Agenda Item A.7
CONSENT CALENDAR
Meeting Date: September 17, 2024
TO: Mayor and Councilmembers
SUBMITTED BY: Luz “Nina” Buelna, Interim Public Works Director PREPARED BY: Gerald Comati, Contract Project Manager
SUBJECT: Approve Right of Way Agreement and accept Grant Deed for property required for Project Connect
RECOMMENDATIONS:
A. Approve and authorize the City Manager to execute the Right of Way Agreement with BT-OH, LLC, including any required escrow transactional documents; and B. Authorize the City Clerk to accept the Grant Deed of property required from Assessor Parcel Numbers 071-130-069, owned by BT-OH, LLC for Project Connect.
BACKGROUND:
Project Connect began construction in March 2024. Project Connect includes the Ekwill Street and Fowler Road Extension Project (Ekwill -Fowler Project) and when complete, the project will improve access to, and circulation within , Old Town, improve access to Santa Barbara Airport, enhance pedestrian and bicycle circulation and safety, and allow the expansion of transit opportunities within Old Town.
Project Connect has required extensive acquisitions from a total of twenty-two separate properties. Many of these acquisitions included Temporary Construction Easements (TCEs). In total, t he right-of-way is necessary to allow construction along the proposed Fowler Road and Ekwill Street corridors, along Hollister Avenue for the two roundabouts, and at San Jose Creek Channel for channel widening and a bridge replacement.
In 2014, the City began its right-of-way acquisition process, and by 2023, all right-of-way was successfully acquired to allow the start of construction. However, per Caltrans right- of-way requirements, all acquired TCEs have a defined term or life. As a result, if a longer term TCE is required due to delays in construction, a new TCE Agreement is required. 1 Meeting Date: September 17, 2024
DISCUSSION:
In June 2015, the City acquired the property from BT-OH, LLC (Universal Parcel Service or UPS) required to construct Ekwill Street, as part of Project Connect . The acquisition included a fee take and two TCEs, and the term on the TCEs expired in 2018. In 2021, the City negotiated a new TCE Agreement with BT-OH, LLC, for a thirty-month term on the two TCEs, for $70,000. The term for this agreement expired in May 2024. Due to delays in construction implementation for Project Connect, the City now needs a second TCE agreement to secure additional time. C onsequently, the City has negotiated a new TCE Agreement for an additional twenty-four months, for $67,500. Without the new TCE, the City will not be able to construct the portion of Ekwill Street immediately adjacent to the BT-OH, LLC (UPS) facility, located on Pine Avenue at the intersection of the future Ekwill Street.
FISCAL IMPACTS:
The negotiated valuation of the TCEs is $67,500. Funds for acquiring the properties are included in the approved FY 202 4/25 budget. As such, no additional appropriations are required at this time . Table 1 includes the e stimated project costs for the Ekwill -Fowler Project and the funding sources.
Table 1: Ekwill-Fowler Project Estimated Costs and Funding Project
Components
Estimated
Costs Funding Source Funding
Amounts
Conceptual
Design*
$1,133,279.00 General Fund (101) $10,842,675.95
Environmental* $1,133,279.00 General Fund (102) $250,000.00 Final Design* $6,895,611.00 Measure A (205) $1,325,292.18 Land Acquisition $5,763,000.00 DIF Transportation (220) $16,564,956.11 Construction $51,694,372.91 Gas (201) $694,000.00
LRDP (230) $5,986,710.00
STIP (308) (grant) $15,820,780.95
CDBG (402) (grant) $97,000.00
ARPA (423) $4,933,990.00
STIP (404) $670,186.58
RDA (601) $654,318.14
Measure A Named
Project $8,414,317.00
Measure A Grant (206) $365,315.00
Total: $66,619,541.91 Total: $66,619,541.91
*Actual costs
2 Meeting Date: September 17, 2024
ALTERNATIVES:
The City Council may elect not to authorize the City Manager to execute the Right of Way Agreement with BT-OH, LLC, and the City Clerk to accept the Grant Deed from BT-OH, LLC, for Project Connect . However, by doing so, the ongoing construction of Project Connect would be subject to delay claims by the construction contractor.
