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CITY OF MOORPARK
AGENDA REPORT BY: N`9J- c>�_
TO: Honorable Mayor and City Council
From: Hugh R. Riley, Assistant City Manager
DATE: December 7 2001 (Meeting of 12/19/01)
SUBJECT: Consider Approval of Easement Agreement For the
Granite Fountain Project at the Northwest Corner
of Tierra Rejada and Mountain Trail and The
Dedication of the 'Public Art Site to the Victims
and Heroes of The September 11 Terrorist Attacks
On the United States .
BACKGROUND:
On October 3 , 2001 the City Council approved the
construction of an artistic granite fountain/waterscape
presentation at southwest corner of Tierra Rejada and
Mountain Trail (Mountain Meadows Plaza) as a part of the
City' s Art In Public Places Program. The Art has been
commissioned to Rock Designs Pools and Waterscapes Inc .
Staff has prepared an Easement Agreement between the City
and the Owner of the property, Moorpark Properties, LLC.
The Agreement includes the terms and conditions whereby the
owner of the property will allow the construction of the
fountain including the city' s responsibility for the
maintenance and upkeep of the project and the assumption of
liability for the property and improvements involved.
At the City Council ' s regular meeting of December 5 , 2001,
Mayor Pro Tem Harper requested that the City Council
consider the dedication of the project to the Victims and
Heroes of the September 11 Terrorists attacks against the
United States . Notice of this dedication could be
acknowledged in the form of a dedication plaque to be
placed at a prominent location at the site .
City Council Agenda Report
Easement Agreement for Public Art
December 7, 2001
Page 2
RECOMMENDATION:
1 . Approve the Easement Agreement with Moorpark Partners,
LLC. Subject to final language approval by the City
Manager and City Attorney.
2 . Direct Staff to develop the appropriate September 11,
2001 dedication message for review by the City
Council .
Attachments : Easement Agreement
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RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
Moorpark Partners,LLC
Attn: Daniel D. Alessio
4365 Executive Drive, Ste. 250
San Diego,CA 92121
(Space Above This Line For Recorder's Use)
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT ("Agreement") is made as of , 2001, between
Moorpark Partners, LLC, a California limited liability company ("Grantor"), and the City of Moorpark
("Grantee"),who agree as follows:
1. RECITALS. This Agreement is made with reference to the following facts and
circumstances:
a. Grantor is the owner of that certain real property located in the City of Moorpark,
County of Ventura, State of California which is described on Exhibit "A" attached hereto and incorporated
herein by this reference("Grantor Property").
b. By execution of this Agreement, Grantor shall grant to Grantee an easement as
described below.
2. GRANT OF EASEMENT. Grantor hereby grants to Grantee a non-exclusive easement
("Easement") to install and maintain a fountain as described on Exhibit "B" attached hereto and
incorporated herein by this reference ("Fountain"). The portion of the Grantor Property containing the
Easement shall be referred to hereinafter as the "Easement Property." Grantor shall have the right to
reasonably approve of the plans and specifications for the Fountain and any changes with regard thereto.
3. NON-EXCLUSIVE RIGHT. The Easement granted to Grantee is non-exclusive and
Grantor reserves the right to use the Easement Property in any manner not inconsistent with the rights
granted herein.
4. USE OF EASEMENT. Subject to the terms and provisions of this Agreement, Grantee
shall have the right to use the Easement in accordance with the terms of the grant set forth in Paragraph 2
above, for itself and its respective invitees and licensees.
5. RESTRICTIONS. Grantee, on behalf of itself and its successors and assigns, agrees any
structural improvements on the portion of the Easement Property (i) shall comply with all existing laws,
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rules, ordinances, regulations and matters of record, (ii) shall not exceed ten (10) feet in height, and (iii)
shall not in any way restrict the visibility from the streets surrounding the Grantor Property to the buildings
or signage on the Grantor Property.
6. MAINTENANCE, INSURANCE AND TAX OBLIGATIONS.
a. Grantee shall be responsible for the continuing maintenance, repair, replacement
and preservation of Easement Property and the Fountain in first class condition and repair; Grantee shall be
solely responsible for repairing any damage caused by the use of Grantee or its invitees or licensees of the
Easement and shall indemnify, defend, hold the Grantor Property, Grantor, and Grantor's assigns, affiliates,
managers, employees, tenants and invitees harmless from and against any and all claims, demands, actions,
causes of action, losses, liabilities, and expenses (including without limitation, attorneys fees and costs)
arising from the use of the Easement Property. In the event that Grantee fails to perform any such
maintenance, Grantor may perform such maintenance on behalf of Grantee in which event Grantee shall pay
to Grantor the costs of such maintenance with interest at the maximum rate allowable under law.
