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HomeMy WebLinkAboutReso 1988-13518 RESOLUTION NO. 13518 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING RIGHT-OF-WAY USE AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND SAN DIEGO GAS AND ELECTRIC FOR EL RANCHO DEL REY #6 PARK (SUNRIDGE PARK) AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT The City Council of the City of Chula Vista does hereby resolve as follows: WHEREAS, Sunridge Park, located at East "J" Street and Beechglen Drive, was given to the City by the developer, Pacific Scene, to fulfill the development's park requirements, and WHEREAS, SDG&E has a 250-foot wide easement on the site, which encompasses most of the park, and WHEREAS, SDG&E requires that the City enter into a Right-of-Way Use Agreement for use Of the easement property as a park. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista that that certain Right-of-Way Use Agreement between THE CITY OF CHULA VISTA, a municipal corporation, and SAN DIEGO GAS AND ELECTRIC COMPANY, dated the 12th day of April , 1988 , a copy of which is attached hereto and incorporated herein, the same as though fully set forth herein be, and the same is hereby approved. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista be, and he is hereby authorized and directed to execute said agreement for and on behalf of the City of Cbula Vista. Presented by Approved as to form by Manuel A. Mollinedo, Director Th~CYmas J. Harron~ity of Parks and Recreation Attorney 4023a ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF LA VISTA, CALIFORNIA, this 12th day of April 19 88 , by the following vote, to-wit: AYES: Councilmembers McCandliss, Malcolm, Cox, Moore NAYES: Councilmembers None ABSTAIN: Cound]members None Nader ABSENT: Counc i 1 members ~C/~y of~hula Vista < 'E OF CALIFORNIA ) COUNTY OF SAN DIEGO ) sS. CITY OF CHULA VISTA ) I, JENNIE M. FULASZ, CMC, CITY CLERK of the City of Chula Vista, California, DO HEREBY CERTIFY that the above and foregoing is o full, true and correct copy of RESOLUTION N0. 13518 . ,and that the same has not been amended or repealed DATED ~ City Clerk - CIIY OF CHUIA VISTA CC-660 564 '88 196376 Recording requested by ,; ~ When recorded mail to !988 A~ 28 ~ I:22 San Diego Gas & Electric " San Diego, CA 92112 Attnl Terry W. Nebel EB 712 Space ~bove Th~s L~ne fo~ Reco~de~'s Use ORIGINAL T~ansfer ~ax S~n D~ego Gas ~ ~ectr~c Company / RIGHT-OF-WAY USE AGREEMENT THIS AGREEMENT is made this 12th day of April 19 88, by and between SAN DIEGO GAS & ELECTRIC COMPANY, ("Grantor"), and City of Chula Vista ("Grantee") and with reference to the following factsl A. Grantor is the owner of that certain easement ("Grantor's Easement") shown on Exhibit "A" attached hereto and by reference made a part hereof, and recorded March 9, 1960, at File/Page No. 48825, Series 1, Book 1960, of Official Records, San Diego County, California. B. Grantee is the owner of the real property commonly described as Lot C of Chula Vista Tract 80-5, Unit B, Map 10646, filed in Office of the County Recorder of the County of San Diego, State of California. C. Grantee desires permission TO USE Grantor's easement in the following manneri to develop a park site with landscaping, irrigation and lighting systems, wood bridges and play struc- -1- 85-0397 (SF) 565 tures, concrete walkways and basketball court, picnic tables, benches, bike racks, drinking fountain, benches, and trash containers, hot ash containers, concrete play elephant and camel. D. Grantee acknowledges and represents that (i) it has obtained all lands rights from the owner of the servient property to use Grantor's easement in the above mentioned manner, and (ii) Grantee's use of Grantor's easement is inconsistent with, or a burden on, the rights of Grantor which, absent Grantor's per- mission, could not be exercised. NOW THEREFORE, in consideration of the mutual promises herein made, the parties agree as followsi 1. Grantor shall permit Grantee to use Grantor's easement in the manner described in Paragraph C. above at the locations and configurations shown or described in said Exhibit "A". 