Attachment 8
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" or "Grantee") and OC Re-Hab 1, LLC, a California limited liability company ("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.
In 2015, the City, OC Re-Hab 1, LLC ("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 this 2011 slide area ("Landslide Remediation").
C. Grantor owns the Parcel No. 691-021-02 ("Property"), more particularly described in Exhibit "A", attached hereto and incorporated herein by reference. The Property is the site of activities related to the Landside Remediation, including drainage improvements.
D. As part of the Landslide Remediation, OC Re-Hab implemented a series of drainage facilities ("Drainage Facilities") at the Property, which include a seven feet by seven feet (7' × 7) box culvert that is connected to an eight (8) foot pipe upstream from the Owner's property and connected to an eight (8) foot-open concrete channel downstream at Via Cascadita as more fully described on the plans dated February 9, 2024 submitted by OC Re-Hab and on file with the City.
Once complete, the City will operate, maintain, and, when necessary, replace the Drainage Facilities.
E. By way of this Agreement, Grantor wishes to grant the City a permanent easement on the Property for the operation, maintenance, and, when necessary, replacement of the Drainage Facilities.
55452.02102\29071223.2
Agreement
Grant of Easement. Grantor, as the owner of the Property, hereby grants to City, its successors, and assigns a permanent easement ("Easement") to operate, maintain, and, when necessary, replace the Drainage Facilities in, under, within, along, and across that portion of the Property in close proximity to that certain existing Interstate 5 storm drain outlet as further described on Exhibit B1 (legal description) and depicted in Exhibit "B2" (map) 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 casement for ingress, egress and access along, across and upon the Easement Area and (b) the right to park maintenance vehicles and store maintenance equipment and materials in the Easement Area.
Maintenance of Easement. The City, its successors, and assigns shall cause to be maintained in good repair the Easement and any facilities or improvements operated or maintained by City and located in, under, within, along and across the Easement Area, V-ditches, drain inlets, access road, fencing and all necessary appurtenances thereto, with the exception of the Low Flow Diversion Pipe that is the responsibility of the Grantor.
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. However, in the event that the improvements should be removed from the premises and not replaced, or their regular use abandoned by City or not used for a period of five (5) years, the Easement shall automatically expire without further action by the Grantor and the Property shall revert to the Grantor and all of City's rights herein shall be terminated.
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 the City 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, the City's use of the Easement Areas. 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 Areas 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 grading or to allow conditionally- permitted land uses.
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.
55452.02102\29071223.2
6. Notice of Entry or Disturbance of Easement Area. Except in an emergency found to exist by the City Engineer or designee, it the City intends to enter or disturb the Easement Area, then the City 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 the City.
7. Flood Control Facilities. In the event that the City finds it necessary to ender 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 City 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.
8. Minimizing Inconvenience to Grantor. The City agrees to use its 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 City 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 City shall take reasonable steps to ensure the safety and security of all persons and property on the Property in connection with City's 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 the City's 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 the City's 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, 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 their any easement, deed, lease or other agreement between the Grantor and the proposed improvement holder.
11. Liability for Improvements. The City 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 City 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 improvements.
12. Liability for Hazardous Waste. Nothing in this Agreement is intended nor shall anything in this Agreement be construed to transfer to the 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, 55452.02102 29071223.2
including, but not limited to, responsibility or liability related to hazardous or toxic substances or materials. Further, the City may exercise its 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. The City 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 City's operations under this Agreement.
13. Mutual Indemnity. The parties and their successors and assigns, hereby agree to indemnify, defend, and hold the other party 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 and its successors', assigns', agents', employees', contractors', subcontractors', or volunteers' use or operation of the Easement Area, or related to (b) any breach of a duty imposed by this Agreement 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.
14. Bill of Sale of Personalty. For good and valuable consideration, Grantor hereby sells, transfers, assigns, sets over and conveys to City as Grantee the following personal property:
a. Tangible Personalty. All of Grantor's right, title and interest, if any, in and to all the furniture, fixtures, equipment, and other tangible personal property owned by Grantor and located in or on that portion of the Easement Area consisting of the Drainage Facilities and transition structures specifically accepted by the City as Grantee in this Agreement as described in Exhibit C hereto, with the exception of the Low Flow Diversion Pipe that is the responsibility of the Grantor.