LEGAL REVIEW BY: Megan Garibaldi, City Attorney
APPROVED BY: Robert Nisbet, City Manager
ATTACHMENTS:
1. Right of Way Agreement with BT-OH, LLC. Assessor Parcel Number 071-130-069.
2. Grant Deed with BT-OH, LLC. Assessor Parcel Number 071-130-069. 3 ATTACHMENT 1
Right of Way Agreement with BT-OH, LLC. Assessor Parcel Numbers 071-130-069. 4 Goleta/Ekwill-Fowler/Agreement-TCE (BT-OH) Page 1 of 7 PARCEL NO.: 071-130-069
PROJECT: City of Goleta – Ekwill-Fowler Project (BT-OH)
TEMPORARY NON-EXCLUSIVE CONSTRUCTION EASEMENT AGREEMENT On February 19, 2015, BT-OH, LLC, a Delaware limited liability company, as “Grantor,” and the City of Goleta, a municipality of the State of California, called "City," entered into a Right of Way Agreement and associated Temporary Construction Easement Deed (“Deed”) in conjunction with the Ekwill-Fowler Project. The Deed was recorded as Instrument Number 2015-0031110 on June 16, 2015, in the County Recorder’s Office of the County of Santa Barbara.
Because the project was delayed, the City now seeks a new Temporary Non-Exclusive Construction Easement (“TCE”) which shall commence upon execution of this Temporary Non- Exclusive Construction Easement Agreement (“ Agreement”) by the City and terminate twenty- four (24) months thereafter.
This Agreement is being entered into between Grantor and City in order to provide City with a Temporary Non-Exclusive Construction Easement for a new term, under the following terms and conditions:
1. TERM. Grantor hereby agrees to grant to City by execution of a new Temporary Non- Exclusive Construction Easement Deed (the “New Deed”) concurrently herewith, a Temporary Non-Exclusive Construction Easement for a 24-month term over that property described in Exhibit A and depicted in Exhibit B, each attached hereto and incorporated herein, for the period commencing upon the date of City’s execution of this Agreement and terminating upon completion of construction or 24 months after commencement, whichever occurs first.
2. PAYMENT. In exchange for the TCE granted herein, City agrees to pay the sum of SIXTY-SEVEN THOUSAND AND FIVE HUNDRED DOLLARS ($ 67,500) to Grantor, at the address shown below, within 30 days of the date this Agreement is fully executed. Grantor hereby authorizes and instructs City to disburse this payment to Grantor and Grantor agrees that this payment shall be deemed full and complete just compensation for the Temporary Construction Easement granted herein. City may choose to utilize an escrow, at City expense, to process this payment and record the New Deed.
3. TERMS OF ADDENDUM AND DEEDS. The TCE granted herein is subject to the terms and conditions of the New Deed and the terms and conditions of that certain Addendum annexed hereto as Exhibit “C” and by this reference incorporated herein.
This Agreement may be executed in counterparts, each of which so executed shall irrespective of the date of its execution and delivery be deemed an original, and all such counterparts together shall constitute one and the same instrument. In the event that the parties hereto utilize electronically transmitted signatures, such signatures shall be treated in all respects as having the same effect as an original signature.
Grantor hereby represents and warrants that it is the sole vested owner of the Property, holding all ownership and possessory rights except as otherwise disclosed in the record estate records of Santa Barbara County, and is the authorized signatory to grant the rights referenced in this Agreement without conflict or claims from other parties.
5 Goleta/Ekwill-Fowler/Agreement-TCE (BT-OH) Page 2 of 7
Grantor shall not sell or lease or otherwise convey or grant possessory or ownership rights to the property subject to this Agreement without disclosing this Agreement to such buyer or lessee, and any such transaction shall become subject to the Temporary Non-Exclusive Construction Easement rights granted herein. This Agreement shall be binding upon the successors in interest to the parties hereto.
