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HomeMy WebLinkAbout2006 CON Baldock Holdings - Easement Underground Parking GarageNOTE TO FILE NO ORIGINAL SIGNED ✓ AGREEMENT/ CONTRACT CHANGE ORDER WAS PROVIDED TO THE CITY CLERK'S OFFICE FOR THIS ITEM. NTF ccolocA Nk e_ - QS soon C& C-ee) 41e-al d o u3 r) ki3/ C err Nese. RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: George H. Eiser III, Esq. City Attorney City of National City 1243 National City Boulevard National City, CA 91950-4301 A.P.N. 560-320-13, -14, -15, -26 Above space for Recorder's use. GRANT OF EASEMENT AGREEMENT This Grant of Easement Agreement ("Agreement") is made and entered into this day of , 2006, by and between the City of National City, a municipal corporation, hereinafter referred to as "Grantor", and Baldock Holdings, Inc., a Nevada corporation, hereinafter referred to as "Grantee". RECITALS A. Grantor is the owner of an unnamed 16-foot alley located west of Highland Avenue, between 21st Street and 22nd Street in the City of National City, County of San Diego, State of California. Said alley is from time to time referred to herein as the "Servient Tenement". B. Grantee is the owner of certain real property adjacent to said alley. Said real property is from time to time referred to herein as the "Dominant Tenement". C. Grantor has agreed to grant to Grantee an 11-foot wide easement under said alley for the purpose of constructing and maintaining an underground parking garage as part of a residential condominium project to be built on Grantee's property. AGREEMENT NOW, THEREFORE, Grantor grants the Easement (as hereinafter defined) to Grantee under the following terms and conditions: Section 1. Grant of Easement. Grantor hereby grants to Grantee an easement under a portion of the Servient Tenement, as more particularly described in Exhibits "A", "B", and "C", for the Easement Purposes, as defined in Section 2 of this Agreement (the "Easement"), subject to all matters and encumbrances of record affecting the Servient Tenement, on the terms and conditions set forth in this Agreement. Section 2. Easement Purposes. "Easement Purposes" collectively means use of the Servient Tenement as is necessary, desirable or advisable for the following purposes: A. Vehicular and pedestrian ingress and egress by Grantee, its successors, assigns, tenants, customers and invitees of such tenants; and B. Routing, installation, use, maintenance, service and operation of certain utilities, including without limitation sanitary sewer, water, gas, electrical, telephone, fiber optics and cable television systems serving the Dominant Tenement, including, among other things, all of the wiring, outlets, pipes, conduits, valves and meters relating thereto (collectively, "Utilities"), and all rights corresponding or incidental thereto. Section 3. Character of Easement. The Easement is exclusive and appurtenant to the Dominant Tenement and includes the absolute right of Grantee to use the Easement for the Easement Purposes, which use must not be disturbed, interrupted or impeded in any manner while this Agreement is in effect. Section 4. Term. The Easement will be an easement in perpetuity for the benefit of Grantee, its successors and assigns. Section 5. Consideration. In consideration of the grant of the Easement, Grantee will pay to Grantor the amount of $77,692 within 3 calendar days of the date first above written. Section 6. Non -Interference with Servient Tenement. Grantee agrees that in the improvement and use of the Easement granted herein that it shall at no time interfere with Grantor's use of the Servient Tenement, including without limitation the use of Grantor's alley for public right-of-way purposes with all rights incident to the ownership of the public right-of- way, including the installation and maintenance of utilities. Grantee's obligation not to interfere with the Servient Tenement shall apply during the entire term of this Agreement, and in the event that this Agreement is terminated and the improvements constructed upon the Easement are removed. Upon termination of this Agreement and of the Easement, Grantee shall have 180 days to remove any improvements constructed by it upon the Easement. Section 7. Payment for Utilities. Grantee shall pay all rates and charges which become payable for utility requirements, including gas, electricity, water and sewer. Section 8. Taxes. Grantee recognizes and understands that this Easement may create a possessory interest subject to property taxation and that Grantee may be subject to the payment of property taxes levied on such interest. Grantee further agrees to pay any and all property taxes, if any, assessed during the term of this Agreement pursuant to Sections 107 and 107.1 of the Revenue and Taxation Code against Grantee's possessory interest in the Easement. Section 9. Compliance with Law. Grantee shall not use the Easement or permit anything to be done in or about the Easement which will in any way conflict