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PW Temporary Construction Easement 811 Francisco Blvd. EastTEMPORARY CONSTRUCTION EASEMENT AGREEMENT THIS TEMPORARY CONSTRUCTION EASEMENT AGREEMENT ("Agreement") is made and entered into as of the /qX'L- day of J! , 2019, by and between H. A. Crocker Holding Corp. ("Grantor"), and the City of San a California municipal corporation ("City"). Grantor and City are sometimes referred to individually herein as a "Party" and collectively as the "Parties." R RCTT A T .0 A. Grantor is the owner of that certain real approximately 12,600 square foot parcel of real property located at 811 Francisco Boulevard East, in the City of San Rafael, County of Marin, State of California (APN: 008-091-02) ("Property") B. City desires to acquire a temporary construction easement over an approximately 400 square foot portion of the Property in connection with the Francisco Boulevard East Sidewalk Widening Project, which will enhance bicycle and pedestrian safety along Francisco Boulevard East by installing an eight -foot wide sidewalk, new curb and gutter, street lighting, drainage facilities, roadside signage, striping, and street trees ("Project"). The Project may slightly increase the steepness of the Property's driveway onto Francisco Boulevard East. The City desires to acquire a temporary construction easement over the TCE Area (defined in Section 1, below) in order to construct certain improvements that will mitigate the Project's expected impact on that driveway. C. Grantor desires to convey a temporary construction easement to the City for such purpose, upon and subject to the terms and conditions of this Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Grantor and City agree as follows: AGREEMENT 1. Grant of Temporary Construction Easement. Grantor hereby grants an approximately 400 square foot non-exclusive Temporary Construction Easement ("TCE") over, on and across that certain property described and depicted on Exhibit A attached hereto and made a part hereof ("TCE Area"), and grants permission to City and its officers, employees, contractors, subcontractors, and agents to enter upon the TCE Area for the purpose of, and to facilitate the construction of the driveway improvements therein and all construction activities associated with such improvements. The TCE granted herein includes reasonable ingress and egress over the Property to access the TCE. 2. Purchase Price. The purchase price for the TCE shall be the amount of Five Thousand and 00/100 Dollars ($5,000.00) in lawful money of the United States of America ("Purchase Price"). If the Property is found to be contaminated by the presence of hazardous waste which requires mitigation under Federal or State law, Grantor shall be responsible for all damages and clean-up costs arising from the contamination, and City shall have no liability or obligation whatsoever for such contamination. Within five (5) business days of receiving an OAK #4844-7993-2826 v1 y -3 - ` LP executed copy of this Agreement from Grantor, the City shall pay to H. A. Crocker Holding Corp., 18050 Toyon Road, Pine Grove, CA 95665, or such other place as Grantor may designate in writing, the Purchase Price. 3. Term. The term of this TCE shall be for 24 months ("TCE Term"). Commencement of the TCE Term shall not occur until fourteen (14) calendar days after Grantee has provided written notice to the Grantor of City's intent to commence activities or no later than August 1, 2019 as permitted under this Agreement (the "Commencement Notice"). 4. Indemnification. City shall indemnify and hold harmless Grantor from and against any and all liability, claims, losses, costs, or damages proximately caused by the City's its officers', employees', contractors', subcontractors', and agents' negligent acts, errors or omissions, or willful misconduct in connection with the City's use of the TCE Area. 5. Restoration. On or before the expiration of the TCE Term, the City will cause all of the equipment, materials, tools, trash and debris to be removed from the TCE Area and will have the TCE Area restored to a condition as nearly as practicable to its condition prior to its use by City. 6. Grantor's Warranties. In consideration of the City entering into this Agreement, Grantor makes the following representations and warranties: a. Grantor is the owner in fee simple of the Property and has the exclusive right to grant this TCE. b. Grantor has the legal right, power, and authority to enter into this Agreement and to consummate the transaction contemplated herein in the execution, delivery, and performance of this Agreement and no other action by Grantor is requisite to the valid and binding execution, delivery and performance of this Agreement. The individual(s) executing this Agreement on behalf of Grantor are authorized to do so. C. There are no oral or written leases on all or any portion of the TCE Area and the Grantor further agree to hold the City harmless and reimburse the City for any and all of its losses and expenses occasioned by reason of any lease of said Property held by any tenant of Grantor. d. During the period of Grantor's ownership of the Property, there have been no disposals, releases or threatened releases of hazardous substances or hazardous wastes on, from, or under the Property. Grantor fiuther represents and warrants that Grantor has no knowledge of any disposal, release, or threatened release of hazardous substances or hazardous wastes, on, from, or under the Property which may have occurred prior to Grantor taking title to the Property. 