Attachment 7
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of San Clemente
Attn: City Clerk
910 Calle Negocio
San Clemente, CA 92673
Fee exempt per Cal. Gov't Code § 27383.
Space above this line for Recorder's use.
EASEMENT DEED AND AGREEMENT
This easement deed and agreement ("Agreement") is made on March 20, 2024 ("Effective Date*) by and between the City of San Clemente, California, a municipal corporation ("City"), OC Re-Hab 1, LLC, a California limited liability company ("OC Re-Hab") (City and OC Re-Hab are collectively the "Grantees") and Donald Aaron Lancaster and Erika Danielle Young, husband and wife as joint tenants (collectively "Owner" or "Grantor").
Recitals
A. In 2011, a landslide caused damage to the Via Ballena hillside and Shorecliffs Golf Course within Cascadita Canyon in the City. The landslide resulted in approximately 15 feet of surface water impounded within a concrete channel, at least four homes "red tagged" as uninhabitable, and at least seven other homes affected.
B. In 2015, the City, OC Re-Hab, and several other parties entered into an agreement, which detailed plans and actions to stabilize the 2011 slide on the Via Ballena hillside and mitigate or help prevent future landslides for the 2011 slide area ("Landslide Remediation").
Grantor owns the Parcel No. 691-031-14 commonly known as 424 Via Alegre, San Clemente, California (the "Property"), more particularly described in Exhibit "A", attached hereto and incorporated herein fully by reference. The Property is the site of activities related to drainage improvements related to the Landside Remediation.
As part of the Landslide Remediation, OC Re-Hab constructed a series of drainage facilities at the Property, which include an approximately seven feet by seven feet (7' x 7) reinforced concrete box culvert, a transition structure that is connected to the Caltrans storm drain outlet for an 8 foot culvert upstream from the Owner's Property, a maintenance access road, a low flow diversion system, and miscellaneous drainage improvements for surficial drainage as more fully described on the as-built plans dated February 9, 2024 submitted by OC Re-Hab and approved by the City on February 9, 2024 and on file with the City (collectively, the "Drainage Facilities").
Once complete, the City will operate, maintain, repair and, when necessary, replace the Drainage Facilities that are located on the Property, with the exception of the low flow diversion system, which OC Re-Hab is responsible for inspecting, operating, repairing, maintaining and, as necessary, replacing.
E. By way of this Agreement, Grantor wishes to grant the City and OC Re-Hab a permanent easement and perpetual on the Property for drainage purposes, ingress and egress, and the operation, inspection, maintenance, repair, and, as necessary, replacement of the Drainage Facilities.
Agreement
Grant of Easement. Grantor, as the owner of the Property, hereby grants to OC Re- Hab and to City, its successors, and assigns a permanent and perpetual 25 foot wide easement ("Easement") to operate, access, inspect, maintain, repair and, when necessary, replace the Drainage Facilities in, under, within, along, over and across that portion of the Property in close proximity to that certain existing Interstate 5 Caltrans storm drain outlet as further described in Exhibit "BI" Legal Description of Easement Area and depicted in Exhibit "B2" Plat Map depiction of Easement Area, both of which are attached hereto and incorporated herein fully by this reference (the "Easement Area"). The Easement includes such other appurtenant and incidental rights and easements as are necessary or incidental for the maintenance of any drainage facilities or improvements, including, but not limited to: (a) a non-exclusive easement for ingress, egress and access to, along, across, under, over and upon the Easement Area; (b) the right to park maintenance vehicles and store maintenance equipment and materials in the Easement Area for the periods of time necessary to perform inspection, construction, repair, replacement and maintenance work in the immediate area; and (c) the right to remove landscaping, trees, structures or anything else in the Easement Area that interferes with the City's rights granted herein as determined in the City's sole discretion.
