HomeMy WebLinkAboutCC Resolution 9893 (Open Space Drainage Improvements)RESOLUTION NO. 9893
RESOLUTION AUTHORIZING EXECUTION OF A GRANT OF EASEMENT AND
MAINTENANCE AGREEMENT TO TRI DEVELOPMENT COMPANY, LLC, (THE
SUBDIVIDER) FOR THE CONSTRUCTION AND MAINTENANCE OF THE DRAINAGE
IMPROVEMENTS ON CITY'S OPEN SPACE, IN A FORM SUBJECT TO APPROVAL OF
THE CITY ATTORNEY. SMITH RANCH COURT.
WHEREAS, TRI Development Company, LLC, the Subdivider of Smith Ranch Court,
has submitted improvement plans related to his subdivision;
WHEREAS, the improvement plans show parts of the proposed private drainage facilities
to be installed on City's Open Space;
WHEREAS, portion of the City's Open Space drains into the proposed drainage facilities;
WHEREAS, the proposed drainage facilities comply with the Planning Commission's
conditions of approval;
WHEREAS, the Subdivider, be permitted to enter and construct the private drainage
facilities on City's Open Space;
WHEREAS, the Subdivider be responsible for the maintenance of the private drainage
facilities and cut slope(s) on City's Open Space cause by construction of the subdivision;
WHEREAS, the Subdivider agrees to make amendment to paragraph 6, "Duties of the
Association" of the Declaration, and add an additional duty at the end of the section to read as
follows:
"(g) The Association will operate, maintain. repair and replace any and all drainage
facilities constructed within the easement which City of San Rafael grant to Association
for said purpose, under all of the terms and conditions of said easement and the
maintenance agreement between the parties for said facilities. The Association will use the
maintenance fund as described in Article 1V of this Declaration to fund said operation,
maintenance, repair and/or replacement".
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of San Rafael
that the Mayor and the City Clerk are hereby authorized to execute the Grant of Easement &
Maintenance Agreement to TRI Development Company; LLC, (the Subdivider) for the
construction and maintenance of the Drainage Improvements on City's Open Space, in a form to be
approved by the City Attorney.
I, Jeanne M. Lconcini, Clerk of the City of Sari Rafael, California, hereby certify that the
foregoing resolution was duly and regularly introduced and ddopted at a regular meeting of the
Council of said City held on 4". Day of August, 1997, by the following vote, to wit:
AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT- COUNCILMEMBERS: None
E �ILLEAONCINI, City Clerk
J
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Clerk
City of San Rafael
P.O. Box 151560
San Rafael, CA 94915-1650
This instrument is exempt
from Recording Fees
(Government Code §27383)
and from Documentary Transfer Tax
(Revenue & Taxation Code § 11922).
98-0133261'
Q -013326I Rec Fee .00
I TStal .00
Recorded I
Official Records I
County of I
MARIN I
JOAN C THAYER I
Recorder I
2:55pm 4 -Mar -98 I XX 13
(Space above this line for Recorder's use)
GRANT OF EASEMENTS FOR DRAINAGE AND
SLOPE STABILIZATION FACILITIES AND
MAINTENANCE AGREEMENT
City of San Rafael
TRI Development Company, LLC.
A California Limited Liability Company
GRANT OF EASEMENTS FOR DRAINAGE AND
SLOPE STABILIZATION FACILITIES AND
MAINTENANCE AGREEMENT
THIS AGREEMENT made as of this 4th day of August , 19 97 ("Effective
Date"), by and between TRI Development Company, LLC, A California Limited Liability
Company ("OWNER"), and City of San Rafael ("CITY"), a California Charter City.
RECITALS
A. CITY is the owner of that certain real property located in the City of San Rafael, County
of Marin, State of California, more particularly described as Parcels 1 and 2 on Exhibits "A" and
"B" attached hereto and incorporated by this reference ("City Properties").
B. OWNER is the owner of that certain real property known as the Smith Ranch Court
Subdivision, more particularly described on Exhibit "C" attached hereto and incorporated by this
reference ("Smith Ranch Court Subdivision"), the approved improvement plans for which
required installation on the adjacent City Properties of certain drainage improvements and slope
stabilization and erosion control improvements ("Facilities").
C. OWNER, upon completion of the Facilities, is willing and able, and agrees to bind its
successors and assigns, to assume operation, maintenance, repair, and replacement of the
Facilities thereafter.