15. Assignment of Licenses, Permits, Contracts, and Warranties. For good and valuable consideration, Grantor hereby assigns, transfers, sets over and conveys to City as Grantee, and City hereby accepts the following assigned property:
a. Intangible Personalty. All of Grantor's right, title, and interest, if any, in and to all licenses and permits relating to the operation of that portion of the Easement Area consisting of the Drainage Facilities and transition structures specifically accepted by the City as Grantee in this Agreement as described in Exhibit C hereto, along with Grantor's rights and warranties under the construction contract with general contractor Western Pacific Construction Services, Inc. relating to that area described in this paragraph.
16. 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.
55452.02102129071223.2
Delivery of Notices. All notices permitted or required under this Agreement shall e given to the respective parties at the following address, or at such other address as the respectiv arties may provide in writing for this purpos
City: City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
ATTN: David Rebensdorf, Public Works Director
Grantor: OC Re-Hab 1, LLC
C/O Baker and Baker, a Professional Corporation
1970 Old Tustin Avenue
Santa Ana, Ca 92705
18. 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.
19. 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 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.
21. 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.
22. Attorneys' Fees. In any judicial, arbitration, or administrative 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.
23. 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
24. 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 55452.02102\29071223.2
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:
CITY OF SAN CLEMENTE OC Re-Hab 1, LLC
By: By:
Andy Hall George Zeber/
City Manager Sole Managing Member
Date: Date: 4/1/2024
Attest:
By:
Laura Campagnolo
City Clerk
Date:
Approved as to form: Approved as to form:
By: By:
Elizabeth A. Mitchell
City Attorney
Date: Date:
55452.02102\29071223.2
(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 1 → 2024, before me, J. Piatta Notary Public, personally appeared Georse zeber→ - 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
(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 OC Re-Hab 1, LLC, a California limited liability company ("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 _. 2024 and the City consents
Dated this day of -, 2024.
Andy Hall, City Manager
55452.02102\29071223.2
Exhibit "A"
Legal Description
APN 691-021-07
That portion of the SW 1/4 of Section 29, Twp 8 South, Range 7 West, SBB & M, described as follows: Beginning at the most Southerly corner of Lot 71 in Tract No. 4940; thence along the Southeasterly boundary of said lot the following courses and distances: North 40° 25' 07" East 105.60 feet; thence North 50° 37' 32" East 82.37 feet; South 54° 34' 31" East 37.30 feet to a point in the Westerly line of Lot 72 in said Tract, said point being North 50° 37' 32" East 88.93 feet from the most Westerly corner of said Lot 72; thence leaving the boundary of said Lot 71, South 50° 37' 32" West a distance of 88.93 feet to the Westerly corner of said Lot 72; thence South 40° 25' 07" West 102.38 feet to the most Westerly corner of Lot 68 in said Tract; thence North 49° 34' 53" West to the point of beginning.
EXHIBIT "B1"
STORM DRAIN EASEMENT
(APN 691-021-02)
THAT PORTION OF SOUTHWEST QUARTER OF SECTION 29, TOWNSHIP 8 SOUTH, RANGE 7 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF SAN CLEMENTE, COUNTY OF ORANGE, STATE OF CALIFORNIA. ALSO BEING
THAT PORTION OF A LAND DESCRIBED IN THE GRANT DEED RECORDED JANUARY 06, 2017, AS INSTRUMENT NO. 20017000006712 OF OFFICIAL
RECORDS, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
A STRIP OF LAND BEING 35.00 FEET WIDE, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST SOUTHEASTERLY CORNER OF LOT 71 IN TRACT NO. 4940 RECORDED IN BOOK 200 PAGES 44 THROUGH 47, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORD OF SAID COUNTY; THENCE NORTHEASTERLY ALONG THE EASTERLY LINE OF SAID LOT 71, NORTH 40°25'07" EAST 105.60 FEET, THENCE NORTH 50°37'32" EAST 82.37 FEET, THENCE SOUTH 54°34'31" EAST 36.27 FEET TO A LINE PARALLEL WITH AND 1.00 FEET WEST OF THE WEST LINE OF LOTS 68 AND 72 OF SAID TRACT; THENCE LEAVING THE EASTERLY LINE OF SAID LOT 71 AND SOUTHWESTERLY ALONG SAID PARALLEL LINE, SOUTH 50°37'32" WEST 88.75 FEET; THENCE SOUTH 40°25'07" WEST 102.47 FEET; THENCE LEAVING SAID PARALLEL LINE, NORTH 49°34'53" WEST 35.00 FEET TO THE POINT OF BEGINNING.