2. Maintenance of Easement. OC Re-Hab and City and their respective successors and assigns shall cause to be maintained in good repair, their respective Easement facilities or improvements that OC Re-Hab or the City, as applicable, are responsible for operating and maintaining that are located in, under, within, along or across the Easement Area, and all necessary appurtenances thereto. The Owner shall be responsible for maintaining all landscaping in the Easement Area. Grantees OC Re-Hab and City may remove any and all landscaping, improvements or other items that restrict or interfere in any way with access to or functioning of the Drainage Facilities, as determined in Grantees' sole discretion, and Grantees are not required to replace any landscaping, improvements or other items removed from within the Easement Area.
3. Term of Easement. The Easement shall not be effective unless and until the Drainage Facilities are completed by OC Rehab, approved by the City, and accepted by the City.
Once effective, the Easement shall be perpetual.
4. Scope of Easement. The Easement shall include, but not be limited to, the right and privilege of workmen, contractors, and any and all employees and agents of OC Re-Hab and the City, respectively, to use and occupy the Easement Area for purposes of all exercises described in this Agreement. Grantor, its successors, and assigns shall not construct any buildings, structures, footings or impervious areas in the Easement Area, shall not plant any trees or plantings with significant roots, and shall not block, obstruct, park on, store personal property on, or in any way interfere with OC Re-Hab's and the City's respective uses of the Easement Area. The Grantor, its successors, and assigns may use the surface area of the Easement Area for any purposes that are consistent with the permitted land uses allowed in the underlying zoning district of the Property, necessary to maintain the Property and do not interfere with the Easement, including, but not limited to, landscaping of the Easement Area with species with minimal root growth as approved by the City in advance; provided, however, that Grantor reserves the right to alter, improve, modify and/or utilize the Easement Areas, subject to City's review and approval of an applicable permitting process, such as potential Planning Division discretionary approvals, and Encroachment or Grading Permits approved by the City Engineer, or to allow conditionally- permitted land uses.
5. Notice to Successors and Assigns. One of the purposes of recording this Agreement is to put Grantor's successors and assigns on notice that this Easement substantially limits the development potential of the Easement Area.
6. Notice of Entry or Disturbance of Easement Area. Grantees shall have the right, without notice, to, at any time, enter, inspect, and perform basic inspection and maintenance duties as may be necessary, in the entering Grantee's sole discretion, to ensure proper functions of the Drainage Facilities. Except in an emergency found to exist by the City Engineer or designee, if either of the Grantees intend to enter or disturb the Easement Area for work other than routine inspection and maintenance activities, then the Grantee entering the Easement Area shall give Grantor not less than seven (7) calendar days' prior written notice specifying the date of such entry, the duration thereof, and the nature of the work to be performed by that Grantee.
7. Flood Control Facilities. In the event that either Grantee finds it necessary to enter on and disturb the surface area of the Easement Area in order to maintain, repair, reconstruct, or enlarge any flood control facility as part of the Landslide Remediation, the entering Grantee shall be responsible only to restore any section of the flood control facility affected to the same load specifications as originally constructed and to backfill with compacted earth to grade off the surrounding property following completion of such flood control facility-related activities.
Minimizing Inconvenience to Grantor. Grantees agree to use best efforts to minimize any inconvenience to Grantor or Grantor's adjoining property and to minimize the period of time that Easement Area will be disturbed.
9. Restrictions on Use. In utilizing the rights herein granted, the Grantees shall comply with any and all applicable federal, state, and local laws, regulations, ordinances and other governmental restrictions relating to the use of the Property. Further, the Grantees shall take reasonable steps to ensure the safety and security of all persons and property on the Property in connection with Grantees' use of the Easement Areas and the rights granted herein.
10. Grantor Improvements. Any improvements installed or constructed or caused to be installed or constructed by Grantor that may be disturbed by either of the Grantees' exercise of rights under this Agreement shall be replaced, reconstructed, and/or relocated at Grantor's sole cost and expense, consistent with those permitted by Section 4 of Agreement. In the event that any such improvements need to be relocated due to either of the Grantees' operations under this Agreement, the improvements shall be replaced, reconstructed, and/or relocated outside of the Easement Area at the Grantor's sole cost and expense. Prior to granting rights or permission to others for installation or construction of an improvement upon, within, over, across or under the Easement Area, Grantor shall have had the plans for such installation or construction approved in writing by the City Engineer or designee. Further, Grantor shall have the proposed improvement holder acknowledge and agree to in writing to abide to the terms of this Agreement by including these terms in any easement, deed, lease or other agreement between the Grantor and the proposed improvement holder.
