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HomeMy WebLinkAbout14 - 2700 West Coast HighwayCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 14 January 25, 2011 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Antony Brine, City Traffic Engineer 949 - 644 -3329 or tbrine @newportbeachca.gov SUBJECT: GRANT OF EASEMENT AND JOINT USE MAINTENANCE AGREEMENT — 2700 WEST COAST HIGHWAY ISSUE The City Attorney's Office and the Public Works Department have finalized a Grant of Easement and Joint Use Maintenance Agreement with Mariners Mile Company. The easement and maintenance agreement will allow the City to replace, repair and maintain the existing eleven (11) Washington Robusta palm trees located adjacent to 2700 West Coast Highway. RECOMMENDATION Approve the Grant of Easement and Joint Use Maintenance Agreement between the City and Mariners Mile Company (Ned McCune, Grantor and General Partner). DISCUSSION The existing eleven (11) palm trees were installed in 2003. They are located in the sidewalk area on the north side of Coast Highway between Riverside Avenue and Tustin Avenue. Since 2003, the City has continued with the maintenance of the palm trees after the initial contract landscape establishment period expired. With this Agreement the City would be granted a conditional non - exclusive perpetual easement to use, operate, alter, replace, repair and maintain the existing palm trees. The Agreement formally establishes the conditions and responsibilities of each party concerning the maintenance of the palm trees. This Agreement does not restrict the City from reducing or encroaching upon the right - of -way adjacent to 2700 West Coast Highway. The inclusion of this language should address any questions related to potential widening of Coast Highway in the future. If any future construction by the City, or other entity, infringes upon the easement, the Agreement and the Easement may be terminated. Grant of Easement and Joint Use Maintenance Agreement — 2700 West Coast Highway January 25, 2011 Page 2 ENVIRONMENTAL REVIEW This project was determined to be exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301(c) of the CEQA Implementing Guidelines. This exemption covers the maintenance and repair of existing facilities involving negligible or no expansion of existing facilities. PUBLIC NOTICE Not Applicable. FUNDING AVAILABILITY The palm trees will continue to be maintained by the General Services Department. Prepared by: Antony Brine, .E.,T-.-5. City Traffic Engineer Submitted by: !(f G. Badum Works Director Attachments: Grant of Easement and Joint Use Maintenance Agreement WHEN RECORDED RETURN TO: City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, CA 92658 -8915 Attn: City Clerk (Exempt From Recording Fees Pursuant to California Government Code Section 27383) (Space above this line for Recorder's use only) GRANT OF EASEMENT AND JOINT USE MAINTENANCE AGREEMENT THIS GRANT OF EASEMENT AND JOINT USE MAINTENANCE AGREEMENT ( "Agreement ") is made and entered into this day of AJ JVCMl3 2010, by and between Mariners Mile Company, a California General Partnership and its successors and assigns ( "Grantor "), and the City of Newport Beach, a California Municipal Corporation and its successors and assigns ( "Grantee "). Grantor and Grantee are at times individually referred to herein as "Party" and collectively as "Parties." RECITALS A. Grantor owns that certain real property located at 2700 West Coast Highway, Newport Beach, California 92663 ( "Subject Property "). B. With the permission of Grantor, Grantee constructed /installed a concrete sidewalk, eleven (11) Washingtonia Robusta palm trees, including irrigation and appurtenances ( "Permitted Improvements') upon a portion of the Subject Property described below in Recital "C" as the "Easement." The Permitted Improvements are more fully described in the engineering plans, as approved by the Grantee's Public Works Director and on file in the Grantee's Public Works Department File No. R- 5823 -S ( "Plans "). C. Subject to the terms and conditions set forth herein, Grantor desires to grant to Grantee a conditional non - exclusive perpetual easement to use, operate, alter, replace, repair and maintain the Permitted Improvements upon a portion of the Subject Property which is more particularly described in Exhibit "A" which is attached hereto and incorporated herein by reference ( "Easement "). A0 &00655 1 D. The Grantee's City Council considered this Agreement at a duly noticed public meeting pursuant to the applicable laws of the State of California, at which meeting a quorum being present this agreement was voted on and approved by Grantee. NOW, THEREFORE, in consideration of the mutual promises, covenants, benefits, obligations and agreements set forth herein, the Parties agree as follows: 1. Incorporation of Recitals. The Recitals contained herein are true and correct and are incorporated into the operative part of this Agreement. 