GRANTOR
BT-OH, LLC, a Delaware limited liability company
By: ___________________________________ Date: ______________________ Name:
Title:
CITY OF GOLETA
By: ___________________________________ Date: ______________________ Name:
Title:
MAILING ADDRESS OF GRANTORS: MAILING ADDRESS OF CITY:
BT-OH, LLC
Corporate Real Estate Department
55 Glenlake Parkway, NE
Atlanta, GA 30328
Attn: Real Estate Contract Administration
-with a copy to-
BT-OH, LLC
Corporate Real Estate Department
55 Glenlake Parkway, NE
Atlanta, GA 30328
Attn: Real Estate Coordinator
-with a copy by e-mail to-
Dan Scidmore ([email protected])
City Clerk – City of Goleta
130 Cremona Drive, Suite B
Goleta, CA 93117
6 Goleta/Ekwill-Fowler/Agreement-TCE (BT-OH) A - 1
Exhibit “A”
Description of Easement Area
[SEE ATTACHED THREE (3) PAGES]
7 8
9 10
Goleta/Ekwill-Fowler/Agreement-TCE (BT-OH) B - 1
Exhibit “B”
Depiction of Easement Area
[SEE ATTACHED TWO (2) PAGES]
11 APN 071-130-069
APN 071-130-069
12 APN 071-130-069
APN 071-130-069
13 Goleta/Ekwill-Fowler/Agreement-TCE (BT-OH) C - 1
Exhibit “C”
Addendum
This Addendum is annexed to a Temporary Non-Exclusive Construction Easement Agreement (the “Easement”) and is granted by BT-OH, LLC, a Delaware limited liability company (“Grantor”) to the City of Goleta, a municipality of the State of California (“Grantee”). If there is any conflict between the terms of this Addendum and the terms of the Easement, the terms of this Addendum shall control.
(1) Grantee will cause its agents, employees and contractors to use all reasonable precautions to avoid damage to Grantor's property and Grantee shall save, indemnify and hold harmless Grantor, its related companies, and its successors and assigns against any and all loss, damage, liability and expense for injury to or death to Grantor's employees, agents, contractors or third parties or damage to property, caused by or attributable to the construction, operation and maintenance of the Easement. Grantee shall indemnify and defend Grantor for, from and against any and all mechanics' and other liens and encumbrances filed by any person claiming by, through or under Grantee and against all costs, expenses, losses and liabilities (including reasonable attorneys' fees) incurred by Grantor in connection with any such lien or encumbrance or any action or proceeding brought thereon. Grantee at its expense shall procure the discharge of record of all such liens and encumbrances within twenty (20) days after notice thereof, TIME BEING OF THE ESSENCE (failing which, Grantor may cause the release and discharge of same, at Grantee’s expense, and Grantee will reimburse Grantor for the costs incurred in connection therewith within thirty (30) days after Grantor’s notice and demand for same, TIME BEING OF THE ESSENCE).
(2) Grantee shall minimize any disruption to Grantor's business operations occasioned by Grantee's use of the Easement Area. Installation shall be accomplished in an expeditious manner and all maintenance and repairs shall be performed in a similar fashion. Grantee, through its self insurance policy with California Joint Powers Insurance Authority, shall maintain throughout the term of the easement, at its expense, and shall keep in full force and effect a primary policy of $30 million and an excess polic y of $20 million providing comprehensive general liability coverage including combined bodily injury, death and property damage. Such policy shall include Grantor as an additional insured. Grantee shall provide a certificate of insurance to Grantor evidencing that such insurance i s in full force and effect upon the execution of the Easement, and, thirty (30) days prior to the expiration of such policy, Grantee shall deliver a certificate to Grantor evidencing the renewal of such policy.
(3) Grantee, upon conclusion of any activity upon said real property, shall cause all debris and materials incident to such activity to be removed from Grantor's property which will be generally restored by Grantee to a comparable or better condition as that which existed prior to Grantee’s access and use.
