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Home My WebLink AboutReso - CC - 044-1999RESOLUTION 44-1999 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME ACCEPTING GRANT OF EASEMENT FROM TODAY'S III, INC. FOR PUBLIC ELECTRIC UTILITY PURPOSES AT 835 AIRPORT BOULEVARD TO SERVE THE CITY PARK RESOLVED, by the City Council of the City of Burlingame: WHEREAS, the City is developing the former landfill site as a public park for various recreational uses; and WHEREAS, the electrical service for the southeastern portion of the park will receive service across the property owned by Today's III, Inc., currently operating the Doubletree Hotel on the property; and WHEREAS, Today's III, Inc. is willing to grant the City an easement to provide this electric service as part of the ongoing effort to work together on the parking area for the park, NOW, THEREFORE, IT IS ORDERED: 1. The Public Utility Easement Agreement attached hereto as Exhibit A, conveying a public utility electrical easement across 835 Airport Boulevard is approved and accepted, and the City Manager is directed to execute the Agreement by and on behalf of the City.. 2. The City Clerk is directed to record the Easement Agreement and this Resolution with the County Recorder of the County of San Mateo. MAYOR I, JUDITH A. MALFATTI, City Clerk of the City of Burlingame, do hereby certify that the foregoing resolution was introduced at a regular meeting of the City Council held on the 3 rd day of MAY ,1999, and was adopted thereafter by the following vote: AYES: COUNCILMEMBERS: GALL I GAN, JANNEY, KNIGHT, O'MAHONY, SP I NELL I NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE CITY CLERK RECORDING REQUESTED BY: City Clerk City of Burlingame 501 Primrose Road Burlingame, CA 94010 WHEN RECORDED RETURN TO: City Clerk City of Burlingame 501 Primrose Road Burlingame, CA 94010 SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE PUBLIC UTILITY EASEMENT AGREEMENT This Public Utility Easement Agreement ("Agreement") is made and entered into as of April , 1999, by and between Today's III, Inc., a California corporation (hereinafter referred to as "Grantor" without regard to number or gender) and City of Burlingame (hereinafter referred to as "Grantee"). RECITALS A. Grantor is the fee owner of certain real property situated in the City of Burlingame, County of San Mateo, California commonly known as 835 Airport Boulevard (hereinafter referred to as "the Doubletree Hotel property or "Servient Tenement"), and more particularly described in Exhibit "A", which is attached to this Agreement and hereby incorporated by reference. B. Grantee is the fee owner of a recreational park facility built on adjacent landfill to the north of the Doubletree Hotel property in the City of Burlingame, County of San Mateo, California (hereinafter referred to as the "Park Facility" or "Dominant Tenement") commonly known as 250 Anza Boulevard, Burlingame, California. C. On or about June, 1997, the parties entered into a Shared Parking and License Agreement ("Parking Agreement") for the shared use of a parking lot on the Grantee's Park Facility. D, Grantee desires to acquire certain rights in Grantor's Servient Tenement for public utility purposes. 1. Grant of Easement. Grantor hereby grants to Grantee an easement subject to the terms of this Agreement. 2. Character of Easement. The easement granted in this Agreement is appurtenant. -1- EASEMENT AGREEMENT 3. Location of Easement. The specific location of the easement granted in this Agreement is identified in improvement plans and drawings (the "Improvement Plans") prepared by Grantee, its agents, servants or employees. The easement shall be confined and limited to the area of the Doubletree Hotel property identified and described in the Improvement Plans. The location of the easement shall not be changed without the prior written consent of Grantor, which consent Grantor may withhold in its sole and absolute discretion. The Improvement Plans identifying the specific location of the easement are attached hereto as Exhibit "B" and incorporated by reference herein. 