HomeMy WebLinkAboutPW 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
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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.
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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.
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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
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IN WITNESS WHEREOF, the Partics hereto have entered into this Agreement as of the
date first written above.
GRANTOR:
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CITY:
CITY OF SAN RAFAEL
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ATTEST:
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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
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PROJECT VICINITY MAP
FOR INFORMATION ONLY
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OAK #4844-7993-2826 vl
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INTERDEPARTMENTAL MEMORANDUM
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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
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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.
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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
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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