(4) Grantor shall have the right to use the surface of said real property for any purpose which does not interfere with Grantee's use of the Easement conveyed, including, but not limited to, the right to traverse and park on said Easement Area during any periods before 9:30 a.m. and after 4:30 p.m. daily. Additionally, Grantee shall not use the surface of the Easement Area for any purpose and in any manner not specifically authorized herein. Grantee hereby covenants and agrees not to interfere with Grant or's use of the surface of the Easement Area during the time periods before 9:30 a.m. and after 4:30 p.m. daily, and Grantor agrees not to interfere with Grantee’s use of the Easement Area between the hours of 9:30 a.m. and 4:30 p.m. daily during the term of this Temporary Non-Exclusive Construction Easement.
(5) Grantee shall comply with all Local, State and Federal environmental laws, rules, codes and regulations in connection with its activities on Grantor's premises and in the Easement Area. Grantee shall indemnify, defend and hold Grantor harmless from any breach of the foregoing covenant.
(6) The Easement shall not be effective until Grantor and Grantee have executed this Addendum.
(7) GRANTEE ACKNOWLEDGES AND UNDERSTANDS THAT GRANTOR'S GRANT OF
THE RIGHTS AND EASEMENTS SET FORTH HEREIN ARE GRANTED SUBJECT TO ALL MATTERS OF RECORD AND ARE GRANTED "AS-IS", "WHERE-IS", "WITH ALL FAULTS",
WITH NO WARRANTY OR REPRESENTATION OF ANY KIND OR NATURE, E XPRESS OR 14 Goleta/Ekwill-Fowler/Agreement-TCE (BT-OH) C - 2
IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR REPRESENTATION
REGARDING THE EASEMENT AREA OR ANY CONDITION THEREOF OR THE SUITABILITY OF SAME FOR GRANTEE’S INTENDED PURPOSE OR OTHERWISE).
(8) Neither this Temporary Non -Exclusive Construction Easement Deed, nor any rights granted hereby or anything else contained herein, shall be deemed to constitute a gift or dedication of the Easement Area or of any property of Grantor, or any rights in or to any of the foregoing, to the general public or for any public use or public purpose whatsoever, or for any private use of any party other than the parties hereto. This Temporary Non-Exclusive Construction Easement Deed is exclusively for the benefit of the parties hereto, it being the intention of the parties hereto (and, as applicable, their successors -in-title) that nothing in this Temporary Non -Exclusive Construction Easement Deed, express or implied, shall confer upon any person, other than the parties referenced herein (and, as applicable, their successors-in-title), any rights or remedies of any kind or nature under or by reason of this Temporary Non-Exclusive Construction Easement Deed. No person or entity shall be de emed a beneficiary of the terms of this Temporary Non - Exclusive Construction Easement Deed, unless specifically provided for herein.
(9) No failure, omission or delay by Grantor to exercise any right, power or remedy granted it or otherwise available to it at law or in equity, or to insist upon strict compliance by Grantee with respect to any obligation imposed on it, and no custom or practice of either party hereto at variance with any term hereof, shall constitute a waiver or a modification of the terms hereof by Grantor or any right Grantor has herein to demand Grantee’s strict compliance with the terms hereof. Any such waiver may b e made only by a writing signed by Grantor. The rights and remedies of Grantor hereunder are in addition to, and not in lieu of, any and all other rights and remedies that Grantor has or may have either at law or in equity.
Each of Grantor and Grantee ag rees that the rights granted herein and the covenants and obligations set forth herein are mutually bargained for and agreed upon and commercially reasonable.
(10) Any and all notices, consents, requests, demands or other communications required or permitted hereunder shall be in writing and delivered by personal delivery, USPS certified mail or UPS Next Day Air delivery service, in each instance addressed as follows (or to such other address as either may provide by written notice to the other) and, if properly addressed and sent, shall be effective upon delivery (or refusal of such delivery by the intended recipient):
Grantor: BT-OH, LLC
Corporate Real Estate Department
55 Glenlake Parkway NE
Atlanta, Georgia 30328
Attn: Real Estate Contract Administration
With a copy to: BT-OH, LLC
Corporate Real Estate Department
55 Glenlake Parkway NE
Atlanta, Georgia 30328
Attn: Real Estate Coordinator
And with copy by e-amil to: Dan Scidmore ([email protected]) Grantee: City of Goleta – City Clerk
130 Cremona Drive, Suite B
Goleta, CA 93117
(11) This Temporary Non -Exclusive Construction Easement Deed, and each of the rights and easements granted hereby, are personal to Grantee and may not be transferred or assigned, in whole or in part, without the express prior written consent of Grantor, w hich consent may be given or withheld in Grantor’s sole and absolute discretion.
