Loading...
24865840 - Easement and Covenant Agreement - - Recorded 03/09/2021RECORDING REQUESTED BY FIRST AMERICAN TITLE v 03 0= (072-44 St- A c c RECORDING REQUESTED BY, AND WHEN RECORDED MAIL TO: City of Gilroy 7351 Rosanna Street a0) Gilroy, CA 95020 Attention: Shawna Freels — City Cle t Recorded without Filing Fee under Government Code Section 27383 ocu **This document was electronically submitted to Santa Clara County for recording** 24865840 Regina Alcormendras Santa Clara County - Clerk -Recorder 03/09/2021 03:00 PM Titles: 1 Pages: 13 Fees: $0.00 Tax: $0 Total: $0.00 APN: 810-20-033 Space above this line for Recorder's use Ref: Hecker Pass Commercial, LLC EASEMENT AND COVENANT AGREEMENT (Public Trail) This Easement and Covenant Agreement ("Agreement") is entered into as of this -rl4 day of . 2021, by the CITY OF GILROY, a California municipal corporation ("City"), and HECK& PASS COMMERCIAL, LLC, a California limited liability company ("Property Owner"). RECITALS A. Property Owner is the fee owner of certain real property located in the City of Gilroy, County of Santa Clara, State of California, more particularly described in Exhibit A attached hereto (the "Property"). B. Property Owner utilizes the Property for the purposes permitted under the Hecker Pass Specific Plan adopted by the City on January 18, 2005, as amended (the "HPSP"). Uses and activities permitted under the HPSP and other applicable laws are referred to herein as the "Permitted Property Uses." C. Property Owner desires to grant to City, and City desires to accept, an easement over a portion of the Property for public access purposes, subject to the terms and conditions set forth below. NOW, THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, City and Property Owner hereby agree as follows: 1. Grant of Easement. Subject to the terms and conditions set forth in this Agreement, Property Owner hereby grants to City a non-exclusive easement for a public trail over and across that certain portion of the Property identified as the "Public Trail Easement" on the legal descriptions attached hereto as Exhibit A, and shown on the plat maps attached hereto as Exhibit B (collectively, the "Easement Area"). -1- RECORDING REQUESTED BY FIRST AMERICAN TITLE 0131— (021-P42-1 — Acc mrwno d_ a-h6Y1 RECORDING REQUESTED BY, AND WHEN RECORDED MAIL TO: City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 Attention: Shawna Freels — City Cleric Recorded without Filing Fee under Government Code Section 27383 APN: 810-20-033 Space above this line for Recorder's use Ref: Hecker Pass Commercial, LLC EASEMENT AND COVENANT AGREEMENT (Public Trail) This Easement and Covenant Agreement ("Agreement") is entered into as of this )."-tit day of 2021, by the CITY OF GILROY, a California municipal corporation ("City"), and HECKEE`R PASS COMMERCIAL, LLC, a California limited liability company ("Property Owner"). RECITALS A. Property Owner is the fee owner of certain real property located in the City of Gilroy, County of Santa Clara, State of California, more particularly described in ExhibitAattached hereto (the "Property"). B. Property Owner utilizes the Property for the purposes permitted under the Hecker Pass Specific Plan adopted by the City on January 18, 2005, as amended (the "HPSP"). Uses and activities permitted under the HPSP and other applicable laws are referred to herein as the "Permitted Property Uses." C. Property Owner desires to grant to City, and City desires to accept, an easement over a portion of the Property for public access purposes, subject to the terms and conditions set forth below. NOW, THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, City and Property Owner hereby agree as follows: 1. Grant of Easement. Subject to the terms and conditions set forth in this Agreement, Property Owner hereby grants to City a non-exclusive easement for a public trail over and across that certain portion of the Property identified as the "Public Trail Easement" on the legal descriptions attached hereto as Exhibit A, and shown on the plat maps attached hereto as Exhibit B (collectively, the "Easement Area"). -1- 1.1 Permitted Trail Uses. The Easement Area may be used only for the following uses (the "Permitted