1 RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
District Clerk )
San Diego Unified Port District )
Post Office Box 120488 )
San Diego, CA 92112-0488 )
(Space Above this Line for Recorder’s Use)
APN (s) 567-010-18
The undersigned District declares that the Documentary Tax is $-0-
EASEMENT FOR PUBLIC ACCESS PURPOSES
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the
SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA, (“Agency”), hereby grants to the SAN DIEGO UNIFIED PORT DISTRICT, a public corporation (“District”), for the term of sixty-six (66) years an exclusive Easement for recreation, bicycle, public access, and pedestrian purposes, together with the right to construct, operate, install, modify, improve, rebuild, reconstruct, relocate, pave, reconfigure, repair, replace, remove, substitute, change the size of, upgrade, maintain, patrol, inspect, test and use of the public access improvements by the general public associated with the Chula Vista Bayfront Master Plan (CVBMP), the Sweetwater Bicycle Path and Pedestrian Promenade project and the Sweetwater Park project (“Easement”), which includes without limitation, parks, public access and recreational uses, and are collectively referred to hereinafter as the “Public Access Improvements” in, upon, over, under, across and through that certain real property in the City of Chula Vista, County of San Diego, State of California , as shown in Exhibit “A” and more particularly described as follows (“Property”):
All that certain real property currently designated as San Diego County Assessor’s Parcel Nos. 567-011-04, 567-010-18 and 567-010-19 together with F Street (Lagoon Drive) adjacent to and abutting said Parcels depicted on Exhibit “A”, attached hereto and by this reference made a part hereof.
District and Agency previously entered into that certain Easement for bicycle, public access and pedestrian purposes encumbering the Property dated January 9, 2019 and filed in the Office of the District Clerk as Document No. 69237 (Original Easement). District and Agency agree the Original Easement is hereby superseded and restated in its entirety by this Easement as of the signature date set forth below.
District’s development and construction of the Sweetwater Bicycle Path and Pedestrian Promenade
2 Clerk#! were partially funded with that certain State of California Natural Resources Agency Urban Greening Grant (“Grant”). In consideration for the receipt of funds from the Grant, District entered into a Grant Agreement with the California Natural Resources Agency (Agreement No. U29130- 0) on file in the Office of the District Clerk as Document 68461.
Agency agrees that the Property is being developed with National Park Service (NPS) assistance, or such assistance is integral to such acquisition or development, and that, without approval from the United States Secretary of the Interior (the “Secretary”), it shall not be converted to other than public outdoor recreation use and shall remain in public outdoor recreation use in perpetuity.
District may propose to convert the use of the Property to a use other than public outdoor recreation only in consultation and collaboration with the Agency, the NPS, and the California Department of Parks and Recreation. In the event that the Secretary approves conversion of use proposed by the District, District would be the entity responsible for providing the replacement property that would be required to remain in public outdoor recreational use in perpetuity and subject to NPS protection as a condition of any such conversion in accordance with NPS statutes and regulations.
Approval of any proposed conversion shall be in the sole discretion of the Secretary, or designee, and pursuant to 54 U.S.C. Section 200305(f)(3), the Secretary shall approve such conversion only if it is found to be in accord with the then existing statewide comprehensive outdoor recreation plan and only upon such conditions deemed necessary to assure the substitution of other recreation properties of at least equal fair market value and of reasonably equivalent usefulness and location.
Additional use and conversion requirements are included in the NPS post-completion compliance regulations at 36 C.F.R. Part 59.
All costs, fees, and expenses to design, construct, operate, install, modify, improve, rebuild, reconstruct, relocate, pave, reconfigure, and repair all Public Access Improvements within the Easement area, or related items or actions, shall be the responsibility of District, and Agency shall not be responsible or obligated for any such costs, fees, and expenses. Further, all work and activities of District within the Easement area shall be in compliance with all applicable laws and regulations.
Agency has previously approved plans by District to construct the Public Access Improvements within the Easement area. Agency shall approve in writing any subsequent plans presented by District to construct, improve, and modify Public Access Improvements within the Easement area.
At the discretion and election of the Agency, all Public Access Improvements within the Easement area shall become the property of the Agency at the end of the Easement term.
To the fullest extent permitted by law, District agrees to defend, indemnify and hold harmless the Agency, its agents, officers, employees, and contractors (collectively, the “Agency Parties”), from and against any claim, demand, action, proceeding, suit, liability, damage, cost (including reasonable attorneys’ fees) or expense, including but not limited to, damage to property, the loss or use thereof, or injury or death to any person, including District’s officers, agents, contractors and employees (collectively “Claims”), caused by or arising out of the acts or omissions of Agency or its officers, agents, contractors, or employees (collectively, the “Agency Parties”) related to this Easement or District’s use of the Property. District’s duty to defend, indemnify, and hold harmless
3 Clerk#! shall exclude any Claim to the extent arising from the judicially determined instance(s) of negligence or willful misconduct of any of the Agency Parties.