15 Goleta/Ekwill-Fowler/Agreement-TCE (BT-OH) C - 3
BT-OH, LLC City of Goleta
By: _____________________________________ By: ____________________________________ Name: ____________________________________ Name: __________________________________ Title: _____________________________________ Title: ___________________________________ Date: _____________________________________ Date: ___________________________________
16 ATTACHMENT 2
Grant Deed with BT-OH, LLC. Assessor Parcel Numbers 071-130-069. 17 1
Recording requested by:
Hamner, Jewell & Associates
Government Real Estate Services
When recorded, mail to:
The City of Goleta
Attn: City Clerk
130 Cremona Drive, Suite B
Goleta, CA 93117
_____________________________________________________________________________________________________________________ Exempt from the $75 Building and Jobs Act Fee per Gov’t Code § 27388.1(2)(D) Public Agency No fee pursuant to Government Code § 6103
No Documentary Transfer Tax per R&T Code § 11922
No Recording Fee per Government Code § 27383
TEMPORARY NON-EXCLUSIVE CONSTRUCTION EASEMENT DEED
(To the City)
APN: 071-130-069
______________________________________________________________________________
For a valuable consideration, receipt of which is hereby acknowledged,
BT-OH, LLC, a Delaware limited liability company (hereinafter referred to as “Grantor”),
hereby grants to the s
The City of Goleta, a municipality of the State of California (hereinafter referred to as “Grantee”),
A temporary non-exclusive easement for the purposes of facilitating construction of adjacent public street improvements and related purposes, in, on, over, under, through, along, and across that certain parcel of land located in the City of Goleta, County of Santa Barbara, State of California, described in Exhibit “A” and depicted in Exhibit “B”, attached hereto and incorporated herein (the “Easement Area.”). Grantee shall be permitted use of the Easement Area between the hours of 9:30 a.m. and 4:30 p.m. daily. Grantee’s access to and use of the Easement Area shall occur only between the hours of 9:30 a.m. and 4:30 p.m. daily. Grantee shall restore access through and across the Easement Area to allow Grantor’s trucks unimpeded access through and across the Easement Area so as not to interfere with Grantor’s operations and equipment prior to 9:30 a.m. and after 4:30 p.m. The Easement Area shall not be used for the overnight storage of excess dirt, construction vehicles, or any other debris or equipment.
This Temporary Non-Exclusive Construction Easement is subject to that certain Addendum annexed hereto as Exhibit “C” which is incorporated herein by this reference, shall commence upon Grantee’s execution of that certain Temporary Non-Exclusive Construction Easement Agreement, and shall automatically terminate upon completion of Grantee’s construction or twenty-four (24) months after the commencement, whichever occurs first, TIME BEING OF THE ESSENCE. Upon termination, the Temporary Non-Exclusive Construction Easement area will be generally restored by Grantee to a comparable or better condition as that which existed 18 2
prior to Grantee’s access and use.
The rights granted herein shall be binding upon the parties’ successors in interest and assigns.
Executed this _____ day of ________________, 20____.
GRANTOR:
BT-OH, LLC, a Delaware limited liability company
By:_____________________________
Name: _________________________
Title: __________________________
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of Georgia
County of Fulton
On ______________________ before me, _______________________________________, Notary Public, personally appeared _____________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the w ithin 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 signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Georgia that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature __________________________ (Seal)
19 3
CERTIFICATE OF ACCEPTANCE
This is to certify that the City of Goleta, Grantee herein, hereby accepts for public purposes the real property, or interest therein, described in the within deed and consents to the recordation thereof.