7. Successors and Assigns: Running with the Land. It is the intent of the Parties hereto that each and all of the easements, covenants, conditions and restrictions set forth in this Agreement shall run with the land of the Property and shall bind and inure to the benefit of Grantor, City and their respective successors and assigns as owners of interests in Property, as set forth in Section 1468 of the California Civil Code. OAK #4844-7993-2826 v1 8. Automatic Termination. This Agreement shall automatically terminate, and the Parties shall have no further obligations under this Agreement on December 31, 2022 ("Outside Date"). Provided, however, that the Outside Date may be extended by mutual agreement of the Parties each in its sole, absolute discretion. 9. Notices. Any notice, approval, disapproval, demand, document or other communication ("Notice") which any Party may desire to give to any other Party under this Agreement must be in writing and may be given by any commercially acceptable means, including via first class Certified Mail, electronic mail (e-mail), personal delivery or overnight courier, to the Party to whom the Notice is directed at the address of the Party as set forth below, or at any other address as that Party may later designate by Notice.: To City: City of San Rafael Attention: Bill Guerin, DPW Director 111 Morphew Street San Rafael CA 94901 With a copy to: Burke, Williams & Sorensen, LLP 1901 Harrison Street Oakland, CA 94612 Attention: Benjamin L. Stock, Esq. Tel.: 415-755-2605 Email: bstock@bwslaw.com To Grantor: H. A. Crocker Holding Corp. 18050 Toyon Road Pine Grove, CA 95665 Attention: Kathleen Guletz, President Tel.: 209-296-4336 Email: With a copy to: Attention: Tel. Email: Any Notice shall be deemed received immediately if delivered by hand, on the third day from the date it is postmarked if delivered by first-class mail, Certified and postage prepaid, return receipt requested, and on the next business day if sent via electronic mail or nationally recognized overnight courier. Notices sent by a Party's attorney on behalf of such Party shall be deemed delivered by such Party. OAK #4844-7993-2826 v1 10. Entire Agreement; Waiver and Modification. This Agreement is the entire Agreement between the Parties with respect to the subject matter of this Agreement. This Agreement supersedes all prior agreements and understandings, whether oral or written, between the Parties with respect to matters contained in this Agreement. Any waiver, modification, consent or acquiescence with respect to any provision of this Agreement shall be set forth in writing and duly executed by or on behalf of the Party to be bound thereby. No waiver by any Party of any breach hereunder shall be deemed a waiver of any other or subsequent breach. 11. Counterparts, copies. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. Except as required for recordation, the parties shall accept copies of signatures, including, without limitation, electronically transmitted (for example, by e-mail, facsimile, PDF or otherwise) signatures. 12. Governing Law; Venue. This Agreement is made and entered into in the State of California and in all respects is to be interpreted, enforced and governed by and under the laws of California, without reference to its conflicts of laws rules. Any action to enforce or interpret this Agreement shall be filed in the Superior Court of Marin County, California. 13. Execution of Further Documents. From time to time, at the request of any Party and without further consideration of expense and within a reasonable period of time after a request is made, each of the Parties agrees to execute and deliver any and all further documents and instruments, and to do all acts, as the requesting Party may reasonably request, which may be necessary or appropriate to fully implement the provisions of and future transactions contemplated by this Agreement. 14. Time of Essence. The Parties hereby acknowledge and agree that time is strictly of the essence with respect to each and every term, condition, obligation and provision hereof. 15. Third Party Beneficiaries. There are no third party beneficiaries of this Agreement. 16. Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed by the Parties to create the relationship of principal and agent, a partnership, joint venture or any other association between Grantor and City. 17. Construction/Exhibits. Headings at the beginning of each paragraph and subparagraph are solely for the convenience of the Parties and are not a part of the Agreement. Whenever required by the context of this Agreement, the singular shall include the plural and the masculine shall include the feminine and vice versa. This Agreement shall not be construed as if it had been prepared by one of the Parties, but rather as if both Parties had prepared the same. Unless otherwise indicated, all references to paragraphs, Sections, subparagraphs and subsections are to this Agreement. All exhibits referred to in this Agreement are attached and incorporated herein by this reference. Signatures on Following Page OAK 94844-7993-2826 v1 IN WITNESS WHEREOF, the Partics hereto have entered into this Agreement as of the date first written above. GRANTOR: HE - ` ) PA iJ-,6 1 04 A•, CrucIrk"Mr H15)cbwl f p s 0 A n - By: _, Name: Title: Date: By. _ Name: Title: _ Date: OAK 94844-7993-2826 v1 CITY: CITY OF SAN RAFAEL Hy: l�atc: ATTEST: A I'MIOVED AS TO FORM: dj� F�F Robert Epstein City Attorney EXHIBIT A [Map of TCE Area] FRANCISCO BOULEVARD EAST SIDEWALK IMPROVEMENT APN 008-091-02 SAN RAFAEL 811 FRANCIS00 BLVD E 'I i '16AIPdRJUiY CON EASBOM Komar �' soot s FRANGIUO BLVD EAST PROJECT VICINITY MAP FOR INFORMATION ONLY DO NOT RECORD BkF ,_' c�f+w�t+sre;ntittioa, Puw+fa8 G mwsz- CBdw =rrn=r o Mme czr cmgmm 2 OAK #4844-7993-2826 vl hQ� RAFq�! n` DEPARTMENT NAME INTERDEPARTMENTAL MEMORANDUM 0 y.