D. CITY is willing to grant to OWNER, its successors and assigns, Easements for such
Facilities on City Properties on the terms and conditions hereinafter set forth.
FOR VALUABLE CONSIDERATION, the receipt of which is acknowledged, the parties
agree as follows:
1. Grant of Easements. CITY does hereby grant and convey to OWNER, its
successors and assigns, two permanent Easements for the aforementioned Facilities, consisting of
one Easement on Parcel 1 of City Properties for drainage improvements including but not limited
to an underground pipeline, and a second Easement on Parcel 2 of City Properties for drainage
improvements including but not limited to a concrete "V -Ditch" and related slope stabilization
and erosion control improvements, in the areas described in Exhibits "A" and `B" attached
hereto and incorporated by this reference. Nothing herein is intended to expand OWNER's use
of the Easement area beyond those rights expressly contemplated herein. CITY does not convey
a fee herein.
2. Term of Easements and Agreement. The term of the Easements and Agreement
shall be in perpetuity except that it may be terminated at any time by mutual agreement of the
parties.
3. Use by OWNER The Easements are limited to the following uses: the right to
construct, maintain, repair, and replace Facilities in accordance with improvement plans prepared
by OWNER's engineers and approved by and on file with CITY, together with reasonable rights
of access for such purposes. OWNER's use of the Easement shall not materially interfere with
CITY's use of the City Properties. OWNER agrees to keep the City Properties and Facilities in
good and safe condition, to the reasonable satisfaction of CITY. If OWNER -fails to keep the
City Properties and Facilities in good and safe condition, then CITY may perform, subject to ten
(10) calendar days' prior written notice to OWNER, the necessary work at the expense of
OWNER, which expense OWNER agrees to pay to CITY upon demand.
4. Nonexclusive Easements. CITY retains the right to make any use of the City
Properties subject to the Easements, including the right to grant easements in the City Properties
to third parties, that do not interfere unreasonably with OWNER's free use and enjoyment of the
Easements.
5. Prior Rights. This grant of Easements is made subject to all licenses, leases,
easements, restrictions, conditions, covenants, encumbrances, liens and claims of title which may
affect the City Properties in effect as of the Effective Date. The word "grant" shall not be
construed as a covenant against the existence of any of these.
6. Secondary Easements. The Easements include incidental rights of operation,
maintenance, repair and replacement. In exercising these rights, OWNER must use reasonable
care and may not unreasonably increase the burden on the City Properties or make any material
changes to the City Properties without the prior written approval of CITY.
7. Relocation of Facilities. In the event CITY shall at any time so require, OWNER
agrees that, at its sole cost and expense, it shall reconstruct, alter, relocate or otherwise improve,
in whole or in part, Facilities within 30 calendar days of receipt of written notice from CITY to
do so or such longer period as CITY approves.
8. Claims. Claims, injuries, deaths, property damages and losses arising out of or
connected in any way with the use of the Easements or the operation, maintenance, repair, or
replacement of Facilities thereon, shall be investigated, adjusted and defended by OWNER at its
sole cost and expense.
9. Indemnitv and Insurance. OWNER shall release, indemnify and defend (with
counsel reasonably satisfactory to the CITY) the City of San Rafael, its officers, employees and
agents (collectively, "Indemnitees") from and against all liability, cost and expense for loss of or
damage to property and for injuries to or death of any person (including, but not limited to, the
property and employees of each party) when arising or resulting from the use of the City
Properties by OWNER, its agents, employees, contractors, subcontractors or invitees; or
OWNER's breach of these provisions. The duty of OWNER to indemnify and save harmless the
Indemnitees includes the duties to defend as set forth above, other than the sole active
negligence, willful misconduct or criminal acts of the Indemnitees. OWNER waives any and all
rights to any type of express or implied indemnity against the OWNER's use of or activities on
the City Properties except for indemnification of the OWNER for liability and loss arising out of
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the sole active negligence or willful misconduct, or out of criminal acts of the Indemnitees. This
indemnity shall survive termination of this Agreement. It is the intention of the parties that
should any term of this indemnity provision be found to be void or unenforceable, the remainder
of the provision shall remain in full force and effect.