2. Grant of Easement. Subject to the conditions contained herein which shall make the Easement granted herein subject to extinguishment, Grantor grants to Grantee a non - exclusive perpetual easement to use, operate, alter, replace, repair and maintain the Permitted Improvements upon the Easement area described in Exhibit "A." Grantor will further allow Grantee, at Grantee's sole expense, to take all reasonable measures necessary or convenient to accomplish the aforesaid activities. Nothing contained in this Agreement or the Easement created hereby shall permit Grantee to alter or modify the Permitted Improvements in such a manner as to reduce or encroach upon the right -of -way of the adjacent sidewalk, as said right -of -way existed at the execution of this Agreement. Neither this Agreement, nor the Easement, nor this limitation shall restrict or enhance any existing general police powers the City may have to reduce or encroach upon the right -of -way adjacent to the Subject Property. 3. Maintenance and Construction Responsibility. Maintenance and construction responsibility of the Permitted Improvements shall be as follows: 3.1 Grantee shall be responsible for maintenance of all landscape planting, irrigation systems and appurtenances within the Easement, as shown on the landscaping plans on file in the Plans, including, without limitation, ensuring compliance with the following provisions in the Plans: A09 -00655 a. Rootball Size — 3 ft cubed; b. Height — 9.15 meters (30'); C. Remarks — "Matched /Skinned /30.48 cm [12 "] min. trunk caliper' @1.22 m [4'— 0 "] from F.G." 2 d. Planting Note 21 (A)(2) regarding Replacement of Failed Palms: "Closely match replacements to adjacent specimens of the same species. Apply all requirements of the Specifications to all replacements." e. Planting Note 18 — "Verify that all palm trunk heights are within 30.48 cm [1 foot] of each other when measured from finish grade to new bud growth. "Pineapples" shall be shaped into small elliptical shapes 1.52m [5 feet] to 1.83 m [6 feet] in total length. All palms shall be symmetrical without trunk curvature or leaning of the trunk from the perpendicular." f. Planting Note 20 (F) — "Plant establishment per Caltrans requirements." Grantee shall pay all costs and expenses incurred in complying with this provision. 3.2 The Permitted Improvements were constructed pursuant to Grantee's engineering plans, design criteria, standard special provisions and standard drawings for public works construction, and in substantial conformance with the Plans. 3.3 Grantee shall be responsible for maintenance of the sidewalk improvements and appurtenances within the Easement. Grantee shall maintain the sidewalks and appurtenances in accordance with general prevailing standards of maintenance, and pay all costs and expenses incurred in doing so. 4. Easement Interference. If any future construction or use by Grantor on the Subject Property interferes with Grantee's ability to use, operate, alter, replace, repair and maintain the Permitted .Improvements within the Easement, then this Agreement and the Easement may be terminated by Grantee by giving sixty (60). calendar days' notice to Grantor, specifying in said notice the date of termination. In lieu of termination, Grantee may choose to have this Agreement and Easement continue in effect. However, Grantee shall be relieved of its obligations under this Agreement for the time that Grantor interferes with Grantee's ability to use, operate, alter, replace, repair and maintain the Permitted Improvements within the Easement. Grantee shall incur no liability whatsoever to Grantor for exercising an option available under this section. Redevelopment of the Subject Property, with the Grantee's prior written approval, shall not constitute easement interference. A09- 00655 3 4.1 Except to the extent of the indemnity provisions contained herein, neither Grantee nor Grantor shall incur any liability whatsoever to Grantor in the event of the termination of this Agreement pursuant to this section 4. In the event of termination of the Easement pursuant to this section, Grantee shall execute a quitclaim deed in favor of Grantor, conveying all interest in the Easement back to Grantor and extinguishing the Easement. 