HomeMy WebLinkAbout16 APPROVE GRANT OF EASEMENT TO OCFD• Agenda Item 16
REPORT
AGENDA Reviewed:
City Manager —Le
0Finance Director N/A
MEETING DATE: JUNE 7, 2011
TO: WILLIAM A. HUSTON, INTERIM CITY MANAGER
FROM: DOUGLAS S. STACK, DIRECTOR OF PUBLIC WORKS/CITY ENGINEER
SUBJECT: APPROVE GRANT OF EASEMENT TO ORANGE COUNTY FLOOD CONTROL
DISTRICT FOR PETERS CANYON CHANNEL IMPROVEMENTS
SUMMARY
Authorization is requested for the City to grant a non-exclusive easement to the Orange County Flood
Control District (OCFCD) on Lot BQ of Tract Map 16582, for construction of transition facilities for the
Peters Canyon Channel and the future regional bikeway trail within the City of Irvine. Lot BQ is on the
east side of Peters Canyon Channel just north of Warner Avenue adjacent to the Columbus Grove
development.
RECOMMENDATION
It is recommended that the City Council approve the Grant of Easement for Flood Control (F06-304) for
improvements to the Peters Canyon Channel, subject to any minor modifications to the easement
document that may be necessary, as may be reviewed and required by the City Attorney and the City's
special legal real estate counsel, and; authorize the City Manager or Assistant City Manager to execute
the Grant of Easement for Flood Control (F06-304).
FISCAL IMPACT
There is no fiscal impact to the City with this action
DISCUSSION
Plans for the Peters Canyon Channel Improvements in the City of Irvine have been approved, permits
have been issued, and the project is ready to be constructed. The improvements include construction of a
transition area for the channel and the future regional bikeway trail just north of the Irvine city limits on Lot
BQ of Tract Map 16582.
As a condition of approval of Tract Map 16582, Columbus Grove -Tustin, the Developer, Marble Mountain
Partners, LLC, reserved Lot BQ for future dedication to the City of Tustin for flood control purposes. The
Developer has recently dedicated Lot BQ to the City of Tustin and the City is now ready to grant an
easement to OCFCD for the improvements.
A copy of the proposed easement is attached and the City Attorney's Office and City's special real estate
counsel have reviewed the easement documents as to form.
T �
Dou6lalr& Stack, P.E. Christine A. Shingleto
Director of Public Works/City Engineer Assistant City Manager
Attachment: Grant of Easement for Flood Control (F06-304)
JAMBOREE•\.
PROJECT
LOCATION
�"
I OC PUBLIC WORKS I LOCATION MAP
RIGHT - OF -WAY ENGINEERING
PROJECT : PETERS CANYONPROJECT : PETERS CANYON CHANNELISCA�E : N.T.SIID #2008-036: N.T.SIID #2008-036
Recording Requested by and
When recorded, mail to:
Assistant City Manager and Public Works Director
City of Tustin
300 Centennial Way
Tustin, CA 92780
With a copy to:
OC Public Works
Right of Way Engineering
P.O. Box 4048
Santa Ana, CA 92702-4048
Space above this line for recorder's use
Free Recording Requested G.C. §§ 6103 & 27383
No Documentary Transfer Tax pursuant to Rev. & Tax. Code § 11922
GRANT OF EASEMENT FOR
FLOOD CONTROL
(F06-304)
THIS GRANT OF EASEMENT FOR FLOOD CONTROL ("Easement") is made the
day of , 2011, by and between the City of Tustin, California, a municipal corporation
(hereinafter referred to as "Grantor"), and Orange County Flood Control District (hereinafter
referred to as "Grantee"). Grantor and Grantee shall sometimes hereinafter be referred to
individually as "Party" and collectively as "Parties."
RECITALS
A. Grantor presently holds legal title to the real property situated in the City of Tustin,
County of Orange, State of California, as described in Exhibit "A" and depicted on Exhibit "B",
attached hereto and incorporated herein by reference (the "Easement Area").
