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HomeMy WebLinkAboutORANGE COUNTY FLOOD CONTROL DISTRICT 5 - 2010C3 MVA C3� � 4#8,�,V Jb�,lY�r �if���ranl ?U /U RYGHT'QF ENTRY Project Name: Santa Ana River 1t Street Bridge) Project Igo.: E01,950 :v • •.' .'y�.. *gym. P g i This light of Entry ("Right of Fatly" between Orange County Flood Control District, a body corporate and politic, hereinafter referred to as 11 Lice nsor")- and City of Santa Ana, a charter city and m tin UpaI corporatlon duly organized and existing under the Constitution and laws of the State f California, Its ffcer , agents, employees r representatives l ereinaf er rererred to as "Llcgn e " or "City"), is entered Into to grant City the right to eater, the real property ("'Property") described In the Easement Deed attached hereto as Exhibit A,, for the purpose of constructing or ImprovIng a public highway known as the I t Street Bridge and accornpll hing all necessary Incidents thereto, It Is understood that this permission to enter and construct is not a warier in any way W' the right of LIc nsor to compensatlon for City's future perpetual easement Interest over such Property for street and highway purposes or of any remedy authorized by iaw to secure payment therefore. Licensor acknowledges having been advised of its right to receive immediate compensation as a prerequisite W Licensee' entt� upon and possession of the Property and has waived that right, agreeing to be compenseited at a later date, City shall pay Interest to Uc nsor on the principal amount of compensation from the ninetieth (90th) day following ing the Effective ate - (as hereinafter defined) of this Right of Entry, through the date compensation is paid, pursuant to Code of Civil Procedure ("'UP") section 1268.310 and calculated according to CCP section 1268.350, Once co per satlon Is received by Llcen or, the easement will be granted to City substantially In the form of Exhibit A, attached hereto and Incorporated by reference. This permission Is granted In consideration of the location, Improvement and construction of such highway and incidents thereto, which it is understood Is required by Licensee, with the understanding and on the condition that City will hereafter promptly obtain an appraisal of the Property, and no later than sixty 0 days from the Effective Date of this Right of Entry begin negotiations with Licensor's Director of OC Public Works, s, or designee T1 recto r" ,•to agree upon terms of compensation to bo,pald by City for the perpetual easement interest described above. If Licensor does not accept the appraised value, and the parties fail to agree on the compensation value, Ity wlil commence eminent d r afn proceedings,, subject to City Council approval, If within once 1 year of the commencement of construction activity, Ucensee has not paid LI ensor compensation for the perpetual easement In an amount that has been agreed upon and accepted by Ucensor and Licensee has not filed an eminent dor aln actlon to acquire the perpetual easement from LIcensor, Licensee acknowledges that Licensor may pursue any and all available remedies to obtain compensation from Licensee,, Including but not 11mited to are action In inverse condemnation, In granting Licensee this right to eater and use the Property, and provided that City Council has approved the filing of eminent domain proceedings and adopted a resolution of necessity in cotpllance with the requirements of ccp section 1245,235, LIcensor agrees to the foli ring: 1 Licensor shall not object to the filing of an eminent domain proceeding to acquire an easement on the Propel; and In any eminent dornaln action filed - y City to acquire such easement, Licensor shall not challenge City's right to tale such Property, and the only Issue shall be the amount of just compensation for the Property. Licensee agrees to Indemnify and hold harmless Licensor from any llablllty arising out of Licensee's exercise of the rights granted by this Right of Entry, l.Icensee further agrees to repair. any damage to said Property caused by Licensee's. exerclse of the rights granted by this Fight of Entry at Its sole cost and expense and to restore said Pr p r ty, with the exception of the Improvements left thereon, as nearly as practicable to the state In which It existed prior to the use of the Property by Licensee , The rights herein granted to Licensee, are exclusive, and Licensee agrees not to assign, transfer, lease, pledge, or otherwise d#sp se of Its Right of Entry without the prior a pr ss d written approval of the undersigned) This Right of Entry shall expire upon completion of said construction work or upon City obtainin a perpequal e rent for street and highway purposes over said Property, whichever comes first, and in any event, no later than December 31, 2012, unless extended by written agreement between Director and Licensee, RIGHT of ENTRY . Page 2 of 2 Any notices, documents, correspondence and communications (collectively, "Notices" ) concerning this Right of Entry shall be addressed as set forth below, or as the Licensor or Licensee may hereafter designate by written note to the other party, and shall be seat through the United States rail with postage prepaid. Notices may also be provIded by personal delivery or by facsimile. To Licensor: Orange County Flood Control District e C Public tors, Real Estate Services 300 N, Flower Street, Sixth Floor Santa Anal CA 92703-S Attention: Property Management Supervisor Telephone: (714) 834 -4133 Facsimile: (714) 834 -2870 b1s. Right of Entry may be executed In counterparts, each of "Which when taken together shall constitute the one original, The "Effective " of this Right of Entry shall be the later date executed by Licensor or Licensee. Licensor and Licensee agree to all the terms as stated above, LICENSOR: ORANGE COUNTY FLOOD CONTROL* DISTRICT, a body corporate and politic By: Chair, Board of Supervisors Date Signed and certifier that a copy of this document has been delivered to the Chair of the Board per G.C, Sec. 25103, Res -1535 ATTEST: Darlene 3, Bloom, Cleric of the Board of Supervisors Orange County Flood Control District Orange County, Californla LICENSEE: CITY OF SANTA ANA, a charter city and municipal corporation duly organized and existing under the Constitution and laves of the of Ca n1a . By; av1d N, Roam, City Ma*na r Date PPROVE D AS TO FORM: JOSEPH W, FL TC E# City Attorney B Y aura Sheerly Assistant City Attorney Date Al Approved as to form: Office of the County Counsel ATTESIft Orange County, California ��dL : l D. HUI A p� t, Deputy Date K THE C Nd RECORDED AT THE REQUEST OF AND WHEN RECORDED MAIL TO. Clerk of the Council City of Santa Ana 20 Chic Center Pla a, M-30 Santa Ana, CA 92701 Lail Tax Statements as shorn above I THIS SPACE FOR RECORDER'S USE ONLY DOCUMENTARY TRANSFER TAX AP N: Computed on the consideration or value of property conveyed Exempt per Revenue & Taxation Code Sect ion 11922 Exempt rom Recording Fees per Govt. Code Section 27383 B: IGNATURE of DEC LARA FT OR AGENT DETE RNIM ING TAX FIRM MAIM L Unincorporated Area El Incorporated - City of Santa Aria Parcel Flo: EO 1. Project: Santa Ana River EASEMENT DEED For valuable consideration, receipt of which is hereby kn l d i, ORANGE COUNTY FLOOD CONTROL DISTRICT, body corporate and politic, hereinafter referred to as "DISTRICT," does hereby grant to CITY OF SANTA ANA., chatter city and inunieipal corporation, duly organized and existing under the Constitution and laws of the State of California, lier'e n E er referred to as "GRANTEE," its, successor and assigns, non-exclusive easement for street and Jiighway purposes in, on, over, Ripon and across that eeilain real property berei nafter referred to as "Fasein e n t Area") described in " + hib it A," and til tstrat d in "Exh ibit ," which exhibits are attaeli d hereto and made a part hereof DISTRICT and GRANTEE, may Sometimes herein f er be individually referred to as "Pat-t " orjointl r as "Parts ". GRANTEE'S 'S r fights shall include rights to construct, repair, maintain and use surface improvements ements consisting of roadways, s, curbs, gutters, sidewalks, and landscaping "Facilities ") and shall include reasonable access to the Easement Area for the purpose ofe ereising the rights herein grunted. It is understood and agreed by the Parties hereto and their successor and assigns that said easement and right of way herein granted in this easement deed ("Easement Deed") shall be subject to the following terms, conditions, and reservations. Exhibit Strectll- lighway Fa meat - OCFCD to City of Santa Ana 1 08104/10 I. CONSTRUCTION AND MAINTENANCE PMES , S GRANTEE shall have all construction and/or maintenance plans