Loading...
HomeMy WebLinkAboutCC 3 ORCHARD OPER'TN 10-19-88TO: WilliamA. Huston, City Manager Administrative Services Department FROM: Orchard Operation and Maintenance Easement Agreement Regarding SUBJEGT: Community Park in Tract 12S?0 RECOMMENDATION That the City Council authorize the City Manager to execute the attached agreement, allowing The Irvine Company to continue orchard operations on a community park and granting a maintenance easement for same. BACKGROUND As'Council is aware, a community park has been dedicated to the City pursuant to the conditions of Tract Map 12870. This particular community park may not be developed for quite some time; currently a fifteen million dollar shortfall exists in park development monies. Since it is in the best interest of all parties to maintain the aesthetics of this parcel, the attached agreement was negotiated with The Irvine Company. The parcel is a small hill, and it is more visible from a greater distance than flat parcels; therefore, it is to everyone's advantage to keep the park green while waiting for funds to develop same. Staff is recommending that the City allow The Irvine Company to continue its orchard operations on the park until such time as City is ready to commence development of the park. This agreement meets the needs of both parties, in that The Irvine Company can continue its agricultural operations, while the City has the benefit of keeping the area covered with trees and therefore green. In addition, the City may want to include all or part of the orchard in the ultimate park design. Tract 12870 Page Two The. agreement basically is an easement, in which the City allows the' Company to operate and maintain the grapefruit orchard. When the City is ready to develop the park, there is a provision that the City may take possession with adequate notice to the Company. Since the current irrigation is agricultural and may be terminated as'the development commences northward, City may provide water to the Company. In that case, the Company will reimburse the City for the cost of said water. This agreement meets the needs of both parties, while keeping a community amenity attractive and green in the interim between dedication and development. Staff recommends approval. Royl e~A. White, Director Community and Administrative Services RAW: jg Attachment: Proposed Agreement Recording requested by and when recorded return to: Ci'ty of Tustin 300 Centennial Way Tustin, California Attn: Director of Community Development (Space above for Recorder's use) ORCHARD OPERATION AND MAINTENANCE EASEMENT AGREEMENT This ORCHARD OPERATION AND MAINTENANCE EASEMENT AGREEMENT (the "Agreement") is made as of , 1988, by and between the CITY OF TUSTIN, California, a municipal corporation ("Grantor") and THE IRVINE COMPANY, a Michigan corporation ( "Grantee"). RECITALS A. Grantee has dedicated to the Grantor the real property described on Exhibit "A" and depicted on Exhibit "B" (the "Property") for future use as a community park. B. There currently exists on the Property approximately eight acres of grapefruit orchard (the "Orchard") which has been farmed by Grantee over a period of years. C. Grantee and the Grantor both desire to have the Orchard maintained and cultivated until the Property is opened to the public for park purposes. AGREEMENT For valuable consideration the parties agree as follows: 1. Grant of Easement. (a) Easement. Grantor grants to Grantee a nonexclusive, nontransferable easement in gross ("Easement") on, over, under, across and along that portion of the Property described on Exhibit "C" and delineated'on Exhibit "D" (the "Easement Area") for the purposes of operating and maintaining the Orchard and the necessary access, ingress and egress incident thereto. Such uses shall include the right of Grantee to retain all revenues generated by the Orchard harvest. (b) Use by Grantee. The Easement granted to Grantee shall be specifically limited to use by Grantee and its invitees, employees and agents, and the Easement Area shall not 092388 -1- 188806-10 be open for use b.y the general public nor shall Grantee encourage or allow use of the Easement Area by the general public. 2. Term. The term of the Easement and this Agreement shall be fr.om the date of recordation of this Agreement to and until it is terminated by mutual agreement of Grantor and Grantee or at the option of Grantor upon the occurrence of any of the following: · (a) Grantor takes possession of the Orchard between May 1 and May 15 of any calendar year. (b) Grantor takes possession of the Orchard at any time other than May 1 through May 15 of any calendar year upon one year's prior written notice to Grantee. (c) Grantor takes possession of the Orchard at any time other than May 1 through May 15 of any calendar year and assumes responsibility for all cultivation costs for that crop year. For purposes of the Agreement, a crop year shall commence May 1 and terminate April 30 of the following calendar year. Upon termination of the Easement and this Agreement as provided above, Grantor shall be responsible for all tree removal from the Orchard and Grantee shall promptly execute and deliver to Grantor, in recordable form, such quitclaims or 'releases as may be necessary or desirable to confirm or effect such termination and to relinquish any rights or claim of Grantee to the Easement Area or any improvement thereon, except as specifically agreed otherwise by Grantor and Grantee in writing. 