11. Liability for Improvements. Grantees shall not be liable or responsible any loss or claim for damages resulting from the operation of any improvements installed or constructed or caused to be installed or constructed by Grantor. Grantor will pay expenses incurred by the Grantees, or either of them, to make repairs or remediate the impact of any such improvements and for any hazardous or toxic materials that become located upon, within or under the Easement Area because of such Grantor improvements or activities.
12. Liability for Hazardous Waste. Nothing in this Agreement is intended nor shall anything in this Agreement be construed to transfer to the OC Re-Hab or City, its successors, or assigns or to relieve Grantor, its successors, or assigns of any responsibility or liability Grantor, its successors, or assign has had, now has, or will have with respect to human health or the environment, including, but not limited to, responsibility or liability related to hazardous or toxic substances or materials. Further, the Grantees may exercise any rights under law to bring action, if necessary, to recover clean-up costs and penalties paid, if any, from Grantor or any others who are ultimately determined by a court of competent jurisdiction and/or federal, state, or local agency of competent jurisdiction to have responsibility for said hazardous toxic substances or materials upon, within, or under the Property. Each respective Grantee shall be and remain liable for any hazardous or toxic substances or materials which become located upon, within, or under the Easement Area because of the that respective Grantee's operations under this Agreement.
13. Mutual Indemnity. The parties and their successors and assigns, hereby agree to indemnify, defend (with counsel acceptable to the other party, and hold the other party and its officials, officers, employees, agents and representatives harmless from and against any and all claims, actions, liabilities, losses, damages, injuries (including loss of life and other loss, injury or damage to persons or property, costs and expenses (including reasonable attorneys' fees), regardless of whether the underlying allegations are false, fraudulent, or groundless, which arise out of, result from, or are related to (a) the indemnifying party's or its successors' ', assigns' agents', employees', contractors', subcontractors' ', representatives' or volunteers' use or operation of the Easement Area; (b) any breach of a duty imposed by this Agreement or applicable law upon the indemnifying party, its successors and assigns, or a person or entity for whom the indemnifying party, its successors and assigns, is legally responsible; or (c) any act or omission of the indemnifying party or its successors, assigns, agents, employees, contractors, subcontractors, volunteers or representatives.
14. 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 and acknowledged by both parties, their successors or assigns.
15. Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
City: City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
ATTN: City Clerk
OC Re-Hab 1, LLC:
OC Re-Hab 1, LLC
13101 Barrett Hill Circle
North Tustin, Ca 92705
ATTN: George Zeber
Grantor: Donald Aaron Lancaster and Erika Danielle Young 424 Via Alegre
San Clemente, CA 92672
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
16. 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 waiver by it of any other provision under this Agreement or of any subsequent breach by the other party of the same provision.
17. Covenants Run with Land. This Agreement and the easements and other rights and benefits granted in this Agreement shall run with the land and, as such, shall be binding upon and inure to the benefit of OC Re-Hab, the City and Grantor, and their respective heirs, successors, and assigns in the Grantor's ownership of the Property and the Easement Areas.
Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in the County of Orange. Any rights under California Code of Civil Procedure section 395 are hereby waived.
19. 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.
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.
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.
In witness whereof, the City and Grantor have executed this agreement as of the date first written above.
OC Re-Hab 1, LLC
By:
George Zeber/
Managing Member
4/1/2024
Date:
CITY OF SAN CLEMENTE Owner
By:
Andy Hall, City Manager
Donald Aaron Lancaster
Date: Date:
Attest:
Erika Danielle Young
By:
Laura Campagnolo, City Clerk
Date:
Date:
Approved as to form:
By: Blizabeth A. Michell, City Atomey
Date:
(Notarial Acknowledgement of execution by Grantor must be attached.)