Trail Uses"): (a) Construction, maintenance, repair and replacement of public trail facilities (the "Trail Facilities"), including without limitation the following: (i) An asphalt pathway up to (12) feet in width, with shoulders on each side up to four (4) feet in width (approximately two (2) feet of rock shoulder and two (2) feet of dirt shoulder), together with steps, ramps, railings, bridges, culverts and other related improvements; (ii) Wayfinding and instructional signage and bulletin boards; (iii) Fences, gates, bollards and other barriers to control access, provided that they do not interfere with ingress to and from the Property, and they do not unreasonably interfere with the Permitted Property Uses; and (iv) Landscaping; and (b) Low -intensity public recreational activities such as walking, bicycling, and skating. Use of motorized vehicles within the Easement Area shall be prohibited, except for (i) wheelchairs or other motorized devices for persons with disabilities; and (ii) vehicles used in connection with construction, maintenance, repair, policing or emergency response, or other governmental activities. 1.2 No Impairment. Property Owner shall keep the Easement Area open and free from buildings, structures and other above -ground improvements and their appurtenances. Property Owner shall not do or permit any act or acts which will hinder or impair the use of the Easement Area for the Permitted Trail Uses except such work as may be required from time to time for the maintenance and repair of the driveways to the Property, utilities serving the Property, or any improvements on the Property; provided, however, that Property Owner shall cause any such work to be performed in a manner that minimizes interference with the Permitted Trail Uses. 1.3 Rights Reserved by Property Owner. Property Owner shall have the right (but not the obligation) to utilize the Easement Area for all Permitted Property Uses that do not interfere with the Permitted Trail Uses, including without limitation the following activities, subject to obtaining any necessary permits if required by applicable City laws, codes or regulations: -7- (a) Installation, repair and maintenance of security fencing along the southern boundary of the Easement Area, together with gates as reasonably necessary for access to the Property; (b) Installation, repair and maintenance of below -ground utility facilities that serve the Property; and (c) Reasonable trimming, weeding, mowing, and control of vegetation. 2. Maintenance and Repairs. City shall be responsible for maintaining the Easement Area and the Trail Facilities in good condition and repair at City's sole cost and expense; provided, however, Property Owner shall be obligated to pay or reimburse City for any and all damage (other than due to ordinary wear and tear), to the extent caused by the negligence or wrongful acts of Property Owner or its agents, employees, licensees or contractors. 3. Waiver of Claims; Indemnification. 3.1 Waiver of Claims. City hereby releases and forever discharges Property Owner and its past and present agents, employees, licensees, contractors, officers, directors, members, successors, and assigns (the "Released Parties"), and each of them, from any and all claims, causes of action, proceedings, losses, damages, liability, costs, and expenses (including, without limitation, any fines, penalties, judgments, and attorneys' fees and costs) for damage to property and for injuries to or death of any person (including, but not limited to, the property and employees of any party, including City's agents, licensees and contractors) related to the condition of, or conditions on, the Easement Area or the use of the Easement Area by any person ("Claims"). The release shall apply regardless of the cause of the Claims, except to the extent arising out of the negligence or wrongful acts of Property Owner or the other Released Parties. 3.2 Indemnification. City shall indemnify, defend and hold harmless Property Owner and the Released Parties from and against any and all Claims sustained by Property Owner and/or the Released Parties arising out of the negligence or wrongful acts of City or its agents, employees, licensees or contractors on or about the Easement Area; provided, however, the obligations hereunder shall not apply to any Claims to the extent arising out of the negligence or wrongful acts of Property Owner or the other Released Parties. 