Any person, firm or corporation OWNER authorizes to work upon the City Properties,
including any subcontractor, shall be deemed to be OWNER's agent and shall be subject to all
the applicable terms of this Agreement. Prior to entry upon the City Properties by OWNER or
its agents, OWNER shall provide CITY with satisfactory evidence (e.g. • in the form of a
Certificate of Insurance) that it and/or its contractors or other agents who will obtain access to the
City Properties pursuant to this Agreement are insured in accordance with the following, which
insurance shall remain in effect throughout the term of this Agreement and shall be at the sole
cost and expense of OWNER (or its agents). Prior to the start of the work or entry onto the City
Properties, OWNER agrees to require its contractor(s) to procure and maintain, at its (or its
contractors') sole cost and expense (and to prove to CITY's reasonable satisfaction that it
remains in effect throughout the work), the kinds of insurance described below:
(a) Workers' Compensation and Emnlovers' Liabilitv Insurance.
OWNER shall require its contractor(s) to procure the payment of Workers' Compensation
Coverage to its employees, as required by Section 1860 of the California Labor Code (Chapter
1000, Statutes of 1965).
The OWNER and/or its contractor shall also maintain Employer's
Liability Coverage with minimum limits of one million ($1,000,000) dollars.
OWNER shall furnish the CITY with the Certificate(s) of Insurance
required hereunder prior to the commencement of work. The Certificate shall also provide that
the OWNER contractor's policy will not be canceled or have coverage reduced without thirty
(30) days' prior written notice.
(b) Commercial General Liabilitv Insurance., OWNER shall, at its own
cost and expense, also procure and maintain and/or require its contractors, at their own cost and
expense, to procure and maintain Commercial General Liability Insurance which shall include as
additional insureds CITY, its officers, employees and agents while acting in such capacity, and
their successors or assignees, as they now, or as they may hereafter be constituted, singly, jointly
or severally.
This insurance shall provide bodily injury and property damage coverage
with a combined single limit of at least $1,000,000 each occurrence or claim and a general
aggregate limit of at least $1,000,000. This insurance shall include but not be limited to premises
and operations; contractual liability covering the indemnity provisions contained in this
Agreement; personal injury; explosion, collapse, and underground coverage, products and
completed operations, and broad form property damage.
Prior to commencing work or entering onto the City Properties, OWNER
shall file or shall require its contractor(s) to file a Certificate(s) of Insurance with the CITY
3
evidencing coverage, and upon request, a certified duplicate original of the policy. Said
Certificate(s) shall stipulate:
(1) The insurance OWNER(ies) issuing such policy(ies) shall give
written notice to the CITY of any material alteration, or reduction in aggregate limits, if such
limits apply, and provide at least thirty (30) days' notice of cancellation.
(2) That the policy(ies) is Primary Insurance and the insurance
OWNER(ies) providing such policy(ies) shall be liable thereunder for the full amount of any loss
or claim which contractor is liable for under this Section, up to and including the total limit of
liability, without right of contribution from any other insurance effected or which may be
effected by CITY.
(3) The policy shall also stipulate: Inclusion of CITY, its officers,
employees, and agents as additional insureds shall not in any way affect their rights either as
respects any claim, demand, suit or judgment made, brought or recovered against the OWNER or
its contractors. Said policy shall protect the OWNER, its contractors and the CITY, its officers,
employees, and agents, in the same manner as though a separate policy had been issued to each,
but nothing in said policy shall operate to increase the insurance OWNER's liability as set forth
in its policy beyond the amount or amounts shown or to which the insurance OWNER would
have been liable if only one interest had been named as an insured.
10. Assumption of Risk. OWNER shall assume all risk of damage to Facilities and
appurtenances and to any other property of OWNER or any property under the control of custody
of OWNER while upon or near the City Properties incident to the construction, operation,
maintenance, repair or replacement of Facilities caused by or contributed to in any way by the
CITY's operations at the City Properties; provided, however, such assumption by OWNER shall
not include any damage caused by the sole active negligence, willful misconduct or criminal acts
of CITY its agents or employees.
11. Working Procedures; Repair and Maintenance. OWNER shall bear the entire
cost and expense of operating, repairing, maintaining, and replacing Facilities on the City
Properties. OWNER agrees that all work upon or in connection with Facilities shall be done at
such times and in such manner as not to interfere in any way whatsoever with the operations of
CITY, its tenants or licensees, or other users of the City Properties. The plans for constructing
Facilities shall be subject to the approval of CITY.
OWNER agrees to give CITY ten (10) calendar days' written notice prior to
commencement of any work on the Facilities. OWNER agrees to keep the City Properties and
Facilities in good and safe condition, free from waste and debris, so far as affected by OWNER
operations, to the reasonable satisfaction of CITY. If OWNER fails to keep the City Properties
and Facilities in good and safe condition, free from waste, then CITY may perform the necessary
work at the expense of OWNER, which expense OWNER agrees to pay to CITY upon demand.
