HomeMy WebLinkAboutC-8279-3 - Temporary Right-Of-Entry, Temporary Construction Easement, and Power Consumption Agreement with Hoag memorial Hospital Presbyterian for Hoag Road Storm Drain Dry Weather Diversion Projectr,o Batch 7019868 Confirmation
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Office of the City Clerk
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Page 1 of 6
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
�� 111111111II ]1 III II 11 II NO FEE
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2020000359527 9:14 am 07127120
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0.00 0.00 0.00 0.00 48.00 0.00 0.000.000.00 0.00
[Exempt from Recordation Fee - Govt. Code §§ 273831
TEMPORARY RIGHT -0F -ENTRY, TEMPORARY CONSTRUCTION EASEMENT, AND
POWER CONSUMPTION AGREEMENT WITH HOAG MEMORIAL HOSPITAL
PRESBYTERIAN FOR HOAG ROAD STORM DRAIN DRY WEATHER DIVERSION
PROJECT
https://gs.secure-recording.com/Batch/Confirmation/7019868 07/27/2020
RECORDING REQUESTED AND
WHEN RECORDED RETURN TO:
Office of the City Clerk
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
[Exempt from Recordation Fee - Govt. Code §§ 27383]
TEMPORARY RIGHT -OF -ENTRY, TEMPORARY CONSTRUCTION EASEMENT, AND
POWER CONSUMPTION AGREEMENT WITH HOAG MEMORIAL HOSPITAL
PRESBYTERIAN FOR HOAG ROAD STORM DRAIN DRY WEATHER DIVERSION
PROJECT
TEMPORARY RIGHT -OF -ENTRY, TEMPORARY CONSTRUCTION
EASEMENT, AND POWER CONSUMPTION AGREEMENT WITH
HOAG MEMORIAL HOSPITAL PRESBYTERIAN FOR HOAG
ROAD STORM DRAIN DRY WEATHER DIVERSION PROJECT
This Temporary Right of Entry, Temporary Construction Easement, and Power
Consumption Agreement ("Agreement") is made this all day of 7u 14 , 2020 ("Effective
Date") by and between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city ("Grantee") and HOAG MEMORIAL HOSPITAL PRESBYTERIAN, a California non-
profit public benefit corporation ("Grantor").
RECITALS
A. Grantee is a California municipal corporation duly organized and validly existing under the
laws of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. Grantor is the record owner of the real property identified by Orange County Assessor
Parcel Numbers 423-011-28 and 423-011-30 located in the City of Newport Beach,
California, as depicted as Parcels 1 & 2 in Exhibit "A", attached hereto and incorporated
herein by this reference, collectively known as Property ("Property").
C. Grantee desires to construct improvements that will divert dry weather flows collected in a
large storm drain in Hoag Road and divert those flows into Grantee's sanitary sewer system
(the "Project"). The location of the Project is depicted in Exhibit "A" as Project Location.
The Project consists of construction of a diversion structure in the storm drain line, a
diversion line from the storm drain to the sanitary sewer with connecting manhole at the
sanitary sewer line, and a pullbox with monitoring meter as more particularly set forth in
Exhibit "B", which is attached hereto and incorporated herein by this reference.
D. Grantor and Grantee mutually agree that they intend for this Agreement to allow for
Grantee to secure a temporary right -of -entry and temporary construction easement, as
depicted in Exhibit "C", attached hereto and incorporated herein by this reference, in order
to enter upon the area of the Property identified as the "Project Location" in Exhibit "A."
E. As part of this temporary right -of -entry and temporary construction easement, the parties
intend for this Agreement to allow for Grantee to secure permission from Grantor to allow
the accommodation of construction equipment, materials and workers necessary for
completion of the Project.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows..
1. Recitals
The recitals provided in this Agreement are true and correct and incorporated into the
operative part of this Agreement.