4.2 If any future construction by Grantee, Caltrans, or any other entity (other than Grantor) with an interest in the Subject Property shall infringe upon the Easement, interfere with Grantee's ability to install, use, operate, alter, replace, repair and maintain the Permitted Improvements within the Easement, or cause a reduction in the size of the approximately seventeen (17) foot wide strip of land between the curb edge of West Coast Highway and a four (4) foot wide strip of required landscaping area that runs parallel to the front of the Grantor's building located at 2700 West Coast Highway (a total of 21 feet), then this Agreement and the Easement may be terminated by Grantor at any time by'giving sixty (60) calendar days' notice to Grantee, specifying in said notice the date of termination. Should Grantor terminate this Agreement pursuant to this section, unless otherwise agreed in writing at the time of termination, (i) the Easement shall terminate, and (ii) Grantee shall have no obligation to continue maintenance of the Permitted Improvements. Except to the extent of any indemnity provisions contained herein, neither Grantee nor Grantor shall incur any liability whatsoever to the other party in the event of the termination of this Agreement pursuant to this section 4.2. In the event of termination pursuant to this section, Grantee shall execute a quitclaim deed in favor of Grantor, conveying all interest in the Easement back to Grantor and extinguishing the Easement. 5. Mutual Agreement. The Parties agree as follows: 5.1 If the Permitted Improvements are damaged by any future construction, use or any other activities conducted or authorized by Grantor on the Subject Property and /or within the Easement, Grantor shall be responsible for the cost of repairs to the Permitted Improvements, but only to the extent such damage is caused by an act of Grantor or Grantor's agent. 5.2 Should Grantee or another governmental agency intend to replace or enlarge existing or future public facilities or improvements including West Coast A09 -00655 12 Highway in a manner that will affect the Easement, both Grantee and Grantor shall review the continuing need for the Easement. 5.2.1 If Grantee, Caltrans, or any other governmental entity makes or authorizes such physical changes to the Easement (as delineated in Recital C of this Agreement) as to render the contemplated purpose of the Easement permanently impossible such as through the widening of West Coast Highway, Grantee shall execute a quitclaim deed in favor of Grantor, conveying all interest in the Easement back to Grantor and extinguishing the Easement. 5.2.2 If Grantee breaches this Agreement by discontinuance of its maintenance obligations under this Agreement, other than a discontinuance pursuant to Section 4, then this Agreement shall be deemed terminated and the Easement extinguished. In the event of termination under this section, Grantee shall execute a quitclaim deed in favor of Grantor, conveying all interest in the Easement back to Grantor and extinguishing the Easement. 5.2.3 In the event the Easement is extinguished as provided herein, this Agreement shall be terminated on the date of execution of the aforementioned quitclaim deed, without liability on the part of the Grantee or Grantor. 5.3. In the event any portion or all of the Easement shall be the subject of either inverse condemnation or eminent domain, or any partial taking of such property, it is agreed and understood that the Grantor shall have all rights to any and all compensation for such taking and that Grantee shall not assert any claim or right to compensation for such taking. 