084198\15478144v1
1 RECORDING REQUESTED BY
AND RETURN TO:
City of Fullerton
303 West Commonwealth Avenue
Fullerton, CA 92832
Attn: City Clerk
SPACE ABOVE THIS LINE FOR RECORDER’S USE
This Agreement is recorded at the request and for the
benefit of the City of Fullerton and is exempt from the payment of a recording fee pursuant to Government
Code §§ 6103 and 27383
WATER WELL EASEMENT AND COVENANT AGREEMENT
This Water Well Easement and Covenant Agreement ("Agreement") is entered into as of ________________ 2022, by and between GLC FULLERTON LLC ("GLC"), and the CITY OF FULLERTON ("City"). GLC and the City are referenced collectively as “Parties” below.
RECITALS
A. GLC is the fee owner of that certain real property located at 2001 E. Orangethorpe Avenue (Assessor Parcel Numbers 073-120-31 and - 33) in the City of Fullerton, County of Orange, State of California, more particularly described in Exhibit A & B (the “Property”).
B. A water well and re lated facilities (the “Current Water Facilities” ) are currently located on that certain portion of the Property id entified within th e “Proposed Water Easement Line” boundary on Exhibit C (the “ Water Well Easement Area ”). The Parties acknowledge that over time, ne w water facilities and related in frastructure a nd improvements may be installed, and the Cu rrent Water Facilities may be modified, expanded, repaired, maintained or otherwise changed, improved, or removed within the boundaries of the Water Well Easement Area (co llectively, the “Future Wa ter Facilities”), and that this easement also applies to allow these and all other uses of such Future Water Facilities, including any installation of other structur es, including water treatment facilities, and any related infrastructure within th e boundaries of the Water Well Ea sement Area (Collectively, the “Current Water Facilities” and the “Future Water Facilities” ar e referred to as the “Water Facilities”). The Parties ac knowledge and agree that the Future Water Facilities cannot adversely affect the Property or GLC’s no rmal business operations on the Property.
C. The Parties desire for the C ity and its designees to have access over, under, and through the Water Well Easement Area for any a nd all purposes, includin g, but not limited to the modification, expansion, repair, installation, maintenance, change, improvement, removal, use, operation, and replacement of the Water Facilities, including th e right to pump, transport and treat water from within th e Water Well Easement Area. 084198\15478144v1
2 D. By this Agreement, GLC wishes to grant to the City and its successors, agents and assigns, and the City wishes to accept, an eas ement over the Water Well Easement Area for operation and maintenance of the Water Facilities, including, but not limited to, the modification, expansion, repair, installation, ma intenance, change, improvement, removal, use, operation, and replacement of the Water Facilities, in accordance with the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mu tual promises and agreements set forth herein, the Parties hereto agree as follows:
AGREEMENT
1. GRANT OF EASEMENT; RESERVATION OF RIGHTS
1.1 Grant and Scope of Easement. GLC hereby grants to the City, and the City hereby accepts, a perpetual easement over, upon, and through the Water Well Easement Area for operation and maintenance or the Water Facilities, including, but not limited to, the modification, expansion, repair, installation, change, improvement, removal, use, operation, and replacement of the Water Facilities in the Water Well Easement Area (the “Easement”), including the right to pump water from the Water Facilities.
(a) GLC grants the City and its agents, successors, and assigns, an exclusive right to modify, expan d, repair, install, main tain, change, improve, re move, use, operate, and replace the Water Facilities within the Water Well Easement Area. (b) GLC grants the City and its agents, successors and assigns, an exclusive right to pump, take or otherwise extract and use water from any underground basin or underground strata lying beneath the surface of the Property, using the Water Facilities. (c) The City agrees to use the Ease ment in a good, clean, and safe condition, and only in a manner consistent wi th the terms and conditions set forth in this Agreement. The City shall, at its sole cost and expense, comply with all federal, state, local and municipal laws, statutes, regulations, and ordinances (“Applicable Laws”) as such Applicable Laws are hereafter amended, replaced, supplemented or superseded.
(d) The City shall not cause or permit any material, subs tance, pollutant, contaminant, chemical, or waste that is regula ted by any Applicable Law and is designated as hazardous, toxic, radioactive, carcinogenic, mutagenic, infectious or otherwise dangerous to health (“Hazardous Materials”) to be brought on, disposed of, generated, released, stored, transported, treated, used, or otherwise handled at, on, in, ar ound, under, or about the Water Well Easement Area except for those related to water production and/or treatment activity as necessary to extract Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) from the groundwater. The City shall use or store all Hazardous Materials in a safe and secure manner in compliance with all Applicable Laws and shall confine such Hazardous Materials to the Water Well Easement Area. (e) The City shall use commercially r easonable efforts to ensure that all stormwater generated within the Water Well Ease ment Area is captured and treated within the Water Well Easement Area, and GLC shall use commercially reasonable efforts to ensure that no water from the Property outside the Water Well Easement Ar ea flows onto the Water Well 084198\15478144v1
3 Easement Area. The City shall not cause or permit any stormwater from the Water Well Easement Area to be discharged outside of the Water Well Easement Ar ea except throug h a dedicated discharge structure directly into the public storm drain system. GLC acknowledges that GLC will deliver the Water Well Easement Area in rough-graded condition and in conformance with GLC’s approved grading plans. The City agrees to pr esent its Water Well Easement Area stormwater treatment and filtration plans (“ City’s Plans ”) to GLC for review and approval prior to commencement of the City’s construction activities within the Water Well Easement Area. The City’s Plans shall comply with all Applicable Laws.