Right of Entry and Temporary Construction Easement Page 1
2. Right of Entry and Temporary Construction Easement
For valuable consideration, receipt of which is hereby acknowledged, Grantor hereby
grants to Grantee, and Grantee accepts, a non-exclusive temporary right of entry and temporary
construction easement on, over, under and across the "Project Location", as depicted in Exhibit
"A", and portions of Hoag Road and Hoag Drive, as depicted in Exhibit "C", for the purpose of
constructing, grading, landscaping, installing, repairing and replacing the Project and to allow the
accommodation of equipment, materials and workers necessary therefor including partial closure
of Hoag Road and Hoag Drive per a City -approved Traffic Control Plan.
3. Right of Entry and Temporary Construction Easement Conditions
Grantee's right of entry to the Project Location and temporary construction easement in
the Project Location shall be consistent with the following conditions:
A. Grantee has the right to enter the Property, including Hoag Road and Hoag Drive, from
7:00 a.m. to 5:00 p.m., Monday through Friday, for the purpose of constructing the Project
with the following conditions:
a. On Hoag Road and Hoag Drive, during working hours, two-way traffic shall be
maintained to the maximum duration possible. If one lane must be shut down during
construction hours, flag persons shall be stationed to ensure that the vehicular travel
along the open lane is occurring safely and efficiently.
b. During non -working hours or when work is not scheduled, all roadway lanes on
Hoag Road shall be returned to their full traffic usage on the same day by plating or
backfilling open trenches, cleaning pavement areas of all dust and rocks, and
placing cold patch pavement as needed. Grantee shall also remove all traffic control
devices.
c. All roadway lanes in other access roads in the vicinity of the project shall remain
open at all times.
d. A minimum of one exit lane from the parking structure adjacent to the construction
site shall always remain open.
e. The sidewalk on the west side of Hoag Road shall always remain open.
B. After hours work shall only be permitted with permission of the Grantor. Should the Grantor
grant permission for after-hours work, Grantee shall have the additional right to enter the
Property for the purpose of constructing the Project between the hours of 8:00 a.m. to 6:00
p.m. on Saturdays.
C. Grantee shall advise Grantor of the date of commencement of the Project not less than
seventy-two (72) hours prior to actual commencement of the Project.
Right of Entry and Temporary Construction Easement Page 2
D. Prior to commencement of the Project, Grantee shall provide Grantor with the names and
telephone numbers of each contractor or subcontractor who will be performing work on the
Property for the Project.
E. At the conclusion of each workday, Grantee shall ensure the cleanup and removal of debris
so as to maintain the Property in as neat and clean a condition as possible, given the
remaining work on the Project to be performed.
F. The right of entry does not include the right to engage in any material storage, long term
parking of vehicles, trailers, or other equipment storage on the Property.
G. Grantee shall indemnify Grantor against and hold Grantor harmless from any loss of or
damage to the Property, or injury or death of any person whomsoever, proximately caused
in whole or in part by negligence of Grantee or by any act or omission for which Grantee is
liable in the exercise of the rights herein granted.
H. Notwithstanding the foregoing, nothing herein shall be construed to require Grantee to
indemnify the Grantor from any loss of or damage to the Property, or injury or death of any
person whomsoever, arising from the sole negligence or willful misconduct of Grantor.
I. Grantor agrees and is responsible for notifying all tenants on and other permitted users of
the Property of all information regarding this Agreement for Grantee's entry onto the
Property for the purposes allowed herein.
J. Grantee shall be solely responsible for obtaining and shall obtain all permits necessary for
the valid and proper development, installation and construction of the Project and conduct
all work in the areas burdened by the Project in a good and workman manner, acceptable
to any governmental authorities having jurisdiction over such work, and shall complete the
work and perform any maintenance in a lien -free manner.
K. Grantee shall restore any damage to the easement area including without limitation the
pavement, landscaping, and other improvements caused by Grantee's exercise of its
easement rights, to as good a condition as existed prior to Grantee's exercise of easement
rights.