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 California )
County of
April l → 2024, before me, - Flatto Nulary Public, personally appeared George Zeber m → 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.
J. PIAZZA
NOTARY PUBLIC - CALIFORNIA
COMMISSION # 2415083
ORANGE COUNTY
Signature 1 . (Seal) My Comm. Exp. September 6, 2026
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by written deed or grant deed dated _, 2024 from Donald Aaron Lancaster and Erika Danielle Young, husband and wife as joint tenants ("Grantor") to the City of San Clemente, a California municipal corporation ("City"), is hereby accepted by the undersigned officer on behalf of the City of San Clemente pursuant to the authority conferred by Resolution No. _ of the City adopted on. 2024 and the City consents to recordation thereof by its duly authorized officer.
Dated this day of _, 2024.
Andy Hall, City Manager
Exhibit "A"
Legal Description
Lot 71 of Tract No. 4940, in the City of San Clemente, County of Orange, State of California, as shown on a map recorded in Book 200, Pages 44 through 47, inclusive, of Miscellaneous Maps, records of Orange County, California, together with that portion of Via Alegre, as described in that certain Resolution No. 84-76 ordering the vacation and abandonment of a portion of said Via Alegre, a certified copy of which was recorded August 27, 1976 in Book 11867, Page 1831 of Official Records of said Orange County, described as follows:
Parcel 2, as shown on a map filed in Book 95, Page 3 of Parcel Maps, in the Office of the County Recorder of
said Orange County.
APN: 691-031-14
Exhibit "B»
[Exhibits B1 Legal Description of Easement Area and B2 Plat Map depiction of Easement Area] EXHIBIT "B1"
STORM DRAIN EASEMENT
(APN 691-031-14)
THAT PORTION OF LOT 71 IN TRACT NO. 4940, IN THE CITY OF SAN CLEMENTE,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 200 PAGES 44 THROUGH 47, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. A STRIP OF AND BEING 35.00 FEET WIDE, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHEASTERLY CORNER OF SAID LOT 71; THENCE
NORTHWESTERLY ALONG THE NORTHEASTERLY LINE OF SAID LOT, NORTH 54°34'21" WEST 1.04 FEET TO A LINE PARALLEL WITH AND 1.00 FEET WEST OF THE MOST EAST LINE OF SAID LOT AND THE TRUE POINT OF BEGINNING;
THENCE LEAVING SAID NORTHEASTERLY LINE AND SOUTHWESTERLY ALONG SAID PARALLEL LINE SOUTH 50°37'32" WEST 25.91 FEET TO THE NORTH LINE OF A LAND DESCRIBED IN THE GRAND DEED RECORDED JANUARY 06, 2017, AS INSTRUMENT NO. 20017000006712 OF OFFICIAL RECORDS, IN THE COUNTY RECORDER OF SAID COUNTY; THENCE NORTHWESTERLY ALONG SAID NORTH LINE NORTH 54°34'31" WEST 36.27 FEET TO THE NORTHWEST CORNER OF SAID LAND; THENCE NORTH 50°37'32" EAST 25.91 FEET TO SAID NORTHEASTERLY LINE OF SAID LOT 71; THENCE SOUTHEASTERLY ALONG SAID
NORTHEASTERLY LINE SOUTH 54°34'21" EAST 36.27 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINS 907 SQUARE FEET MORE OR LESS.
EXHIBIT "B2" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART THEREOF.
PREPARED UNDER MY DIRECTION
ROCA MAKING LS T0BT 12.22.2023
DATE
LICENSE EXPIRES 12/31/2024. ROGER A
WATKINS
LS # 7637 *
EXHIBIT "B2" SHEET 1 OF 1
STORM DRAIN EASEMENT IN
LOT 71 OF TRACT NO. 4940 GOLD COURSE ACCESS EASEMENT CONVEYED
TO SHORELIFFS COUNTRY CLUB, A
SCALE: 1"=60' (APN 691-031-14) CALIFORNIA CORP., PER O.R. 7345/759 LEGEND: 10' WIDE EASEMENT TO CITY OF SAN
LAND EXISTING STORM DRAIN B CLEMENTE FOR PEDESTRIAN ACCESS AS A. EASEMENT AS NOTED. SHOWN ON TRACT NO. 4940.