approved in writing by DISTRICT'S Director OC Public Works, or designee, (hereinafter referred to as "Dii•ecto " prior to commencement of ally work in, on or about the Easement Area; and upon completion of any such work, GRANTEE shall itirimediately notify Director in writing of such completion. Director's approval of GRANTEPS construction and/or maintenance plans shall not be deemed approval from the standpoint of structural safety, suitability for purpose or con orr anee with building or other codes or other governmental ental requirements. DISTRICT is not responsible for perinitting of any construction and/or maintenance, design, assumptions or accuracy of GRANTEE'S construction and/or maintenance plans. Director will rely on the professional expedise of the Engineer of Record when approving GRANTEES construction and/or maintenance plans. GRANTEE hereby acknowledges that the Easement Area lies within in a portion of a flood control facility, commonly referred to as the Santa Aria Rivera Channel (hereinafter "the Channel"). GRANTEE shall perform all constrt- Lrction and/or maintenance in such a inann r that will allow for unobstructed flood control operations and maintenance of the Channel by DISTRICT. Should it be necessary for GRANTEE to conduct any construction oil excavation activities or otherwise disturb the surface of the Easement Area subsequent to the completion of the initial installation of GRANTEE'S Facilities, GRANTEE agrees to notify Director in Writing sixty days in advance of such planned activities, obtain Director's written approval of all plans, and obtain a permit for construction from the County of Orange ("County"" with payment of nori gal processing fees prior to commencement ent f any such activities. Said approval shall not be withheld unreasonably, nor, shall said approval be necessary in any emergeny situation or in conducting routine maintenance activities which do not involve disturbance of the surface area. Except in designated environmentally sensitive areas, GRANTEE shall have the right to cart such roots as may endanger or interfere with GRANTEE'S Facilities provided, however, er, that any excavation shall be made in such a manner as will cause the least injury to the surface of the ground and any improvements and/or landscaping around such excavation, and that the earth so removed shall be replaced and the surface of the ground and any improvements ents and or landscaping around such excavation, damaged shall be promptly restored by GRANTEE at its expense to the same condition as existed prior to excavation, to Director's satisfaction. GRANTEE shall, at no cost to DISTRICT, maintain in good repair and in safe condition all Facilities constructed, used on placed upon the Easement Area by or on behalf of GRANTEE pursua"t to this Easement Deed. REMOVAL AND /off. ABANDONMENT PMES i 1 S GRANTEE agrees that in the event a GRANTEE'S Facilities are no longer required, orb GRANTEE'S use of said Facilities ceases for a continuous period of more than one 1 year without Britten notice from GRANTEE to DISTRICT of the circumstances affecting such suspension and of GRANTEE'S intention to resumer age of the facilities, GRANTEE shall, at Director's request and at no cost to DISTRICT, remove and/or abandon said Facilities within ninety days after receipt of written notice from Director to remove and/or abandon. Following such removal and/or abandonment, GRANTEE shall, at no cost to DISTRICT, restore the Easement Area to the condition that existed prior to the granting of this Easement Deed, to Director's satisfaction. stree W, Ii hway Easement - OCFC D to City ofSanta Ana 2 08104/10 GRANTEE shall also execute and deliver to Director, within ninety o days of such removal and/or abandonment, for recordation in the Official Records of Orange County, California, aQUitclaim Deed sufficient to remove the encumbrance of this Easement Deed froni title. 