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HomeMy WebLinkAboutC-3004 - Waterline, Storm Drain Line, Ingress & Egress Easement & License Agreement, GroundwaterTO FROM DATE CITY OF NEWPORT BEACH OFFICE OF THE CITY CLERK P.O. BOX 1768, NEWPORT BEACH, CA 92659 -1768 (714) 644 -3005 FINANCE DIRECTOR CITY CLERK April 29, 1996 SUBJECT: Contract No. 3004 Description of Contract: Waterline, Storm Drain Line, Ingress and Egress Easement and License Agreement Effective date of Contract: March 25, 1996 Authorized by Minute Action, approved on: March 25, 1996 Contract with: First American Baptist Church 17415 Magnolia Steet Fountain Valley, CA 92708 Amount of Contract: (See Agreement) ( U � ///,YV2r-k" LaVonne M. Harkless, CMC /AAE City Clerk lm Attachment 3300 Newport Boulevard, Newport Beach X�tnT 2 Ec�,w /�G ,eEgvES ;` PEie G� ✓EEti 21/li % /�E Cc /�� RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk EXEMPT RECORDING R City of Newport Beach GOVERNMENT COI 3300 Newport Boulevard P. O. Box 1768 Newport Beach, California, 92658 -8915 Recorded in the County of Orange, California Gary L. Granville, Clerk /Recorder Iillhllllllllllllllllllllllllllllllllliillllll111111111111111111 No Fee 19960202675 09;16am 04/24/96 005 22006396 22 54 E02 10 7.00 27.00 0.00 0.00 0.00 0.00 space above this line for Recorder's use only. 4 1z WATERLINE, STORM DRAIN LINE, INGRESS AND EGRES RECEIVED EASEMENT AND LICENSE AGREEMENT APR 29 19A Iffy aml( PREAMBLE "� rttwroktFN�t THIS EASEMENT AND AGREEMENT is made and entered into this R,- "`•', `4, 'March, 1590, by and of ^:cwport t3o ch, a municpal corporatio r hereinafter referred to as "CITY ", and Southern California Baptist Convention, a non - profit corporation, hereinafter referred to as "OWNER ". 1.0 RECITALS 1.1 "OWNER" is the owner of certain real property commonly known as "First American Baptist Church" located at 17415 Magnolia Street in the City of Fountain Valley, County of Orange, State of California. 1.2 "CITY" has plans for a groundwater development project to construct water wells in the Fountain Valley area and transport water to its service area. 1.3 "CITY" desires a waterline, storm drain, ingress and egress easement, and license agreement across a portion of the "First American Baptist Church" site more particularly described in Exhibit "A" and depicted in Exhibit "B ", enclosed herein. 2.0 GRANT OF EASEMENT: For valuable consideration and in consideration of "CITY'S" agreement herein contained, "OWNER" hereby grants to "CITY" an easement for the following rights and uses of said property: The right for ingress and egress, to excavate for, construct, install, replace, maintain and use a waterline and storm drain line each not to exceed 24- inches in diameter, and appurtenances in, on, over and across that certain real property in the City of Fountain Valley, County of Orange, State of California, described in Exhibit "A" enclosed herein. 3.0 CHARACTER OF EASEMENT: The easement granted herein is not appurtenant to any real property, but it is in gross. That is to say, it is to be used by the "CITY" and is not to be attached to or run with any other land. 4.0 ADDITIONAL RIGHTS & OBLIGATIONS: 4.1 "OWNER" further grants to "CITY ": (a) The rights of ingress and egress for maintenance and operations of the waterline, storm drain line and appurtenances by means of existing roads or lanes thereon and no new roads or lanes shall be constructed or used without prior written consent of "OWNER ". (b) The rights of ingress and egress for the construction, maintenance and operations of a groundwater well facility, including drilling and re- drilling of wells and construction and /' maintenance of a well facility building located on the adjacent property by means of existing roads or lanes thereon and no new roads or lanes shall be constructed or used without prior written consent of "OWNER ". (c) The right to use such portion of property contiguous to Easements as may be reasonably necessary in connection with the installation, repair and /or replacement of such waterline and storm drain line, except at times that would conflict with regular Sunday services or scheduled events. (d) The right to pass through gates and fences on the property. (e) "OWNER" agrees to allow "CITY" to construct a gate along the westerly property line at the groundwater well facility for maintenanca purposes. (f) "OWNER" agrees not to construct certain improvements including, but not limited to: drainage lines, walls, footings, planters, softscape surfaces and other non - habitable structures, (hereinafter "Non - Standard Improvements ") over the waterline and storm drain line within the existing hardscape area of the easement without prior written agreement with "CITY ". Written agreement shall not be unreasonably withheld. "Non- Standard Improvements" may constitute an abnormal burden upon the "CITY's" ability to maintain and operate the "CITY's" waterline and storm drain line within said easement. As a result, "OWNER" agrees to assume all responsibility for any encroaching improvements and all encroaching installations, improvements and landscaping. (g) "CITY'S right of ingress and egress to the easement shall be limited to weekdays only and only upon prior notification to "OWNER. In the event of an emergency which requires the "CITY" to enter the property during Sunday Services or other scheduled events, "CITY" shall pay liquidated damages in the sum of $500 for each occurence. (h) "CITY" agrees to pay for actual damages in the event that Sunday Services, special events or Valley Day Pre - School special events or classes are forced to be closed, or otherwise result in diminished use and enjoyment of the property (e.g., fumes, noise) resulting from the "CITY's" use of the Easement area. Actual damages include, but are not limited to, out -of- pocket expenses incurred by "OWNER ", plus loss of income or revenue. Loss of income or revenue shall be calculated as the difference between actual income or revenue during the affected period and the average weekly revenue times the number of weeks affected. Average weekly revenue shall be computed as the average of the six (6) weeks immediately preceding the affected period. 4.2 In consideration of the Easement and License Agreement, "CITY" agrees as follows: (a) "CITY" agrees to pay "OWNER" a one time fee as full consideration for this Easement and License Agreement $43,381, which has been determined by the parties to be the fair market value for the Easement area. Page 2 (b) "CITY" shall not fence Easement without prior written approval of "OWNER" during installation, repair and /or replacement of waterline and storm drain line. "CITY" further agrees that construction will take place only during weekdays and that during periods of construction, vehicle access must be continually maintained for Church office and Valley Day Preschool use. Construction will not take place on weekends or evenings without prior written approval of the "OWNER." Construction would not commence prior to approval, by "OWNER ", of the construction schedule, which must be reasonably maintained. All debris during the construction period must be removed from the property by 5:00 PM every Friday evening and necessary equipment may be stored on the property in such a way to maximize access, parking and aesthetic appearance for weekend sevices and events. (c) "CITY" maintenance of the waterline and operation of the well site, including drilling and re- drilling of wells, shall not interfere with "OWNER" normal parking and circulation for regular Sunday services or scheduled special events, except in case of an emergency. (d) "CITY" agrees that should the replacement and reconstruction of the waterline be required, "CITY" shall compensate "OWNER" for any additional construction easement area. The cost shall be based upon an appraisal conducted by a M.A.I. firm mutually acceptable to both "CITY" and "OWNER" with costs associated in developing the appraisal paid by "CITY ". (e) "CITY" shall promptly backfill and recompact any trench during construction within the Easement area and repair any damage construction may cause on the property, including damages to parking areas, roads and lanes. In the event, thereafter, that the backfill of any trench excavation by "CITY" settles, "CITY" shall, at the request of "OWNER ", promptly refill or replace same, in its entirety, at "CITY'S" cost and expense. (f) "CITY" agrees to rdertitnify and hold "OWNER" harmless from and against any and all loss, damage, claim, claim of lien, action or cause of action that may be directly caused by or arise out of the use and enjoyment of any of the rights herein granted, or by the activities of " CITY's" employees, contractors, agents or invitees. "CITY" further agrees to defend "OWNER" against any and all claims which may arise and to provide for attorney of "CITY'S" choosing and to pay for all legal costs, fees and expenses which are incurred in defense of such claim. (g) "CITY" agrees that after installation of the waterline and storm drain line, "CITY" will remove and repair any and all damaged areas of the existing parking lot and roadways. In addition, "CITY" agrees to complete the following improvements: asphaltic concrete patching and repair in areas of need, slurry seal and re- stripping the entire existing parking lot, installation of curbs, sidewalks, planters and new landscaping in the rear parking to the satisfaction of "OWNER" and as described on Exhibit "C ". Improvements Page 3 include, but are not limited to, removal of tree stumps at the west end of the property and new landscaping. (h) "CITY" shall obtain all permits required to construct the waterline and storm drain line within the Easement area. "OWNER" as the land owner will sign all permit applications as required by the local agencies issuing the permits. "CITY" shall pay any and all associated taxes, fees, permits and costs, including any property taxes, appraisal fees or other costs associated with this easement and agreement at no cost to "OWNER." (i) "OWNER" has the right at its own cost, to inspect both the surface and underground structure of the easement, under the supervision of "CITY", if "OWNER" has good faith belief that damage to building or property may be occurring due to the easement or faulty equipment or conditions thereof. In the event there is damage which needs to be repaired, "CITY" shall be liable for the inspection costs. 