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HomeMy WebLinkAboutC-2988 - Well Site Easement Agreement & Option to PurchaseRECORDING REQUESTED AND WHEN RECORDED RETURN TO: City Clerk City of Newport Beach Post Office Box 1768 3300 Newport Boulevard Newport Beach, California 92658-8915 Space above this line for Recorder's use only gk WELL, SITE EASEMENT AGREEMENT & OPTION TO PURCHASE ��Yr;. This Easement Agreement and Option to Purchase (the "Agreement") between the Fountain Valley School District ("District") and the City of Newport Beach ("City") is made this 14th day of April ,1994, in light of the following: RECITALS 1. City has plans for a groundwater development project to construct water wells in the Fountain Valley area and transport water to its service area; and, 2. District is the owner of the Tamura School property in the City of Fountain Valley. A portion of the school. property is suitable for a water well site; and, 3. District is willing to grant an easement to the City, as well as an option to purchase under certain circumstances, that would allow of the construction and use for a portion of the Tamura School property as a water well site. EXECUTORY AGREEMENTS The parties do agree as follows: 1.1 Grant of Easement District grants to City an easement over that portion of the Tamura School property shown on Exhibit "A and generally described as a parcel 60 feet wide and 125 feet long located on the easterly boundary of the school; and a strip of land 20 < ` feet in width along the southerly boundary of the school and along the southerly portion of , the westerly school boundary for pipeline, ingress and egress purposes. `e 1.2 Purpose of Easement The City is entitled to use the easement for the following purposes: (a) to drill and install two (2) water wells together with related equipment, piping and facilities necessary to transport the water produced to City's transmission lines; (b) to maintain water purification facilities, equipment and material; (c) to maintain electrical facilities and other equipment ancillary to the water wells; (d) to construct a building to house, and mitigate noise generated by, the water wells, electrical equipment, and related facilities; (e) to construct access roads, curb cuts and other improvements necessary to service the wells, purification equipment, electrical equipment and related facilities; (f) to engage in any activity necessary or incidental to the drilling or redrilling of the water wells, maintenance of the structure or related equipment, or the storage of material necessary to pump or purify the water. 1.3 Restrictions City shall comply with the following restrictions of the rights granted by the agreement: (a) the building to be constructed to house the water wells will not exceed 18 feet in height, 40 feet in width, or 110 feet in length; (b) the building shall be constructed so that the exterior appearance is consistent, with and similar to, other buildings on the Tamura School site; (c) City shall insulate the structure housing the water wells of otherwise mitigate noise such that the improvements authorized by this easement do not significantly increase ambient noise levels on adjacent private property; (d) City shall at all times be responsible for maintaining the exterior appearance of all above ground water well facilities in a neat and orderly appearing condition. (e) City will not separate the above ground well facilities from the adjacent School facilities with a wall or fence. 1.4 Term of Easement The initial term of this agreement shall be ten (10) years, commencing from the date of execution by the District. City shall have the option to extend the term of this agreement for eight (8) consecutive ten (10) year periods, followed by one (1) nine (9) year period. City shall be considered to have exercised this option to renew unless the City or any successor notifies the District in writing, of its intention not to exercise the option to extend the term within sixty (60) days prior to the expiration of the initial term or any successor, and the City has removed all equipment, improvements and facilities from the easement area prior to expiration of the then current term. 7 1.5 Termination of Easement The Agreement may be terminated under the following conditions: A. By City. City may terminate this easement upon determination that continued groundwater pumping from the extraction well site is no longer feasible due to contamination of the underground water or the inability to produce a sufficient quantity of water to make pumping economical given the cost of production, the cost of transmission, the cost of alternative sources of water. City shall give the District at least one (1) year's written notice