TCE - OCFCD to City of Orange
RECORDED AT THE REQUEST OF
AND WHEN RECORDED MAIL TO:
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Mail Tax Statements as shown above THIS SPACE FOR RECORDER’S USE ONLY APN: DOCUMENTARY TRANSFER TAX $ ___________________
__ Computed on the consideration or value of property conveyed __ Exempt per Revenue & Taxation Code Section 11922
__ Exempt from Recording Fees per Govt. Code Section 27383 By: ______________________________________________________
SIGNATURE OF DECLARANT OR AGENT DETERMINING TAX FIRM NAME Unincorporated Area
Incorporated - City of Orange
Facility No: E01– Santa Ana River
Project: City of Orange -PFAS Extraction Facility
TEMPORARY EASEMENT DEED
For valuable consideration, receipt of which is hereby acknowledged,
ORANGE COUNTY FLOOD CONTROL DISTRICT,
a body corporate and politic
(hereinafter referred to as “DISTRICT”),
does hereby grant to
City of Orange,
a municipal corporation
(hereinafter referred to as “GRANTEE”) its, successor and assigns, a non-exclusive temporary construction easement (“Temporary Easement”) in, on, over, upon and across that certain real property (hereinafter referred to as “TCE Area”) described in Exhibit A and illustrated in Exhibit B which exhibits are attached hereto and made a part hereof.
DISTRICT and GRANTEE may sometimes hereinafter be individually referred to as “Party” or jointly as “Parties”.
It is understood and agreed by the Parties hereto and their successors and assigns that the easement and right of way herein granted in this Temporary Easement shall be subject to the following terms, conditions and reservations:
1. TERM
This Temporary Easement shall be effective for a period of three hundred sixty-five (365) days unless otherwise terminated or extended in accordance with the terms herein (“Term”), commencing no later than thirty (30) Days after the date GRANTEE provides written notice of commencement to DISTRICT’S TCE - OCFCD to City of Orange
Director OC Public Works, or designee (“Director”).
2. EXTENSIONS
The Term may be extended by mutual agreement of GRANTEE and the Director. Any request for extension by GRANTEE must be in writing, shall state the requested extension period, and be forwarded to the Director via Express or Certified U.S. Postal Service, personal delivery, by courier or by overnight delivery service and addressed as provided hereinbelow in Section 9 (Notices) not less than thirty (30) Days prior to expiration of the Term of this Temporary Easement. Approval of such request shall be deemed denied unless, in Director’s sole discretion, Director provides GRANTEE with written approval of the requested extension within fifteen (15) Days following receipt of the request to extend, which approval shall not be unreasonably withheld.
3. USE
GRANTEE'S rights shall include rights to GRANTEE, its officers, agents, employees, contractors and subcontractors to utilize the surface of the TCE Area to park, place, store construction materials, tools, vehicles, storage containers, implements and other construction-related equipment and materials (“GRANTEE’S equipment and material”) to the extent such are allowed or permitted by an issued County of Orange Public Works Encroachment Permit (“CPP”) and shall include reasonable access to the TCE Area for the purpose of exercising the rights herein granted.
The rights granted under this Temporary Easement expressly prohibit any grading of the TCE Area, the construction or placement of any improvements or structures on the TCE Area, on, or about the TCE Area and/or the placement of any petroleum product or other Hazardous Material (as hereinafter defined) storage tanks or containers with accumulative storage capacity in excess of 50 gallons.
4. GRANTEE RESPONSIBILITIES
GRANTEE accepts TCE Area “AS IS/WHERE IS” and DISTRICT has not made any assurance that site will meet its needs. GRANTEE shall, at no cost to DISTRICT, maintain the TCE Area in good repair and in safe condition, and protect in place any slope features, trees and/or landscaping within the TCE Area throughout the Term, including any extension period, of this Temporary Easement.
GRANTEE shall, at no cost to DISTRICT, conduct all activities, including but not limited to the storage of materials, in, on, or about the TCE Area in a safe, good and workmanlike manner and in compliance with all applicable building, fire and sanitary laws, ordinances and regulations (including CPP terms and conditions) and shall maintain all equipment, used in on or about the TCE Area in good repair and in safe condition.
GRANTEE shall, at its sole cost and expense, promptly and at all times observe, comply with and carry out all present and future orders, regulations, directions, rules, laws, ordinances, permits and requirements of all governmental authorities, including but not limited to environmental regulatory authorities, with jurisdiction in, on, over and about the TCE Area which arise from GRANTEE’S use of or performance of any activities permitted to be conducted in, on, over or across the TCE Area.