4. Limitation of Liability for Public Use. Notwithstanding anything to the contrary in this Agreement, City and Property Owner reserve all rights and protections under applicable law affording immunity with respect to use of the Easement Area by the general public. (a) City shall post appropriate signs, as determined by City in its sole discretion, advising the general public that use of the Trail Facilities, or entry onto any portion of the Easement Area, shall be at their own risk. (b) Neither City nor Property Owner assumes any duty to or for the benefit of the general public for defects in the location, design, installation, maintenance or repair of the Trail Facilities; for any unsafe conditions within the Easement Area; for the failure to inspect for or warn against possibly unsafe conditions; or for any failure to close the Trail Facilities to public access when unsafe conditions may be present. (c) City shall endeavor to repair damaged Trail Facilities, but has no duty to do so unless and until City receives actual notice of the need to repair an unreasonably dangerous condition. 5. Insurance by Contractors. Third party contractors performing construction, repair or maintenance work on the Easement Area shall be required to maintain in full force and effect during the course of the work a policy or policies of commercial general liability insurance against any liability arising out of the activities of the contractor or its agents, employees or subcontractors on or about the Easement Area. Such insurance shall be in an amount not less than $2,000,000 combined single limit for injury to or death of one or more persons in an occurrence, and for damage to tangible property (including loss of use) in an occurrence; shall cover City and Property Owner as additional insureds; and shall be written as primary insurance, not contributing with or in excess of any coverage that City or Property Owner may elect to carry. Prior to commencing any such construction, repair or maintenance work on the Easement Area, the contractor shall deliver to City and Property Owner a certificate of insurance and any applicable endorsements evidencing the above insurance coverage. 6. Notices. All notices required or permitted herein shall be made and given in writing to the parties at the respective addresses set forth below and shall be effective as of actual receipt or refusal of delivery. Should any act or notice required hereunder fall due on a weekend or holiday, the time for performance shall be extended to the next business day. Either party may change its address for the purpose of providing notice by delivering written notice to the other party which specifies the new address. City: Property Owner: City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 Attention: City Administrator Hecker Pass Commercial, LLC 8 North San Pedro Street, Suite 200 San Jose, CA 95113 Attention: Skip Spiering 7. Successors and Assigns. The easement granted herein shall be perpetual, and shall be binding upon and shall inure to the benefit of City and Property Owner, and their respective successors and assigns. -4- 8. No Waiver. Failure by either City or Property Owner to enforce any provision under this Agreement shall not be deemed a waiver of any rights or remedies with respect to such breach or any future breach of the same. 9. Cumulative Remedies. All rights, options and remedies of City and Property Owner under this Agreement are cumulative, and no one remedy shall be exclusive of any other remedy. City and Property Owner shall have the right to pursue any one or all of such rights, options and remedies or any other remedy or relief which may be provided by law, whether or not stated in this Agreement. 10. Attorneys' Fees. If either City or Property Owner shall bring any judicial action or legal proceeding against the other in connection with the breach or enforcement of this Agreement, the prevailing party shall be entitled to recover from the other party, as part of the judgment, its reasonable attorneys' fees and costs of suit. 11. Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of California. 12. Severability. Invalidation of all or a portion of any provision of this Agreement by judgment or court order shall in no way affect the remaining portion of such provision or any other provision which, to the extent possible, shall remain in full force and effect. 13. Recitals. The Recitals set forth above are true and correct, and are incorporated into the body of this Agreement as though set forth herein. 14. Amendment. This Agreement constitutes the entire agreement between City and Property Owner regarding the easement granted herein. This Agreement shall not be amended except by written agreement executed by City and Property Owner. 15. No Third Party Beneficiaries. There are no third party beneficiaries of this Agreement, and nothing in this Agreement shall affect any contractual rights or obligations as between City or Property Owner and any third parties. [Signatures Appear on Following Page] -5- IN WITNESS WHEREOF, City and Property Owner have executed this Agreement as of the date first set forth above. CITY: CITY OF GILROY, a municipal corporation of the State of California By: ATTEST: By: APPROVED AS TO FORM: By: PROPERTY OWNER: HECKER PASS COMMERCIAL, LLC, a California limited Liability company By: Name: Its: e t-3(E---k'/4'1( -6- A Notary Public or other officer completing this certificate verifies only the identity ofthe 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 Cmc,,n C 1Gt ss. On SI 201 61 , before me, \ 1l ( G , Notary Public, personally appeared Chg r r }a . ,5 , Yin , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to t1% 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. (Seal) NELLIE G. GARCIA Notary Public - California San Benito County Commission # 2197041 My Comm. Expires May 13, 2021 A Notary Public or other officer completing this certificate verifies only the identity ofthe 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 ss. On , before me, , Notary Public, personally appeared , 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. (Seal) (Signature) -7- CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 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 SM-til C1aO. On •e.Nocuccrik a*\�l�\ before me, S' 2JnYIe_ a\Y2 eicttf N (krttp,bk1('� Date 11 Here Insert Name and Title of Officer personally appeared 1\OflalFDfb Name(s) of Signer(s) 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. SUZANNE GUZZETTA Notary Public - California Santa Clara County Commission # 2281205 My Comm. Expires Apr 12, 2023 Place Notary Seal and/or Stamp Above 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 sea Signature OPTIONAL nature of Notary Public Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: -e. tYrQ{ QY1c \LP11(;Xt\ 4 r'pnl o- Pam Amtiarc(01 Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — 0 Limited 0 General ❑ Individual ❑ Trustee ❑ Other: O Attorney in Fact O Guardian or Conservator Signer is Representing: Signer's Name: O Corporate Officer — Title(s): ❑ Partner — 0 Limited ❑ General O Individual 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator O Other: Signer is Representing: ©2018 National Notary Association EXHIBIT A [Legal Description of Property and Easement Area] [To Be Attached] -8- "EXHIBIT A" LEGAL DESCRIPTION For A 20' PUBLIC TRAIL EASEMENT All that real property situated in the City of Gilroy, County of Santa Clara, State of California, being a portion of "Parcel 1" as shown on the Parcel Map filed September 28, 1976 in Book 380 of Maps, at Page 42, Records of Santa Clara County, California, being more particularly described as follows: Commencing at a point on the centerline of Hecker Pass Highway, said point being the northeast corner of "Parcel 1" as shown on said Parcel Map; thence along the east line of said "Parcel 1", S00°39'40"E, a distance of 48.02 feet to the Point of Beginning; thence continuing along said east line, S00°39'40"E, a distance of 20.01 feet; thence leaving said east line, N88°59'33"W, a distance of 122.18 feet to a tangent curve to the right having a radius of 50.00 feet; thence westerly along said curve, through