of its intention to terminate this agreement and the notice shall specify the date of termination. City's obligation to make payments shall continue until the City has restored the easement area to its original condition by removing all improvements and abandoning the well in accordance with all Federal, State and other regulatory requirements. B. By District. In consideration of the cost of improvements and installation of the extraction well, District agrees not to terminate this agreement within the first ten years without the City's written consent. In the event City exercises its option to renew this agreement, District may thereafter terminate the agreement upon declaration that the Tamura school property is surplus and upon District's full compliance with all requirements of the California Education Code. District shall give the City one year's written notice of its intent to terminate this agreement. If District terminates this agreement and City does not exercise the option described in Section 1.6, then City shall restore the easement area to its original condition by removing all improvements and abandoning the well in accordance with all Federal, State and other regulatory requirements. 1.6 Option to Purchase The City shall have the exclusive option to purchase fee title to the easement area if District exercises its right to terminate agreement pursuant to Section 1.5 (B) and has fully complied with all California Education Code requirements. The City shall exercise this option to purchase by giving District written notice of its intent to purchase the easement area within ninety (90) days after District serves written notice of its intent to terminate the agreement. Each party shall, promptly after City gives notice of its intent to purchase the easement area, commission an appraisal of the easement area from an MAI (Member of the American Institute) appraiser. The MAI appraiser shall be instructed to value the property based upon the proposed use of the Tamura School property. After completion of the appraisals, City and District shall negotiate the purchase price based upon the two appraisals. If City and District can not agree on a negotiated price, then a third MIA appraiser shall be obtained. The purchase price shall then be the District's negotiated asking price or the value set forth in the third appraisal, whichever amount is the lowest. City and District shall share equally in the cost of obtaining the third appraisal. 1.7 Consideration The annual consideration for this grant easement shall be $20,000.00 per fiscal year (July 1 -June 30). The annual consideration shall be due and paid in advance of the fiscal year for which the payment is due and in no event later than on or before June 30. City shall pay District a prorata share of this annual consideration upon execution of this agreement. Beginning of July 1, 1999, the annual consideration shall be increased or decreased to reflect the change in the all Urban Consumers Price Index for the Los Angeles -Anaheim -Riverside area published by the Department of Labor, between the execution date of this agreement (the base for this index at the time of this agreement is assumed to be 149.8) and March 30,1999. The annual consideration due on June 30, 2000, and each subsequent year thereafter, shall reflect the increase or decrease in the CPI for the preceding 12 month period (from April 1 to March 30). 1.8 Permits City shall obtain all permits required to construct the wells in the easement area. district as the land owner will sign all permit applications as required by the local agencies issuing the permits. 1.9 Architectural Approval City shall submit all plans for buildings, landscaping and any other above ground improvements to District for architectural approval. District shall review all plans submitted and within 30 days indicate in writing whether or not the plans are approved. District approval shall be based on safety and architectural compatibility with adjacent facilities. District's approval shall not be unreasonably withheld. 