with any law, statute, ordinance or governmental rule or regulation now in force, or which may hereafter be enacted or promulgated. Grantee shall, at its sole cost and expense, promptly comply with all 2 laws, statutes, ordinances and governmental rules, regulations or requirements now in force or which may hereafter be in force, relating to, or affecting the condition, use or occupancy of the Easement. The judgment of any court of competent jurisdiction or the admission of Grantee in any action against Grantee, whether Grantor be a party thereto, or not, that Grantee has violated any law, statute, ordinance or governmental rule, regulations or requirement, shall be conclusive of the fact as between the Grantor and the Grantee. Section 10. Assignment and Subletting. Grantee shall not either voluntarily or by operation of law, assign, transfer, mortgage, pledge, hypothecate, or encumber this Easement or any interest therein, and shall not assign the said Easement, or any part thereof, or of any right or privilege appurtenant thereto, or to suffer any other person (the employees, agents, servants, and invitees of Grantee excepted) to occupy or use the said Easement, or any portion thereof, without the written consent of Grantor first had and obtained, and a consent to one assignment, occupation, or use by any other person shall not be deemed to be a consent to any subsequent assignment, occupation, or use by anther person. Any such assignment, without such consent, shall be void, and shall, at the option of the Grantor, constitute a default under this Agreement. Section 11. Waiver and Indemnity. It is agreed that' Grantor is to be free from all liability and claim for damages by reason of any injury to persons or to property of any kind whatsoever and to whomsoever belonging, caused by, or due to the negligence or intentional acts of Grantee, its agents, servants, or employees. Grantee expressly covenants and agrees to indemnify, defend and save harmless Grantor from all liability, loss, cost, and obligations on account of or arising out of any such injuries, death, or losses. Section 12. Insurance. Grantee shall take out, prior to entering the Easement and maintain throughout the period of this Agreement, commercial general liability insurance with minimum limits of Two -Million Dollars ($2,000,000) combined single limit per occurrence, covering all bodily injury, and property damage arising out of this Agreement. Insurance shall be written with only a California admitted company which holds a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company of equal financial stability that is approved by Grantor's Risk Manager. This policy shall name Grantor and its officers, agents, employees, and volunteers as additional insureds, and shall constitute primary insurance as to Grantor and its officers, agents, employees, and volunteers so that any other policies held by Grantor shall not contribute to any loss under said insurance. Said policy shall provide for thirty (30) days' prior written notice to Grantor of cancellation or material change. Prior to commencement of this Agreement, Grantee shall furnish to Grantor a certificate of insurance and with original endorsements affecting coverage required by this clause. Grantee shall procure and maintain during the term of this Agreement, Workers' Compensation Insurance in accordance with the laws of the State of California. The certificates and endorsements for the insurance policies arc to be signed by a person authorized by that insurer to bind coverage on its behalf The certificates and endorsements are to be received and approved by Grantor before this Agreement is signed by the Grantor. 3 If the required insurance coverage is provided on a "claims made" rather than "occurrence" form, Grantee shall maintain such insurance coverage for three (3) years after expiration of the term (and any extensions) of this Agreement. If Grantee does not keep an insurance policy in full force and effect at all times during the term of this Agreement, Grantor may elect to treat the failure to maintain the requisite insurance as a breach of the Agreement, and in addition to other remedies then available to Grantor, Grantor may obtain the necessary insurance, and the cost of obtaining said insurance shall be an obligation of Grantee. Insurance provisions of this Agreement may be reviewed by Grantor from time to time, and the required coverages increased as deemed necessary by Grantor. Section 13. Indemnity and Hold Harmless. Grantee shall indemnify and hold harmless Grantor against and from any and all claims arising from Grantee's use of the Easement, and shall further indemnify and hold harmless Grantor against and from any and all claims arising from any breach or default in the performance of any obligation on Grantee's part to be performed under the terms of this Agreement or arising' from any act of negligence of Grantee or any officer, agent, employee, guest, or invitee of Grantee and