a central angle of 27°26'21", a distance of 23.95 feet to a reverse curve to the left having a radius of 30.00 feet; thence westerly along said curve, through a central angle of 27°26'21", a distance of 14.37 feet; thence N88°59'33"W, a distance of 137.43 feet to a tangent curve to the left having a radius of 990.00 feet; thence westerly along said curve, through a central angle of 05°26'52", a distance of 94.13 feet; thence S85°33'35"W, a distance of 251.02 feet to a tangent curve to the left having a radius of 190.00 feet; thence westerly along said curve, through a central angle of 08°54'47", a distance of 29.56 feet to the west line of said "Parcel 1"; thence along said west line, N01°01'40"W, a distance of 20.43 feet to the beginning of a non -tangent curve to the right, from which the radius point bears S12°09'49"E, a radial distance of 210.00 feet; thence leaving said west line, easterly along said curve, through a central angle of 07°43'24", a distance of 28.31 feet; thence N85°33'35"E, a distance of 251.02 feet to a tangent curve to the right having a radius of 1,010.00 feet; thence easterly along said curve, through a central angle of 05°26'52", a distance of 96.03 feet; thence S88°59'33"E, a distance of 137.43 feet to a tangent curve to the right having a radius of 50.00 feet; thence easterly along said curve, through a central angle of 27°26'21", a distance of 23.95 feet to a reverse curve to the left having a radius of 30.00 feet; thence easterly along said curve, through a central angle of 27°26'21", a distance of 14.37 feet; thence S88°59'33"E, a distance of 121.60 feet to the Point of Beginning. Containing 13,453 square feet, more or less. As shown on "Exhibit B", attached hereto and made a part hereof. END OF DESCRIPTION. This description was prepared by me or under my direction pursuant to the requirements of the Professional Land Surveyor's Act. ©c/3/2©/6- Bryfi Pierce, PLS 8859 Date Expires: 12/31/2019 Page 1 of 1 EXHIBIT B [Plat Map of Easement Area] [To Be Attached] -9- (R) (T) POB POC LEGEND BOUNDARY LINE CENTERLINE EXISTING LOT LINE EXISTING EASEMENT LINE NEW EASEMENT LINE RADIAL BEARING TOTAL POINT OF BEGINNING POINT OF COMMENCEMENT 0 0bi / / by GAO / �ti�' / 4 4 �000 / / / ,•0 ti�c100b // // 4ci" CS`' �tio / / �. /N / r) /\O\' Fq,s, , , /; / ti� F'tc" 6ltc /43 /,.F, /i7^) /'4) / �cb /h4j ti• , Q co .A-9 . as � �9 •6\ /J 0 4 u' o'�Op�P -��,A)cr! Off/ sro, 'yp40 4/6 /o%�• Rusv / '�� //\ `Y p-9 .Us?'` CURVE TABLE CURVE LENGTH RADIUS DELTA C1 23.95' 50.00' 027'26'21" C2 14.37' 30.00' 027°26'21" C3 94.13' 990.00' 005°26'52" C4 29.56' 190.00' 008°54'47" C5 28.31' 210.00' 007'43'24" C6 96.03' 1010.00' 005°26'52" C7 23.95' 50.00' 027°26'21" C8 14.37' 30.00' 027'26'21" 80 160 240 SCALE IN FEET: 1 "= 80' "EXHIBIT B" PLAT TO ACCOMPANY DESCRIPTION FOR A PUBLIC TRAIL EASEMENT BEING A PORTION OF "PARCEL 1" AS SHOWN ON THE PARCEL MAP FILED SEPTEMBER 28, 1976 IN BOOK 380 OF MAPS AT PAGE 42, RECORDS OF SANTA CLARA COUNTY, CALIFORNIA SHEET 1 OF 1 A`/i t RUGGERI-JENSEN-AZAR ENGINEERS • PLANNERS • SURVEYORS 8055 CAMINO ARROYO GILROY, 95020 PHONE; (408) 848-0300 FAX: 8) 848--0302 GILROY, CALIFORNIA SCALE: 1 "= 80' DATE: 02/16/2018 JOB NO.: 994001 CERTIFICATE OF ACCEPTANCE (Government Code Section 27281) Certificate of Acceptance of Conveyance to the City of Gilroy by HECKER PASS COMMERCIAL, LLC a California limited liability Company This is to certify that the interest in real property conveyed by the grant of easement dated February 24, 2021, from HECKER PASS COMMERCIAL, LLC, a California limited liability Company, to the City of Gilroy, a municipal corporation of the State of California, is hereby accepted by the undersigned officer or agent on behalf of the City of Gilroy pursuant to authority conferred by Resolution No. 2015-55 of the City of Gilroy adopted October 26, 2015, a certified copy of which resolution is on record in the office of the County Recorder of the County of Santa Clara, State of California, document #23133758, dated November 3, 2015, and the grantee consents to recordation thereof by its duly authorized officer. In witness whereof, I have hereunto set my hand on Zhu day of MarGll , Z.041 By: 4, Karl Bjar Interim Public Works Director