4. Description of Easement. The easement granted in this Agreement is for electrical service purposes, including the rights to excavate, install, replace, repair, maintain and use, as Grantee shall, from time to time, elect within the limited area of the Doubletree Hotel property specifically identified and described in the Improvement Plans and more particularly described in Exhibit "C" attached hereto and incorporated by reference herein. a. Said facilities shall consist of such underground conduits, pipes, manholes, service boxes, wires, cables, and electrical conductors; aboveground marker posts, risers, and service pedestals; underground and -aboveground switches, fuses, terminals, and transformers with associated concrete pads; and fixtures and appurtenances necessary to any and all thereof, as Grantee deems necessary located within the area of the Doubletree Hotel property identified and described in the Improvement Plans. b. Grantor shall not erect or construct any building or other structure or drill or operate any well under or within the area of the Doubletree Hotel property identified and described in the Improvement Plans. C. Grantor further grants to Grantee the right to assign to another public utility as defined in Section 216 of the California Public Utilities Code the right to install, inspect, maintain, replace, remove and use communication facilities within the area of the Doubletree Hotel property identified and described in the Improvement Plans (including ingress thereto and egress therefrom). 5. Limitation of Easement. The easement granted in this Agreement is granted solely in order for Grantee to provide electrical service to the City's Park Facility. Grantee shall not use the easement in order to provide electrical service to any third parry or use the easement in any manner for the benefit of any third party' other than to allow an electrical utility company to provide services to the Park Facility. 6. Term of Easement. The easement granted in this Agreement shall commence on the date of this Agreement and shall terminate upon the earlier of the occurrences specified in the Parking Agreement. -2- EASEMENT AGREEMENT 7. Improvement Work. Grantee agrees to install and construct all improvements ("Improvement Work") under this.Agreement in accordance with the Improvement Plans. 8. Coordination of Improvement Work. The dates and times of the installation and construction of all improvements shall be coordinated with the Grantor so as to minimize the disruption to the operation of the Doubletree Hotel. 9. Restoration. Upon completion of the improvement work, the Grantee shall restore the Doubletree Hotel property to the condition of.the property prior to the improvement work by the Grantee. 10. . Maintenance and Repair.. Grantee shall be solely responsible for any repair to or maintenance of the utilities and for all costs related to any repair or maintenance by Grantee, its agents, servants or employees. 11. Indemnification. Grantee shall indemnify, hold harmless and defend Grantor from and against any costs, loss, liability, expense, damage, injury, claim, demand, cause of action, proceeding (whether civil, criminal, administrative or investigative), including attorneys' fees, expert witness fees, court costs, judgments, fines and amounts paid in settlement directly or indirectly arising by reason of, in connection with, on account of, or pertaining to the granting of this easement and the exercising by Grantee of its rights under this Agreement including, without limitation, to excavate, install, replace, repair, maintain and use, as Grantee shall, from time to time, elect within the limited area of the Doubletree Hotel property specifically identified and described in the Improvement Plans. In the event Grantee shall be obligated to pay the expenses of any proceeding against Grantor, Grantee, if appropriate, shall assume the defense of such proceeding, with counsel approved by Grantor, which approval shall not be unreasonably withheld. After assumption of such defense, the Grantee shall not be liable to Grantor for any fees of counsel subsequently incurred by Grantor with respect to the same proceeding, provided that Grantor shall have the right to employ its own counsel in any such proceeding at Grantor's expense; and if Grantor shall have reasonably concluded that there may be a conflict of interest between Grantee and Grantor in the conduct of any such defense or Grantee shall not in fact have employed counsel to assume the defense of such proceeding, then the fees and expenses of Grantor's counsel shall be at the expense of Grantee. Grantor shall be entitled to specifically enforce this provision, including, but not limited to, obtaining injunctive or declaratory relief. The right to injunctive relief herein shall specifically supersede any language otherwise requiring arbitration or mediation of disputes, and if any party seeks injunctive relief to compel the provision of or payment for counsel, the defense that the relief sought is mandatory in nature is specifically waived and shall not be used or considered. The parties agree that Grantor shall suffer irreparable injury if the indemnification or defense obligations are not performed in accordance herewith. 