In Witness Whereof, I have hereunto set my hand this _____ day of ______________, 20__.
City of Goleta
By____________________________________
Name:
Title:
ATTEST:
By _________________________________
Deborah Lopez, City Clerk
20 A - 1
Exhibit “A”
Description of Easement Area
[SEE ATTACHED THREE (3) PAGES]
21 22
23 24
B - 1
Exhibit “B”
Depiction of Easement Area
[SEE ATTACHED TWO (2) PAGES]
25 APN 071-130-069
APN 071-130-069
26 APN 071-130-069
APN 071-130-069
27 C - 1
Exhibit “C”
Addendum
This Addendum is annexed to a Temporary Non -Exclusive Construction Easement Deed (the “Easement”) and is granted by BT-OH, LLC, a Delaware limited liability company (“Grantor”) to the City of Goleta, a municipality of the State of California (“Grantee”). If there is any conflict between the terms of this Addendum and the terms of the Easement, the terms of this Addendum shall control.
(1) Grantee will cause its agents, employees and contractors to use all reasonable precautions to avoid damage to Grantor's property and Grantee shall save, indemnify and hold harmless Grantor, its related companies, and its successors and assigns against any and all loss, damage, liability and expense for injury to or death to Grantor's employees, agents, contractors or third parties or damage to property, caused by or attributable to the construction, operation and maintenance of the Easement. Grantee shall indemnify and defend Grantor for, from and against any and all mechanics' and other liens and encumbrances filed by any person claiming by, through or under Grantee and against all costs, expenses, losses and liabilities (including reasonable attorneys' fees) incurred by Grantor in connection with any such lien or encumbrance or any action or proceeding brought thereon. Grantee at its expense shall procure the discharge of record of all such liens and encumbrances within twenty (20) days after notice thereof, TIME BEING OF THE ESSENCE (failing which, Grantor may cause the release and discharge of same, at Grantee’s expense, and Grantee will reimburse Grantor for the costs incurred in connection therewith within thirty (30) days after Grantor’s notice and demand for same, TIME BEING OF THE ESSENCE).
(2) Grantee shall minimize any disruption to Grantor's business operations occasioned by Grantee's use of the Easement Area. Installation shall be accomplished in an expeditious manner and all maintenance and repairs shall be performed in a similar fashion. Grantee, through its self insurance policy with California Joint Powers Insurance Authority, shall maintain throughout the term of the easement, at its expense, and shall keep in full force and effect a primary policy of $30 million and an excess policy of $20 million providing comprehensive general liability coverage including combined bodily injury, death and property damage. Such policy shall include Grantor as an additional insured. Grantee shall provide a certificate of insurance to Grantor evidencing that such insurance is in full fo rce and effect upon the execution of the Easement, and, thirty (30) days prior to the expiration of such policy, Grantee shall deliver a certificate to Grantor evidencing the renewal of such policy.
(3) Grantee, upon conclusion of any activity upon said real property, shall cause all debris and materials incident to such activity to be removed from Grantor's property which will be generally restored by Grantee to a comparable or better condition as that which existed prior to Grantee’s access and use.
(4) Grantor shall have the right to use the surface of said real property for any purpose which does not interfere with Grantee's use of the Easement conveyed, including, but not limited to, the right to traverse and park on said Easement Area during any periods before 9:30 a.m. and after 4:30 p.m. daily. Additionally, Grantee shall not use the surface of the Easement Area for any purpose and in any manner not specifically authorized herein. Grantee hereby covenants and agrees not to interfere with Grant or's use of the surface of the Easement Area during the time periods before 9:30 a.m. and after 4:30 p.m. daily, and Grantor agrees not to interfere with Grantee’s use of the Easement Area between the hours of 9:30 a.m. and 4:30 p.m. daily during the term of this Temporary Non-Exclusive Construction Easement.
(5) Grantee shall comply with all Local, State and Federal environmental laws, rules, codes and regulations in connection with its activities on Grantor's premises and in the Easement Area. Grantee shall indemnify, defend and hold Grantor harmless from any breach of the foregoing covenant.