OWNER shall comply with the regulations of CITY regarding construction,
operation, maintenance, repair, and replacement of Facilities.
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OWNER shall take any and all protective measures necessary to keep City
Properties free of sand or debris resulting from OWNER's operation, maintenance, repair, or
replacement of Facilities. Any damage to City's Properties or other City facilities resulting from
OWNER's operation, maintenance, and repair of Facilities, or resulting from OWNER's failure
to perform such duties will be repaired or replaced by CITY at OWNER's sole cost and expense,
which OWNER shall pay to CITY promptly upon demand.
Upon completion of Facilities, OWNER shall promptly remove from City
Properties all tools, equipment and materials placed thereon by OWNER or its agents. Except
for the construction and improvements authorized herein, OWNER shall restore said City
Properties to the same state and condition as when OWNER entered thereon and shall leave said
City Properties in a clean and presentable condition.
12. Damage and (Destruction. In the event that the whole or any part of the
Facilities are damaged or destroyed by any cause whatsoever, OWNER, at its cost and expense
shall restore said Facilities or improvements to pre-existing condition.
13. Notices. All notices required or permitted to be given hereunder shall be in
writing and mailed postage prepaid by certified or registered mail, return receipt requested, or by
personal delivery, or by overnight courier, to the appropriate address indicated below or at such
place or places as either CITY or OWNER may, from time to time, respectively, designate in a
written notice given ten (10) days after the date of mailing thereof or upon personal delivery.
TO CITY: City of San Rafael
Community Development, Land Development Department
P.O. Box 151560
San Rafael, CA 94915-1560
TO OWNER: TRI Development Company, LLC
500 Deer Valley Road
San Rafael, CA 94903
14. Governing Law. The rights and liability of the parties under this Agreement
shall be interpreted in accordance with the laws of the State of California.
15. Integration. This Agreement constitutes the complete expression of the
Agreement between the parties and supersedes any prior Agreements, whether written or oral,
concerning the subject matter of this Agreement, which are not fully expressed in this
Agreement. Any modification of or addition to this Agreement must be in writing signed by
both parties.
16. Severabilitv. Each provision of this Agreement is intended to be severable. If
any term or provision shall be determined by a court of competent jurisdiction to be illegal or
invalid for any reason whatsoever, such provision shall be severed from this Agreement and shall
not affect the validity of the remainder of this Agreement.
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17. No Waiver. No waiver of any default or breach of any covenant of this
Agreement by either party shall be implied from any omission by either party to take action on
account of such default if such default persists or is repeated, and no express waiver shall affect
any default other than the default specified in the waiver, and then the waiver shall be operative
only for the time and to the extent stated. Waivers of any covenant, term of condition by either
party shall not be construed as a waiver of any subsequent breach of the same covenant, term or
condition. The consent or approval by either party to or of any act by either party requiring
further consent or approval shall not be deemed to waiver or render unnecessary their consent or
approval to or of any subsequent similar acts.
18. Successors and Assigns. The provisions hereof shall inure to the benefit of and
bind the successors and assigns of the respective parties hereto, and all covenants herein shall
apply to and run with the land. Following the establishment of a homeowners' association for
the Smith Ranch Court Subdivision, the rights and obligations of the OWNER may be assigned
to and assumed by such homeowners' association, subject to the written consent and approval of
the CITY.
19. Attornevs' Fees. If any legal proceeding should be instituted by either of the
parties to enforce the terms of this Agreement or to determine the rights of the parties under this
Agreement, the prevailing party in the proceeding shall receive, in addition to all court costs,
reasonable attorneys' fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date written in the first paragraph of this Agreement.
CITY OF SAN RAFAEL
AL _ FTS. -Bo , . �yor
Qrllcity ClJE M. LEONerk
APPROV,D-fir;'8-FORM:
GARY T. RAGGHIANTI, City Attorney
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TRI DEVELOPMENT COMPANY, LLC
A CaliforgJWLin*ed Liability Company
H,04 `11 (Y. M11, General Manager
MaIIBIT "A"
LEGAL DESCRIPTION.
