South County Ventures, LLC
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DOCUMENT: 19584168
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Fees
Taxes
Copies
AMT PAID
Pages 12
. No Fees
REGINA ALCOMENDRAS
SANTA CLARA COUNTY RECORDER
Recorded at the request of
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MAIL TAX STATEMENTS AS DIRECTED ABOVE
RDE ~ 014
9/13/2007
8 00 AM
. -I1fOf96bOc
THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION
(Additional recording fee applies)
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Th", rltv nilrov
7351 Rosanna Street
Gilroy, CA 95020
Attention: SkWT:O Freels, City Clerk
RECORD WITHOUT FEE UNDER SECTION
27383 OF THE GOVERNMENT CODE OF STATE
OF CALIFORNIA
SPACE ABOVE nus LINE FOR RECORDER'S USH
TEMPORARY CONSTRUCTION EASEMENT
This Tempo~ Construction Easement ("TCE") is made this ~ day of
AlM-\A~'- , 2007, ( Effective Date") by and between South County Ventures, LLC, a
California limited liability company ("South County"), and the City of Gilroy, a municipal
corporation of the State of California ("City").
Recitals
A. Whereas, South County is the owner of that real property designated as Santa
Clara County Assessor's Parcel Number 841-18-051 (''South County Land'').
B. Whereas, the City is planning to extend the Camino Arroyo to Gilman Road. and
construct a bridge over Llagas Creek ("Project");
C. Whereas, in connection with that Project, the City is acquiring from South
County certain parcels of South County Land.
D. Whereas, in connection with its construction work on the Project the City will
require a temporary construction easement from South County in order to access the Project from
its staging site.
E. Whereas, on the terms set forth herein, South County is willing to grant a
temporary construction easement to the City to use a portion of the South County Land for the
purposes set forth in this TCE, subject to all of the terms and provisions set forth herein.
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NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT OF
WInCH IS HEREBY ACKNOWLEDGED, THE PARTIES HEREBY AGREE AS FOLLOWS.
1. Temporary Construction Easement: For the purposes and under the terms set fo$
herein, Soutb. County hereby GRANTS to City a TEMPORARY CONSTRUCTION
EASEMENT over and across that portion of the South County Land shown as the cross-hatched
area on plat that is attached as part of Exhibit "A" (the "TCE Area"), which TCE Area contains
approximately six thousand four hundred twenty-four (6,424) square feet.
2. Term. The term of this TCE shall commence on the effective date and terminate upon
the earlier of the completion of the Project or December 31, 2010.
3. Purpose and Use.
(a) TCE Use/Access. This TCE grants to the City and its employees, agents,
contractors, subcontractors and/or invitees the exclusive and unlimited right to use the TCE Area
in order to access the Purchased Property for purposes of constructing the Project. The rights
granted herein include the right drive vehicles, equipment and materials ("Construction
Equipmenf') over the TCE Area, park and remove such vehicles and to unload and reload
Construction Equipment from the vehicles in order to complete the Project. Access granted
pursuant to this TCE may also include, but not be limited to, temporary storage of Construction
Equipment on the TCE Area; however storage of Construction Equipment on the TCE Area for
any period in excess of seven (7), consecutive days shall be prohibited.
(b) No Violation of Law or Regulation. Notwithstanding anything to the contrary
herein, City's use of the TCE Area shall be strictly limited to legal uses which are not contrary to
law or the rules or regulations of any governmental or regulatory bodies having jurisdiction over
the TCE Area. Further, City shall not use the TCE Area for storing, manufacturing or selling any
explosives, flammable materials, inherently dangerous substances, chemicals, toxic materials,
hazardous materials, petroleum products or the, like. All of the Construction Equipment and
personal property which enters the TCE Area shall be in a condition so as not to leak or
otherwise spread hazardous materials, including oil, gasoline or other petroleum products on the
TCE Area.
(c) No Nuisance. City will use, the TCE Area in such a way as not to interfere
unreasonably with the peace and quiet enjoyment of South County and South County's
neighbors and members. of the public. It shall not be considered unreasonable interference with
peace and quiet enjoyment of the above-mentioned parties, however, for City to engage in
activities that create noise and other disturbances, including dispersal of dust, exhaust and fumes
from equipment and or materials used in construction of the Project.
(d) No Pollution. City shall not release any Hazardous Materials, as defined in
Exhibit "B" onto the TCE Area or South County Land.
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(e) Clean-Up of Toxic Release. In the event of the release by City (or City's agents,
employees, contractors or subcontractors) of any Hazardous Materials, the City will immediately
take diligent steps to halt such discharge, to remove such materials, to clean the TCE Area and
all other affected real property onto which such material may have flowed or migrated and to
remediate any damage, 10~ injury or contamination related thereto at City's sole expense. City
will indemnify and hold South County hann1ess from all loss, cost, expense, damage or injury,
including reasonable attorney's fees, related to, or in connection with, any such discharge,
release or contamination to the extent not caused by the negligence or willful misconduct of
Owner in its utilization of the TCE area.