L. Grantee will not allow its contractors to park vehicles on Grantor's property unless
permission is provided to Grantee in writing by Grantor.
M. During the term of this agreement, Grantee shall ensure that its contractors secure and
maintain at all times during the term of this agreement, at their sole expense, the insurance
coverage required herein, with insurance companies rated A- by the A.M. Best Company,
Occurrence coverage is preferred but if claims made coverage is provided, it shall be
maintained for a minimum of three (3) years after the date of termination of this agreement.
Insurance required under this Agreement shall be:
Commercial General Liability (bodily injury, property damage, personal injury, and vehicle
liability) insurance, with a single limit of not less than One Million Dollars and 00/100
Right of Entry and Temporary Construction Easement Page 3
($1,000,000) per Occurrence, or current limit carried, whichever is greater, and Two Million
Dollars and 00/100 ($2,000,000) in the Aggregate, or current limits carried, whichever is
greater. Coverage shall include, without limitation, coverage for bodily injury, including
death, contractual liability specifically covering the indemnity obligations stated herein and
elsewhere in the Agreement, and personal injury including coverage for suits brought by
employees of Grantee.
Automobile Liability insurance to cover, without limitation, claims based on automobile
liability (bodily injury and property damage) including coverage for all owned, hired and
non -owned automobiles with minimum limits of Two Million Dollars and 00/100
($2,000,000) Combined Single Limit.
General Liability and Automobile Liability Insurance shall include the following provisions,
coverage, and endorsements:
The Indemnified Parties, Hoag Memorial Hospital Presbyterian shall be included as
additional insured's ("Additional Insureds").
Grantor, Grantee and its contractor's insurance companies waive their rights to subrogation
against the above Additional Insureds.
The insurance carried by the Grantee's contractors shall include contractual liability
endorsements insuring the indemnity clause of this Agreement.
Grantee's contractor's insurance shall be primary coverage, and any insurance or self-
insurance carried by Indemnified Parties and Additional Insureds shall be excess and
noncontributory.
Thirty (30) days prior written notice of cancellation or material change in the insurance must
be given to Grantor.
Grantee and its contractors shall provide the Grantor with a certificate of insurance and
endorsements evidencing the required coverage. Failure to secure and/or maintain
insurance coverage under this Agreement shall be considered a material breach of this
Agreement. Nothing contained in this subsection shall be read to limit Grantee's indemnity
responsibility under this Agreement.
The failure to secure and maintain or add by endorsement any Indemnified Party shall not
act as a defense to the enforcement of the terms of the Agreement. Any such insurance
policy shall apply separately to each insured against whom claim is made or suit is brought
and shall contain no provision, which excludes coverage of a claim made, by one insured
under the policy against another insured under the policy.
4. Maintenance
Upon completion of the Project, Grantor hereby agrees to cooperate and grant a
permanent "no fee diversion easement" to Grantee to allow Grantee to maintain, operate and
monitor the diversion created by the Project, which may be recorded against the Property with the
Right of Entry and Temporary Construction Easement Page 4
Office of the Orange County Clerk -Recorder. Grantee will provide all the right-of-way documents
and processing at no cost to Grantor. The provisions in this Section shall survive termination of
this Agreement.
5. Compensation for Power for Pump System
The required power for the pump system and appurtenances is estimated at ten (10) amps
and will be provided by Grantor through its existing system. Grantee shall install a temporary
meter to confirm power requirements and provide such results to the Grantor.
Commencing one (1) month prior to the start of operation of the diversion, and every
subsequent twelve (12) months thereafter, Grantee shall pay Grantor One Thousand Two
Hundred Dollars and 00/100 ($1,200.00) per year for the estimated cost of powering the pump
system and appurtenances. Grantee and Grantor may mutually agree to adjust the annual fee to
correspond with the metered power consumption through an amendment to this Agreement.
