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HomeMy WebLinkAbout22-Water Department ORIGINAL CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION From:Stacey Aldstadt Subject: General Manager Resolution of the Mayor and Common Dept: Water Department Council Granting Perpetual, Non- Exclusive Easement to Waterman BP, Date: August 15, 2006 LLC, for Landscaping and Utilities on city owned property located in the general vicinity of Waterman Avenue and Steele Street (APN 0141-342-04-000) M/CC Meeting Date: 9/18/06 Synopsis of Previous Council Action: NONE Recommended Motion: ADOPT RESOLUTION Signature Contact person: Stacey Aldstadt Phone: 384-5091 Supporting data attached: yes Ward: FUNDING REQUIREMENTS: Amount: None Source: (Acct. No.) (Acct. Description) Finance: Council Notes: ` Agenda Item No. // / v� CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION STAFF REPORT Subject: Resolution approving a Grant of Perpetual, Nonexclusive Easement for Landscaping and Utilities to Waterman BP, LLC on city owned property located in the general vicinity of Waterman Avenue and Steele Street, San Bernardino, CA (APN 0141-342-04-0000) . Background: Waterman BP, LLC is proposing a 10-acre industrial project on 22 parcels located in the general vicinity of Waterman Avenue and Steele Street. The City of San Bernardino owns a small, 400-square foot parcel that is completely surrounded by the proposed development. The parcel (APN 0141-342-04-0000) was deeded to the City in 1962 for Water Department use and has never been used by the Department for any purpose. Waterman BP, LLC contacted the Department, requesting a perpetual, non-exclusive easement for "installation, maintenance and use of landscaping and utilities. " Waterman BP, LLC intends to integrate the parcel into their project' s landscaping, providing a more visually appealing project. Waterman BP, LLC will landscape and maintain the landscaping at no cost to the City. Recent comparables obtained by Waterman BP, LLC reflect a sale price for fee at $6 per square foot for developable land. Even assuming that we could develop this small remainder parcel, and assuming that the price to purchase the property was $6 per square foot, the price of the easement is a small fraction of that. The obligation to landscape and maintain the landscaping has substantially more value. For that reason, it is recommended that the consideration for the easement be fixed at a nominal $1. Financial Impact: None Recommendation: Adopt Resolution. COPY 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING A GRANT OF PERPETUAL, NON-EXCLUSIVE EASEMENT 3 TO WATERMAN BP, LLC FOR LANDSCAPE AND UTILITIES ON PROPERTY LOCATED ON WATERMAN AVENUE AND STEELE STREET, SAN BERNARDINO, CA (APN 0141- 4 342-04-0000) . 5 Whereas, the City of San Bernardino owns a small, 400-square 6 foot parcel of real property situated in the City of San Bernardino, 7 County of San Bernardino located in the general vicinity of Waterman 8 Avenue and Steele Street for Water Department use; and 9 WHEREAS, Waterman BP, LLC has a 10-acre industrial project 10 surrounding said parcel and proposes to use the property for 11 installation, maintenance and use of landscaping and utilities . 12 NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF 13 THE CITY OF SAN BERNARDINO AS FOLLOWS : 14 SECTION ONE: That the City of San Bernardino, a Municipal 15 Corporation, does hereby approve an Easement Deed and Agreement for 16 installation, maintenance and use of landscaping and utilities to 17 18 Waterman BP, LLC, as described in the Easement Deed and Agreement . The Easement Deed and Agreement is set forth on Exhibit 1 attached 19 hereto and by this reference made a part hereof. Reference APN 20 0141-342-04-0000 . 21 22 SECTION TWO: That the Mayor and City Clerk of the City of San Bernardino are hereby authorized and directed to execute said 23 Easement Deed and Agreement on behalf of the City of San Bernardino. 24 25 26 27 28 i 9/5/2006 f 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING A GRANT OF PERPETUAL, NON-EXCLUSIVE EASEMENT TO WATERMAN BP, LLC FOR LANDSCAPE AND UTILITIES ON PROPERTY LOCATED ON WATERMAN AVENUE AND STEELE STREET, SAN BERNARDINO, CA (APN 0141-342-04-0000) . 1 I HEREBY CERTIFY that the foregoing resolution was duly adopted 2 by the Mayor and Common Council of the City of San Bernardino at a 3 meeting thereof, held on the day of 4 2006, by the following vote to wit : 5 COUNCIL MEMBERS AYES NAYS ABSENT ABSTAIN 6 ESTRADA 7 BAXTER 8 VACANT 9 DERRY 10 KELLEY 11 JOHNSON 12 MCCAMMACK 13 14 RACHEL CLARK, City Clerk 15 16 The foregoing resolution is hereby approved this day of 17 2006. 