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HomeMy WebLinkAboutC-8175-1 - Right-of-Entry and Temporary Comstruction Easement Agreement for Bayview Heights Drainage ProjectN T O 03 RIGHT -OF -ENTRY AND TEMPORARY CONSTRUCTION EASEMENT AGREEMENT WITH CJ THE JOHNS LIVING TRUST FOR BAYVIEW HEIGHTS DRAINAGE PROJECT This Right of Entry anA Temporary Construction Easement Agreement ("Agreement") is made this_47-ay of July, 2017 ("Effective Date"), by and between the City of Newport Beach, a California municipal corporation and charter city, its officers, employees, agents, invitees, contractors and subcontractors (collectively referred to as "Grantee") and William Buck Johns and Elizabeth Colleen Johns, as Co - Trustees of the Johns Living Trust established August 13, 2007 ("Grantor'), as the owners of real property located at 2600 Mesa Drive, Newport Beach, California 92660, Assessor's Parcel Number 439-051-05 ("Property"). 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. Pursuant to that certain Cooperative Agreement for Mesa Drive Drainage Improvements Project dated April 21, 2015, Grantee desires to secure a right of entry and temporary construction easement from Grantor for the purposes of construction of the proposed Bayview Heights Drainage Project ("Project") by Grantee in that portion of Property adjacent to the Project property owned by Grantor, as shown on Exhibit "A" attached hereto and incorporated herein by reference ("Temporary Easement Area") as further described herein. C. Grantee also desires to secure permission from Grantor to allow Grantee to enter upon, to pass and repass over, under, across, and along the Temporary Easement Area for the purpose of providing access and working area for the construction of the Project; to perform grading and related activities in, on, over, and across the Temporary Easement Area for the purpose of re-establishing natural grades and forestalling future erosion; to store, place and deposit materials, tools, implements, vehicles, construction equipment and other construction related items in the Temporary Easement Area for purposes related to the Project; and to perform landscaping and related activities including, but not limited to, the installation and removal of landscaping, in, on, over, and across the Temporary Easement Area for the purpose of re-establishing natural grades and forestalling future erosion, under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. Recitals The Recitals set forth above are true and correct and are hereby incorporated into this Agreement. 2. Property Grantor is the fee owner of that property commonly known as 2600 Mesa Drive, Newport Beach California, described as: THAT PORTION OF LOT 152 IN BLOCK 51 OF IRVINE'S SUBDIVISION, AS SHOWN ON A MAP RECORDED IN BOOK 1, PAGE 88 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: PARCEL NO. 1 AS SHOWN ON A MAP FILED IN BOOK 21, PAGE 8 OF PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY. EXCEPTING THREEFORM THAT PORTION THEREOF DESCRIBED IN DEED TO THE IRVINE COMPANY, RECORDED DECEMBER 3, 1970 IN BOOK 9477, PAGE 333 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY. 3. Riaht of Entry and Temporary Construction Easement Grantor hereby grants to Grantee, and Grantee accepts, a non-exclusive temporary right of entry on, over, under, across, and along the Temporary Easement Area for the purpose of constructing, grading, landscaping, installing, repairing, replacing, and related activities for the Project and to allow the accommodation and storage of equipment, materials and workers necessary therefore. 4. Right of Entry and Temporary Construction Easement Conditions Grantor and Grantee agree to Grantee's right of entry to the Temporary Easement Area with the following conditions: a. City shall landscape the Temporary Easement Area in substantial conformance with City approved landscape plan for the Project. City shall reinstall fences, gates and other appurtenances removed during construction. Right of Entry and Temporary Construction Easement - 2600 Mesa Drive Page 2 b. Grantee shall indemnify Grantor against and hold Grantor harmless from any loss of or damage to any 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. 5. Project The Temporary Easement Area will be permanently altered as a result of the Project in that, among other things: existing landscaping will be removed, the Temporary Easement Area will be graded, and new landscaping installed. The undersigned expressly acknowledge and agree that they are not entitled to any compensation as a result of: any grading; any landscaping related activities including, but not limited to, the installation and/or removal of landscaping; and/or other activities performed by the Grantee in, on, over, across, and along the Temporary Easement Area. Upon completion of the Project, Grantor shall convey, and Grantee shall accept, ownership of all alterations upon the Property as part of the Project. Upon Grantee's acceptance, Grantee shall be responsible, at Grantee's own expense, for any and all maintenance, repair and replacement of the alterations installed on the Property. 