If the Agreement is terminated pursuant to Section 6 of this Agreement prior to the end of
an operational year, Grantor shall refund Grantee for the time period for which payment was made
but the Agreement was no longer in effect.
6. Term and Termination
This Agreement shall commence upon the Effective Date. Sections 2 and 3 of this
Agreement shall terminate upon the earlier of the completion of the Project or July 1, 2021.
Except for Section 4, which shall survive termination of this Agreement, all other provisions
of this Agreement shall terminate when either the diversion is permanently removed from
operation by Grantee, Grantor is no longer the owner of the Property, or on May 1, 2070,
whichever occurs first. Grantee shall provide Grantor with written notice at least seven days prior
to the diversion's permanent removal from operation.
7. Notices
Notices, requests or demands by either party shall be in writing and shall either be
personally served or be sent by U.S. Mail and addressed to the following persons:
To Grantee: Assistant City Engineer
Public Works Department
City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658
Ph: 949-644-3311
To Grantor: Erik Lidecis, Manager of Utilities/Operations
Hoag Hospital Presbyterian
1 Hoag Drive
Newport Beach, CA 92663
Right of Entry and Temporary Construction Easement Page 5
Ph: 949-764-6574
Notices, requests and demands, if not personally served, shall be deemed received upon
the expiration of forty-eight (48) hours after postmark or deposit in a U. S. post office or mail.
8. Attorneys' Fees
In the event of any dispute or legal action arising under this Agreement, the prevailing party
shall not be entitled to attorney's fees.
9. Severability
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement
shall continue in full force and effect.
10. Controllina Law and Venue
The laws of the State of California shall govern this Agreement and all matters relating to
it and any action brought relating to this Agreement shall be adjudicated in a court of competent
jurisdiction in the County of Orange, State of California.
11. Integrated Agreement and Modifications
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be
held to vary the provisions herein.
12. Amendments
This Agreement may be modified or amended only by a written document executed by both
Grantor and Grantee and approved as to form by the City Attorney. The City Manager may
approve and execute all amendments to this Agreement on behalf of Grantee.
12. Counterparts
This Agreement may be executed in two (2) or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one (1) and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
Right of Entry and Temporary Construction Easement Page 6
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 6/4 �,y
By:
Aa' ron C. Harp
City Attorney
Dat ATTEST: A, ^„ nv
By:
Leilani I. Brown
City Clerk P0
c'\�FoaN%
GRANTEE: CITY OF NEWPORT BEACH,
a California municipal corporation
Date:e�(� l ujLt7
By-.—
Gr
y:
Gr c . Leung
Cit anager
GRANTOR: HOAG MEMORIAL
HOSPITAL PRESBYTERIAN, a California
non-profit public benefit corporation
Date:
Signed in Counterpart
By:
Sanford Smith
Senior VP of Real Estate & Facilities
Date:
Signed in Counterpart
Andrew Guarni
Chief Financial Officer
Attachments: Exhibit A – Property
Exhibit B – Technical Depiction of Property, Project, and Project Area
Exhibit C – Depiction of Temporary Easements
Right of Entry and Temporary Construction Easement Page 7
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By: �---f
Aron C. Harp
City Attorney
ATTEST:
Date:
as
Leilani I. Brown
City Clerk
GRANTEE: CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
Az
Grace K. Leung
City Manager
GRANTOR: HOAG MEMORIAL
HOSPITAL PRESBYTERIAN, a California
non-profit public benefit corporation
Date: � 1&_1/00
Sanford Smith
Senior VP pf Real Estate & Facilities
Date: 7 `
By:.,�.T
An Guarni
Chief Financial Officer
Attachments: Exhibit A — Property
Exhibit B — Technical Depiction of Property, Project, and Project Area
Exhibit C — Depiction of Temporary Easements
Right of Entry and Temporary Construction Easement Page 7
ACKNOWLEDGMENT
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 Californ
County of brass. 44`
On JUN G 202-0 before me, Notary
Public, personally appeared SA n ►-5VV\1 ll,1 who proved to
me on the basis of satisfactory evidence to be the person(, -4 whose namef (@bre subscribed to the within
instrument and acknowled ed to me that 0"/thyhis executed the same in OtWiir authorized
capacity(, and that b hi fflf/tJ it signatures(,s f on the instrument the persoW), or the entity upon
behalf of which the perso4f 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.