(6) The Easement shall not be effective until Grantor and Grantee have executed this Addendum.
(7) GRANTEE ACKNOWLEDGES AND UNDERSTANDS THAT GRANTOR'S GRANT OF
THE RIGHTS AND EASEMENTS SET FORTH HEREIN ARE GRANTED SUBJECT TO ALL 28 C - 2
MATTERS OF RECORD AND ARE GRANTED "AS-IS", "WHERE-IS", "WITH ALL FAULTS",
WITH NO WARRANTY OR REPRESENTATION OF ANY KIND OR NATURE, EXPRESS OR
IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR REPRESENTATION
REGARDING THE EASEMENT AREA OR ANY CONDITI ON THEREOF OR THE SUITABILITY OF SAME FOR GRANTEE’S INTENDED PURPOSE OR OTHERWISE).
(8) Neither this Temporary Non -Exclusive Construction Easement Deed , nor any rights granted hereby or anything else contained herein, shall be deemed to constitute a gift or dedication of the Easement Area or of any property of Grantor, or any rights in or to any of the foregoing, to the general public or for any public use or public purpose whatsoever, or for any private use of any party other than the parties hereto. This Temporary Non-Exclusive Construction Easement Deed is exclusively for the benefit of the parties hereto, it being the intention of the parties hereto (and, as applicable, their successors -in-title) that nothing in this Temporary Non-Exclusive Construction Easement Deed , express or implied, shall confer upon any person, other than the parties referenced herein (and, as applicable, their successors-in-title), any rights or remedies of any kind or nature under or by reason of this Temporary Non-Exclusive Construction Easement Deed. No person or entity shall be deemed a beneficiary of the terms of this Temporary Non- Exclusive Construction Easement Deed, unless specifically provided for herein.
(9) No failure, omission or delay by Grantor to exercise any right, power or remedy granted it or otherwise available to it at law or in equity, or to insist upon strict compliance by Grantee with respect to any obligation imposed on it, and no custom or practice of either party hereto at variance with any term hereof, shall constitute a waiver or a modification of the terms hereof by Grantor or any right Grantor has herein to demand Grantee’s strict compliance with the terms hereof. Any such waiver may b e made only by a writing signed by Grantor. The rights and remedies of Grantor hereunder are in addition to, and not in lieu of, any and all other rights and remedies that Grantor has or may have either at law or in equity.
Each of Grantor and Grantee ag rees that the rights granted herein and the covenants and obligations set forth herein are mutually bargained for and agreed upon and commercially reasonable.
(10) Any and all notices, consents, requests, demands or other communications required or permitted hereunder shall be in writing and delivered by personal delivery, USPS certified mail or UPS Next Day Air delivery service, in each instance addressed as follows (or to such other address as either may provide by written notice to the other) and, if properly addressed and sent, shall be effective upon delivery (or refusal of such delivery by the intended recipient):
Grantor: BT-OH, LLC
Corporate Real Estate Department
55 Glenlake Parkway NE
Atlanta, Georgia 30328
Attn: Real Estate Contract Administration
With a copy to: BT-OH, LLC
Corporate Real Estate Department
55 Glenlake Parkway NE
Atlanta, Georgia 30328
Attn: Real Estate Coordinator
And with copy by e-amil to: Dan Scidmore ([email protected]) Grantee: City of Goleta – City Clerk
130 Cremona Drive, Suite B
Goleta, CA 93117
(11) This Temporary Non -Exclusive Construction Easement Deed, and each of the rights and easements granted hereby, are personal to Grantee and may not be transferred or assigned, in whole or in 29 C - 3
part, without the express prior written consent of Grantor, which consent may be given or withheld in Grantor’s sole and absolute discretion.
BT-OH, LLC City of Goleta
By: _____________________________________ By: ____________________________________ Name: ____________________________________ Name: __________________________________ Title: _____________________________________ Title: ___________________________________ Date: _____________________________________ Date: ___________________________________ 30