6. Termination. In the event either Party breaches any material provision of this Agreement, the other Party at its option may, in addition to the other legal remedies available to it, terminate this Agreement. Termination because of breach shall be upon a minimum of thirty (30) calendar days' notice, unless the breach is cured within such thirty (30) calendar day period, with the notice specifying the date of termination. In the event of termination resulting from a breach of this Agreement by Grantee, Grantee shall execute a quitclaim deed in favor of Grantor, conveying all interest in the Easement back to Grantor and extinguishing the Easement. In the event Grantee fails or refuses to execute a quitclaim deed extinguishing the Easement pursuant to any section of this Agreement requiring such a quitclaim deed, Grantor shall have the right A09 -00655 5 to execute and record a Notice of Revocation of the Easement, the effect of which shall be to immediately terminate and extinguish the Easement 7. Grantee Indemnity. To the fullest extent permitted by law, Grantee, its successors or assigns, agrees to indemnify, defend and hold harmless Grantor from and against any and all claims (including, without limitation, claims for bodily injury, death, mechanics liens, or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements, costs of litigation, investigation, appeal, expert witness fees and court costs) of every kind and nature whatsoever (individually, a "Claim "; collectively, "Claims "), which arise from Grantee's, its contractors', agents', employees', invitees', and their respective employees use of and /or presence on all or any of the Easement area, and /or the Permitted Improvements. Notwithstanding the foregoing, nothing herein shall be construed to require Grantee to indemnify the Grantor from any Claim arising from the negligence or willful misconduct of the Grantor. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. 8. Grantor Indemnity. To the fullest extent permitted by law, Grantor, its successors or assigns, agrees to indemnify, defend and hold harmless Grantee from and against any and all claims (including, without limitation, claims for bodily injury, death, mechanics liens, or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements, costs of litigation, investigation, appeal, expert witness fees and court costs) of every kind and nature whatsoever (individually, a "Claim'; collectively, "Claims "), which arise from Grantor's or its contractors', agents', employees', invitees', and their respective employees use of and /or presence on all or any of the Easement area, and /or the Permitted Improvements. Notwithstanding the foregoing, nothing herein shall be construed to require Grantor to indemnify the Grantee from any Claim arising from the negligence or willful misconduct of the Grantee. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. A09 -00655 I✓ 9. Term & Recordation. Subject to the provisions regarding termination and extinguishment of the Easement, Grantor agrees that this Agreement shall remain in full force and effect from execution thereof; shall run with the land; all benefits and burdens shall be binding upon the heirs, successors, and assigns of Grantor's interest in the Subject Property /Easement whether fee or otherwise, and shall be recorded in the Office of the County Recorder of Orange County, California. The duties to indemnify, defend, and hold harmless set forth in Sections 7 and 8 shall survive the termination of this Agreement and extinguishment of the Easement. 10. Joint and Several Liability. Unless otherwise provided in this Agreement, the terms, covenants, and conditions contained herein shall apply to and bind the heirs, successors, executors, administrators, and assigns of all the Parties hereto, all of whom shall be jointly and severally liable hereunder. 11. Commencement of Easement. The Easement rights contained herein shall commence upon recordation of this Agreement in the Official Records of the County of Orange or upon the installation of the Permitted Improvements, whichever is earlier. 12. Taxes. The payment of any real property taxes and assessments relating to the Easement granted herein shall be borne by the Grantee. 