B. The Easement Area is subject to that Corrective Deed for Lot BQ of Tract No. 16582,
entered into by and between the City of Tustin and Moffett Meadows Partners, LLC, a Delaware
limited liability company, recorded and all covenants and restrictions contained therein.
C. Grantee desires to obtain from Grantor a non-exclusive easement and right-of-way for
any and all lawful purposes of the Orange County Flood Control Act (Uncodified Act set forth in
4838-9375-8729.2
Chapter 36 of the Appendix of the California Water Code), in, over, under, upon and across the
Easement Area.
D. Grantor is willing to grant to Grantee the Easement, subject to the terms and
conditions below.
FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged, the Grantor,
hereby grants to the Grantee, its successors and assigns, at no cost to Grantee, subject to the terms
and conditions below, non-exclusive easement and right-of-way for any and all lawful purposes of
the Orange County Flood Control Act (Uncodified Act set forth in Chapter 36 of the Appendix of
the California Water Code), in, over, under, upon and across the "Easement Area".
TERMS AND CONDITIONS GOVERNING GRANT OF EASEMENT
1. Non -Exclusive Easement Purposes
The Property shall be accepted and used by Grantee solely for the construction, operation,
maintenance, rehabilitation and environmental enhancement purposes and improvement of a
flood control channel, drainage improvements and related facilities and other incidental purposes
authorized by the Orange County Flood Control Act, including non-commercial recreation uses.
To implement Grantee's use and development of the Easement Area, Tustin Vista Partners, a
developer ("Developer"), has submitted improvement plans for the construction of permanent
improvements ("Developer Improvements") within the Easement Area to Grantor, and Grantor
and Grantee have approved said Plans ("Developer Plans"). The parties anticipate that Developer
shall build the Developer Improvements. In the event that Grantee desires to construct any future
additional permanent improvements other than Developer Improvements within the Easement
Area, Grantee shall first obtain Grantor's consent to such improvements in accordance with the
requirements of Public Contract Code, Section 21020.9.
Notwithstanding anything to the contrary in this Grant of Easement, Grantor reserves a portion
of the Easement Area depicted on the approved Developer Plans and as depicted on Exhibit "B",
attached hereto, for bikeway and access purposes.
2. Grantee Routine Maintenance Activity Emergency Work and Storage.
Grantee shall have the right to perform routine maintenance or emergency work within the
Easement Area without the prior consent from Grantor. Any maintenance work taking more than
thirty (30) days shall require the prior written consent of Grantor. After Developer
Improvements have been completed, storage of equipment and materials more than thirty (30)
days in duration by Grantee shall require prior written consent of Grantor.
3. Improvements
Grantor does not anticipate constructing any improvements within the Easement Area. In the
event that Grantor desires to construct improvements, Grantor shall submit improvement plans to
Grantee for its review and approval through Grantee's encroachment permit process.
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4838-9375-8729.3
4. Status of Grantee Improvements
All Grantee and Developer improvements within the Easement Area shall be operated and
maintained at no cost to Grantor. Grantee shall maintain the improvements in a good state of
repair and working order.
5. Grantor Access
Grantor shall have the right to access or grant a permit to others to access, at its sole authority
and discretion, the Easement Area to inspect and/or perform maintenance to any municipal
infrastructure located within or adjoining the Easement Area. Except in an emergency, Grantor
covenants and agrees to provide Grantee with thirty (30) days prior written notice of the request
to enter the Easement Area, which notice shall contain reasonable information regarding the
work to be performed and the anticipated duration of the entry. Grantor agrees to cooperate and
coordinate with Grantee to facilitate any entry on or within the Easement Area. Except in an
emergency, Grantor agrees to comply with any reasonable requests of Grantee in connection
with any entry within the Easement Area and to not unreasonably interfere with Grantee's use
therein.