from all and against costs, attorney's fees, expenses, and liabilities incurred in or about any such claim, or any action, or proceeding brought thereon; and, in any case, action, orproceeding, be brought against Grantor by reason of any such claims, Grantee, upon notice from Grantor, shall defend the same at Grantee's expense by counsel reasonably satisfactory to Grantor. Section 14. Indemnity: Environmental Conditions. Grantee, its successors and assigns, shall indemnify, defend, and hold harmless Grantor, and its directors, officers, partners employees, agents, successors, and assigns from and against any and all liabilities, losses, claims, demands, penalties, fines, settlements, damages (including foreseeable and unforeseeable consequential damages), response, remedial, or inspections costs, and any expenses (including, without limit, attorney and consultant fees, laboratory costs, and litigation costs) of whatever kind or nature, known or unknown, contingent or otherwise, which are incurred by or asserted against Grantor at any time and arise from or relate directly to (i) any Hazardous Materials or Other Conditions from, in, on, under, or affecting or otherwise resulting from Grantee's operations or activities on the Easement; (ii) migration of Hazardous Materials or Other Conditions onto any other property from Grantee's operations; (iii) disposal of Hazardous Materials and Other Conditions on the Easement by the Grantee or any sublessee, known or unknown; (iv) the removal, treatment, remediation, or disposal of Hazardous Materials or Other Conditions on or from the Easement; and, (v) any personal injuries or property damages, real or personal, any violations of law or of orders, regulations, requirements or demands of governmental authorities, and any lawsuit brought or threatened, settlement reached, or governmental order arising out of or in any way related to Hazardous Materials or Other Conditions on, • in, from, under, or affecting or otherwise resulting from Grantee's or any sublessee's operations or activities on the Easement. The agreement to indemnify, defend, and hold harmless set forth above is in addition to, and in no way shall be construed to limit or replace, any other obligations or liabilities which any party may have to or against the other parties at common law or otherwise. 4 For purposes of this Agreement, "Hazardous Materials" shall mean any substance, product, waste, or other material of any nature whatsoever which (i) is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response. Compensation and Liability Act, 42 U.S.C. Section 9061, et seq. ("CERCLA"); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq. ("RCRA"); the Toxic Substances Control Act, 15 U.S.C. Section 2601, et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Section 25249.5 et seq.; California Health and Safety Code Section 25280 et seq., (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Codc Section 25170.1 et seq.; California Health and Safety Code Section 2550 et seq. (Hazardous Materials ReAgreement Response Plans and Inventory); or the California Porter -Cologne Water Quality Control Act, Water Code Section 13000 et seq., all as amended, or any other federal, state or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning any hazardous toxic or dangerous waste, substance or material, as now or at any time hereafter in effect; (ii) is any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory based on negligence, trespass, intentional tort, nuisance or strict liability or under any reported decisions of a state or federal court, or (iii) is petroleum or crude oil other than petroleum and petroleum products, and (iv) asbestos. "Other Conditions" shall mean and include, without limit, methane and other gases, nonhazardous wastes or materials, and any soil conditions, physical conditions, or other subsurface conditions which arise out of or in any way are related to current or previous uses or activities on the Easement. Section 15. Default. The failure by Grantee to observe or perform any of the covenants, conditions, or provisions of this Agreement to be observed or performed by Grantee, where such failure shall continue for a period of thirty (30) days, shall constitute a default and a breach of this Agreement. Section 16. Governing Law. This Agreement shall be governed exclusively by the provisions hereof, and by the laws of the State of California, as the same from time to time exist. Section 17. Notices. Whenever in this Agreement, a notice or demand is to be given or served by either party to the Agreement, such notice or demand shall be given and served in writing, forwarded by registered or certifies mail, postage prepaid, and addressed as follows: To Grantor: Stephen Kirkpatrick City Engineer City of National City 1243 National City Boulevard National City, CA 91950-4301 5 To Grantee: Baldock Holdings, Inc. P.O. Box 19352 San Diego, CA 92159 Section 18. Attorney's Fees. In the event of the bringing of