5.0 RELOCATION OF EASEMENT: Whenever, in the sole opinion of "OWNER ", the location of Easement interferes with "OWNER's" use and enjoyment or operation upon the property, "OWNER" may, upon ninety (90) days written notice to "CITY ", relocate Easement and reconstruct the waterline and storm drain line. All costs and expenses attributable to the relocation and reconstruction of the waterline and storm drain line, including any increases in the "CITY'S" cost of water, shall be the responsibility of "OWNER ". "CITY" shall administer, all necessary projects /contracts relative to the relocation. "OWNER" shall be responsible for all design, consultant and permit fees. "CITY" shall provide administration at no cost to "OWNER ". 6.0 NON - EXCLUSIVE EASEMENT: The easement granted in this agreement is non - exclusive. "OWNER" retains the right to make any use of this property, including a right to grant concurrent easements in the property to third parties, that does not interfere unreasonably with "CITY'S" free use and enjoyment of the easement, and which does not violate any other provision of this Agreement. 7.0 TERM OF EASEMENT: The initial term of this Easement shall be ninety -nine (99) years, commencing from the date of execution by "OWNER ". The Easement shall be renewed for additional ninety -nine (99) year terms unless "OWNER" or any successor notifies "CITY ", in writing two (2) years prior to the termination date, of its intention not to renew the Easement. 8.0 TERMINATION: The Easement granted and all "CITY" rights herein shall terminate and revert to "OWNER" upon " CITY's" abandonment in whole or in part, of the Easement herein granted or upon relocation of the Easement, in whole or in part, pursuant to paragraph 5.0 hereof. A continuous period of non -use for five (5) years shall create a rebuttal presumption of abandonment. Upon abandonment or termination of the Easement pursuant to Section 7.0, "CITY" shall, at its own cost and expense, remove all property placed upon Easement and restore the surface thereof. "CITY" upon abandonment or termination of the Easement, shall execute and deliver to "OWNER" any and all documents necessary to establish the termination thereof as a matter of record. Page 4 9.0 ENTIRE AGREEMENT: This instrument contains the entire Easement and Agreement between the parties relating to the rights herein granted and the obligations herein assumed. Time is of the essence in this Agreement. Any oral representations or modifications concerning this instrument shall be of no force or effect unless evidenced by a subsequent modification in writing, signed by the party to be charged. 10.0 ATTORNEY'S FEES: In the event of any controversy, claim or dispute relating to this instrument or breach thereof, the prevailing party shall be entitled to recover from the losing party, reasonable expenses, attorneys' fees and costs. 11.0 NOTICES: Notices concerning the rights and obligations hereunder shall be given by certified U.S. Mail, prepaid, return receipt requested, or by personal delivery, as follows: To "OWNER ": Southern California Baptist Convention Attention: Property Committee 17415 Magnolia Street Fountain Valley, California 92334 To "CITY ": City of Newport Beach, Public Works Department Attention: Utilities Manager 3300 Newport Boulevard Post Office Box 1768 Newport Beach, California 92658 -8915 or such other address that either party may designate in writing from time to time. 11.0 BINDING EFFECT: This instrument shall bind and inure to the benefit of the respective heirs, personal representatives, successors and assigns of the parties hereto, except as otherwise provided in this Agreement. 