6. Notices
All notices, consents, requests and other communication required or permitted to be given by
either Party pursuant to this Grant of Easement, or any law applicable hereto, shall be deemed
conclusively to have been given (a) when personally hand delivered to the other Party; (b) three
(3) business days after such notice has been sent by United States Mail, postage prepaid,
addressed to the other Party as set forth below, or (c) on the business day when received by
recipient Party when sent by facsimile transmission at the number set forth below and as
evidenced by a printed confirmation of successful transmission. Any notice given by facsimile
shall be deemed received on the next business day if such notice is received after 1:00 p.m.
(Pacific Standard Time) or on a non -business day. Each Party may change the address for
notices by giving the other Party at least ten (10) calendar days' prior written notice of the new
address. Unless otherwise provided in writing, all notices hereunder shall be addressed as
follows:
TO: Grantor
Director of Public Works
City of Tustin
Re: Parcel No. 304
300 Centennial Way
Tustin, CA 92780
Tel: (714) 573-3150
Fax: (714) 734-8991
4838-9375-8729.3
TO: Grantee
Orange County Public Works
Attention: Director
Re: Peters Canyon Channel,
Parcel No. 304
300 N. Flower St
Santa Ana, CA 92703
Fax: (714) 834-5188
7. Grantor Emergency Access
In the event of an emergency situation, as determined by Grantor, in its sole discretion, and in the
reasonable exercise of the duty of Grantor to protect the public health, safety and welfare,
Grantor shall have the right to immediately enter the Easement Area. In such event, Grantor
shall have the right to perform any work on any municipal infrastructure either within or
adjoining the Easement Area. If Grantor enters the Easement Area pursuant to this section,
Grantor shall provide notice to Grantee as soon as possible and as reasonable under the
circumstances. In connection with any entry within the Easement Area pursuant to this section,
Grantor covenants and agrees to promptly restore the Easement Area to substantially the same
condition as existing prior to the entry.
8. Grantor's Indemnity Obligations
To the extent permitted by law, Grantor agrees that it shall indemnify, defend with counsel
approved in writing by Grantee, release and hold harmless Grantee, the County of Orange, their
elected and appointed officials, officers, employees agents and contractors (hereinafter "Grantee
Indemnitees") from any and all claims, losses, or liability, arising from alleged injury or damage
to persons or property arising out of (a) breach of the terms and conditions of this Grant of
Easement by Grantor, (b) the willful misconduct or negligent acts or omissions of Grantor in
connection with this Grant of Easement, (c) the material or other things used or employed in
performing work, (d) injury to or death of any person or persons (either workman, employees of
Grantor or its contractors, subcontractors or the public) or damage to adjacent or other property
caused by the performance of work being performed to construct Grantor improvements on
Easement Area or (e) injury to or death of any person or persons (either workman, employees of
Grantor or its contractors, subcontractors or the general public using Grantor improvements) or
damage to property arising from Grantor's use of Grantor improvements on the Easement Area.
Nothing contained in this paragraph shall operate to relieve Grantee and/or the Grantee
Indemnitees from any loss, injury, liability, damages, claims, costs or expenses to the extent
determined by a court of competent jurisdiction to have been proximately caused by the willful
misconduct or negligent acts or omissions of Grantee and/or the Grantee Indemnitees or any of
them.
9. Grantee's Indemnity Obligations
Grantee agrees that it shall indemnify, defend with counsel approved in writing by Grantor,
release and hold harmless Grantor, their elected and appointed officials, officers, employees
agents and contractors (hereinafter "Grantor Indemnitees") from any and all claims, losses, or
liability, arising from alleged injury or damage to persons or property arising out of (a) breach of
the terms and conditions of this Grant of Easement by Grantee, (b) the willful misconduct or
negligent acts or omissions of Grantee in connection with this Grant of Easement, (c) the
material or other things used or employed in performing work, (d) injury to or death of any
person or persons (either workman, employees of Grantee or its contractors, subcontractors or
the public) or damage to adjacent or other property caused by the performance of work being
performed to construct Grantee or Developer improvements on Easement Area or (e) injury to or
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4838-9375-8729.3
death of any person or persons (either workman, employees of Grantee or its contractors,
subcontractors or the general public using Grantee or Developer improvements) or damage to
property arising from Grantee's use of Grantee or Developer improvements on Easement Area.