3. Liability. (a) Liability Insurance. During the term of this Agreement, Grantee shall have the responsibility for maintaining liability insurance for the Orchard. (b) Indemnification of Grantor by Grantee. The Grantor, its officers and employees will not be responsible for damages or liabilities arising from the performance or failure of performance of the obligations of Grantee under this Agreement. Grantee shall fully indemnify, defend, and hold the Grantor harmless from any liability imposed for injury, as defined by Government Code Section 810.8, arising from the performance or failure of performance of any obligation of Grantee under this Agreement, except for that resulting from the Grantor's own negligence. (c) Indemnification of Grantee by Grantor. Grantee and its officers and employees shall not be responsible for any damage or liability arising from the performance of any obligation of the Grantor under this Agreement. The Grantor shall indemnify, defend, and hold Grantee harmless from any liability imposed for injury, as defined by Government Code 092388 -2- 188806-10 Section 810.8, arising from the performance or failure of performance of any obligation of the Grantor under this Agreement, except for that resulting from Grantee's own negligence. 4. Operation and Maintenance Obligations. (a) O~eration, Maintenance, Replacement and Repairs. Ail operation, haintenance, replacement and repairs, whether ordinary or extraordinary, capital or expense in nature, major or minor, in the Easement Area and of any improvements constructed and installed thereon by Grantee shall be performed by Grantee at its sole cost and expense and all revenues generated from the Orchard harvest shall be the sole property of Grantee. (b) Irrigation. The water necessary for proper irrigation of the Orchard shall be provided by the Grantor if Grantee is unable to maintain its current water source for the Orchard. If it becomes necessary for the Grantor to provide water, it shall be from a water source of not less than 350 gallons per minute at 50 pounds per square inch and at such intervals as is necessary to allow for proper irrigation of the Orchard for the duration of this Agreement and Grantee shall reimburse Grantor for the cost of the water at the prevailing rates for water utilized to irrigate orchards. (c) Fencing. Grantee shall have the right to install a five strand smooth wire fence around the Orchard for the purpose of securing the Orchard from trespassers. 5. Miscellaneous. (a) Acceptance and Recordation. Grantee agrees, by acceptance and recordation of this Agreement, that the terms and conditions herein set forth shall be binding upon and inure to the benefit of Grantee. (b) Attorneys' Fees. In the event at any time during the term of this Agreement either party hereto shall institute any action or proceeding, including any arbitration proceedings, against the other relating to the provisions of this Agreement or any default or alleged default hereunder, then the unsuccessful party in such action or proceeding shall reimburse the successful party therein for the reasonable costs (including court costs and attorneys fees) incurred therein by such successful party. (c) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. · (d) Notices. All notices or other communications provided for herein shall be in writing and shall be personally 092388 -3- 188806-10 served or delivered by United States mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: If to Grantor: City of Tustin 300 Centennial Way Tustin, California Attn: Director of Community Development If to THE IRVINE COMPANY: Irvine Community Development Company 550 Newport Center Drive 8th Floor Newport Beach, CA 92660 Attn: General Counsel Either party may by notice to the other designate a different address for notices which shall be substituted for that specified above. Any notice given as provided in this paragraph shall be deemed to have been received, if personally served, as of the date and time of service or if deposited in the mail as provided above, 48 hours after deposit in the mail. (e) Successors and Assigns. The provisions of this Agreement shall bind and inure to the benefit of all successors and assigns of Grantor and the permitted assigns of Grantee (collectively "assignee"). Any assignee of an interest hereunder shall automatically, as of the effective date of the assignment, (i) succeed to the rights herein granted and (ii) be deemed to have assumed the obligations hereunder. No such assignment shall be deemed to relieve Grantee of its obligations under this Agreement unless such release is in writing executed by both parties hereto. Upon the request of either party hereto, any assignee shall execute and acknowledge an instrument in recordable form providing for the assumption of the obligations of its assignor pursuant to this Agreement. (f) Entire Agreement. This document including the attached Exhibits, contains the entire agreement between the parties relating to the rights granted herein and the obligations herein assumed. Any oral representations or modifications concerning this document shall be of no force and effect except a subsequent modification in writing, signed by the party to be charged. 092388 -4- 188806-10 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written. "GRANTEE" Name: C. ~. 91~,- Title: Vice president "GRANTOR" THE CITY OF TUSTIN By: Name: Title: Name~ .i D'. ~.. ¢,,v~.,,~,~L~ Title:' Assistant~Secretary ATTEST: APPROVED AS TO FORM Lois E. Jeffrey, Esq.. Deputy City Attorney 092388 -5- 188806-10 STATE OF CALIFORNIA) )S$o -COUNTY OF ORANGE ) On this day of , in the~year 19. , the ' undersigned, a Notary Public'in and for said State, personally appeared and , personally known to me (or ~roved to me on the basis of satisfactory evidence) to be the persons who executed the within instrument as the and , respectively, on behalf of The Irvine Company, the corporation therein named, and acknowledged to me that such corporation executed it. WITNESS my hand and official seal. Notary Public' in and for said County and State STATE OF CALIFORNIA) )ss° COUNTY oF ORANGE ) On this day of , in the year 19 , the undersigned, a Notary Public in and for said State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as the , on behalf of The City of Tustin, the Municipal corporation therein named, and acknowledged to me that such City executed it. WITNESS my hand and official seal. Notary Public in and for said County and State 092388 -6- 188806-10