WATK SURV
PROFESSION EXISTING EASEMENT LINE 25' WIDE EASEMENT TO TRI-CITIES PARCEL LINE AS NOTED. MUNICIPAL WATER DISTRICT AS SHOWN NO. 7637 STORM DRAIN EASEMENT AS ON TRACT NO. 4940.
EXP. 12/31/24 DESCRIBED IN EXHIBIT "B1" 10' WIDE EASEMENT FOR DRAINAGE * * TO CITY OF SAN CLEMENTE AS
STATE OF CALIFORIIY SHOWN ON MAP OF TRACT NO. 4940
10' WIDE EASEMENT FOR DRAINAGE
PURPOSES CONVEYED TO CITY OF
N35'25'39"E DIEGO SAN CLEMENTE PER O.R. 1195/611
35.8%. (DOC. NO. 8092)
VIA BASIS OF BEARINGS:
ALEGRE R=275.00 THE BASIS OF BEARINGS OF THIS EXHIBIT
R= 265.001 L= 186.94' WERE BASED ON THE TRACT NO. 4940
R=45.00' L179791-385659. RECORDED IN BOOK 200 PAGES 44
L=40.00 THROUGH 47 OF MISCELLANEOUS MAPS, IN
4=50'55'40" - R=255.00' THE OFFICE OF THE COUNTY RECORDER OF L=17491 52 ORANGE COUNTY, STATE OF CALIFORNIA.
(ABANDONED 4=39 18'04"- S54*34'21"E
N54'51'57"W 30.78 STREET)
SEE DETAIL "A"
N54 34'21 "W 224.50'
70 3. 07.
N543421W 1203.
LOT 71 169.
TRACT NO. 4940 MM. 200/44-47 137~10.36= 31.96
88.07 APN: 691-031-14
N68'17'24 W OWNER: DONNIE LANCASTER 9. 82.37
S50'37'32" N54'34'31 "WL
10V
OWNER: 691-021-01 N40'25'07"E 105.60' 691-021-02 S50'37'32'W 25.91 OC-REHAB N49'34'53'W 137.89' INST. # 2017000006712 O.R. OWNER: OC-REHAB S54 34'21"E T.P.O.B. 12
N50'37'32"E 50%. 36.27
N54'34'21*W 68
550'37'32 W 25.91
/
N54'34'31"W '31"W 35° WIDE CITY OF SAN CLEMENTE STORM DRAIN EASEMENT /
DETAIL "A"
35' STORM DRAIN
EASEMENT ---
(N.T.S.)
DATE: 12/22/2023
Parcel Map Check Report
Client: Prepared by: PÓGER A
Client Kevin Tan WATKINS
The Culver Group, Inc. *
LS # 7637
14841 Yorba St., Suite 102
Date: 12/26/2023 5:01:05 PM
Parcel Name: APN 691-031-14 SD EASEMENT - Standard : 1
Description:
Process segment order counterclockwise: False
Enable mapcheck across chord: False
North:2,108,875.106' East: 6,139,217.295'
Segment# 1: Line
Course: S50° 37'32"W Length: 25.91'
North: 2,108,858.669 East: 6,139,197.266'
Segment# 2: Line
Course: N54° 34'31"W Length: 36.27'
North: 2,108,879.693' East: 6,139,167.710'
Segment# 3: Line
Course: N50° 37'32"E Length: 25.91'
North: 2,108,896.130' East: 6,139,187.739*
Segment# 4: Line
Course: S54° 34'21"E Length: 36.27
North: 2,108,875.105' East: 6,139,217.294'
Perimeter: 124.36' Area: 906.88Sq.Ft.
Error Closure: 0.002 Course: S35°25'34"W
Error North : -0.0014 East: -0.0010
Precision 1: 62,180.00