a. GRANTOR reserves the right to grant easements, rights of way, and permits in, over, upon, through across, and along any and all portions of the Easement Area as will not interfere unreasonably with or prohibit the use by GRANTEE of the rights and easement herein granted.
b. GRANTOR further reserves for itself and its successors and assigns, the right to install, lay, construct, maintain, repair, and operate such public utility facilities (including without limitation, electric, water, telecommunications and sewer) and appurtenances necessary or convenient in connection therewith, in, over, upon, through, across, under, and along the Easement Area or any part thereof, and to enter the Easement Area for any and all such purposes; as will not interfere unreasonably with or prohibit the use by GRANTEE of the rights and easement herein granted.
c. In the event GRANTOR exercises such rights to utilize the Easement Area which use results in the disturbance of the Easement Area, GRANTOR ’S only responsibility shall be to backfill with compacted earth to the grade of the surrounding property following completion of GRANTOR ’s activity.
d. Except in cases of emergency as determined by the General Manager , GRANTOR shall endeavor to notify GRANTEE sixty (60) days in advance of GRANTOR ’S plans for construction, excavation or other disturbance of the surface within the Easement Area. In cases of emergency, GRANTEE will be notified within five (5) business days of commencement of any such emergency repair work.
8. CONVEYANCE SUBJECT TO EXISTING INTERESTS
This Easement Deed is subject to existing contracts, leases, licenses, easements, encumbrances, and claims which may affect the Easement Area, and the use of the wo rd “grant” herein shall not be construed as a covenant against the existence of any thereof.
Nothing contained herein, or in any document related hereto, shall be construed to imply the conveyance to GRANTEE of rights in the Easement Area which exceed those owned by GRANTOR, or any representation or warranty, either express or implied, relating to the nature or condition of the Easement Area or GRANTOR’S interest therein.
9. TAXES AND ASSESSMENTS
Should this Easement Deed create a possessory interest which is subject to the payment of taxes levied on such interest, it is understood and agreed that all taxes and assessments (including but not limited to said possessory interest tax) which become due and payable upon the Easement Area or upon fixtures, equipment, or other property installed, constructed or used by GRANTEE thereon in connection with this Easement Deed, shall be the full responsibility of GRANTEE, and GRANTEE shall cause said taxes and a ssessments to be paid promptly when due.
10. NOTICES
All notices, documents, correspondence and communications concerning this Easement Deed shall be addressed as set forth in this Section, or as the Parties may hereafter designate by written notice, and shall be sent through the United States mail with postage prepaid. Any such mailing shall be deemed served or delivered twenty-four (24) hours after mailing. Each Party may change the address f or notices by giving the other Party at least ten (10) calendar days’ prior written notice of the new address.
Notwithstanding the above, either Party may also provide notices, documents, correspondence, or such other communications to the other by personal delivery or by Federal Express or similar courier service and so given shall be deemed to have been given upon receipt.
To GRANTOR:
City of Anaheim Public Utilities
201 South Anaheim Blvd., Suite 701
Anaheim, CA 92805
ANAHEIM Secretary/City Clerk
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, California 92805
To GRANTEE:
PACIFIC BELL TELEPHONE COMPANY,
California corporation dba AT&T California
1452 Edinger Ave, 3rd Floor
Tustin, CA 92780
11. VENUE
The Parties hereto agree that this Easement Deed has been negotiated and executed in the state of California and shall be governed by and construed under the laws of California. In the event of any legal action to enforce or interpret this Easement Deed, the sole and exclusive venue shall be a court of competent jurisdiction located in the County of Orange, California, and the Parties hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394. Furthermore, the Parties hereto specifically agree to waive any and all rights to request that an action be transferred for trial to another county.
12. W
AIVER OF RIGHTS
The failure of GRANTOR to insist upon strict performance of any of the terms, covenants, or conditions of this Easement Deed shall not be deemed a waiver of any right or remedy that GRANTOR may have, and shall not be deemed a waiver of the right to require strict performance of all the terms, covenants, and conditions of the Easement Deed thereafter, nor a waiver of any remedy for the subsequent breach or default of any term, covenant, or condition of the Easement Deed.
13. S
EVERABILITY
If any term, covenant, condition, or provision of this Easement Deed is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.
14. AT
TORNEYS’ FEES
In any action or proceeding brought to enforce or interpret any provision of this Easement Deed, or where any provision hereof is validly asserted as a defense, each Party shall bear its own attorneys' fees and costs.
15. S
UCCESSORS AND ASSIGNS
The terms, covenants, and conditions contained herein shall apply to and bind the heirs, successors, executors, administrators and assigns of the Parties hereto.
16. AUT
HORITY
The Parties to this Easement Deed represent and warrant that this Easement Deed has been duly authorized and executed and constitutes the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms.
Approved as to Form
ROBERT FABELA, ANAHEIM CITY
ATTORNEY
By
: ________________________________
Alison Kott, Assistant City Attorney
GRANTOR
By
: _____________________________________
Mayor
GRANTEE
By: ____________________________________
Louie Diego
Right of Way Manager
ACKNOWLEDGMENT
State of California
County of _____________________
On ______________________________ before me, ______________________________, Notary Public, personally
appeared ________________________________________________________________, who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
______________________________________
(Signature of Notary)
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.
1 EXHIBIT "A"
LEGAL DESCRIPTION
AT&T
COMMUNICATION EASEMENT
THAT CERTAIN PARCEL OF LAND SITUATED, IN THE CITY OF ANAHEIM, COUNTY OF ORANGE, STATE OF CALIFORNIA BEING A PORTION OF LOT 39 OF ANAHEIM EXTENSION AS SHOWN ON A MAP FILED IN BOOK 3 PAGES 163 THROUGH 165, INCLUSIVE OF
MISCELLANEOUS RECORD MAPS OF LOS ANGELES COUNTY IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, BEING A STRIP OF LAND, 5.00 FEET WIDE, THE SOUTHERLY LINE OF SAID STRIP MORE PARTICULARLY DESCRIBED AS FOLLOWS:
STRIP 1
BEGINNING AT THE NORTHWEST CORNER OF LOT 11 OF TRACT NO. 2184 AS SHOWN ON A MAP FILED IN BOOK 80 PAGES 31 THROUGH 33, INCLUSIVE, OF MISCELLANEOUS MAPS IN THE OFFICE OF THE ORANGE COUNTY RECORDER;
THENCE SOUTH 74°18'33" WEST 663.00 FEET ALONG THE NORTHERLY BOUNDARY LINE OF SAID TRACT NO. 2184 TO THE NORTHWEST CORNER OF LOT 1 OF SAID TRACT NO. 2184.
CONTAINING: 3315 SQUARE FEET, MORE OR LESS
AS SHOWN ON EXHIBIT "B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF
SUBJECT TO: COVENANTS, CONDITIONS, RESTRICTIONS, RIGHT OF WAY AND EASEMENTS OF RECORD.
PREPARED UNDER THE SUPERVISION OF:
__________________________________________
GREGORY S. BORCHARD, LS 7705
MY REGISTRATION EXPIRES: 12/31/22
4-28-22