3, RELOCATION (PMES4. IS) GRANTEE agrees that in the event GRANTEE'S Facilities shall at any time interfere with the operation, maintenance, replacement, or improvement of DISTRICI'S property as determined d by Director, GRANTEE shall, Within ninety days of receipt of written notice from I irector, relocate at GRANTEE'S expense GRANTEE'S Facilities to a site designated by Director, All other terms and conditions of this Easement Deed shall remain the sane. COMPLIANCE WITH APPLICABLE WATER QUALITY REQUIREMENTS PMES .2S GRANTEE shall ensure that all construction in the Easenient Area is performed in accordance with any NPI ES permit requirements or other pater quality statutes, regulations, ordinances, or permits, applicable to the construction, including but not limited to use of appropriate best management ent practices, so as to ensure that pollutants are not discharged into the Channel nor into DISTRICT'S flood control system. 5. HOLD HARMLESS (PMES7.2S) GRANTEE hereby releases and waives all claims and recourse against DISTRICT, and County including the eight of contribution for loss of r damage to property, or injury to or death of any person arising from, growing out of or to any gay connected with or related to this Easement Deed except claims arising from the concurrent active or sole negligence of DISTRICT and/or County, their officers, agents, employees and contractors. GRANTEE hereby agrees to indemnify, defend % ith counsel approved in Writing by DISTRICT), and hold harmless, DISTRICT and County, their elected and appointed officials,,, officers, agents, employees and contractors against any and all claims, losses, demands, damages, cost, expenses or liability for inj6ury to any persons or property, arising out of the maintenance, use of or operations or activities conducted i115 on, or over the Easement Area, and/or GRANTEE'S exercise of the rights under this Easement Teed, except for liability arising out of the concurrent active or sole negligence of DISTRICT, and/or County, their elected and appointed officials, officers, agents, employees or contractors including the cost of defense of ally lawsuit arising therefrom. If DISTRICT and/or County is /are named as co- defendants) in a lawsuit, GRANTEE shall notify Director of such fact and shall represent DISTRICT County in such legal action unless DISTRICT County undertake(s) to represent itself /themselves as co- defendants) in such legal action, in Which evert, GRANTEE shall pay to DISTRICT /County its /their litigation costs, expenses, and attorneys' fees. ffjudgment is entered against DISTRICT/County and GRANTEE by a court of competent jurisdiction because of the concurrent active negligence of DISTRICT/County and GRANTEE, DISTRICT and GRANTEE agree, that liability will be apportioned as determined by the court, Neither party shall request ,fury appoi-tionnient. GRANTEE acknowledges ledges that it is familiar with the language and provisions of California Civil Code Section 1 542 Which provides as follows: genet-al release does not extend to claims which the credi oi- does not I moue or* suspect to exist in his oi# her -fav i- at the time ofexecuting the i- l ease, iv i h, iftno wn by hint oi- he , inust have inaterial1j, affected his or hei• settlement with the debtor. GRANTEE, being aware of and understanding the terms of Section 1 542, hereby waives all benefit of its provisions to the extent described in this section. tree V1 - lighway Eas e m en t - OC F CD to Ci t t of S a n I a An a 3 08!04/10 6, GRANTEE'S LIABILITY FOR HAZARDOUS OR TOXIC MATERIALS (PMES8.2S) GRANTEE shall not cause or permit any "Hazardous Material," as hereinafter defined, to be brought upon, kept, or used in or about the Easement Area. 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 DISTRICT for damage resulting therefrom, then GRANTEE shall indemnify, defend with counsel approved in writing by DISTRICT, and hold harmless, ] ISTRICT and/or County, and their; elected or appointed officials, officers, agents, and employees from any and all claims, judgments, damages, penalties, fines, costs, liabilities, or losses (including, without limitation, diminution in value of the Easement Area, sums paid in settlement of claims, attorney fees, consultant fees, and expert witness fees) which arise during or after GRANTEE'S use of the Easement Area as result of such contamination. This indemnification includes, without limitation, costs incurred by DISTRICT in connection with any investigation of site conditions or any ereanu , remedial, removal, or restoration work required by any federal, state, or local governmental entity or agency because of Hazardous Material being present in the soil or ground water under the Easement Area. GRANTEE shall promptly take all action, at its sole cost and expense, as is necessary to clean, remove, and restore the Easement Area to its condition prior to the introduction of such Hazardous Material by GRANTEE, provided GRANTEE shall first have obtained Director's written approval and the approval of any necessary governmental entities or agencies for any such remedial action. As used herein, the term "Hazardous Material" ine ns any hazardous or toxic substance, material, or Nva to which is or shall become regulated by any governmental entity oil agency, including, Without limitation, the County, the state of California, or the United States government. 