CONTAINS 6,636 SQUARE FEET MORE OR LESS.
EXHIBIT "B2" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART
THEREOF
PREPARED UNDER MY DIRECTION
wallet 12.22 • 2023
ROGER A. WATKINS, LS 7637 DATE
LICENSE EXPIRES 12/31/2024.
* *
LS # 7637
VITE OF CALFOR
EXHIBIT "В2" SHEET 1 OF 1
STORM DRAIN EASEMENT GOLD COURSE ACCESS EASEMENT CONVEYED (APN 691-021-02) TO SHORELIFFS COUNTRY CLUB, A
SCALE: 1"=60' LEGEND: CALIFORNIA CORP., PER O.R. 7345/759 EXISTING STORM DRAIN 10' WIDE EASEMENT TO CITY OF SAN
LAND EASEMENT AS NOTED. CLEMENTE FOR PEDESTRIAN ACCESS AS ESSIONAL A. EXISTING EASEMENT LINE SHOWN ON TRACT NO. 4940 ROGER SURVI PARCEL LINE AS NOTED.
WATKINS 25' WIDE EASEMENT TO TRI-CITIES MUNICIPAL
PROF STORM DRAIN EASEMENT AS WATER DISTRICT AS SHOWN ON TRACT NO.
NO. 7637 DESCRIBED IN EXHIBIT "B1" 4940
EXP. 12/31/24
* * 10' WIDE EASEMENT FOR DRAINAGE
TO CITY OF SAN CLEMENTE AS
STATE OF CALIFORNIA SHOWN ON MAP OF TRACT NO. 4940
SAN DIEGO FWY. 10' WIDE EASEMENT FOR DRAINAGE
PURPOSES CONVEYED TO CITY OF
SAN CLEMENTE PER O.R. 1195/611
VIA (DOC. NO. 8092)
ALEGRE
(ABANDONED STREET)
S54'34'31"E
70 LOT 71
TRACT NO. 4040 M.M. 200/44-47
APN: 691-031-14 307?
OWNER: DONNIE I LANCASTER
S50°3732"W
INST. #2017000006712 O.R.
APN: 691-021-02 us. 88.93'
OWNER: OC-REHAB N50'37'32"E
PN: 691-021-0
WNER: OC-REHA N40'25'07"E
105.60' $40'25'07"W
SW 1/4, SEC. 29, T. 8S, R 7W. N49'34'53"W 35.00° N40'25'07"E 102.38' 12
36.00'
PORTION OF THE HUGO FORSTER 1.00.
6348 ACRES PARCEL PER RS 11-20 68
CLEMENTE STORM --- CITY OF
BASIS OF BEARINGS:
THE BASIS OF BEARINGS OF THIS EXHIBIT DRAIN EASEMENT
DATE: 12/22/2023
Parcel Map Check Report
ROGER A
WATKINS
Client: Prepared by:
*
Client Kevin Tan LS + 7657
The Culver Group, Inc. SATE OF CATFORD
14841 Yorba St., Suite 102
Date: 12/26/2023 5:18:23 PM
Parcel Name: APN 691-021-02 SD EASEMENT - Standard : 1
Description:
Process segment order counterclockwise: False
Enable mapcheck across chord: False
North:2,108,747.041' East: 6,139,035.570'
Segment# 1: Line
Course: N40° 25'07"E Length: 105.60
North: 2,108,827.438' East: 6,139,104.037
Segment# 2: Line
Course: N50° 37' 32"E Length: 82.37
North: 2,108,879.692' East: 6,139,167.711'
Segment# 3: Line
Course: S54° 34'31"E Length: 36.27'
North: 2,108,858.669' East: 6,139,197.266'
Segment# 4: Line
Course: S50° 37'32"W Length: 88.75'
North: 2,108,802.367' East: 6,139,128.661'
Segment# 5: Line
Course: S40° 25' 07"W Length: 102.47
North: 2,108,724.354' East: 6,139,062.223'
Segment# 6: Line
Course: N49° 34'53"W Length: 35.00'
North: 2,108,747.047' East: 6,139,035.577'
Perimeter: 450.47' Area: 6,635.97Sq.Ft.
Error Closure: 0.008 Course: N52° 26' 07"E
Error North : 0.0051 East: 0.0067
Precision 1: 56,307.50