A portion of Parcel C and Parcel D as shown on that map entitled
"Map of Smith Ranch -Northerly Portion" filed in Book 17 of Maps,
at Page 39 (17 R.M. 39), Marin County Records, more particularly
described as follows:
BEGINNING AT the southeasterly corner of said Parcel D, being a
point on the northerly right-of-way line of Smith Ranch Road as
shown on said map; thence along the easterly boundary line of
said Parcel D, North 26052100" East 14.55 feet; thence leaving
said boundary line, North 51044110" West 107.18 feet; thence
along a line radial to said northerly right-of-way line of Smith
Ranch Road, South 20006106" West 41.94 feet to said right-of-way
line; thence easterly along said Smith Ranch Road right-of-way,
along the arc of a 850.00 foot radius curve concave to the south,
through a central angle of 06045154" for 100.36 feet to the POINT
OF BEG"uvuvu, containing 2,864 square feet, more or less.
BEGuiucuvu AT the southwesterly corner of said Parcel C, 17 R.M.
39, being a point on the northerly right-of-way line of Smith
Ranch Road as shown on said map, thence leaving said right-of-
way, along the westerly line of Parcel C, North 32022100" East
123.00 feet; thence leaving said westerly line of Parcel C, South
12046130" West 84.32 feet; thence along a line being radial to
the said northerly right-of-way line of Smith Ranch Road, South
3000412911 West 43.00 feet to a point on said right-of-way line;
thence westerly along said northerly right -of -line of Smith Ranch
Road along the arc of a 750.00 foot radius curve to the right
through a central angle of 02017131" for 30.00 feet to the POINT
OF BEGINNING, containing 2,387 square feet, more or less.
Prepared by:
I.L. SCHWARTZ ASSOCIATES, INC
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EXHIBIT "C"
LEGAL DESCRIPTION OF SMITH RANCH COURT SUBDIVISION
BENEFITTED BY EASEMENTS. AND BURDENED BY
MAINTENANCE AND OTHER OBLIGATIONS
All that certain real property situated in the City of San Rafael, County of Mann,
State of California, described as follows:
Lots 1 through 9, inclusive, and Parcels A, B 1, B2, & C,
as shown on the Map entitled "Map of Smith Ranch
Court", filed for record October 9, 1997, in Volume 21
of Maps, at Page 64, Mann County Records.
CALIFORNIA ALL-PURPC 2 ACKNOWLEDGMENT
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Date i J Name and Title of Officer (e.g., *Jane Doe, Notary Public )
personally appeared H"kA,, VE J D • k i C41
Names) of Signers)
lgpersonally known to me – OR – ❑ 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 signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted,
– -f executed the instrument.
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0 ,a COMM #1039761 WITNE my and and officials
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MY Conor Fxprres Sept 25 1998 J
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer
Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney -in -Fact
❑ Trustee _
El Guardian or Conservator " . r-
❑ Other: Top of thumb here
Signer Is Representing:
Number of Pages:
Signer's Name:
❑ Individual
❑ Corporate Officer
Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney -in -Fact
❑ Trustee _
❑Guardian or Conservator - r a ° -
❑ Other: Top of thumb here
Signer Is Representing:
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WFORNIA ALL -PURPOSE -ACKNOWLEDGMENT
State of California
County of
Marin ss.
On Feb. 23, 1998 , before me, Nancy Eurman, Notary Publ i c
Date Name and Title of Officer (e.g., "Jane Doe, Notary Public")
personally appeared Albert J. Boro
Name(s) of Signer(s)
M personally known to me
❑ proved to me on the basis of satisfactory
evidence
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NANCY EURMAN
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to be the person- whose name(,$). is/a- -
subscribed to the within instrument and
acknowledged to me that he/s:I;e/t* executed
the same in his/leer/the4 authorized
capacity(i,p4 and that by his/[fit'/dseir
signature(} -on the instrument the person; or
the entity upon behalf of which the persons}
acted, executed the instrument.
WITNESS my hand and official seal.
Place Notary Seal Above 19 nature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attachedocu a;
Title or Type of Document: Gran o Easements for Drainage and Slope z�
Stabilization Facilities and Maintenance Agreement (w/TRI Development Co.)
Document Date: August 4, 1997 Number of Pages: Twe1 ve ?�
Signer(s) Other Than Named Above: Harvey 0. Rich, General Manaqer
TRI Development Co.
Capacity(ies) Claimed by Signer
Signer's Name: Albert J. Boro
EX Individual
❑ Corporate Officer — Title(s):
❑ Partner — 'a Limited ❑ General
❑ Attomey in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing: Ci tv of San Rafael as Mavor
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Prod. No. 5907 Reorder. Call Toll -Free 1.800-876-6827