7, RESERVATIONS PMES .1 S DISTRICT hereby reserves for itself and its successors and assigns, such surface, subsurface and aerial rights in the Easement Area as will not unreasonably interfere with or prohibit the use by GRANTEE of the rights and casement herein granted. In the event DISTRICT exercises such rights to uti lize the Easement Area which u se res u Its in the disturbance of the Easement At-ca. DISTRICT'S only responsibility shall be to back fill with compacted earth to the grade of the surrounding property following completion of ISTRICT'S activity. GRANTEE shall restore GRANTEE'S Facilities to the design and grade approved as provided for in Section 1 above. 81 C ONVEYANCE SUBJECT To EXISTING INTERE STS PM S10.lS This Easement Deed is subject to existing contracts, leases, licenses, casements, encumbrances, and cl aims which may affect the Easement Area, and the use of the word "grant"' herein shall not be construed as a covenant against the existence of any thereof. Nothing contained herein, oil 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 DISTRICT, or any representation or warranty, either express or implied, relating to the nature or condition of the Easement Area or DISTRICT'S interest therein. 9. TAXES AND ASSESSMENTS PMES 11.1 S 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 possessor' 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, sure tffli hwa Easement - OCFCD to City of Santa Aria 4 08104110 shall be the firll responsibility of GRANTEE, and GRANTEE h it cause said taxes and assessments to be paid promptly when due. 10. NOTICES (PMES 12.1 S) All notices, documents, correspondence and communications concerning this Easement feed shall be addressed as set forth in this Section, or as the Panties 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 2 hours after mailing. Each Party may change the address for notices by giving the other party at least ten 1 calendar days' prior Britten 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 facsimile and so given shall be deemed to have been given upon receipt if provided by personal delivery; or if by facsimile on the day transmitted provided transmitted by 4:30 P.M. PT on the receiving Party's regular business day, otherwise delivery shall be deemed to have been given on the next business day. To DISTRICT: ICT: Orange County Flood Control District c/o OC Public Works/Real Estate Set -vices P.O. Box 4048 Santa Ana, CA 92702 -4048 (300 N. Flower Street, Santa Ana 92703) Facsimile: 714/83 -2870 11. v (PME 13. IS) To GRANTEE: City of Santa Ana Attention Deputy City Engineer Public Works Agency P.O. Box 1988 (20 Civic Center Plaza) Santa Ana, CA 92702 Facsimile: The Parties hereto agree that this Easement feed has been negotiated and executed in the Mate of California and shall be governed by and construed under the lays of California. In the event of ny 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 it to the jurisdiction of such court, notwithstand i ng Code of Civic Proced ure Section 394, Fui lierniore, the Parties hereto specifically agree to naive any and all rights to request that an action be transferred for trial to another county. WAIVER of RIGHTS PMES1 . l S The failure of DISTRICT to insist upon strict performance of n of the terms, covenants, or conditions of this Easement ]deed shall not be deemed a waiver of any right or remedy that DISTRICT may have, and shall not be deemed a Waiver of the right to require strict pe rformance of all the terms, covenants, and conditions of the Easement Teed thereafter, nor a Waiver of any remedy for the subsequent breach or default of any term, covenant, or condition of the Easement Deed. 13. SEVERABILITY (PMES 15,1 S) 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 rem a inder of the provisions hereof sha 11 remain in fu It force and effect and shall in no gay be affected, impaired or invalidated thereby. I reet/H igh way Fa s e meat - OC FCD to Cite of Santa A n a 5 08104/10 ATTORNEYS' FEES (PM ES 16. 