Nothing contained in this paragraph shall operate to relieve Grantor and/or the Grantor
Indemnitees from any loss, injury, liability, damages, claims, costs or expenses to the extent
determined by a court of competent jurisdiction to have been proximately caused by the willful
misconduct or negligent acts or omissions of Grantor and/or the Grantor Indemnitees or any of
them.
10. Environmental
Nothing in this Easement is intended nor shall anything in this Easement be construed to transfer
to Grantee or its successors or assigns or to relieve Grantor or its successors or assigns or
predecessors in title of any responsibility or liability Grantor or its successors or assigns or
predecessors in title now has, has had or comes to have with respect to human health or the
environment, including but not limited to responsibility or liability relating to hazardous or toxic
substances or materials (as such terms as those used in this sentence are defined by statute,
ordinance, case law, governmental regulation or other provision of the law). Furthermore,
Grantee may exercise its right under law to bring action, if necessary, to recover clean up costs
and penalties paid, if any, from Grantor or any others who are ultimately determined by a court
of competent jurisdiction and/or a federal, state or local regulatory or administrative
governmental agency or body having jurisdiction, to have responsibility for said hazardous or
toxic substances or materials upon, within, or under the real property interests transferred
pursuant to this Easement. Notwithstanding the foregoing, Grantee shall be and remain liable for
any hazardous or toxic substances or materials which become located, because of Grantee's
operations, upon, within, or under the real property interests transferred pursuant to this
Easement.
11. Termination
This Grant of Easement shall terminate upon the earlier to occur of the following: (a) there is a
change in use of the Easement Area by Grantee for other than specifically granted herein; or (b)
Grantee abandons the easement hereby granted. Nothing contained herein will result in a
forfeiture or reversion of Grantor's title.
12. Successors in Interest
All obligations and covenants made under this Grant of Easement shall bind and inure to the
benefit of any successors or assigns of the respective parties.
<signature page follows>
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4838-9375-8729.4
GRANTOR:
CITY OF TUSTIN
City Manager or Assistant City Manager
APPROVED AS TO FORM:
Douglas C. Holland, City Attorney
ATTEST:
Pamela Stoker, City Clerk
6
4838-9375-8729.4
Exhibit A
Legal Description
Property or Easement Area
Lot "BQ" of Tract No. 16582, in the City of Tustin, County of Orange, State of
California, as shown on a map filed in Book 874, Pages 1 through 30, inclusive of
Miscellaneous Maps, in the Office of the County Recorder of Said County.
Exhibit B
Depiction of Property or Easement Area
(Attached 3 pages)
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STATE OF CALIFORNIA
COUNTY OF ORANGE
On , before me, , a 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 declare 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.
Notary Public
7
4838-9375-8729.3
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by the City of Tustin and within the
Grant of Easement for Flood Control (F06-304) to the Orange County Flood Control District, a body
corporate and politic, is hereby accepted by order of the Board of Supervisors of the County of
Orange, California, acting as the governing board of the Orange County Flood Control District, and
the Orange County Flood Control District consents to recordation thereof by its duly authorized
officer.
Dated:
APPROVED AS TO FORM
County Counsel
IM
Deputy
Date:
ORANGE COUNTY FLOOD CONTROL DISTRICT,
a body corporate and politic
Chair of the Board of Supervisors
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUMENT HAS BEEN DELIVERED
TO THE CHAIR OF THE BOARD PER
G.C. SEC. 25103, RESO 79-1535
ATTEST:
8
4838-9375-8729.3
Darlene J. Bloom
Clerk of the Board of Supervisors
Orange County Flood Control District,
Orange County, California