13. Notices. Any notice, request, direction, demand, consent, waiver, approval or other communication required or permitted to be given hereunder shall be in writing and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested, or overnight courier, or electronic transmission as defined below. Notices or other communications shall be addressed as follows: To Grantor: Mariners Mile Company Attention: Ned McCune 424 East 16"' Street Costa Mesa, California 92627 -3202 To Grantee: City of Newport Beach Attention: Public Works Director 3300 Newport Blvd. Newport Beach, California 92658 -8915 A09 -00655 14. Miscellaneous Provisions. 14.1 There are no representations, warranties or other agreements between the Parties as to the matters described in this Agreement except as expressly stated herein, and this Agreement fully states the agreement of the Parties as to such matters. 14.2 No change, amendment, alteration or revision of this Agreement shall be valid unless in writing and signed by the Parties hereto. 14.3 In any action or proceeding between the Parties to enforce any provision hereof; the prevailing Party shall not be entitled to attorneys' fees in addition to such other relief. 14.4 This Agreement shall be interpreted, enforced and governed by the laws of the State of California. Venue shall be in Orange County, California. 14.5 All section headings are inserted for convenience only and shall have no effect on the construction or interpretation of this Agreement. Each Party acknowledges that such Party and its counsel, after negotiation and consultation, have reviewed and revised this Agreement. As such, the terms of this Agreement shall be fairly construed and the usual rule of construction, to the effect that any ambiguities herein should be resolved against the drafting Party, shall not be employed in the interpretation of this Agreement. A09 -00655 [SIGNATURES ON NEXT PAGE] U IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on the day and year first -above written. CITY OF NEWPORT BEACH, a Municipal Corporation APPROVED AS TO FORM: Office of the City Attorney By: By: David R. Hunt, Michael F. Henn City Attorney Mayor ATTEST: MARINERS MILE COMPANY a California General Partnership By. By. Leilani Brown, ed McCune, City Clerk Grantor General Partner [END OF SIGNATURES] A09 -00655 9 CERTIFICATE OF ACCEPTANCE This CERTIFICATE OF ACCEPTANCE is to certify that the interest in real property, described in Exhibit "A" attached hereto and incorporated herein by reference, by and between the City of Newport Beach, a California municipal corporation, as Grantee, and Mariners Mile Company, a California general partnership, as Grantor, is hereby accepted on by the undersigned officer on behalf of the City of Newport Beach pursuant to authority conferred by Resolution No. 1992 -82 of the City Council adopted on July 27, 1992. The City consents to the recordation of said document in the Office of the Recorder of Orange County, State of California. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: David R. Hunt, City Attorney ATTEST: By: Leilani I. Brown, City Clerk A09 -00655 10 CITY OF NEWPORT BEACH, a Municipal Corporation By: Michael F. Henn Mayor Exhibit "A" Easement's Legal Description A09 -00655 EXHIBIT "A" LEGAL DESCRIPTION AN EASEMENT FOR SIDEWALK, UTILITY AND LANDSCAPING PURPOSES OVER, UNDER AND ACROSS THAT PORTION OF PARCEL1; IN THE CITY OF NEWPORT BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 73 PAGES 22 THROUGH 23 OF PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE COUNTY, DESCRIBED AS FOLLOWS: THE SOUTHWESTERLY 6 FEET OF SAID PARCEL 1. THE ABOVE DESCRIBED AREA CONTAINS AN AREA OF 1800 SQUARE FEET MORE OR LESS SUBJECT TO ANY AND ALL EASEMENTS OR AGREEMENTS, IF ANY, OF RECORD AND /OR FACT. ALL AS SHOWN ON EXHIBIT "B ", ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. WESLEY FFWITTMEYER, L.S. NO. 6879 REGISTRATION EXPIRES 9/30/2010 I S ~lLcu Zo to it k DATE LS. 9879 ,� 8x0.9.30.70 \ \ I (PORTION LOT A TRACT N0. 919 ST 2750 W. COA HWY 1 M.MtB.i 29/31 34 I l i 1 {% 1 1 11 1 i' i i� i i i i pow i } f! po pol Poo pdo I PROPERTY LINE I f I ! N Sp 83010 I �i TUSTIN -AVE { k T I s I CITY OF NEWPORT BEACH RIGHT —OF —WAY EXHIBIT "W DATE: 3/04/10 DRAWN BY: MG. SCALE: NO SCALE CHECKED BY: WW' i fin. voo W. coast Hwr I{ j EASEMENT FOR SIDEWALK !l UTILITY AND LANDSCAPING §ES 1800 SQ.�FT. Ili PURPO CONTAINING t t�v z fl3 ii FARC9L ] III P.M B, 73/22 -23 1- �I RECORDS OF ORANGE COUNTY 12 FT. FUTURE DEDICATION F-- N Sp 83010 I �i TUSTIN -AVE { k T I s I CITY OF NEWPORT BEACH RIGHT —OF —WAY EXHIBIT "W DATE: 3/04/10 DRAWN BY: MG. SCALE: NO SCALE CHECKED BY: WW'