2. This permission may be withdrawn in whole or in part by Grantor for the following reasonsi a. At any time Grantor exercises the right to utilize Grantor's Easemen~ in accordance with California Public Utilities Commission General Order 69B, which gives Grantor the right to revoke any license granted in its properties in whole or in part whenever in the interest of its patrons or consumers it shall appear necessary or desirable to do so. In the event permission is withdrawn, Grantor agrees to use reasonable efforts to minimize, so far as practicable, any relocation or restoration expenses to be incurred by Grantee~ however, Grantee agrees that any such decision made -2- 85-0397 (SF) j- 566 by Grantor shall be at Grantor's sole and exclusive discretion, especially if such decision is based upon or involves matters of a technical nature, particularly within Grantor's expertise. b. At any time Grantee fails or refuses to comply with the terms herein, if Grantee constructs improvements other than those described herein as shown on Exhibit "A", or if Grantee's improvements or the method used by Grantee in the construction and lnstallatlon of said improvements is determined to be in violation of any federal, state, city, county or other governmental entlties~ laws, ordinances, or regulations, including regulations of the Public Utilities Commission for the State of Califo~nla and Grantee receives notice of such violation from the authority having Jurisdiction and Grantee fails to cure such violation within ten days unless such violation is a California Public Utilities Commission General Order 95 safety violation or a Cal OSHA violation, then such violation shall be cured immediately. 3. If permission is withdrawn for either of the above reasons, Grantee agrees to remove or alter those improvements as requested by Grantor within thirty (30) days after receipt of written notice, and to restore the ground and areas as near as possible to its original condition and appearance. Such removal, restoration or alteration shall be at the sole cost and expense of Grantee. If Grantee fails to remove, restore or alter within sixty (60) days after notice, Grantor shall have the right to -3- 85-0397 {SF) 567 remove or alter Grantee's Improvements and restore the area at the sole expense and risk of Grantee (except that Grantor shall y responsible~ e sole~ for injury or damage resulting from its own wanton misconduct), which expense Grantee gligence or'~,~ agrees to pay to Grantor upon demand. Grantee may request additional time and if determined to be reasonable by Grantee, Grantor may grant such time. Agreement shall benefit and bind all present and future parties having any right, title or interest to, any portion of Grantor's Easement or the land described in paragraph B above. The term "Grantee" as used in this Agreement shall include any and all successors in interest and assigns of Grantee. Grantee agrees to give Grantor notice pursuant to Paragraph 14 of the names and addresses of any such successors and assigns. Grantor shall not be obligated to notify any such successors and assigns other than those whose names and addresses are furnished pursuant to this Paragraph. 6. This Agreement does not in any way alter Grantor's easement or the rights of Grantor with respect to the use, maintenance or repair of Easement. Grantor shall not be responsible for damage to Grantee's Improvements resulting from normal operation, construction and maintenance of Grantor's facilities and Grantee hereby expressly assumes all risks related thereto~ provided, however, that the foregoing does not release -4- 85-0397 (SF) 568 Grantor from ability it may have for damages arising from ts own negligence or wanton misconduct. 7. Grantee agrees to pay all costs for the construction, installation, maintenance, and repair and removal of Grantee's Improvements. 8. Grantee agrees to comply promptly with any reasonable request(s) of Grantor made to protect Grantor's facilities, or the public, including but not limited to barricades and grounding of metallic fences. 9. Grantor and Grantee shall comply with all applicable laws and regulations of local, state and federal governments and their agencies. 10. Grantee agrees to assume all risks, including risks of an extra hazardous nature, of loss, damage, and injury to persons or property in any manner arising from Grantee's use of Grantor's Easement. Grantee agrees to indemnify, save, and hold Grantor harmless from and against any and all demands, claims, suits, costs of defense, witness fees, liabilities, loss, costs, obligations or other expenses incurred or resulting in any manner from (1) the construction, maintenance, use, state of repair or presence of Grantee's Improvements, (ii) injury(ies) to or death of any person(s) in any manner arising from Grantee's use of Grantor's Easement or (lii) the damage or destruction of or to property, whether real or personal, in any mannerl arising from Grantee's use of Grantor's Easement. 