In addition, GRANTEE shall ensure that all activities in, on, over or about the TCE Area are performed in accordance with any NPDES (National Pollutant Discharge Elimination System) permit requirements or other water quality statutes, regulations, ordinances or permits, applicable to such activities, including but not limited to use of appropriate best management practices, so as to ensure that pollutants are not discharged into the municipal stormwater drainage system or into the waters of the state.
No approvals or consents given hereunder by DISTRICT, as party to this Temporary Easement, shall be deemed approval as to compliance or conformance with applicable governmental codes, laws, rules or regulations.
TCE - OCFCD to City of Orange
5. CONDITION OF TCE AREA UPON TERMINATION
Prior to the expiration of this Temporary Easement, GRANTEE agrees, at its sole expense, to restore the TCE Area to the condition that existed prior to the granting of this Temporary Easement, to the Director’s satisfaction. Said restoration shall include, but not be limited to the removal of construction materials (including stockpiled material), equipment, trash, debris, and restoration of pre-existing grades and landscaping
6. HOLD HARMLESS
GRANTEE hereby releases and waives all claims and recourse against DISTRICT and County of Orange (“COUNTY”) including the right of contribution for loss of or damage to property, or injury to or death of any person arising from, growing out of or in any way connected with or related to this Temporary Easement, including any damage to or interruption of use of GRANTEE’S equipment or caused by the operation, maintenance, repair, reconstruction, replacement, enlargement or improvement of the channel or by DISTRICT’S flood control operations,except claims arising from the concurrent active or sole negligence of DISTRICT and/or County, their officers, agents, employees and contractors.
GRANTEE hereby agrees to indemnify, defend (with counsel approved in writing by DISTRICT), and hold harmless, DISTRICT and County, their elected and appointed officials, officers, agents, employees and contractors against any and all claims, losses, demands, damages, cost, expenses or liability for injury to or death of any persons, or loss of or damage to any property, arising out of the maintenance, use of or operations or activities conducted in, on, or over the TCE Area, and/or the exercise of the rights under this Temporary Easement by GRANTEE, its agents, officers, employees, invitees or licensees, except for liability arising out of the concurrent active or sole negligent acts of DISTRICT, and/or County, their elected and appointed officials, officers, agents, employees or contractors including the cost of defense of any lawsuit arising therefrom. If DISTRICT and/or County is/are named as co-defendant(s) in a lawsuit, GRANTEE shall notify Director of such fact and shall represent DISTRICT/County in such legal action unless DISTRICT/County undertake(s) to represent itself/themselves as co-defendant(s) in such legal action, in which event, GRANTEE shall pay to DISTRICT/County its/their litigation costs, expenses, and attorneys' fees. If judgment is entered against DISTRICT/County and GRANTEE by a court of competent jurisdiction because of the concurrent active negligence of DISTRICT/County and GRANTEE, DISTRICT and GRANTEE agree that liability will be apportioned as determined by the court. Neither Party shall request a jury apportionment.
7. GRANTEE’S LIABILITY FOR HAZARDOUS OR TOXIC MATERIALS (PMES8.2S) GRANTEE or GRANTEE’s employees, agents, independent contractors or invitees (“GRANTEE Parties”) shall not cause or permit any “Hazardous Material,” as hereinafter defined, to be brought upon, kept, stored used, generated, released into the environment or disposed of, on, under, from, in on or about the TCE Area.
Notwithstanding the foregoing, GRANTEE or GRANTEE Parties may use or keep small quantities of Hazardous Materials on the TCE Area that are used in the ordinary, customary and lawful construction operations conducted on the TCE Area. If GRANTEE or GRANTEE Parties breach(es) the obligations stated herein, or if contamination of the TCE Area by Hazardous Material otherwise occurs for which GRANTEE is legally liable to DISTRICT for damage resulting therefrom, then GRANTEE shall indemnify, defend with counsel approved in writing by DISTRICT, and hold harmless, DISTRICT and/or County, and their elected or appointed officials, officers, agents, and employees from any and all claims, judgments, damages, penalties, fines, costs, liabilities, or losses (including, without limitation, diminution in value of the TCE Area, sums paid in settlement of claims, attorney fees, consultant fees, and expert witness fees) which arise during or after GRANTEE’S use of the TCE Area as a result of such contamination. This indemnification includes, without limitation, costs incurred by DISTRICT in connection with any investigation of site conditions or any cleanup, remedial, removal, or restoration work required by any federal, state, or local governmental entity or agency because of Hazardous Material having been introduced, TCE - OCFCD to City of Orange
placed or released by GRANTEE, and therefore being present in the soil or ground water under the TCE Area. GRANTEE shall promptly take all action, at its sole cost and expense, as is necessary to clean, remove, and restore the TCE Area to its condition prior to the introduction of such Hazardous Material by GRANTEE, provided GRANTEE shall first have obtained Director’s written approval and the approval of any necessary governmental entities or agencies for any such remedial action.