2.0 Maintenance and Use of Unoccupied Easement Area District shall be entitled to continue using the unoccupied portions of the easement area except when these areas are being used by the City for construction or maintenance of the well facilities. In consideration of District's use of the unoccupied portion of the easement premises, District agrees to maintain this unoccupied area. After use of the unoccupied area by the City for construction or maintenance, City shall restore any disturbed portions of the area. 2.1 Utility Costs All utility costs and other expenses related to the easement area shall be borne by the City. 2.2 Notices Except as otherwise provided in this agreement, all notices, payments, transmittals of documentation and other writings required or permitted to be delivered or transmitted to any of the parties under this agreement shall be personally served or deposited in a United States mail depository, first class postage prepaid, and addressed as follows: V If to District Fountain Valley School District 17210 Oak Street Fountain Valley, California 92708 Attention: Superintendent If to City City of Newport Beach 3300 Newport Boulevard Post Office Box 1768 Newport Beach, California 92658-8915 Attention: Utilities Director or such other address or person as any party may direct to the other in writing. Except where service is by personal delivery or by registered or certified mail, return receipt requested, service of any instrument or writing shall be deemed completed forty-eight (48) hours after deposit in a United States mail depository. Notices served by personal delivery or by registered or certified mail, return requested, shall be deemed served when delivered or deposited in the mail. 2.3 Indemnification A. The City shall indemnify and hold District and its officers, directors, employees, and representatives harmless from and against any injury to any person, or any damage to property caused by the negligent performance of this Agreement by City, its officers, council members, employees, agents, representatives and contractors in connection with the performance of this Agreement, or the presence of the water wells or related improvements on the easement area. B. District shall indemnify and hold the City and its officers, council members, employees, and representatives harmless from and against any damage to its improvements caused by the negligent or willful act of any officer, director, employee, agent, representative or contractor of the District. 2.4 Integration, Construction and Amendment: This Agreement represents the entire understanding of District and City as to those matters contained herein, and no prior oral or written understanding shall be of any force or effect with respect to those matters covered by this Agreement. This Agreement shall be governed by the laws of the State of California and construed as if drafted by both District and City. This Agreement may not be modified, altered or amended except in writing signed by District and City. 2.5 Attorneys Fees If either party is required to initiate litigation to enforce the terms and conditions of this Agreement or to seek damages by reason of the breach of the terms and conditions of the Agreement, the prevailing party shall be entitled to recover reasonable attorneys fees and costs incurred. 2.6 Successors This Agreement, and all of the terms, conditions and provisions herein, shall inure to the benefit of, and be binding upon, District and City, and their respective successors and assigns. 2.7 Authorization to enter Agreement District represents that it is authorized by State law to enter into this Agreement and that this Agreement has been authorized by it's Board of Trustees. 6 IN WITNESS WHEREOF, the parties have executed this Agreement on the date first written above: APPROVED AS TO FORM By: General Cou el Fountain Valley School District APPROVED AS TO FORM B3 Robert Burnham ATTEST City Clerk Wanda Raggio FOUNTAIN VALLEY SCHOOL DISTRICT By: President By: ' Secretary CITY OF NEWPORT BEACH a Municipal Corporation By Clarence Turne Mayor 7 STATE OF CALIFORNIA )ss. COUNTY OF ORANGE ) On L /,'f%� , before me, Irene Butler personally appeared personally known to me (or proved me on the easis of satisfactory evidence) to be the person(4) whose name( -s-) is to the within instrument and acknowledged to me that hejshej—t 9executed the same in his/her -th it authorized capacity{i.,as) , and that by hisAh-- /t °;-r signature (-s-) on the instrument the person (-s') or the entity upon behalf of which the person Fs) acted, executed the instrument. WITNESS my hand and official seal. r]REM BUTLER CRI"m• #1008878 (SEAL) «► i1RY PUBLIC CALIFORNIA Notary Public in and for said State �' �M1S i ORANGE COUNTY `J Comm. Expires Nov. 11, 1997 -► OPTIONAL INFORMATION TITLE OR TYPE OF DOCUMENT���%zey��-��?t� DATE OF DOCUMENT NUMBER OF PAGES SIGNERS) OTHER THAN NAMED ABOVE 1`� 111114 h►TA14►11 State of ed 'I, es., County of a0eWAA On AVAIfebefore me, ri4c0.. Ci/. -.6.V%. f0r%iw-.4 "CV-frk DATE NAME, TITLE OF OFFICER - E.G.,'JANt OE, NOT/RY PUBLIC personally appeared 1 CP' % NAME(S) OF SIGNER(S) �( personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence 7� to be the person(4 whose name( is/(?subscribed to the within instrument and acknowledged to me that he/sVe th4 executed the same in his/hrtr/tVir authorized capacity(), and that by his/Vr/th)eir signature( on the Instrument the person(s6, or the entity upon behalf of which the person(j) acted, PATRICK, A. 9 NJINI /r 9 xecuted the instrument. CO, -11 t. #1001?_Si X NOTARY PU31-IC CAURORN A "I r. J/ITNESS my hand and official seal. ;r>I ORANGE. COUNTY My Comm. Expires Aug. 19, 1997 Y' /) OF NOTARY — OPTIONAL SECTION — CAPACITY CLAIMED BY SIGNER Though statute does not require the notary to fill in the data below, doing so may prove invaluable to persons relying on the document. ❑ INDIVIDUAL ❑ CORPORATE OFFICER(S) ,❑, /GUARDIAN/CONSERVATOR LIJ� OTHER: A-05, WA", 4 1 SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) OPTIONAL SECTION_ THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE OF DOCUMENT WC/� - L`' fi�SeWW./ THE DOCUMENT DESCRIBED AT RIGHT: NUMBER OF PAGES % DATE OF DOCUMENT 4"y /ii /5f/ Though the data requested here is not required by law, SIGNER(S) OTHER THAN NAMED ABOVE (/Oe.1 z. ;r,!y e,4, i it could prevent fraudulent reattachment of this form. F-1 IL" ►1911A q:1RM ft State of re. County of On /� /Slr� . before me, ;c.k w., PU bJ /Z DATE NAME, TITLE OF OFFICER - E-- 'JANE D7, NOVRRY PUBLIC' personally appeared �U b 810 L ..:L�i+/©i�.f�l�? , NAME(S) OF SIGNER(S) ❑ personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the personV) whose name(/) is/aLA subscribed to the within instrument and acknowledged to me that he/sly--/tVy executed the same in his/Vr/th,6ir authorized capacity(io), and that by his/her/thpfir . �• - . ignaturel on the instrument the person(,V, or the PATRICK A.QUINN ntity upon behalf of which the person(s) acted, CCymm. #151' 67 (xecuted the instrument. NOTARY PUBLIC CALIFORNIA -1 CT3 f > ORANGE CCdUffl Y -WITNESS my hand and official seal. My Comm. Expires Aug. 19, 1997 �--^-� 7-,7' THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Though the data requested here is not required by law, it could prevent fraudulent reattachment of this form. SIGNATURE — OPTIONAL SECTION — CAPACITY CLAIMED BY SIGNER Though statute does not require the notary to fill in the data below, doing so may prove Invaluable to persons relying on the document. ❑ INDIVIDUAL ❑ CORPORATE OFFICER(S) TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ,❑ UARDIAN/CONSERVATOR /f L_iT OTHER:a Gr SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) OPTIONAL SECTION TITLE OR TYPE OF DOCUMENT e' f 7 NUMBER OF PAGES DAM OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE �d b Cr^ 50 W4 TITUE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ,❑, /GUARDIAN/CONSERVATOR LIJ� OTHER: A-05, WA", 4 1 SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) OPTIONAL SECTION_ THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE OF DOCUMENT WC/� - L`' fi�SeWW./ THE DOCUMENT DESCRIBED AT RIGHT: NUMBER OF PAGES % DATE OF DOCUMENT 4"y /ii /5f/ Though the data requested here is not required by law, SIGNER(S) OTHER THAN NAMED ABOVE (/Oe.1 z. ;r,!y e,4, i it could prevent fraudulent reattachment of this form. F-1 IL" ►1911A q:1RM ft State of re. County of On /� /Slr� . before me, ;c.k w., PU bJ /Z DATE NAME, TITLE OF OFFICER - E-- 'JANE D7, NOVRRY PUBLIC' personally appeared �U b 810 L ..:L�i+/©i�.f�l�? , NAME(S) OF SIGNER(S) ❑ personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the personV) whose name(/) is/aLA subscribed to the within instrument and acknowledged to me that he/sly--/tVy executed the same in his/Vr/th,6ir authorized capacity(io), and that by his/her/thpfir . �• - . ignaturel on the instrument the person(,V, or the PATRICK A.QUINN ntity upon behalf of which the person(s) acted, CCymm. #151' 67 (xecuted the instrument. NOTARY PUBLIC CALIFORNIA -1 CT3 f > ORANGE CCdUffl Y -WITNESS my hand and official seal. My Comm. Expires Aug. 19, 1997 �--^-� 7-,7' THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Though the data requested here is not required by law, it could prevent fraudulent reattachment of this form. SIGNATURE — OPTIONAL SECTION — CAPACITY CLAIMED BY SIGNER Though statute does not require the notary to fill in the data below, doing so may prove Invaluable to persons relying on the document. ❑ INDIVIDUAL ❑ CORPORATE OFFICER(S) TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ,❑ UARDIAN/CONSERVATOR /f L_iT OTHER:a Gr SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) OPTIONAL SECTION TITLE OR TYPE OF DOCUMENT e' f 7 NUMBER OF PAGES DAM OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE �d b Cr^ 50 W4 w Lij V) w z Q V) 1�- z U) I� FOUNTAIN VALLr Y JrrJJJL J15 -i -TRIC r � I I / R I PROPOSED WELL SITE EASEMENT so' APPROXIMATE WELL BUILDING FOOTPRINT N IACCESS AND z UTILITY EASEMENT —' �o 4 R 0 150' SCALE: 1" 150' CITY OF NEWPORT BEACH UTILITIES DEPARTMENT PROPOSED WELL SITE LEASE TAMURA ELEMENTARY SCHOOL FOUNTAIN VALLEY EXHIBIT "A" DATE 3/8SCALE /94 DRAWN