(f) Modification of TCE. The parties acknowledge that in the event that South
County, or its successor, elects to. develop any part of the South County Land on which a portion
of the TCE is located during the term of the TCE, that the location and/or size of the TCE
may require modification so as to allow the development and use of the South County's Land. It
is therefore agreed that, upon at least thirty (30) days advance written notice to the City, South
County may request a modification of the TCE to enable development and use of the South
County Land upon which a portion of the TCE is located. The parties agree to. work
together promptly, reasonably and in good faith to modify this. TCE so that South County may
develop and use its Land while simultaneously assuring City's ability to complete its construction
of the Project in a timely manner. The parties agree to execute a modified TCE, and/or other
appropriate documents suitable for recording, reflecting such modifications to the TCE. In no
event, however, shall City be required to modify the TCE if such modification would, in City's
reasonable judgment, impair City's ability to access and/or construct the Project or increase
City's costs of construction thereon.
The parties further agree that in the, event of any dispute in connection with size or location of
j the modification to the TeE, such dispute will be resolved through binding arbitration in
accordance with the arbitration rules and procedures set forth in California Code of Civil
Procedure 1280, et seq. The arbitration shall be conducted by an arbitrator mutually selected by
the parties, which arbitrator is located in Santa Clara County and has expertise in real estate. The
decision of the arbitrator on any matter submitted to arbitration hereunder shall be final and
binding upon the parties. The decision of the arbitrator may include, an award or allocation of
fees and costs. incurred by the parties in the arbitration proceedings. Pending the outcome of
such arbitration, City may continue to use the TeE in its unmodified state.
4. Insurance. During the entire term of this. TCE, City will maintain in full force and effect
at City's sole expense a policy of comprehensive liability insurance, including property damage,
which will insure both City and South County as named insureds against liability for injury or
death to persons and damage or destruction of property in connection wi~ based on or related to
City's and its employees, contractors, agents and invitees' use of or presence on or ingress or
egress to any portion of the TCE Area or South County Property. The coverage limits of this
insurance shall not be less than two million dollars ($2,000,000) for anyone person injured or
killed and not less than two million dollars ($2,000,000) for anyone incident and not less than
two million dollars ($2,000,000) for property damage or loss.
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City shall provide South County with a copy of the policy, including an endorsement
stating that the policy will not be canceled except after thirty (30) days advance written notice to
South County and such endorsement shall also state that South County is named as an 'additional
insured under such policy.
In the event of the termination, or threatened termination, of this. insurance, this TCE may
be immediately terminated in writing by South County.
5. Indemnitv. City shall indemnify South County and its officers, directors,
members, managers, employees, attorneys, consultants, agents and contractors. (collectively
"Indemnified Parties"), from all claims, damages, losses, costs, expenses and charges
including, but not limited to, reasonable attorney's. fees, to the extent caused by: (i) use of the
TCE Area by City or its employees, agents, contractors, subcontractors or invitees pursuant to
this TCE; or (iil the presence, on or about the South County Property of City or any of its
employees, consultants, agents, contractors., subcontractors or invitees which presence results
from City's use of the TCE.
6. Removal of Construction Eaumment & Property noon Termination. No later
than midnight of the effective date of the termination of this TCE, City shall remove from the
TCE Area all of the Construction Equipment and any other property and materials that it or its
employees, contractors., subcontractors, agents, employees or invitees may have brought on the
TCE Area. If City has. not so removed such materials, South County may either directly, or
through the use of third parties, remove such Construction Equipment and materials from the
TCE Area and to deposit the same on a public street with written notice to City of the location to
which the same have been moved. Upon termination City will clean up the TCE Area and
restore it to the condition in which it existed on the day prior to the Effective Date.
Neither during the term of this TCE nor at any time thereafter shall South County have
any obligation or responsibility whatsoever for any loss, damage, injmy or destruction of any of
the Construction Equipment or any other property which is brought onto the TCE Area pursuant
to this. TCE except to the extent that such loss, damage or destruction is caused by the negligence
or deliberate wrongful conduct of South County. South County will additionally have no
obligation or responsibility for any loss, damage, injury or destruction of any of the Construction
Equipment or any other property which is left on the TCE Area after the termination of this TCE.
City shall hold South County and its employees, officers, directors, members, managers,
consultants, contractors, subcontractors and agents harmless from all loss, cost or expense,
including reasonable attorney's fees arising from, based on or related to the removal of any
Construction Equipment or any other personal property from the TCE Area after the termination
of this TCE.
The parties acknowledge and agree that mere financial payments will not be sufficient to
compensate South County for the loss of the use of the TCE Area in the, event of the continued
presence of Construction Equipment or personal property on the TCE Area or the TCE Area
after termination of this. TCE. The parties thereby stipulate and agree that South County shall be
entitled to request and obtain injunctive relief requiring City to remove the, Construction
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Equipment and/or any other personal property from the TCE Area upon the termination of this
TCE and that the granting of such injunctive relief shall not require the posting of a bond by
South County and any requirement for such a bond is hereby waived. Nothing in this section,
however, shall be deemed a waiver of City's rights to use its powers of eminent domain to
acquire the right to use the TCE Area beyond the Term of this TCE.