ACKNOWLEDGMENT
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 Calif rnia
County of
On JLAIV %
j ss.
2020 before me,
Public, pers nallyappeared flYY1rnox otarnr
the basis of satisfactory evidence to be the persono wh
instrument and acknowled ed to me th VF y ex
capacity, and that his r/twr signatures. on the
behalf of which the person acted, executed the instrument
JONIUKEGAWA
a•' s Notary Public - California
q T Orange County >
° Commission # 2241044
C'll1!(1�M�'
My Comm. Expires Jul 19, 2012
(seal)
W11 LA <<.0 WGt Notary
proved to me on
who name Is /subscribed to the within
ecuted the same I is etW authorized
instrument the personA), or the entity upon
I certify under PENALTY OF PERJURY under the laws of the
paragraph is true and correct.
WITNESS my hand and official seal.
Sign
Right of Entry and Temporary Construction Easement
Sf C li r i f r going
*My
JONIUKEGAWA
Notary Public - California
unty >
Commission M 1141044
Comm. Expires Jul 19, 2012
(seal)
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,
.
ACKNOWLEDGMENT
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 Calif rnia
County of
On JLAIV %
j ss.
2020 before me,
Public, pers nallyappeared flYY1rnox otarnr
the basis of satisfactory evidence to be the persono wh
instrument and acknowled ed to me th VF y ex
capacity, and that his r/twr signatures. on the
behalf of which the person acted, executed the instrument
JONIUKEGAWA
a•' s Notary Public - California
q T Orange County >
° Commission # 2241044
C'll1!(1�M�'
My Comm. Expires Jul 19, 2012
(seal)
W11 LA <<.0 WGt Notary
proved to me on
who name Is /subscribed to the within
ecuted the same I is etW authorized
instrument the personA), or the entity upon
I certify under PENALTY OF PERJURY under the laws of the
paragraph is true and correct.
WITNESS my hand and official seal.
Sign
Right of Entry and Temporary Construction Easement
Sf C li r i f r going
*My
JONIUKEGAWA
Notary Public - California
unty >
Commission M 1141044
Comm. Expires Jul 19, 2012
(seal)
EXHIBIT A
Property
Right of Entry and Temporary Construction Easement Page A-1
EXHIBIT B
TECHNICAL DEPICTION OF PROPERTY, PROJECT, AND PROJECT AREA
Right of Entry and Temporary Construction Easement Page B-1
EXISTING_
STORM DRAIN PARKING-,
I I STRUCTURE
EXISTING EXIT
(� SEWER ---- --- ---
i J
EXISTING i.
SEWER \`
MANHOLE- /
DIVERSION
11 �, LINE +
FLOW MGNITO, I
METER, PJLL90X
-XISTING CURB----
AND
URBAND GUTTER
Exhibit B: Limits of Construction
LIMITS 0`
CONST RUCTION
PARKING`
STRUCTURE'
NSTR CriGf
N' TRi
C T, iN,
EXHIBIT C
DEPICTION OF TEMPORARY EASEMENTS
Right of Entry and Temporary Construction Easement Page C-1
ACKNOWLEDGMENT
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
County of }ss.
On 20 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 signatures(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 (seal)
ACKNOWLEDGMENT
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
County of }ss.
On 20 before me, Notary
Public, personally appeared 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 signatures(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
Right of Entry and Temporary Construction Easement
(seal)