1.2 Reservation of Rights.
(a) In those portions of th e Water Well Easement Ar ea labeled as the “GLC Access Area” on Exhibit C, GLC shall retain a non-exclusive right of access solely for construction and maintenance of GLC’s underground storm drain facilities subject to the requirements of subsection (b), below.
(b) In the case of an emergency, GLC shall have immediate access to the GLC Access Areas, which access may be obtained by contacting the City police department. Otherwise, GLC shall have access to the Water Well Easeme nt Area for construction and maintenance upon providing two business days advanced notice to the City. In no event may GLCs access rights under this subsection (b) adversely affect City’s operations. Nothing in this Agreement shall be interpreted as limiting City’s ability to use the GLC Access Areas in any way (including undergrounding facilities, or placing facilities on the surface, or overhead) except that City use of the GLC Access Areas may not mate rially and adversely interfer e with GLC’s use of the GLC Access Areas for underground storm drain purposes or materially and adve rsely interfere with GLC’s normal business operations.
2. COVENANTS RELATED TO EASEMENT
2.1 Insurance. The City shall obtain and mainta in at all times during the term of this Agreement either (a) a policy of insurance writte n by one or more respons ible private insurance carrier(s), including GLC as an additional insured, insuring against liability for injury to persons and/or property and death of any person or persons occurring in, on or about the Water Well Easement Area arising from the City’s negligent conduct on or use of the Water Well Easement Area; or (b) the city shall maintain self-insur ance for such activity. Th e liability limit under a private insurance policy or under self-insurance shall be not be less than 2,000,000 for the death or injury of one person, and $1,000,000 for property damage and automobile liability. Insurance provided by private insurance car rier(s) shall be issued by an insurer properly licensed and admitted to do the applicable class or classes of business in the State of California by the California Department of Insurance and by it s terms will not be cancelable without at leas t 30-days prior notice to the additionally insured party(ies), except for non-payment in which case the policy may be immediately cancelled and the carrier shall endeavor to provide notice of cancellation to GLC within 10 days of cancellation of insurance.
2.2 Indemnity Regarding the City’s Activities. The City shall indemnify, defend (with counsel reasonably acceptable to GLC), and hol d harmless GLC, GLC’s employees, officers, directors, partners, members, ma nagers, parent or affiliated co mpanies, subsidiaries, agents, 084198\15478144v1
4 successors, and assigns (collectively the “GLC Indemnified Parties”) from and against any and all claims, demands, suits, judgmen ts, actions, causes of action, da mages, losses, liens, fines, penalties, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees and court costs) to the extent caused by, arising out of or relate d to the use of the Water Well Easement Area or Water Facilities by the City or the City’s employees, officers, directors, members, managers, parent or affiliated companie s, subsidiaries, agents, successors, and assigns (collectively, “ Claims Against City ”), including without limitation any Claims Against City caused by, the use, transportation, storage, tr eatment, presence, or release of any Hazardous Materials into the air, soil, soil vapor, groundwater, and/or surface water at, on, around, in, or under the Water Well easement Area, except to the extent arising from the gross negligence or willful misconduct of the GLC Indemnified Parties.
2.3 Covenants Running with the Land. The C ity’s and GLC’s respective rights and obligations hereunder shall be enfo rceable as equitable servitudes and shall constitute covenants running with the land pursuant to California law. The respective rights and oblig ations of the Parties are a burden upon the Water Well Easement Area for the bene fit of the City and shall be binding upon GLC and each successive owner of all or a portion of the Water Well Easement Area during its ownership of such property. If GLC conveys, transfers or grants any right, title or interest in the Water Well Easement Area or any portion thereof to any third party, the instrument conveying such right, title or interest shall include the covenants described in this Agreement, and all successors to all or any portion of th e Water Well Easement Area will be bound by such covenants.
3. MISCELLANEOUS PROVISIONS
3.1 Entire Agreement. This Agreement consti tutes the entire ag reement between the Parties pertaining to the subject matter hereof , and supersedes all prior negotiations and discussions between them regarding such subject matter.
3.2 Construction; Choice of Law. This Agreement shall be construed as a whole and in accordance with its fair meaning, without regard to any presumption or rule of construction based on which party drafted the provisions hereof. The parties acknowledge that each has had a full and fair opportunity to review this Agreement and to have it reviewed by their own counsel. This Agreement and the Easement shall be governed by, and construed in accordance with, the laws of the State of California.
3.3 Modifications. This Agreement may be canceled, terminated, modified or amended only pursuant to a written document executed by the Parties, and recorded in the Official Records of Orange County.
3.4 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of wh ich shall constitute one agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the year and day set forth above.
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5 GLC FULLERTON LLC:
By: __________________________
Name: ________________________
Title:
________________________
CITY OF FULLERTON:
By: _____________________________
Name: ___________________________
Title: _____________________________
ATTEST:
Lucinda Williams, City Clerk
APPROVED AS TO FORM:
Richard D. Jones, City Attorney
Sean Matsler, Attorney for GLC Fullerton LLC
084198\15478144v1
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF 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 )
) ss.
COUNTY OF )
On ______________, 2022, 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 Public
084198\15478144v1
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF 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 )
) ss.
COUNTY OF )
On ______________, 2022, 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 Public
084198\15478144v1
EXHIBIT A & B
Legal Description of Property & Plat
084198\15478144v1
EXHIBIT C
Water Well Easement Area
10-11-2021
PREPARED FOR: GOODMAN LOGISTICS CENTER - FULLERTON
GOODMAN
FULLERTON, CA
WATER WELL EASEMENT AREA - EXHIBIT C
N
BLDG. #3
KIMBERLY AVE.
CL
LEGEND:
DETAIL A
SCALE 1"=10'