12.0 EXECUTION IN COUNTERPARTS: It is mutually agreed that this Easement and Agreement may be executed in counterparts by the various signatories. Page 5 IN WITNESS WHEREOF, the parties hereto have caused this Easement and Agreement to be executed on the day, month and year first above written. APPROVED AS TO FORM: kz(j't� Robin Clauson Assistant City Attorney ATTEST: LaVonne Harkless City Clerk Address and Telephone: CITY OF NEWPORT BEACH a municipal corporation _V�� __') John Hedges Mayor Southern California Baptist Convention, a non - profit corporation By: Print(Na�rr�ee,�� �7a�ll L. �tilfh�2 Title: �%7N72<xln ,d City of Newport Beach, Public Works Dept. Southern California Baptist Convention 3300 Newport Boulevard 17415 Magnolia Street P.O. Box 1768 Fountain Valley, California 92334 Newport Beach, California 92658 -8915 (714) 847 -3573 (714) 847 -5669 fax (714) 644 -3011 (714) 646 -5204 tax Page 6 EXHIBIT "A" EASEMENTS FOR PUBLIC UTILITY PURPOSES, INCLUDING INGRESS_ AND EGRESS FOR THE INSTALLATION AND MAINTENANCE OF A WATER LINE, STORM DRAIN LINE AND APPURTENANT FACILITIES IN THE CITY OF FOUNTAIN VALLEY, COUNTY OF ORANGE, STATE OF CALIFORNIA, OVER, UNDER, AND ACROSS THE FOLLOWING DESCRIBED PARCEL OF LAND: THE EASTERLY 650.00 FEET OF THE NORTH HALF OF THE SOUTH HALF OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 25, TOWNSHIP 5 SOUTH, RANGE 1 I WEST, IN THE RANCHO LAS BOLSAS, AS SHOWN ON A MAP FILED IN BOOK 51, PAGE 13 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS: PARCEL A EXCEPTING TE�EREFROM THE EASTERLY 50.00 FEET THEREOF. THE SOUTHERLY 20.00 FEET OF THE ABOVE DESCRIBED PARCEL. PARCEL B EXCEPTING THEREFROM THE SOUTHERLY 20.00 FEET THEREOF. THE WESTERLY 20.00 FEET OF THE SOUTHERLY 245.00 FEET OF THE ABOVE DESCRIBED PARCEL. PARCEL C EXCEPTING THEREFROM THE SOUTHERLY 245.00 FEET THEREOF. THE WESTERLY 10.00 FEET OF THE ABOVE DESCRIBED PARCEL. SHEET 1 OF 3 SHEETS 425 -2B PARCEL D EXCEPTING THEREFROM THE WESTERLY 10.00 FEET THEREOF. THE NORTHERLY 10.00 FEET OF THE ABOVE DESCRIBED PARCEL LYING WESTERLY AND SOUTHWESTERLY OF THAT CERTAIN EASEMENT GRANT DEED GRANTED TO THE CITY OF FOUNTAIN VALLEY, RECORDED JULY 21, 1964 IN BOOK 7143, PAGE 280 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, PARCEL E A FILLET, CONCAVE TO THE NORTHEAST HAVING A RADIUS OF 25.00 FEET, ADJOINING THE NORTHERLY LINE OF SAID PARCEL A AND ADJOINING THE EASTERLY LINE OF SAID PARCEL B. SUBJECT TO COVENANTS, CONDITIONS, AND EASEMENTS OF RECORD, IF ANY. MORE PARTICULARLY SHOWN ON EXHIBIT "B" ATTACHED HERETO AND MADE A PART HEREOF. 19909,19o117L3Yi `so. 6'96 ;a Exp.6 /30/99 �� vF _ Z. — l S -9� SHEET 2 OF 3 SHEETS DEREK J. MCGREG L.S. NO. 6496 425 -2B EXHIBIT "B" STREET EASEMENT 7143/280 O.R. 1- J Ld cn Z PARCEL D c i - - -- _ -- - - - - -- 10' PARCEL C I w N PARCEL B cD 20' CITY OF FOUNTAIN VALLEY R =25' PARCEL A PARCEL E - - -- 50' I SLATER AVENUE NNO. 6496 S EXP. 6/30/99 sTgr ��P FOF CAO1 Q PREPARED BY: Derek J. McGregor LS. No! 6496 1 We Engineering p RYAN Civil • Surveying • Planning 18 Technology Drl.e, Suite IDO Irdae, CA 9271E 1 (714) 759 -9399 PA1 (714) 755 -9322 ORAWNC FILE LOCATION: C: \ACAD \J0BS \40J \403E%HA.0WC 0 100 SCALE: 1' - 100 EASEMENT WELL SITE NO.2B BAP71ST CHURCH CITY OF NEWPORT BEACH GROUNDWATER DEVELOPMENT PROJECT Ic SHEET 3 a OF 3 SHEETS a DATE: 4 -25 -95 a JN 92- 425 -28 c 0 sc LEGEND REMOVE AND REPLACE AC PAVEMENT FULL DEPIII RESTRIPE PARKING LOT i-�INSTALL TYPE I SLURRY SEAL RESIRIPE PARKING LOT INSTALL CUR13 & SIDEWALK u 3' x 3' CURB ISLAND AROUND LIGHT POLES CI -rY OF NEWPORT BEACH PUBLIC WORKS — UTILITIES PROPOSED FIRST BAPTIS 1 CI IURCI -I S SITE IMPROVEMENT iln FOUNTAIN VALLEY EXHIBIT "C" 1213/95 1 " =80' q u DRF FILE:403 \IMPEX.DWC BY THE CITY COUNCIL - 300q CITY OF NEWPORT BEACH March 25, 1996 • MAR 2 5 CITY COUNCIL AGENDA ITEM NO. 12 TO: Mayor & Membe FROM: Public Works Department SUBJECT: WATERLINE, STORM DRAIN AND INGRESS AND EGRESS EASEMENT AND LICENSE AGREEMENT BETWEEN THE FIRST AMERICAN BAPTIST CHURCH AND THE CITY OF NEWPORT BEACH AS PART OF THE GROUNDWATER DEVELOPMENT PROJECT RECOMMENDATIONS: Approve the Waterline, Storm Drain and Ingress and Egress Easement and Agreement and authorize the Mayor and the City Clerk to execute the agreement on behalf of the City. Approve funding for the agreement of $43,381.00 to the First American Baptist Church for compensation for the Easement and Agreement. BACKGROUND: • As part of the City of Newport Beach's (City) Groundwater Development Project, it is necessary to acquire a waterline, storm drain and ingress and egress easement from the First American Baptist Church located at 17415 Magnolia Street in the City of Fountain Valley and east of the Tamura School well site. This easement is required for installation of a new storm drain line for the well site and provides a superior alignment for the 24 -inch water line that connects the Tamura School well site to the 36 -inch water transmission main in Slater Avenue at the Talbert Channel. Staff, over the last 18 months, have been working with Church officials to complete this agreement. The easement is 20 -feet wide along the south and west property line for the 24 -inch water line and 10 -feet long along the north and west property line for the 18 -inch storm drain line. In addition, it includes an agreement for ingress and egress into the Church property for maintenance and