7. No Liability bv South County. City and South County jointly agree that a material
portion of the consideration to South County for a granting of this TCE is. City's agreement to
the wavers contained in this. Section 7. City hereby waives any and all claims against South
County for any damage, injury or loss to Construction Equipment or any personal property on
the South County Property or the TCE Area.
Further, all of the Construction Equipment and all personal property brought in, on or
about the TCE Area pursuant to this TCE shall be placed on the TCE Area at City's sole risk and
without any liability whatsoever by South County other than the liability of South County to the
extent of a loss caused by the negligence or dehl>erate wrongful conduct of South County.
City hereby waives any claims, charges, demands or rights against South County and its
officers, directors, members, managers, attorneys, employees, agents, contractors and
subcontractors in connection with any injury or death to any persons or damage to or loss of any
of the Construction Equipment or personal property while on or about the TCE Area, including
but not limited to loss arising from mysterious disappearance, rodents, acts of God, fire, theft,
vandalism, water damage or any other cause, excluding only losses to the extent caused by the
negligence or deliberate wrongful conduct of South County.
Further, City agrees that it will indemnify South County and its officers, directors,
employees, members, managers, agents, contractors and subcontractors from any claims by
City's employees or any third parties in connection to. or related to any death or personal injury
to any persons or damage to, loss of or destruction of any Construction Equipment or any other
property brought onto the South County Property or TCE Area by anyone pursuant to this TCE
or related to the City's or its employees, agents, contractors, subcontractor's. or invitee's use of
the TCE Area excluding only losses to the extent they are caused by the intentionally wrongful
or negligent conduct of South County or its employees, agents or contractors acting within the
course and scope of their employment or duties.
8. Survival of Oblie:ations. The provisions of Sections 3(e), 5, 6, 7. and 10 will survive the
termination of this. TCE.
9. Entire A2I'eement. All of the terms, provisions and conditions agreed upon by the
parties hereto are expressed herein and, except as contained in this instrument there are no.
further understandings. Any of the terms, conditions or provisions of this. contract may be
amended only by the joint written agreement of both parties hereto.
10. Successors and Assie:ns. This Agreement shall inure to the benefit of and bind the
parties' respective heirs, legal representatives, successors, and assigns.
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11. Attornev's Fees. In the event of any controversy, claim or dispute between the parties
hereto arising out of or relating to this TCE or breach thereof, the prevailing party shall be
entitled to recover from the losing party reasonable attorney's fees, costs, and expert witness.
fees, including attorney's fees and costs incurred on or after appeal or attorney's fees incurred
after judgment in the collection process. Expert witness. fees shall be recoverable pursuant to
proof at trial or memorandum of costs.
GRANTOR:
CITY:
sourn COUNTY VENTURES, INC.
By:
Name:
It's: f\\
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STATE OF CALIFORNIA )
)ss.
COUNTY OF SANTA CLARA )
TITLE OF DOCUMENT: Temporary Construction Easement
On August 21, 2007, before me, Susan R. Johnson, Notary Public, personally appeared Jay Baksa
personally known to me to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person or the entity upon behalf of which the person acted.
executed the instrument.
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Signature of Notary lie
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Scna Clara COWlIy -
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WITNESS my hand and official seal.
per GC Sec. 40814; CC Sec. 1181
(Notary Seal)
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
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EXHIBIT "B"
Definition of Hazardous Materials
"Hazardous Materials" sba1l mean any and all (a) substances, products, by-products, waste, or
other materials of any natuIc or kind whatsoever which is or becomes 1istcd, regulated or
addIcsscd under any EnviromnCntal Laws, and (b) any ma~ substances, products, by-
products, waste, or other materials. of any nature or kind whatsoever whose presence in and of
itself or in combination with other materials, substances, products, by-products, or waste may
give rise. to liability under any Environmental Law or any statutory or common law theory based
on negli~ trespass, intentional tort, nuisance, strict or absolute liabilitY or under any
reported decisions of any state or federal court; and (c) any substance, product, by-product, waste
OI any other material which may be hazardous. or harmful to the air, water, soil, environment or
affect industrial hygiene, occupational, health, safety and/or general welfare conditions,
including without limitation, petroleum and/or asbestos materials, products, by-products, or
waste.
"EnvlroDJDeJltal Laws" sha11 mean and include all federal,. state, and 1ocallaws, statutes,
ordinsmces. regulations. resolutiOns, decrees, and/or rules now or hereinafter in effect, as may be
amended from timo to time, and all implementing regulations, directives, orders, guidelines, and
federal or state court decisions, interpreting, relating to, regulating or imposing liability
(including, but not limited to, response, removal. remediation and damage costs) or standards of
conduct or performance relating to, industrial hygiene, occupational, health, and/or safety
conditions, environmental conditions, or exposure to, contAmination by, or clean-up,ot: any and
all Hazardous Materials, including without limitation, all federal or state supcrlien or
environmcmta1 clean-up, statutes.
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