18 PATRICK J. MORRIS, Mayor 19 City of San Bernardino 20 APPROVED AS TO FORM: 21 22 By: MES F. PENMAN 23 City Attorney 24 25 26 27 28 9/5/2006 Page 2 of 2 �XHIBIT 1 Recording Requested by and When Recorded Return to: Stacey Aldstadt, General Manager Water Department City of San Bernardino 300 N. "D" Street San Bernardino, CA 92418 No Fee - Exempt per Govt. C. 6103 SPACE ABOVE THIS LINE FOR RECORDER'S USE EASEMENT DEED AND AGREEMENT THIS EASEMENT DEED AND AGREEMENT (this "Agreement") is made as of , 2006 by and between WATERMAN BP, LLC, a Delaware limited liability company ("Waterman") and the City of San Bernardino, a municipal corporation ("City") with reference to the following facts: A. Waterman is the owner of that certain real property located in the City of San Bernardino, County of San Bernardino, State of California (the "Waterman Property"), and more particularly described on Exhibit A attached hereto and made a part hereof. B. City is the owner of that certain real property located in the City of San Bernardino, County of San Bernardino, State of California (the "City Property"), and more particularly described on Exhibit B attached hereto and made a part hereof. NOW, THEREFORE, in consideration of the covenants contained in this Agreement and other good and valuable consideration, receipt of which is acknowledged, the parties hereby agree as follows: 1. Grant of Easements. City hereby grants to Waterman and its successors and assigns, (1) a perpetual, nonexclusive easement over, across and through the City Property for the installation, maintenance and use of landscaping and utilities (including, but not limited to water and irrigation lines) ("Landscaping and Utility Easement"), and (ii) a perpetual, nonexclusive easement over, across and through the City Property for the installation, maintenance and use of a fire water line ("FW Easement"). The Landscaping and Utility Easement is for the use and benefit of that certain portion of the Waterman Property described on Exhibit C ("LU Lots") attached hereto and incorporated herein by this reference. The FW Easement is for the use and benefit of each of the lots that comprise the Waterman Property. The Landscaping and Utility Easement and the FW Easement are referred to herein collectively as the "Easements". 2. Maintenance and Repair. Except for damage caused by City, its agents, invitees, employees or licensees, as applicable, (i) Waterman and its successors and assigns with 41008904.4 respect to the LU Lots shall be responsible, at their sole cost and expense, for the maintenance, repair, replacement and/or restoration, as appropriate, of all landscaping and utility improvements to be installed by Waterman within the Landscaping and Utility Easement, and (ii) Waterman and its successors and assigns with respect to the Waterman Property, and each lot therein, shall be responsible, at their sole cost and expense, for the maintenance, repair, replacement and/or restoration, as appropriate, of the fire water line to be installed by Waterman within the FW Easement. 3. Covenants Running With the Land. Waterman and City hereby declare that the Waterman Property and the City Property (collectively, the "Properties") shall be held, conveyed, hypothecated, encumbered, leased, rented, used, occupied, and improved subject to the limitations, restrictions, covenants and conditions set forth in this Agreement, all of which are declared to be in furtherance of and for the use, enjoyment and improvement of the Properties for the purpose of enhancing their value, use, desirability, and attractiveness. Pursuant to applicable law, including, but not limited to, Sections 1462, 1465 and 1468 of the Civil Code of the State of California, all provisions of this Agreement (i) are hereby imposed as equitable servitudes on the Properties, and (ii) shall run with the land and be binding upon the Properties and all parties having or acquiring any right, title, or interest in the Properties and their successive owners and assigns. 4. Assignability. Waterman shall have the right, in its sole and absolute discretion, to assign the maintenance and repair obligations described in Section 2 and the indemnity in Section 5 hereof and insurance provisions in Section 6 hereof to either (i) any party that acquires title to all or any portion of the LU Lots or (ii) any owner's association that is formed with respect to the management of the LU Lots. Upon such assignment, the party to whom such obligations are assigned shall have the right to allocate the costs of such obligations between all parties benefited by the Easements and to collect such costs from such parties. 5. Indemnification. Waterman shall defend, indemnify and hold harmless City and its elected and appointed officials, officers, agents, and employees from any and all claims, liabilities, expenses, including attorneys fees, damages to property or injuries to or death of any person or persons, or damages of any nature arising out of or in any way connected with the acts, errors or omissions of Waterman, its officers, employees, agents or contractors related to the City Property, or related to this Agreement excluding therefrom any claims, liabilities, expenses, including attorneys fees, damages to property or injuries to or death of any person or persons, or damages of any nature arising out of or in any way connected with the negligence or willful misconduct of City or its elected and appointed officials, officers, agents, and employees. 6. Insurance. Waterman shall obtain and maintain during the life of this Agreement all of the following insurance coverages: (a) Comprehensive general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractor, and personal injury, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (b) Automobile liability with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate for any vehicles owned by Waterman. 