11. Insurancel Grantee shall, at its own expense, secure and maintain in effect during the life of this Agreement -5- 85-0397 (SF) / / · 569 insurance coverages as described herein, in amounts not less than the minimum limits specified, to protect Grantor and Grantee from claims or liabilities in any way arising out of the ownership, maintenance or use of the Grantor's Premisesl [a) Workers' Compensation Insurance and Employer's Liability Insurance in accordance with statutory requirements and limits, including U.S. Longshoremen's and Harbor Workers' Compensation Act coverage, where applicable, (b) Comprehensive General Liability Insurance to include products-completed operations and contractual liability coverage for liability assumed by Grantee under this Agreement, and automobile liability insurance, with limits of not less than $1,000,000 each occurrence for bodily injury and property damage combined. Such liability insurance shall name -_ Grantor as additional insured, shall contain a severability of interest or cross liability clause and shall be primary for all purposes. Certificates of insurance evidencing the coverages and provisions required in (a) and (b) above shall be furnished to Grantor prior to any use of the Premises by Grantee and shall provide that written notice be given to Grantor at least thirty (30) days prior to cancellation or reduction of any coverage. Grantee agrees, at request of Grantor, to increase the limits of insurance to meet the limits then reasonably required by Grantor for a similar Grantee and project of this type. The provisions of this paragraph shall not in any way limit any of Grantee's other obligations or liabilities under this Agreement. 12. Grantee agrees to keep Grantor's Easement free from weeds, waste and the accumulation of flammable materials. Grantee -6- 85-0397 (SF) 570 agrees not to reside or allow any residence, temporary or otherwise, on Grantor's Easement. 13. In the event that either party commences legal action against the other by reason of an alleged breach of this Agreement, the prevailing party shall be entitled to recover court costs and attorney fees as set by the court, including those of appeal. "Prevailing Party" means the party in whose favor final Judgement is rendered. 14. All notices required in this Agreement shall be deemed given when made in writing and deposited in the United States mail, certified and postage prepaid, addressed to Grantee at the address below or to successors and assigns whose names and addresses are furnished to Grantor pursuant to Paragraph 5, above. To Grantor: San Diego Gas & Electric Company Post Office Box 1831 San Diego, California 92112 ti~°~ Attentionl Land Department To Granteel City of Chula Vista Department of I~ParksandRecrea 276 Fourth Avenue Chula Vista, CA 92010 15. This Right-of-Way Use Agreement contains the entire agreement between Grantor and Grantee respecting the transactions contemplated hereby and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein. 16. The invalidity in whole or in part of any provision hereof shall not affect the validity of any other provision hereof. -7- 85-0397 (SF) J, 571 17. Additional Conditions: (a) Grantee agrees to keep trees within Grantor's easement trimmed to a height of 15 feet. This Agreement is entered into between the parties hereto at San Diego, California, as of the date set forth at the beginning hereof. GRANTOR: GRANTEE: SAN DIEGO GAS & ELECTRIC CO., CITY OF CHULA VISTA a California Corporation MANAGER - LAND DEPARTMENT MAYOR OF THE CITY OF CHULA VISTA Approved as to form by Drawn By: Checked Byl Datel Sketchl R/W #: A.P.#: -8- 85-0397 (SF) STATE OF CALIFORNIA SS COUNTY OF SAN DIEGO On Z 8 , before me, the undersigned, a Notary Public in d State, personally appeared Steven D. Davis, personally -~ "' ..... ~ati'factor-- e'vldunu~ to known to me ker preved ~ mc on the .... be the person who executed the within instrument as Manager, Land Department, on behalf of San Diego Gas & Electric Company, the corporation therein named, and acknowledged to me that such corporation executed the within instr~ent pursuant to its by-laws or a resolution of its Board of Directors. WITNESS my hand and official seal. ~ UNDA F. VICIO~A STATE OF CALIFORNIA } COUNTY OF San Diego as. On this 18th day of April in the year 9 8__8 i; =; =~~+'~""~' ~'; :i before me, the undersigned, a Notary Public in and for said State, personally appeared OFF!CIAI SEAL Gregory R. Cox Mary Elaine Chavez ' .~ personally known to me ,t, 99t to be the pers0.s who execu,ed ,he ~- ,--,---~' - -" ~' --' -"; within instrument as MAYOR ~ and .......... Secretary, respectively, of the Corporation therein named, and acknowledged to me that the'Corporation executed it pursuant to its by-laws or a resolution of its board o{ directors. WITNESS my hand and official seal. No ©I983WOLCOTTS. INC (priceclass8 2) tary Public in and for said St _ EL RANCHO DEL REY PARK '--= no scale EXHIBIT ."A'