6. Term and Termination This Agreement shall commence with the first entry on Grantor's property by Grantee's contractor who is awarded by the Grantee the contract for the Project, and shall exist for a period of no more than three (3) months after the Effective Date hereof. This Agreement shall become null and void and shall terminate upon completion of the Project. 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 To Grantor: William Buck Johns and Elizabeth Colleen Johns 2600 Mesa Drive Newport Beach, CA 92660 Right of Entry and Temporary Construction Easement - 2600 Mesa Drive Page 3 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. Attorney's 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. Controllinq 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. This Agreement may not be amended or modified except by written amendment signed by both parties hereto. [SIGNATURES ON NEXT PAGE] Right of Entry and Temporary Construction Easement - 2600 Mesa Drive Page 4 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNa YQ FFICE Date: By: Aaron C. Harp uMoalof4liT City Attorney ATTEST:K Date: AL By: c Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: --?I 2A\ )7� By: < ` i ��L/ N Dave KO City Manager GRANTOR: William Buck Johns and Elizabeth Colleen Johns, as Co -Trustees of the Johns Living Trust established [END OF SIGNATURES] Attachments: Exhibit A — Temporary Easement Area Right of Entry and Temporary Construction Easement - 2600 Mesa Drive EXHIBIT A TEMPORARY EASEMENT AREA Right of Entry and Temporary Construction Easement - 2600 Mesa Drive Page 6 I r I I q I MANLY FAMILY TRUST RESIDETITIAL 4f 6. b A_ y ry \ COWTY OF GRANGE � -. `-.� TY OF ORANGE/ COUNTY OF ORANGE ST E OF- T CALIFORNIA STA—__ \ STATE OF CALIFORNIA A � GRAPH IC SCALE LEGEND STAGING AREA -. - EXISTING FENCE BAYVIEW HEIGHTS DRAINAGE Jq-N WILLIAMS BUCK RESIDENTIAL15 �r - L_ J F —I ` Y MANLY FAMILY TRUST RESIDENTIAL L _ J P MMANENT STORM C IN EASEMENT 4. zr I L � u ( l � A ha / L� �/Z5.6•. I _ I r I I q I MANLY FAMILY TRUST RESIDETITIAL 4f 6. b A_ y ry \ COWTY OF GRANGE � -. `-.� TY OF ORANGE/ COUNTY OF ORANGE ST E OF- T CALIFORNIA STA—__ \ STATE OF CALIFORNIA A � GRAPH IC SCALE LEGEND STAGING AREA -. - EXISTING FENCE BAYVIEW HEIGHTS DRAINAGE TEMPORARY Cg TRUCTION EASEMENT PROPERTY LINE RESTORATION PROJECT � L_ J F —I ` Y MANLY FAMILY TRUST RESIDENTIAL L _ J P MMANENT STORM C IN EASEMENT 4. I r I I q I MANLY FAMILY TRUST RESIDETITIAL 4f 6. b A_ y ry \ COWTY OF GRANGE � -. `-.� TY OF ORANGE/ COUNTY OF ORANGE ST E OF- T CALIFORNIA STA—__ \ STATE OF CALIFORNIA A � GRAPH IC SCALE LEGEND STAGING AREA -. - EXISTING FENCE BAYVIEW HEIGHTS DRAINAGE TEMPORARY Cg TRUCTION EASEMENT PROPERTY LINE RESTORATION PROJECT I N T I N N A T I O N AL L_ J F —I NEWPORT BEACH, CA mm ISM.mssn ue,µ[pnnwu L _ J P MMANENT STORM C IN EASEMENT NOTARY 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 Orange On Tit 17 2017, before me, /h.*nor 61yjor Dozar4 , notary public, person Ild y appeared Ah1ji4^ S. Totin r who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to within instrument and who acknowledged to me that he/she/they executed the same in their authorized capacity(ies), and by his/her/their signature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of foregoing paragraph is true and correct. W IT SS my hand and official sea 5a,�w , (Seal) Signature of Notary) the state of California that the ------------------ THOMAS CHARLES BOZARTH Commission N 2045766 -: Notary Public - California i Orange County M Comm. Ea ires Oct 17, 2017 NOTARY 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 Orange On 11441 /7 , 2017, before me, /hinwr Clava r WzarA, notary public, persondlly appeared e.Tohn1 who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to within instrument and who acknowledged to me that he/she/they executed the same in their authorized capacity(ies), and by his/her/their signature(s) on the instrument the person(s), or 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. ( Ignature of Notary) THOMAS CHARLES BOZARTH Commission X 2045766 =: Notary Public - California z (Seal) i'. Orange County M Comm. Ea ires Oct 17, 2017 w Right of Entry and Temporary Construction Easement - 2600 Mesa Drive Page 7