41008904.4 (c) Workers' compensation insurance as required by the State of California. (d) Endorsements. The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions: (i) Additional insureds: "The City of San Bernardino and its elected and appointed officials, officers, agents, and employees are additional insureds with respect to the Waterman Property and City Property and this Agreement." (ii) Notice: "Said policy shall not terminate, nor shall it be cancelled nor the coverage reduced, until thirty(30) days after written notice is given to City." (iii) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 7. Attorneys' Fees. In any judicial or arbitration proceeding involving performance under this Agreement, or default or breach thereof, the prevailing party shall be entitled to receive from the other party reasonable attorney's fees and reasonable costs and expenses. The costs, salary and expenses of the City Attorney and members of his office shall be considered as attorney's fees for the purposes of this Agreement. S. Governing Law. This Agreement shall be governed by the laws of the State of California. 9. Entire Agreement. This Agreement and its exhibits constitute the entire agreement between the parties hereto pertaining to the subject matter hereof, and the final, complete and exclusive expression of the terms and conditions thereof. Prior agreements, representations, negotiations, and understandings of the parties hereto, oral or written, express or implied, are hereby superseded and merged herein. 10. Modification. This Agreement may not be modified in any respect or rescinded, in whole or in part, except by an instrument in writing, duly executed by both parties, their successors or assigns. 11. Severability. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. 12. Construction. The rule of strict construction does not apply to this Agreement. The language of this grant shall be construed simply, according to its fair meaning, so that the intention of the parties is carried out. 13. Waiver and Default. The waiver by one party of the performance of any provision of this Agreement shall not invalidate this Agreement nor shall it be considered a 41008904.4 waiver by it of any other provision under this Agreement or of any subsequent breach by the other party of the same provision. 14. Counterparts. This Agreement may be executed in one or more counterparts, and bear the signature of each party on a separate counterpart, each of which when so executed and delivered shall be deemed an original but all of which taken together shall constitute but one and the same instrument. [SIGNATURES ON FOLLOWING PAGE] 41008904.4 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. Delaware limited WATERMAN BP, LLC, a D e DATED: 12006 liability company TH STREET DEVELOPMENT, , LLC, a California limited liability company, its Manager By: Name: Craig Furniss Title: Member City of San Bernardino, a municipal corporation DATED: , 2006 By: Name: Title: 41008904.4 I STATE OF CALIFORNIA ) ss. COUNTY OF ) On , before me, , a Notary Public in and for said state, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State (SEAL) STATE OF CALIFORNIA ) ss. COUNTY OF ) On , before me, , a Notary Public in and for said state, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State (SEAL) 41008904.4 Exhibit A Waterman Propert y All that certain real property located in the City of San Bernardino, County of San Bernardino, State of California: Lots 9 to 30, inclusive, of Tract No. 6548, in the City of San Bernardino, County of San Bernardino, State of California, as per plat recorded in Book 84, Page(s) 39 and 40, of Maps, records of said County. Being the same real property depicted as Lots 1 to 12, inclusive, of proposed Tract No. 18083 to be recorded in the City of San Bernardino, County of San Bernardino, State of California. 41008904.4 Exhibit B City Propert y [SEE ATTACHED] 41008904.4 DESCRIPTION THAT PORTION OF LOT 9, BLOCK 75, RANCHO SAN BERNARDINO, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7 OF MAPS, PAGE 2, RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE WEST LINE OF SAID LOT WITH THIS SOUTfi RLY LINE OF THE RIGHT OF WAY OF THE SOUTHERN PACIFIC RAILWAY, SAID INTERSECTION BEING IN THE CENTERLINE OF AN 82.5 FOOT STREET KNOWN AS WATERMAN AVENUE; THENCE SOUTHEASTERLY ALONG THE SOUTHERLY RIOT OF WAY LINE OF SAID RAILWAY, 408.54 FEET; THENCE SOUTHERLY AND PERPENDICULAR TO THE SOUTHERLY RIGHT OF WAY LINE OF SAID RAILWAY, 314.01 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTHERLY AND PARALLEL TO THE CENTERLINE OF SAID WATERMAN AVENUE, 20.0 FEET; THENCEWESTERLY AND PERPENDICULAR TO THE CENTERLINE OF SAID WATERMAN AVENUE, 30.0 FEET; THENCE NORTHERLY AND PARALLEL TO THE CENTERLINE OF SAID WATERMAN AVENUE, 23.46 FEET; THENCE SOUTHEASTERLY AND PARALLEL TO THE SOUTHERLY RIGHT OF WAY LINE OF SAID RAILWAY, 20.30 FEET TO THE POINT OF BEGINNING. R A 1 ---_-_-_-_-_.— 1 � I J 1 i ! 1 1 � ; f 1 I i w If I H Q J 1 ' w W i 1 V 0 ?j Z cz V 0 Oil j I Q z i � . m ce 1 i f"J.. z tn ! i i 1 ± LL q J I ......--------- atihantl NVW1iaLVM Exhibit C LU Lots That portion of the Waterman Property identified on Exhibit C-1 attached hereto and made a part hereof. Being the same real property depicted as Lots 1 and 2 of proposed Tract No. 18083 to be recorded in the City of San Bernardino, County of San Bernardino, State of California. 41008904.4 Exhibit C-1 LU Lots [SEE ATTACHED] 41008904.4 . _ YM1FJiMAN AVFJUE �p Ig � Ffq►(TA6E ROAD` NNW 439.W LU Lots ' f a ; f f • f M� 1 tz i 'i�136`E t79. " -vim, Q ° r "