12. Non -Exclusive Easement. The easement granted in this Agreement is non— exclusive. Grantor retains the right to make use of the Servient Tenement, including the right to DoE EASEMENT AGREEMENT grant concurrent easements in the Servient Tenement to third parties, provided such use does not interfere unreasonably with Grantee's free use and enjoyment of the easement. 13. Assignment. This Agreement, including any interest in this Agreement, shall not be assigned without.the prior written consent of the Grantor. 14. Attorneys' Fees. If any legal proceeding or action is commenced arising out of or relating to this Agreement by either party to this Agreement, the prevailing party shall be entitled to receive from the other party, in addition to any other relief that may be granted, the reasonable attorneys' fees, costs, and expenses incurred in the action or proceeding by the prevailing party. 15. Entire Agreement. This Agreement constitutes the entire agreement between Grantor and Grantee relating to the above easement. Any prior agreements, promises, negotiations, or presentations not expressly set forth in this Agreement are of no force and effect. Any amendment. to this Agreement shall be of no force and effect unless it is in writing and signed by Grantor and Grantee. 16. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California. 17. Binding Effect. This Agreement shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns of Grantor and Grantee, except as otherwise provided in this Agreement. GRANTOR: TODAY'S III, INC. M. GRANTEE: CITY OF BURLINGAME By: Its: -4- EASEMENT AGREEMENT STATE OF CALIFORNIA ) ss. COUNTY OF 1 On this day of , 1999, before me, personally appeared , personally known to me (or 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 that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public STATE OF CALIFORNIA ) ss. COUNTY OF 1 On this day of , 1999, before me, personally appeared personally known to me (or 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 that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public N:\CUENTS\22kM2.0J0\EASEMENT. PGE -5- EASEMENT AGREEMENT PUBLIC UTILITY EASEMENT AGREEMENT EXHIBIT "A" LEGAL DESCRIPTION OF THE DOUBLETREE HOTEL PROPERTY CITY OF BURLINGAME PARCEL "A", AS DESIGNATED ON THE MAP ENTITLED, "PARCEL MAP BEING A RESUBDIVISION OF THE BLOCK #4, `ANZA AIRPORT PARK UNIT NO. T, AND A PORTION OF THE LANDS OF THE CITY OF BURLINGAME, BURLINGAME, SAN.MATEO COUNTY, CALIFORNIA", WHICH MAP WAS FILED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA, ON DECEMBER 21, 1984, IN BOOK 55 OF PARCEL MAPS AT PAGES 48 AND 49. - ASSESSOR'S PARCEL NOS. 026-343-430 026-343-440 N.%CLMWS\22\2252.01M[/ EUE.AGR JOINT PLANT NOS. 026-029-290-30.01A 098-090-004-0001T 098-090-004-0002T 098-090-004-0003T 098-090-004-0004T PUBLIC UTILITY EASEMENT AGREEMENT EXHIBIT "B" _ IMPROVEMENT PLANS jo��vr asE Z_� 0�/LG �J �I G�fJT PRiMAR TRAN5F THIS ENIJI f37 5HEE . A t�EA of CoH�UIT- �'�'1 5�-iLE �x -rte C --d' W51Pi= .- ��"�°�� UNC, per 169;1,0m d � � ye NORTH � / P6 d'x5' SPLIGE fJD!%8GE j,�� vN� BOX REMAINI. 440 PRIMARYSERVICE: L,, ATION' sGALEs • l4 = 40'-0' ... . _.:'./_:. •�i9_I�_FTQ!�.Z£1�'.l Ii�l, yliEfflZ�,, �-, DFlIAO�?K Sffl?LG .._h.S9R?�P_�J�Lb__ �OG.•!�Tlr`:iQl/ �.�..iiT , •---''i�11 .-G/x%i7CG.,�-�';�,4'6�'FTC1.t"33fHATL�'PY '�i�svf�t i� ar-'�ri:i/U" G��> _...._- ��-r��v��es6--�.Y�,a�sr.•4au...4s,�t[ou4�rm.'---._:._._:_;.___.�..�,�. .. _ �; < -2=�;urP.�t�.�r.,e �� i�.��N.�r.��cr.�urn�3'.v�r1.�R•I^,45�E.,.�'-,y��cour„�rac� �o,� G�yss7' �.STk'uI'T�aN aF' oTEG v�crsrEz7tlLE EXHIBIT "C" PUBLIC UTILITY EASEMENT A portion of Parcel "A" as shown on that certain Parcel Map recorded on December 21, 1984 in Volume 55 of Parcel Maps on pages 48 and 49 in the office of the County Recorder of San Mateo County and more particularly described as follows: Commencing at the most northerly comer of said Parcel "A", said comer being the northerly terminus of that certain course described as South 508.60 feet. Thence from said point of commencement, along the westerly boundary, south 0 000'00" east 508.60 feet, thence southeasterly, along said boundary of Parcel "A", south 38'00'00" east, 20.00 feet; to the due point of beginning of this description; thence leaving said boundary, north 280 08'50" east 120.00 feet; thence north 61 "5V1 0" west 15.00 feet thence south 28" 08'50" west, 113.37 to the southwesterly boundary of Parcel "A"; thence along said boundary, south 380 00'00" east, 16.40 feet to the true point of beginning of this description. Containing 1,750.00 square feet more or less. OQROFESSIOn4 Qk G. ERoq �n CID1'.'.. Frank C. Erbacher, P.E. No 1^3357 City Engineer {x Gp'69 City of Burlingame J'T CfUI!ztR.C.E. 19367 9TFnr n 6i 1F- Expires 9/30/01