operations of the pipelines and the Tamura School well site. The City has completed a land appraisal of the site to determine compensation to the Church for use of the easement area. It was determined and agreed upon that the cost of the easement will be $43,381. In addition, the City agrees to replace a portion of the existing parking lot where construction would occur, portions of the parking lot pavement that have failed over the years, repair conduits for the outside lighting system, and replace the landscaping along the westerly property line. • The City and the Church Staffs have jointly prepared an easement and license agreement for Council and First American Baptist Church's consideration. The Agreement is attached as Exhibit "A ". 0 # Page 2 Waterline, Storm Drain Line and Ingress and Egress Easement and License Agreement March 25, 1996 DISCUSSION: The proposed easement and license agreement will provide the City with a desirable pipeline, ingress and egress easement for the Tamura School well site at a "fair market" easement cost. The Public Works Committee reviewed this easement and license agreement at its December 8, 1995, meeting. Staff noted at this meeting that it is estimated that implementation of the Groundwater Development Project will save the City approximately 60 million dollars during the next fifteen years, in addition to providing the City with an alternative water supply. This particular easement will save the City over $200,000 in pipeline costs. If not approved, an alignment through the school site would be developed for the water line. However, a storm drain easement would still be required through the church site. The proposed easement and license agreement has been approved by the Church's Staff and Board of Directors on February 28, 1996. The entire congregation will be voting on the easement and agreement in the next few weeks and final approval is expected by the end of March, 1996. STAFF RECOMMENDED ACTION: Staff recommends approval of the easement and license agreement between the First Baptist American Church and the City of Newport Beach for the waterline, storm drain line, ingress and egress easement and license agreement for the Tamura School well site. Funds for the easement and license agreement were approved in the water capital improvement projects budget in the previous four (4) years and are available in the Water Enterprise Fund under Capital Project No. 7504 - 055000094. Respectfully submitted, OW `PUBLIC WORKS DEPARTMENT Don Webb, Director By: Michael U. . Sinacori, P.E. Utilities Engineer NIJS:cia Attachments: Exhibit 'X': Waterline, Storm Drain Line, Ingress and Egress Easement and License Agreement between the First Baptist Church and the City of Newport Beach • • 40 RECORDING REOESTED BY AND WHEN RECORDED RETURN TO: City Clerk • City of Newport Beach 3300 Newport Boulevard P. O. Box 1768 Newport Beach, California, 92658 -8915 space above this line for Recorder's use only. WATERLINE, STORM DRAIN LINE, INGRESS AND EGRESS EASEMENT AND LICENSE AGREEMENT PREAMBLE THIS EASEMENT AND AGREEMENT is made and entered into this day of March, 1996, by and between the City of Newport Beach, a municipal corporation, hereinafter referred to as "CITY ", and Southern California Baptist Convention, a non - profit corporation, hereinafter referred to as "OWNER ". 1.0 RECITALS 1.1 "OWNER" is the owner of certain real property commonly known as "First American Baptist Church" located at 17415 Magnolia Street in the City of Fountain Valley, County of Orange, State of California. 1.2 "CITY" has plans for a groundwater development project to construct water wells in the Fountain Valley area and transport water to its service area. 1.3 "CITY" desires a waterline, storm drain, ingress and egress easement, and license agreement across a portion of the "First American Baptist • Church" site more particularly described in Exhibit "A" and depicted in Exhibit "B ", enclosed herein. 2.0 GRANT OF EASEMENT: For valuable consideration and in consideration of "CITY'S" agreement herein contained, "OWNER" hereby grants to "CITY" an easement for the following rights and uses of said property: The right for ingress and egress, to excavate for, construct, install, replace, maintain and use a waterline and storm drain line each not to exceed 24- inches in diameter, and appurtenances in, on, over and across that certain real property in the City of Fountain Valley, County of Orange, State of California, described in Exhibit "A" enclosed herein. 