an action by either party hereto, as against the other herein, or hereunder, or by reason of the breach of any covenant or condition on the part of the other party or arising out of this Agreement; then, in that event, the party in whose favor final judgment shall be entered, shall be entitled to have and recover of and from the other reasonable attorney's fees to be affixed by the court wherein such judgment shall be entered. Section 19. Liens. Grantee shall keep the Easement free from any liens arising out of any work perfonned, materials furnished, or obligations incurred by Grantee. Section 20. Entry by Grantor. Grantor reserves and shall, at any and all times, have the right to enter the Easement, inspect the same, to post notice of non -responsibility, and at Grantee's sole cost and exposure, repair any improvements if the City Engineer determines that such repair is necessary to maintain the structural integrity of the alley. In the event of such entry, the entrance to the Easement shall not he blocked thereby, and further, such entry shall not interfere with Grantee's occupancy of the Easement. Any entry to the Easement obtained by Grantor by any of the said means, or otherwise shall not under any circumstances, be construed or deemed to be a forcible or unlawful entry into, or a detainer of the Easement, or an ejectment of Grantee from the Easement or any portion thereof. Grantor will give reasonable notice for such entry, except in the case of an emergency. Section 21. Waiver. It is agreed that any waiver by Grantor of any breach, of any one or more of the covenants, conditions, or agreements of this Agreement, shall not be construed to be a waiver of any subsequent or other breach of the same or any other covenant, condition, or agreement; nor shall any failure on the part of the Grantor to require exact or full, complete and explicit compliance with any of the covenants, conditions, or agreements in this Agreement be construed as in any manner changing the terms hereof, or to estop Grantor from enforcing the full provisions hereof, nor shall the terms of this Agreement be changed or altered in any way whatsoever, other than by written amendment, signed by both parties. Section 22. Waste. Grantee agrees not to commit, or suffer to be committed, any strip or waste of the Easement. Section 23. Prior Agreements. This Agreement contains all of the agreements of the parties hereto, with respect to any matter covered or mentioned in this Agreement, and no prior agreements or understanding pertaining to any such matters shall be effective for any purposes, with the exception of that document entitled "Lease Agreement" entered into by Grantor and Grantee. Section 24. Severability. Any provision of this Agreement which shall prove to be invalid, void, or illegal shall in no way affect, impair, or invalidate any other provision hereof, and such other provision shall remain in full force and effect. 6 Section 25. Cumulative Remedies. It is agreed that the rights and remedies given to the Grantor by this Agreement arc cumulative and are not intended and shall not operate to deprive the Grantor of any other rights or remedies available to him whether in law or equity or pursuant to special proceedings. Section 26. Headings. The marginal headings and Section titles to the Sections of this Agreement are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part hereof Section 27. Authority of Parties. If Grantee is a corporation, each individual executing this Agreement on behalf of said corporation represents and warrants that they are duly authorized to execute and deliver this Agreement on behalf of said corporation, in accordance with a duly adopted resolution of the board of directors of said corporation, or in accordance with the by-laws of said corporation, and that this Agreement is binding upon said corporation in accordance with its terms. Section 28. Successors and Assigns. The covenants and conditions herein contained, subject to the provisions as to assignment, apply to and bind the heirs, successors, executors, administrators, and assigns of the parties hereto. Section 29. Definitions. All words used herein, in the singular number shall include the plural, the present tense shall include the future tense, and the masculine gender shall include the feminine and neuter genders. If more than one person executes this instrument as Grantee, their obligations hereunder shall be joint and several. The term "Grantor" shall include its agent, attorney, or authorized representative. Section 30. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. Section 31. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rending of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. Section 32. Recordation. This Agreement may be recorded by either party hereto. Section 33. Termination by Grantor. Notwithstanding the provisions of Section 4, or any other provision of this Agreement to the contrary, in the event Grantor determines the Easement is needed for public, municipal, or redevelopment purposes, Grantee agrees to enter into good faith negotiations with Grantor to terminate this Agreement and the Easement, and in the event the parties agree to terminate this Agreement, all improvements erected upon the 7 Easement shall be removed within a period of time mutually acceptable to the parties, said removal to be secured by a performance security in an amount acceptable to the City Engineer, and in a form acceptable to the City Attorney. LN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement effective as of the date first above written. GRANTEE: (two signatures required) BALDOCK HOLDINGS, INC. By: Title: By: Title: 8 GRANTOR: CITY OF NATIONAL CITY By. Nick Inzunza, Mayor EXHIBIT "A" AN EASEMENT FOR UNDERGROUND GARAGE BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: "THE EASTERLY ELEVEN (11) FEET OF THE SIXTEEN (16) FOOT ALLEY OF BLOCK 4 OF HAYES' HIGHLAND ADDITION ACCORDING TO MAP THEREOF NO. 1038, IN THE CITY OF NATIONAL CITY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON MARCH 15, 1907." JN. 652 30 0 40' EXHIBIT "B" 20' 0 0 30' 30' N17'48.50"W 330.39' HIGHLAND AVENUE 0 t 30' 30' BLOCK 'r woo MAP NO. 501 W w ° Hr'r'S HIGHLANDADDITION "oo-�u) Nn�� r-o to to Z^ i N N72'06'43 'E 11.00'--'�_ 20' 40' /f/////1 16' ALLEY c- ctV N i 7'48'50"W 260.62' i / 260.64' NI7'48'50"W RI DrK 4 J\/I A P IN J . 8301 330.63. 11' EASEMENT FOR THE UNDERGROUND GARAGE WITHIN 16' ALLEY O N N 71 '59' 10"E 11.00' SCALE 1 "= 60' JN. 6527 LXHIBIT LOC}< 4 MAP No. {35J`) HAY . HIGHLAND ADDITION -ALLEY RIGHT-OF-WAY 0 0 PROPOSED NDERGROU ND GARAGE 11' EASEMENT FOR THE UNDERGROUND GARAGE WITHIN 16' ALLEY PARKING SPACE (TYP.) UNDERGROUND GARAGE WALL ALLEY RIGHT-OF-WAY CENTERLINE OF ALLEY 16' ALLEY B` OCX MAP NO. ' 601 ;-iAYr HIGHLAND ADDITION SCALE: 1 "= 30' 60' RIGHT-OF-WAY 22nd STREET JN. 6527 RESOLUTION NO. 2006 — 25 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A GRANT OF EASEMENT AGREEMENT AND A LEASE AGREEMENT WITH BALDOCK HOLDINGS, INC. FOR AN UNDERGROUND PARKING GARAGE UNDERLYING A CITY OWNED ALLEY FOR A RESIDENTIAL CONDOMINIUM PROJECT ON HIGHLAND AVENUE BETWEEN 21STAND 22ND STREETS WHEREAS, Baldock Holdings, Inc. is the developer of a residential condominium project on the west side of Highland Avenue between 21st and 22nd Streets. In order to meet the City's parking requirements for the project, the developer proposes to build an underground parking garage, part of which will be located under a 16 foot wide City -owned alley located to the west of the developer's property; and WHEREAS, to accomplish construction of the underground parking garage, two documents are necessary: 1) a Grant of Easement Agreement, which would grant the developer a permanent easement underlying 11 feet of the City's alley, and 2) a Lease Agreement, wherein the developer would lease the remaining 5 feet of the alley to permit construction of the parking garage for a period of 9 months; and WHEREAS, the developer will pay the City $77,692 for the Grant of Easement, and $4,770 for the 9 month lease of a portion of the alley. NOW, THEREFORE, BE IT RESOLVED that the Mayor is hereby authorized to execute a Grant of Easement Agreement and a Lease Agreement with Baldock Holdings, Inc. to allow construction of an underground parking garage underlying to City owned alley located west of Highland Avenue between 21st and 22nd Streets. Said Agreements are on file in the office of the City Clerk. PASSED and ADOPTED this 7th day of February, 2006. Nick ATTEST: N Mic "ael R. 'all.. City Clerk APPROVED AS TO FORM: George H. Eiser, III City Attorney Passed and adopted by the Council of the City of National City, California, on February 7, 2006, by the following vote, to -wit: Ayes: Councilmembers Inzunza, Morrison, Natividad, Parra, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: NICK INZUNZA Mayor of the City of National City, California Cif City ttlerk of the City National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2006-25 of the City of National City, California, passed and adopted by the Council of said City on February 7, 2006. City Clerk of the City of National City, California By: Deputy City of National City, California COUNCIL AGENDA STATEMENT .AEETING DATE February 7, 2006 Qa,006-\ AGENDA ITEM NO. 29 ITEM TITLE RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A GRANT OF EASEMENT AGREEMENT AND A LEASE AGREEMENT WITH BALDOCK HOLDINGS, INC. FOR AN UNDERGROUND PARKING GARAGE UNDERLYING THE CITY OWNED ALLEY FOR A RESIDENTIAL CONDOMINIUM PROJECT ON HIGHLAND AVENUE BETWEEN 21ST AND 22ND STREETS PREPARED BY George H. Eiser, III 011 DEPARTMENT City Attorney 4221 EXPLANATION Please see attached memorandum. Environmental Review X N/A Financial Statement N/A Account No. STAFF RECOMMENDATION Adopt resolution. BOARrD,/ COMMISSION RECOMMENDATION ,ATTACHMENTS ( Listed Below ) Resolution Easement Agreement Lease Agreement A-200 (9,80) Resolution No. 420067 ZS 0 2oo6- I C D,o0 6 -V