1 S 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 Patty shall bear its own attorneys' fees and costs. 15, SUCCESSORS AND ASSIGNS (PMES 18.1 S) The terms, covenants, and conditions contained herein shall apply to and bind the heirs, successors, executors, administrators and assigns. of the Parties hereto. 16. AUTHORITY (PMES20. I S) The Patties to this Easement Deed represent and warrant that this Easement Teed 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 DISTRIC'T` Office of the County Counsel ORANGE COUNTY FLOOD CONTROL DISTRICT Orange County, California y: y; Deputy Clair, Board of Supervisors Orange County, California Date: Signed and certified that a copy of this document has been delivered to the Clair of the Board per G.C. See. 25103, Ieo 79-1535 ATTEST; Darlene J. Bloom Clerk of the Board of Supervisors Orange County Flood Control District Orange County, California Approved as to Porn: Joseph W. Fletcher City Attorney GRAN'T'EE City of Santa Ana a charter city and municipal corporation, duly organized and existing under the Constitution and lays of the Mate of California By: ,dose Sandoval Chief Assistant City Attorney y; David N. Ream, City Manager Sued ighwa r Easement - OCFCD to City of Santa Aria 6 08104110 ACKNOWLEDGMENT STATE OF CALIFORNIA COUN'T'Y OF ORANGE On - - 20 before ire, , personally appeared who proved to me on the basis of satisfactory evidence to the er n whose nie (s) is/are subscribed to the within instrument and acknowledged to ine that he/she/they executed the same its hls/ber /their authorized ca acity ics , and that by lies her their signature (s) are the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. certify under PENALTY OF PERJTJRY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal, Signature (Seal) Document: Easement Deed Grantor/Grantee: OC Flood Control Distri t ]t' of Santa Ana CERTIFICATE TFICAT ACCEPTANCE This is to certify that the interest its the real property conveyed by the Easement Deed dated 2 , from Orange Comity Flood Control District, a body corporate and politic, to the City of Santa Ana, a charter city and municipal corporation duly organized under the Constitution and laws of the Mate of California, is hereby accepted by the undersigned officer or agent on behalf of the City Council pursuant to authority conferred by Ordinance No. NS -2352 and Section No. 33-55 of the Santa Ana Municipal Code adopted by the City Council on June 1, 1 998, in c inplian a with California Government Code Section 27281 and the Grantee consents to the recordation thereof by its duly authorized fflicer. For the City of Santa An M Date Docume nt: Easement Deed Grantor /Grantee: OC Flood Control District/City of Santa Ana David N. Rey, City Manager CALIFORNIA ALL - PURPOSE ACKNOWLEDGEMENT State of California County of orange SS City of Santa Ana On this 18th day of Au ust 2010, before me, Maria R. Huizar , Notary Public, personally appeared David N. Ream rho proved to rye on the basis of satisfactory evidence to be the r dh / persons �rhose a /na e9A8/are -. subscribed to the within instrument and acknowledged to rye tha ter s6efthey executed the sane in bt Vher/their authorized t ci ; capacities and that by g qt ur-6/signatures ors the instrument t __6__ sbp':r /persons# or the entity upon behalf of which the � � /persons acted, executed instrument. l certif y under PE NA of PE F l Y under the laws of the State of California that the foregoing is true and correct. Witness my hand and official seal. NOTARY SEAL Coffin N 1Tii�f1 Notpry rubMc • CgINotMa � oranc. comfy Myoomtw�Jan�'l.�41Z CAPACITY CLAIMED BY SIGNER: ❑ Individual(s) ❑, Corporate Officers = Title(s) Partner(s) ❑ General Partner of a Limited ❑ Partnership ❑ Attorney-in-Fact ❑ Trustee (s) El Subscribing Witness ❑ Guardian /Conservator ❑ Other.- Witness ray hand and official seal. N Signature of Notary SIGNED IS REPRESENTING: NTING: THIS CERTIFICATE MUST BE ATTACHED To THE DOCUMENT DESCRIBED To THE BELOW: TITLE OR TYPE of DOCUMENT: �� .� .... �" ..... NUMBER of PAGES: DATE of DOCUMENT: SIGNER S OTHER THAN NAMED ABOVE: