Loading...
04-0504_ORANGE, COUNTY OF_Easement Deed and Agreement5 7 9 11 13 15 17 19 21 23 25 27 29 31 33 35 37 39 41 43 45 47 49 51 ST,S"►�'yDD is CA 4?A703 Refuse Disposal Station #26 Prima Deshecha Landfill Recorded in Official Records. Orange County Tom Daly, Clerk-Recorder !111111111111111111111111ll111111111111111111111111111111111111111111il'lll11JO FEE 200400040277810:26am 05107104 115 67 Al2 6 0.00 0.00 0.00 0.00 0.00 0.00 0.00 000 EASEMENT DEED AND AGREEMENT This Easement Deed and Agreement is made / z V— , 2004, by and between COUNTY OF ORANGE, a body corporate and politic, 6ereinafter referred to as "COUNTY," and CITY OF SAN JUAN CAPISTRANO a California Municipal Corporation, hefeinafter referred to as 111'® 1m R E C I T A L S C� Cil COUNTY currently owns and operates the Prima Deshecha Landfill ("Prima") in the City of San Juan Capistrano. B. CITY operates a non -motorized recreational trail system and desires to include use of portions of certain existing trails and roads located on Prima. IG 1" COUNTY is willing to grant an easement to CITY for operation of trails on Prima as compatible with COUNTY operations at Prima, which trails shall be available for use by the general population of Orange County. CITY is willing to install fencing as required by COUNTY to restrict access from such trails to other areas on Prima. NOW, THEREFORE, COUNTY AND CITY agree as follows: For a valuable consideration, receipt of which is hereby acknowledged, COUNTY does hereby grant to CITY, its successors and assigns, a non-exclusive recreational trail easement for non -motorized purposes in the County of Orange, State of California, in, on, over, and across that certain real property (hereinafter referred to as "Easement Area") described and shown on Exhibit A attached hereto and by reference made a part hereof. It is understood and agreed by the parties hereto and their successors and assigns, that said easement herein granted shall be subject to the following terms and conditions: CONSTRUCTION AND MAINTENANCE CITY shall have its initial construction plans approved in writing by COUNTY's Director of Integrated Waste Management Department or designee or successor (hereinafter referred to as "Director") prior to commencement of any work; and upon completion of any work, CITY shall immediately notify Director of such completion. Director's approval of CITY's initial construction plans shall not be deemed approval from the standpoint of structural safety, suitability for purpose or conformance with building or other codes or other governmental requirements. SR hail ['DBA-4(9-4-03).doa 11 13 15 17 19 21 23 25 27 29 31 33 35 37 39 41 43 45 47 49 51 CITY's initial construction shall include fencing as required by Director to restrict access from the Easement Area to other areas of Prima. All improvements constructed or placed in the Easement Area by CITY shall be operated and maintained at no cost to COUNTY. Should it be necessary for CITY to disturb the surface of the Easement Area subsequent to the completion of the initial installation of necessary facilities, CITY agrees to notify Director in advance and to obtain Director's written approval of all plans for construction and/or maintenance prior to commencement thereof. Said approval shall not be withheld capriciously or unreasonably, nor shall said approval be necessary in any emergency situation. 12. RELOCATION COUNTY reserves the right to relocate this easement. In the event COUNTY exercises this right, COUNTY shall replace improvements in the Easement Area in kind and shall bear all costs of relocating the easement and replacing the improvements. COUNTY shall first furnish CITY with a document containing terms and conditions similar to those contained herein. COUNTY and CITY agree that such relocation shall be made at COUNTY's expense. 3. CLOSURE OF EASEMENT AREA COUNTY reserves the right to close access to the Easement Area for reasonable periods of time to construct maintain and repair its landfill facilities. Any such closure shall be reviewed and approved by CITY, whose approval shall not be unreasonably withheld. In the event of an emergency such approval by CITY shall not be required, however, COUNTY shall notify CITY of such emergency closure. 4. PUBLIC USE CITY agrees to make recreational trail facilities in the Easement Area available to the general population of Orange County at all times that such facilities are open for use under the terms of this Easement Deed and Agreement. 5. SURVEY AND LEGAL DESCRIPTION No later than the earlier of two (2) years following the completion of initial construction herein or three (3) years following the initial date of this Easement Deed and Agreement, CITY shall at CITY's sole expense, have a licensed surveyor prepare a legal description accurately depicting the Easement Area. CITY and COUNTY agree that said legal description shall be recorded and shall replace and supersede Exhibit "A," attached hereto. Said replacement of Exhibit "A" shall not affect, alter or change this Easement Deed and Agreement. Furthermore, this Easement Deed and Agreement shall be deemed to be amended and shall relate back and be in place as of the initial date of this Easement Deed and Agreement prior to said amendment of Exhibit "A." 6. HOLD HARMLESS (PMES5.1 N) CITY hereby waives all claims and recourse against COUNTY, its elected officials, officers, agents, and employees including the right of contribution for loss or damage or death of persons or property, including COUNTY, its elected officials, officers, agents, and employees, arising from, growing out of or in any way connected with or related to the Easement, the Easement Area or this Easement Deed and Agreement, except claims arising from the concurrent active or sole negligence of COUNTY, its SJC hail ED&A-4(9-4-03).do -2- 11 13 15 17 19 21 23 25 27 29 31 33 35 37 39 41 43 45 47 49 51 officers, agents, and employees. CITY hereby agrees to indemnify, hold harmless, and defend COUNTY, its elected officials, officers, agents and employees, against any and all claims, loss, demands, damages, cost, expenses or liability for injury or death to any persons or property, including COUNTY, its elected officials, officers, agents and employees, arising out of the use, operation or maintenance of the Easement Area, described herein by CITY, its employees, independent contractors and agents, or by any invitee, licensee, or other party expressly or impliedly permitted or invited by CITY to use the Easement Area (collectively "CITY Permittees"), and/or CITY's or CITY Permittees' exercise of the rights under this Easement Deed and Agreement, except for liability arising out of the concurrent active or sole negligence of COUNTY, its officers, agents, and employees, including the cost of defense of any lawsuit arising therefrom. If COUNTY is named as a co-defendant in a lawsuit, CITY shall notify COUNTY of such fact and shall represent COUNTY in such legal action unless COUNTY undertakes to represent itself as co-defendant in such legal action, in which event CITY shall pay to COUNTY its litigation costs, expenses and attorneys' fees. If judgment is entered against COUNTY and CITY by a court of competent jurisdiction because of the concurrent active negligence of COUNTY and CITY, COUNTY and CITY agree that liability will be apportioned as determined by the court. Neither party shall request a jury apportionment. The indemnities provided by CITY in favor of the COUNTY in this Easement Deed and Agreement shall not require payment as a condition precedent. HAZARDOUS MATERIALS A. Definition of Hazardous Materials. For purposes of this Easement Deed and Agreement, the term "Hazardous Material" or "Hazardous Materials" shall mean any hazardous or toxic substance, material, product, byproduct, or waste which is or shall become regulated by any governmental entity, including, without limitation, the COUNTY acting in its governmental capacity, the State of California or the United States government. B. Use of Hazardous Materials. CITY or CITY's employees, agents, independent contractors or invitees (collectively "CITY's Permittees") shall not cause or permit any Hazardous Materials to be brought upon, stored, kept, used, generated, released into the environment or disposed of on, under, from or about the Easement Area (which for purposes of this clause shall include the subsurface soil and ground water). Notwithstanding the foregoing, CITY may keep on or about the Easement Area small quantities of Hazardous Materials that are used in the ordinary, customary and lawful cleaning of and business operations on the Easement Area. C. CITY Obligations. If the presence of any Hazardous Materials on, under or about the Easement Area caused or permitted by CITY or CITY's Permittees results in (i) injury to any person, (ii) injury to or contamination of the Easement Area (or a portion thereof), or (iii) injury to or contamination of any real or personal property wherever situated, CITY, at its sole cost and expense, shall promptly take all actions necessary or appropriate to return the Easement Area to the condition existing prior to the introduction of such Hazardous Materials to the Easement Area and to remedy or repair any such injury or contamination. Without limiting any other rights or remedies of COUNTY under this Easement Deed and Agreement, CITY shall pay the cost of any cleanup or remedial work performed on, under- or about the Easement Area as required by this Easement Deed and Agreement or by applicable laws in connection with the removal, disposal, neutralization or other treatment of such Hazardous Materials caused or permitted by CITY or CITY's Permittees. Notwithstanding the foregoing, CITY shall not take any remedial action in response to the presence, discharge or release, of any Hazardous Materials on, under or about the Easement Area caused or permitted by CITY or CITY's Permittees, or enter into any settlement agreement, consent decree or other compromise with any governmental or quasi governmental entity without first obtaining the prior written consent of COUNTY. All work performed or caused to be performed by CITY as provided for above shall be SJC Trail ED&A4(9-4-03) doc -3- I� I I done in good and workmanlike manner and in compliance with plans, specifications, permits and other requirements for such work approved by COUNTY. 3 D. Indemnification for Hazardous Materials. To the fullest extent permitted by law, CITY hereby 5 agrees to indemnify, hold harmless, protect and defend (with attorneys acceptable to COUNTY) COUNTY, its elected officials, officers, employees, agents and independent contractors and the 7 Easement Area, from and against any and all liabilities, losses, damages (including, but not limited, damages for the loss or restriction on use of rentable or usable space or any amenity of the 9 Easement Area or damages arising from any adverse impact on marketing of the Easement Area), diminution in the value of the Easement Area, judgments, fines, demands, claims, recoveries, 11 deficiencies, costs and expenses (including, but not limited to, reasonable attorneys' fees, disbursements and court costs and all other professional or consultant's expenses), whether 13 foreseeable or unforeseeable, arising directly or indirectly out of the presence, use, generation, storage, treatment, on or off-site disposal or transportation of Hazardous Materials on, into, from, 15 under or about the Easement Area by CITY or CITY's Permittees. The foregoing indemnity shall also specifically include the cost of any required or necessary repair, restoration, clean-up or 17 detoxification of the Premises and the preparation of any closure or other required plans. 19 8. REMOVAL AND/OR ABANDONMENT OF EASEMENT (PMES3.1 ) 21 CITY agrees that in the event the purpose of this Easement is discontinued, or in the event the use of the Easement Area ceases for a period of more than one (1) year without written notice from CITY to 23 COUNTY of the circumstances affecting such suspension and of CITY's intention to resume usage of the Easement Area, CITY shall, at no cost to COUNTY, within sixty (60) days after receipt of written 25 notice from the Director, remove any portion of said facilities operated and/or maintained by CITY, and restore the Easement Area to the condition that existed prior to the original grant of this 27 Easement to Director's satisfaction. In the event of such abandonment, CITY shall execute and record in the Official Records of Orange County, California, a Quitclaim Deed sufficient to remove the 29 encumbrance of the Easement from record title to COUNTY's real property. 31 9. GOVERNING LAW AND VENUE (S) This Easement Deed and Agreement has been negotiated and executed in the State of California 33 and shall be governed by and construed under the laws of the State of California. In the event of any legal action to enforce or interpret this Easement Deed and Agreement, the sole and exclusive venue 35 shall be a court of competent jurisdiction located in Orange County, California, and the parties hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil 37 Procedure Section 394. 39 10. DEFINITION OF "COUNTY" 41 The term "COUNTY" shall mean the COUNTY OF ORANGE. Actions to be taken by COUNTY under this Easement Deed and Agreement shall be taken by the Board of Supervisors of the political 43 body which executed this Easement Deed and Agreement or its representatives specifically authorized to take such actions under this Easement Deed and Agreement. 45 11. EXCEPTIONS AND RESERVATIONS 47 COUNTY hereby reserves for itself and its successors and assigns, such surface and subsurface 49 rights as will not interfere with or prohibit the complete use by CITY, its successors and assigns, of the rights and easement herein granted. COUNTY will not place or permit any building on the 51 Easement Area or otherwise interfere with the full enjoyment by CITY of the easement hereby SJC Steil ED&A-4(93-03)-d.c -4- I 11granted. 3 5 7 9 11 13 15 17 19 21 23 25 27 29 31 33 35 37 39 41 43 45 47 49 51 This grant is subject to existing contracts, leases, licenses, easements, encumbrances, and claims which may affect the Easement Area and the use of the word "grant' herein shall not be construed as a covenant against the existence of any thereof. Nothing expressed or mentioned in this Easement Deed and Agreement is intended or shall be construed to give any person, other than the parties hereto and their respective successors and assigns, any legal or equitable right, remedy or claim under or in respect of this Easement Deed and Agreement or any provisions hereof being intended to be and being for the sole and exclusive benefit to the parties hereto and their successors and assigns described above, and for the benefit of no other person. 12. NOTICES All documents, correspondence, and communications concerning this Easement Deed and Agreement shall be directed as follows: TO:COUNTY County of Orange Integrated Waste Management Department 320 North Flower Street, Suite 400 Santa Ana, CA 92703 Attention: Director 11. ATTACHMENTS TO DOCUMENT TO: CITY City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attention: Tony Foster This document includes the following, which is attached hereto and made a part hereof: Exhibit A (Recreational Trail Easement) SJC Trail ED&A-0(94-03).dm -5- 3 5 7 9 11 13 15 17 19 21 23 25 27 29 31 33 35 37 39 41 43 45 47 49 51 APPROVED AS TO FORM City Attorney By qXAA1) Date: APPROVED AS TO FORM County Counsel ByL_-�ti.n._ Date: SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD 4W DARLENE J. BLOO Clerk of the Board of Supervisors of County, California STATE OF CALIFORNIA ) SS COUNTY OF ORANGE ) CITY: CITY OF SAN JUAN CAPISTRANO, a California municipal vomorallon By Title: JOE Date: ATTEST: ), MAYOR -moo -a-M4 R. MONAHAN, CITY CLERK COUNTY OF ORANGE, a body corporate and politic By Chairman of the Board of Supervisors ACKNOWLEDGMENT On Pr 'VT�-- 2004, before me � C a Notary Public in and for said County and State, personally appeared �.',i ,U�` personally known to me (or proved to me on tie 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, and that by his/her/their signature(s) on the instrument the person, or the entity upon behalf of which the person(s) acted, executed the I instrument. WITNESS my hand and official seal. Signature GC C SIC (rail EDA -0(9-4-03) -6- DAI F c Nokwy hjbft I44 cokomw rWn* KMW P+r� a c �+wnza, zao7 PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 118 1) On January 20, 2004 before me, Margaret R. Monahan, City Clerk, personally appeared Joe Soto personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. (SEAL) Capacity Claimed by Signers Mayor Title Signers are Representing City of San Juan Capistrano WITNESS my hand and official seal. I 2 . R. Monahan, City Clerk OPTIONAL Description of Attached Document Easement Deed and Agreement Title or Type of Document I EXHIBIT_ Located approximately as shown hereon in the City of San Juan Capistrano, State of California, a strip of land for a recreational trail easement, 20 feet in width over an existing road, within the land described in grant deeds to the County of Orange recorded in Book 11813, Pages 145-147 and in Book 11813, Pages 148-152 of Official Records of Orange County, California Prima Deshecha Landfill City of San Juan Capistrano Open Space Recreational Trail Easement Alignment Recreational Trail Easement VICINITY MAP LEGEND ° City Boundary Parcel PM 126-35 — • • — Refuse Disposal Station #26 bail 20'Width Prima Deshecha Landfill o sov sac ruauc ruxmea axo acwyuyaas Derr. — _ — �2= yam— Gmn.ao�r�nWaudl '�` DIN'b" — _