° c'rrwrrH RECEIVED DATE: April 17, 2019 JUN 19 2019 TO: Lisa Goldfien Deputy City Attorney CITY ATTORREY FROM: Kevin McGowan No) Assistant Public Works Director/City Engineer SUBJECT: Francisco Blvd. East Improvement Project Temporary Construction Easement Acquisition Documents Attached is a memorandum to Bill Guerin which explains the need for signatory on two documents needed to secure a temporary construction easement for the referenced project. Please review the attached material and upon your favorable review, forward to the City Manager and the City Clerk to review and sign. Following that action please return the attached copies to David Nicholson of our engineering division who will forward the documents to our consultant Bender Rosenthal, Inc. to open negotiation for the driveway easement noted. Gary O. Phillips, Mayor - Andrew Cuyugan McCullough, Vice Mayor • Maribeth Bushey, Councilmember- Kate Calln, Counciimember -John Garr blin, Co r{ 11 e r �.3�1U LA 1 -3- RAFq�` a = y0 r�rr WITH P d`�y DATE: April 17, 2019 DEPARTMENT NAME INTERDEPARTMENTAL MEMORANDUM TO: Bill Guerin, Public Works Director FROM: Kevin McGowan Assistant Public Works Director/City Engineer SUBJECT: Francisco Blvd. East Improvement Project Temporary Construction Easement Acquisition Documents Our engineering staff has reexamined the need for temporary construction easement (TCE) for the Francisco Blvd. East Sidewalk Improvement Project. Originally, we anticipated needing more than 10 TCE's for the project; however, after close examination we find that only one is needed to replace a driveway and conform to the existing private property area. The referenced project is federally funded such that we need to comply with specific right of way procedures. We hired Bender Rosenthal, Inc. (BRI) to prepare the documents and administer the negotiation process with the property owner. We also utilized Ben Stock as the City's Legal Counsel to review the attached agreement and assist with the acquisition of the TCE. The attached documents labeled "Temporary Construction Easement Agreement" and memo for "Approval to Commence Negotiations" were prepared by BRI and are required for the process. The TCE agreement provides language needed for the property owner to grant the City a "Right to Enter" and construct a driveway approach in conjunction with the referenced project. This document requires a signatory from a City Official, which should be the City manager and Attest signature from the Clerk and a signature from the City Attorney. The "Approval to Commence Negotiations" authorizes BRI to negotiate a price for the easement. This document is required as part of the Caltrans right of way certification process for federally funded projects. BRI assessed a fair market value for this easement at $5,000. Please initial below and we will forward this to the City Attorney, City Manager and City Clerk for signature. �r- Bill Guerin, Public Works Director CITY OF SAN RAFAEL 1 ... FIFTH AVENUE, SAN RAFAEL, CALIFORNIA.• Gary O. Phillips, Mayor • Andrew Cuyugan McCullough, Vice Mayor • Marlbeth Bushey, Councllmember • Kate Colin, Councllmember • John Gamblln, Councllmember 2 yo ,Ty WITH p�Li CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Public Works Project Manager: David Nicholson Extension: 3454 Contractor Name: Temporary Construction Easement for 811 Francisco Blvd East Contractor's Contact: N/A Contact's Email: N/A ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE a. Email PINS Introductory Notice to Contractor N/A Check/Initial 1 Project Manager ❑ b. Email contract (in Word) and attachments to City Attorney c/o Laraine.Gittens@cityofsanrafael.org N/A ❑ 2 City Attorney a. Review, revise, and comment on draft agreement 6/25/2019 ❑X LG and return to Project Manager b. Confirm insurance requirements, create Job on N/A NLG Department Director PINS, send PINS insurance notice to contractor 6/28/2019 3 Approval of final agreement form to send to ❑x BG Project Manager contractor Forward three (3) originals of final agreement to 4 6/28/2019 ❑x HY Project Manager contractor for their signature When necessary, contractor -signed agreement ❑x N/A 5 agendized for City Council approval * *City Council approval required for Professional Services ❑X DN Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Date of City Council approval PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City 7/23/2019 ❑X DN Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed City Attorney agreement Review and approve insurance in PINS , and bonds 7/23 + N/A 8 ❑X LG Manager / Mayor (for Public Works Contracts) 9 Agreement executed by City Council authorized , Z3 —� X City Clerk official r 10 Attest signatures, retains original agreement and �N far L forwards copies to Project Manager