To the fullest extent permitted by law, Agency agrees to defend, indemnify and hold harmless the District, its agents, officers, employees, and contractors (collectively, the “District Parties”), from and against any claim, demand, action, proceeding, suit, liability, damage, cost (including reasonable attorneys’ fees) or expense, including but not limited to, damage to property, the loss or use thereof, or injury or death to any person, including Agency’s officers, agents, contractors and employees (collectively “Claims”), caused by or arising out of the acts of the Agency or its officers, agents, contractors, and/or employees (collectively, the “Agency Parties”) related to this Easement or Agency’s use of the Property. Agency’s duty to defend, indemnify, and hold harmless shall exclude any Claim to the extent arising from the judicially determined instance(s) of negligence or willful misconduct of any of the District Parties.
With respect to the obligations to defend, indemnity, and hold harmless set forth above:
a. Each party further agrees that its respective duty to indemnify and defend requires that District or Agency, as applicable, pay all reasonable attorneys’ fees and costs the indemnified party incurs associated with or related to enforcing the applicable indemnification provisions and defending any indemnified Claim.
b. An indemnified party may, at its own election, conduct its defense or participate in the defense of any Claim. If an indemnified party chooses at its own election to conduct its own defense, participate in its own defense, or obtain independent legal counsel in defense of any indemnified Claim, the indemnifying party agrees to pay all reasonable attorneys’ fees and all costs incurred by the indemnified party in connection with such defense.
c. Each of the parties’ obligations shall survive the expiration or earlier termination of this Agreement until expiration of applicable statute of limitations periods.
The District shall maintain insurance coverages, types, and requirements during the entire term of this Easement as provided on Exhibit “B” attached.
The Easement area is being offered to District in an As-Is and Where-Is condition, with all faults, and without any warranty, expressed or implied. District acknowledges that it has independently inspected the Easement area and made all tests, investigations, and observations necessary to satisfy itself of the condition of the Easement area and all improvements appurtenant thereto.
District acknowledges it is relying solely on such independent inspections, tests, investigations, and observations in accepting this Easement, and that based on such independent inspections, tests, investigations, and observations, District has determined the Easement area is acceptable for its use under this Easement.
4 Clerk#! Agency shall record this Easement in the official records of the County of San Diego within five (5) days of the execution and acknowledgement this Easement by District.
Signed this _______ day of ________________, 20______
CITY OF CHULA VISTA, AS
SUCCESSOR AGENCY TO THE
REDEVELOPMENT AGENCY OF THE
CITY OF CHULA VISTA
By: _____________________________
Name: __________________________
Title: __________________________
Attested By:
____________________________
Name: Kerry K. Bigelow, MMC
Title: City Clerk
APPROVED AS TO FORM:
By: _____________________________
Name: Jill D.S. Maland
Title: Lounsbery Ferguson Altona & Peak,
LLP, Acting City Attorney
SAN DIEGO UNIFIED PORT DISTRICT, a
public corporation
By: _____________________________
Anthony Gordon
Assistant Vice President, Real Estate
APPROVED AS TO FORM AND LEGALITY
By: _____________________________
Assistant/Deputy
EXHIBIT A
EXHIBIT A
EXHIBIT B Clerk#!
EXHIBIT B
The San Diego Unified Port District (District) shall procure and maintain for the duration of the Easement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the District, its agents, representatives, employees or sub contractors.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 12 07 covering CGL on an “occurrence” basis, including products-completed operations, personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if District has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
If the District maintains higher limits than the minimums shown above, the Agency requires and shall be entitled to coverage for the higher limits maintained by the District.
OTHER INSURANCE PROVISIONS
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The Agency, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the District including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the District’s insurance at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10 and CG 20 37 if a later edition is used).
Specifically, endorsement must not exclude Products / Completed Operations.
Primary Coverage
For any claims related to this contract, the District’s insurance coverage shall be primary insurance as respects the Agency, its officers, officials, employees, and volunteers. Any insurance or self- insurance maintained by the Agency, its officers, officials, employees, or volunteers shall be excess of the District’s insurance and shall not contribute with it.
EXHIBIT B Clerk#! Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the Agency.
Waiver of Subrogation
District hereby grants to Agency a waiver of any right to subrogation which any insurer of said District may acquire against the Agency by virtue of the payment of any loss under such insurance.
District agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the Agency has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the Agency. The Agency may require the District to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the Agency.
Claims Made Policies
If any of the required policies provide claims-made coverage:
1. The Retroactive Date must be shown, and must be before the date of the contract or the beginning of contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the District must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.
Verification of Coverage
District shall furnish the Agency with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the Agency before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the District’s obligation to provide them. The Agency reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
Special Risks or Circumstances
Agency reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
(FOR USE BY _________________________________)
(FOR USE BY SAN DIEGO UNIFIED PORT DISTRICT)