As used herein, the term “Hazardous Material” means any hazardous or toxic substance, material or waste which is or shall become regulated by any governmental entity or agency, including, without limitation, the County, the state of California, or the United States government.
8. CONVEYANCE SUBJECT TO EXISTING INTERESTS (PMES10.1S) This Temporary Easement is subject to existing contracts, leases, licenses, easements, encumbrances and claims which may affect the TCE Area and the use of the word “grant” herein shall not be construed as a covenant against the existence of any thereof.
Nothing contained herein, or in any document related hereto, shall be construed to imply the conveyance to GRANTEE of the rights in the TCE Area which exceed those owned by DISTRICT, or any representation or warranty, either express or implied, relating to the nature or condition of the TCE Area or DISTRICT’s interest therein.
9. NOTICES
All notices, documents, correspondence and communications concerning this Temporary Easement shall be addressed as set forth in this Section, or as the Parties may hereafter designate by written notice, and shall be sent through the United States mail with postage prepaid. Any such mailing shall be deemed served or delivered twenty-four (24) hours after mailing. Each Party may change the address for notices by giving the other Party at least ten (10) Days’ prior written notice of the new address.
Notwithstanding the above, either Party may also provide notices, documents, correspondence, or such other communications to the other by personal delivery or courier service such as FedEx, and so delivered shall be deemed to have been given upon receipt.
To DISTRICT:
Orange County Flood Control District
c/o CEO Real Estate
P.O. Box 4048
Santa Ana, CA 92702-4048
To GRANTEE:
City of Orange
c/o Public Works Water Division.
300 E. Chapman
Orange, CA 92688
10. VENUE
The Parties hereto agree that this Temporary Easement has been negotiated and executed in the state of California and shall be governed by and construed under the laws of California. In the event of any legal action to enforce or interpret this Temporary Easement, the sole and exclusive venue shall be a court of competent jurisdiction located in the County of Orange, California, and the Parties hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394.
Furthermore, the Parties hereto specifically agree to waive any and all rights to request that an action be transferred for trial to another county.
11. WAIVER OF RIGHTS
The failure of DISTRICT to insist upon strict performance of any of the terms, covenants or conditions of TCE - OCFCD to City of Orange
this Temporary Easement shall not be deemed a waiver of any right or remedy that DISTRICT may have, and shall not be deemed a waiver of the right to require strict performance of all the terms, covenants and conditions of the Temporary Easement thereafter, nor a waiver of any remedy for the subsequent breach or default of any term, covenant, or condition of the Temporary Easement.
12. SEVERABILITY
If any term, covenant, condition, or provision of this Temporary Easement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.
13. ATTORNEYS' FEES
In any action or proceeding brought to enforce or interpret any provision of this Temporary Easement, or where any provision hereof is validly asserted as a defense, each Party shall bear its own attorneys' fees and costs.
14. SUCCESSORS AND ASSIGNS
The terms, covenants and conditions contained herein shall apply to and bind the heirs, successors, executors, administrators and assigns of the Parties hereto.
15. AUTHORITY
The Parties to this Temporary Easement represent and warrant that this Temporary Easement has been duly authorized and executed and constitutes the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms.
16. RECORDATION PROHIBITED
The Parties agree this Temporary Easement shall not be recorded unless mutually agreed upon in writing by Director and GRANTEE. If recorded, GRANTEE agrees to execute and deliver to Director for recordation in the Official Records of Orange County, California, a Quitclaim Deed sufficient to remove the encumbrance of this Temporary Deed from title, within sixty (60) Days following the expiration or sooner termination of this Temporary Easement.
TCE - OCFCD to City of Orange
Approved as to Form
Office of the County Counsel
Orange County, California
By: ___________________________
Deputy
Date: __________________________
DISTRICT
ORANGE COUNTY FLOOD CONTROL DISTRICT
By: _____________________________________
Chairwoman of the Board of Supervisors
County of Orange, California
GRANTEE’S signature appears on following page.
TCE - OCFCD to City of Orange
Approved as to Form:
By: ________________________________
Date: __________________________
GRANTEE
CITY OF ORANGE,
a municipal corporation
By: _____________________________________
Mark A. Murphy, Mayor
ACKNOWLEDGMENT
State of California )
County of Orange )
On __________________, 20 ____ before me, ________________________________________________, personally (Insert name of Notary Public & title)
appeared _______________________________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within 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 signature(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 California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature __________________________________
(Seal)
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.