3.0 CHARACTER OF EASEMENT: The easement granted herein is not appurtenant to any real property, but it is in gross. That is to say, it is to be used by the "CITY" and is not to be attached to or run with any other land. 4.0 ADDITIONAL RIGHTS & OBLIGATIONS: 4.1 "OWNER" further grants to "CITY ": (a) The rights of ingress and egress for maintenance and operations of the waterline, storm drain line and appurtenances by means of existing roads or lanes thereon and no new roads or lanes shall be constructed or used without prior written consent of "OWNER ". • (b) The rights of ingress and egress for the construction, maintenance and operations of a groundwater well facility, including drilling and re- drilling of wells and construction and Exhibit "A" maintenance of a well facility building located on the adjacent property by means of existing roads or lanes thereon and no new roads or lanes shall be constructed or used without prior written consent of "OWNER ". • (c) The right to use such portion of property contiguous to Easements as may be reasonably necessary in connection with the installation, repair and /or replacement of such waterline and storm drain line, except at times that would conflict with regular Sunday services or scheduled events. (d) The right to pass through gates and fences on the property. (e) "OWNER" agrees to allow "CITY" to construct a gate along the westerly property line at the groundwater well facility for maintenance purposes. (f) "OWNER" agrees not to construct certain improvements including, but not limited to: drainage lines, walls, footings, planters, softscape surfaces and other non - habitable structures, (hereinafter "Non - Standard Improvements ") over the waterline and storm drain line within the existing hardscape area of the easement without prior written agreement with "CITY ". Written agreement shall not be unreasonably withheld. "Non- Standard Improvements" may constitute an abnormal burden upon the 'CITY's" ability to maintain and operate the "CITY's" waterline and storm drain line within said easement. As a result, "OWNER" agrees to assume all responsibility for any encroaching improvements and all encroaching installations, improvements and landscaping. . (g) "CITY'S right of ingress and egress to the easement shall be limited to weekdays only and only upon prior notification to "OWNER. In the event of an emergency which requires the "CITY" to enter the property during Sunday Services or other scheduled events, "CITY" shall pay liquidated damages in the sum of $500 for each occurence. (h) "CITY" agrees to pay for actual damages in the event that Sunday Services, special events or Valley Day Pre - School special events or classes are forced to be closed, or otherwise result in diminished use and enjoyment of the property (e.g., fumes, noise) resulting from the "CITY's" use of the Easement area. Actual damages include, but are not limited to, out -of- pocket expenses incurred by "OWNER ", plus loss of income or revenue. Loss of income or revenue shall be calculated as the difference between actual income or revenue during the affected period and the average weekly revenue times the number of weeks affected. Average weekly revenue shall be computed as the average of the six (6) weeks immediately preceding the affected period. 4.2 In consideration of the Easement and License Agreement, "CITY" agrees as follows: (a) "CITY" agrees to pay "OWNER" a one time fee as full consideration for this Easement and License Agreement $43,381, which has been determined by the parties to be the fair market value for the Easement+ area. Page 2 (b) "CITY" shall not fence Easement without prior written approval of "OWNER" during installation, repair and /or replacement of waterline and storm drain line. "CITY" further agrees that construction will take place only during weekdays and that during periods of construction, vehicle access must be continually maintained for Church office and Valley Day Preschool use. Construction will not take place on weekends or evenings without prior written approval of the "OWNER." Construction would not commence prior to approval, by "OWNER ", of the construction schedule, which must be reasonably maintained. All debris during the construction period must be removed from the property by 5:00 PM every Friday evening and necessary equipment may be stored on the property in such a way to maximize access, parking and aesthetic appearance for weekend services and events. (c) "CITY" maintenance of the waterline and operation of the well site, including drilling and re- drilling of wells, shall not interfere with "OWNER" normal parking and circulation for regular Sunday services or scheduled special events, except in case of an emergency. (d) "CITY" agrees that should the replacement and reconstruction of the waterline be required, "CITY" shall compensate "OWNER" for any additional construction easement area. The cost shall be based upon an appraisal conducted by a M.A.I. firm mutually acceptable to both "CITY" and "OWNER" with costs associated in • developing the appraisal paid by "CITY ". (e) "CITY" shall promptly backfill and recompact any trench during construction within the Easement area and repair any damage construction