b. Grantee shall obtain casualty and public liability insurance, naming Grantor as an
additional insured, covering the Easement with a minimum coverage of at least Five Million Dollars
($5,000,000) and with such deductibles as Grantee deems appropriate from time to time. The deductible
amounts, if any, with respect to insurance which Grantee is required to maintain hereunder shall not exceed
Five Thousand Dollars ($5,000) per claim or occurrence. All insurance which Grantee is required to
maintain hereunder shall be on an occurrence basis and shall be with financially responsible insurance
companies with a Best's rating of A:X or better and which companies shall be subject to the reasonable
approval of Grantor. Grantee shall deliver to Grantor prior to entry on the Easement Property certificates of
insurance evidencing the existence and amount of such insurance, and showing Grantor as a named insured.
No such policy shall be cancelable, or subject to reduction of coverage or other modification except after
thirty (30) days prior written notice to Grantor by the insurer. All such policies shall be written as primary
policies, not contributing with and not in excess of coverage which Grantor may carry. Alternatively, the
City may self-insure to satisfy the above obligation
7. RECORDATION OF GRANT. Upon execution, an executed copy of this
Agreement shall be recorded in the official records of the Ventura County Recorder. In the event
Grantee fails to comply with all the provisions of this Agreement, upon Grantor's written notice
to Grantee, Grantee's rights hereunder shall terminate. In the event Grantee fails to comply with
all the provisions of this Agreement, Grantee shall correct any such failure within ten (10) days
of receipt of written notice of such failure from Grantor. If Grantee does not correct such failure
within (10) days, or if such cure cannot be accomplished within ten (10) days, commence cure
within ten (10) days and thereafter diligently pursue such cure to completion, Grantor may
terminate this Agreement and all of Grantee's rights hereunder upon written notice of such
termination.
8. SUCCESSORS AND ASSIGNS; COVENANT RUNNING WITH THE LAND. All of the
provisions, rights, covenants and obligations of this Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective heirs, successors (by merger, consolidation or otherwise),
assigns,devisees,administrators,representatives,and lessees.
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9. NOTICES. Any notice which a party is required or may desire to give the other shall be in writing
and may be sent by personal delivery or by mail (either [1] by United States registered or certified mail,
return receipt requested, postage prepaid, or [ii] by Federal Express or similar generally recognized
overnight carrier regularly providing proof of delivery), addressed as follows (subject to the right of a party
to designate a different address for itself by notice similarly given):
To Grantor: Moorpark,Partners, LLC
Attn: Daniel D. Alessio
4365 Executive Dr., Ste. 250
San Diego,California
To Grantee: The City of Moorpark
Attn: City Manager
799 Moorpark Avenue
Moorpark, CA 93021
My notice so given by mail shall be deemed to have been given as the date of delivery (whether
accepted or refused) established by U.S. Post Office return receipt or the overnight carrier's proof of
delivery, as the case may be. Any such notice not so given shall be deemed given upon receipt of the
same by the party to whom the same is to be given. Any notice not given in the manner prescribed above
shall nevertheless be deemed given upon proof of receipt of actual notice.
10. CONSTRUCTION. This Agreement shall be construed as a whole in accordance with its
fair meaning and not for or against any party. The parties agree that neither Civil Code section 1654 nor any
similar common law principle shall govern the interpretation of this Grant. Headings in this Agreement are
for convenience only and shall not be used in construing meaning.
11. ATTORNEYS' FEES AND COSTS. Should any party hereto institute any action or
proceeding in court to enforce any provision hereof,the prevailing party shall be entitled to receive from the
losing party such amount as the court or arbitrator, if any, may judge to be reasonable attorneys' fees and
costs for the services rendered to the prevailing party whether or not such costs are specifically enumerated
in Code of Civil Procedure section 1033.5 and whether or not such action or proceeding proceeds to
judgment.
12. COUNTERPARTS. This Agreement may be executed in one or more counterparts, all of
which when taken together shall constitute one original document.
GRANTOR:
Moorpark Partners, LLC,
a'California limited liability company
By: Alessio Holdings, LLC
a California limited liability company
(Manager)
By:
Daniel D. Alessio,Managing Member
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GRANTEE:
City of Moorpark
Steven Kueny,City Manager
ATTEST:
Deborah S.Traffenstedt,City Clerk
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STATE OF CALIFORNIA
)ss.
COUNTY OF )
On , 200_, before me, the undersigned Notary Public, personally appeared
, personally known to me (or proved to me on the basis of satisfactory
evidence)to be the persons whose names are subscribed to in this instrument; and acknowledged to me that
they executed the same in their authorized capacities, and that by their signatures on the instrument the
persons,or the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said County and State
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EXHIBIT "A"
Grantor Property
[to be attached]
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EXHIBIT"B"
Easement Property
[to be attached]
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