may cause on the property, including damages to parking areas, roads and lanes. In the event, thereafter, that the backfill of any trench excavation by "CITY" settles, "CITY" shall, at the request of "OWNER ", promptly refill or replace same, in its entirety, at 'CITY's" cost and expense. (f) "CITY" agrees to indemnify and hold "OWNER" harmless from and against any and all loss, damage, claim, claim of lien, action or cause of action that may be directly caused by or arise out of the use and enjoyment of any of the rights herein granted, or by the activities of "CITY's" employees, contractors, agents or invitees. "CITY" further agrees to defend "OWNER" against any and all claims which may arise and to provide for attorney of "CITY'S" choosing and to pay for all legal costs, fees and expenses which are incurred in defense of such claim. (g) "CITY" agrees that after installation of the waterline and storm drain line, "CITY" will remove and repair any and all damaged areas of the existing parking lot and roadways. In addition, "CITY" agrees to complete the following improvements: asphaltic concrete patching and repair in areas of need, slurry seal and re- stripping • the entire existing parking lot, installation of curbs, sidewalks, planters and new landscaping in the rear parking to the satisfaction of "OWNER" and as described on Exhibit "C ". Improvements Page 3 include, but are not limited to, remov of tree stumps at the west end of the property and new landscaping. (h) "CITY" shall obtain all permits required to construct the waterline • and storm drain line within the Easement area. "OWNER" as the land owner will sign all permit applications as required by the local agencies issuing the permits. `CITY" shall pay any and all associated taxes, fees, permits and costs, including any property taxes, appraisal fees or other costs associated with this easement and agreement at no cost to "OWNER." (i) "OWNER" has the right at its own cost, to inspect both the surface and underground structure of the easement, under the supervision of "CITY ", if "OWNER" has good faith belief that damage to building or property may be occurring due to the easement or faulty equipment or conditions thereof. In the event there is damage which needs to be repaired, "CITY" shall be liable for the inspection costs. 5.0 RELOCATION OF EASEMENT: Whenever, in the sole opinion of "OWNER ", the location of Easement interferes with "OWNER's" use and enjoyment or operation upon the property, "OWNER" may, upon ninety (90) days written notice to "CITY ", relocate Easement and reconstruct the waterline and storm drain line. All costs and expenses attributable to the relocation and reconstruction of the waterline and storm drain line, including any increases in the "CITY'S" cost of water, shall be the responsibility of "OWNER ". "CITY" shall administer, all necessary projects /contracts relative to the relocation. "OWNER" shall be responsible for all design, consultant and permit fees. "CITY" shall provide administration at no cost to "OWNER ". is 6.0 NON - EXCLUSIVE EASEMENT: The easement granted in this agreement is non - exclusive. "OWNER" retains the right to make any use of this property, including a right to grant concurrent easements in the property to third parties, that does not interfere unreasonably with "CITY'S" free use and enjoyment of the easement, and which does not violate any other provision of this Agreement. 7.0 TERM OF EASEMENT: The initial term of this Easement shall be ninety -nine (99) years, commencing from the date of execution by "OWNER ". The Easement shall be renewed for additional ninety -nine (99) year terms unless "OWNER" or any successor notifies "CITY ", in writing two (2) years prior to the termination date, of its intention not to renew the Easement. 8.0 TERMINATION: The Easement granted and all "CITY" rights herein shall terminate and revert to "OWNER" upon "CITY's" abandonment in whole or in part, of the Easement herein granted or upon relocation of the Easement, in whole or in part, pursuant to paragraph 5.0 hereof. A continuous period of non -use for five (5) years shall create a rebuttal presumption of abandonment. Upon abandonment or termination of the Easement pursuant to Section 7.0, "CITY" shall, at its own cost and expense, remove all property placed upon Easement and restore the surface thereof. "CITY' upon abandonment or termination of the Easement, shall execute and • deliver to "OWNER" any and all documents necessary to establish the termination thereof as a matter of record. Page 4 LJ Page 5 9.0 ENTIRE AGREEMENT: This instrument contains the entire Easement and Agreement between the parties relating to the rights herein granted and the obligations herein assumed. Time is of the essence in this Agreement. Any oral representations or modifications concerning this instrument shall be of no force or effect unless evidenced by a subsequent modification in writing, signed by the party to be charged. 10.0 ATTORNEY'S FEES: In the event of any controversy, claim or dispute relating to this instrument or breach thereof, the prevailing party shall be entitled to recover from the losing party, reasonable expenses, attorneys' fees and costs. 11.0 NOTICES: Notices concerning the rights and obligations hereunder shall be given by certified U.S. Mail, prepaid, return receipt requested, or by personal delivery, as follows: To "OWNER ": Southern California Baptist Convention Attention: Property Committee 17415 Magnolia Street Fountain Valley, California 92334 To "CITY ": City of Newport Beach, Public Works Department Attention: Utilities Manager 3300 Newport Boulevard Post Office Box 1768 Newport Beach, California 92658 -8915 or such other address that either party may designate in writing from time to time. 11.0 BINDING EFFECT: This instrument shall bind and inure to the benefit of . the respective heirs, personal representatives, successors and assigns of the parties hereto, except as otherwise provided in this Agreement. 12.0 EXECUTION IN COUNTERPARTS: It is mutually agreed that this Easement and Agreement may be executed in counterparts by the various signatories. LJ Page 5 • IN WITNESS WHEREOF, the parties hereto have caused this Easement and Agreement to be executed on the day, month and year first above written. APPROVED AS TO FORM: Robin Clauson Assistant City Attorney ATTEST: LaVonne Harkless City Clerk Address and Telephone: City of Newport Beach, Public Works Dept. 3300 Newport Boulevard P.O. Box 1768 Newport Beach, California 92658 -8915 (714) 644 -3011 (714) 646 -5204 fax CITY OF NEWPORT BEACH a municipal corporation John Hedges Mayor Southern California Baptist Convention, a non - profit corporation 20 Print Name: Southern California Baptist Convention 17415 Magnolia Street Fountain Valley, California 92334 (714) 847 -3573 (714) 847 -5669 fax Page 6 • r1 �J i 9 0 EXHIBIT "A" • EASEMENTS FOR PUBLIC UTILITY PURPOSES, INCLUDING INGRESS AND EGRESS FOR THE INSTALLATION AND :MAINTENANCE OF A WATER LINE. STORM DRAIN LINE AND APPURTENANT FACILITIES IN THE CITY OF FOUNTAIN VALLEY, COUNTY OF ORANGE, STATE OF CALIFORNIA, O'ER, UNDER, AND ACROSS THE FOLLOWING DESCRIBED PARCEL OF LAND: THE EASTERLY 650.00 FEET OF THE NORTH HALF OF THE SOUTH HALF OF TIIE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 25, TO',VNSH1P 5 SOUTH, RANGE I I WEST, IN THE RANCHO LAS BOLSAS, AS SHOWN ON A :SLAP FILED IN BOOK 5 1, PAGE 13 OF ,MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY. DESCRIBED AS FOLLOWS: PARCEL A EXCEPTING THEREFROM THE EASTERLY 50.00 FEET THEREOF. THE SOUTHERLY 20.00 FEET OF THE ABOVE DESCRIBED PARCEL. PARCEL B EXCEPTING THEREFROM THE SOUTHERLY 20.00 FEET THEREOF. . THE WESTERLY 20.00 FEET OF THE SOUTHERLY 2 =:5.00 FEET OF THE ABOVE DESCRIBED PARCEL. PARCEL C EXCEPTING THEREFROM THE SOUTHERLY 245.00 FEET THEREOF. THE WESTERLY 10.00 FEET OF THE ABOVE DESCRIBED PARCEL. SHEET 1 OF 3 SHEETS 425 -2B i 0 PARCEL D 0 EXCEPTING THEREFROM THE WESTERLY 10.00 FEET THEREOF. . THE NORTHERLY 10.00 FEET OF THE ABOVE DESCRIBED PARCEL LYING WESTERLY AND SOUTHWESTERLY OF THAT CERTAIN EASEMENT GRANT DEED GRANTED TO THE CITY OF FOUNTAIN VALLEY, RECORDED JULY 21, 1964 IN BOOK i 143, PAGE 230 OF OFFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY. PARCEL E A FILLET, CONCAVE TO THE NORTHEAST HAVING A RADIUS OF 25.00 FEET, ADJOINING THE NORTHERLY LINE OF SAID PARCEL A AND ADJOINING THE EASTERLY LINE OF SAID PARCEL B. SUBJECT TO COVENANTS, CONDITIONS, AND EASEMENTS OF RECORD, IF .ANY. MORE PARTICULARLY SHOWN ON EXHIBIT "B" ATTACHED HERETO .A:1D MADE A PART HEREOF. _ J PREPARED BY: E.v s/sa /99 � \vr Z — L.9 SHEET 2 OF 3 SHEETS DEREK J. MCGREG L.S. NO. 6496 425 -2B L 1] Cl r� STREET EASEMENT 7163/280 O.R. PARCEL D — PARCEL C PARCEL 8 N zo' + No. 6496 � 1\ L Exp.6130199 PREPARED BY: EXHIBIT " B" v w z 1 i • i u - I � I� ¢ ¢ CITY OF FOUNTAIN VALLEY =2s' PARCEL A lo-' PARCEL E Derek J. McGregor LS. Nod 6496 1 Dbf Engineering Y Civil • Surveying • Planning la TechnoloCT Drive. 3ulte 100 Irvins, CA 92716 1 (714) 759 -9593 3-.0 (714) 713-9322 ORAWNG FlLE 1OCA11ON: C.\ACA0\J08S \40J \10JE%HA.0W0 �. SLATEF a 100 SCALE: i' — 100 EASEMENT WELL SITE NO.2B BAPTIST CHURCH CITY OF NEWPORT BEACH GROUNDWATER DEVELOPMENT PROJECT oil E SHEET 3 < OF 1 SHEETS a OMIL 4 -25 -95 a N 92- 425 -28 . I i i MAGNOLIA STREET I / I I SCAN: 1' - 00' ..I i FI 2S7 GAP I i 7 CHURCH I LEGWQ REMOVE AND REPI.ACE AC PAVEMENT LULL UEPUI RESIRIPC PARKING 1.01 �j 1NSTA1.t M'E I SLURRY SDI. u RESIRIPE PPRKINC LOT ® INSTALL CURD k SIDEWALK 3' x 3' CURB / ISLAND AROUND LICIII PULES CI FY OF NEWPORT 01 -AC1 -I PUBLIC WORKS - UIILIIIES _ EXHIBIT C PROPOSED FIRST 8APT61 CHURCH SITE INIPROVEMEN IS URIC — SCALE 12/13/95 1' =80' FOUNTAIN VALLEY ouAII DR1. FILE :403 \IMPCX.BWG