HomeMy WebLinkAboutWooldridge, Thomas H. and Lynn K. - McDonald's Corporation 2015-05-280 0 tit. t LI 15 - ';Z CCI
THISDOCUMENTISNOT TO BE RECORDED PORANYPU.RPOSE
UEIAH, CA
115 N. Orchard Avenue
L/C: 004-0351; File 02214
TEMPORARY CONSTRUCTION EASEMENT
AND CITY'S WORK AGREEMENT
This Temporary Construction Easement and City's Work Agreement ("Agreement") is
dated as of the .2? 1 *" day of May, 2015, and is made by and between Thomas H.
Wooldridge and Lynn K. Wooldridge (collectively, "Wooldridge"), McDonald's Corporation, a
Delaware corporation ("McDonald's") and City of Ukiah Electric Utility Division (the
"City"). Collectively, City, Wooldridge and McDonald's may be referred to herein as "the
Parties."
RECITALS
A. Wooldridge is the owner of the property legally described on Exhibit A attached (the
"Property").
B. McDonald's is the lessee of the Property.
C. City has requested and Wooldridge and McDonald's have agreed to grant and convey
a temporary construction easement upon, over, and across portions of the Property, as
legally described on Exhibit B attached, and as further depicted on Exhibit C attached
(known as the "Construction Easement -Area") for the purpose of performing City's Work as
more specifically defined in Section 3 of this Agreement.
D. The City has an existing Public Utility Easement dated August 21, 2013 and
recorded on September 5, 2013 as Document Number 2013-13818 with the Mendocino
County Clerk (the "PUE") that is contiguous to the west side of the Construction Easement
Area as depicted on the attached Exhibit C.
Now, therefore, in consideration of the mutual covenants set forth in this Agreement,
and other valuable consideration, the receipt and sufficiency of which are acknowledged,
Wooldridge, McDonald's and City agree as follows:
1. Recitals. The Recitals above are incorporated by this reference as agreements of the
parties, binding as a part of this Agreement as if fully set forth in this Section 1.
2. Grant of Temporary Construction Easement. Wooldridge and McDonald's grant and
convey to City a non-exclusive temporary construction easement (the "Temporary
Construction Easement"), subject to matters of record and that a survey would reveal,
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upon, over, and across the Construction Easement Area for the purpose of performing City's
Work.
3. City's Work. City will perform the following work within the Temporary
Construction Easement Area:
The temporary placement of personnel, equipment or materials as required to install
two (2) temporary power poles which are four (4) square feet each and buried
approximately 6' into the ground within the PUE in the locations depicted on the
attached Exhibit C to provide a temporary alternative power source to the McDonald's
restaurant located at 115 N. Orchard Avenue during the Perkins Street Underground
Project, including any restoration work required to be performed by City pursuant to
Section 5f (collectively, "City's Work")
4. Term. This Temporary Construction Easement will commence upon final execution
of this Agreement and will automatically expire and terminate upon the earlier to occur of
(i) November 30, 2015 or (ii) the date upon which City's Work is completed (the ,Term,,).
5. City's Work and Use of Construction Easement Area
a. City's Covenants and Warranties. City covenants and warrants as follows: (i)
that it will secure and to provide copies to Wooldridge and McDonald's of all necessary
governmental and third party permits and approvals to undertake and complete City's
Work; (ii) that it will perform City's Work at its sole cost and expense, and in a professional,
good and workmanlike manner in conformance with customary engineering and
construction practices, and in compliance with all applicable regulations and any
agreements of record affecting the Property. In addition, City will give McDonald's written
notice pursuant to Section 10 of the date upon which City intends to commence City's Work
at least 10 days prior to the commencement of City's Work.
b. No City Interference. City will perform City's Work in such a manner so as to not
unreasonably affect the visibility of or access to the Property, or unreasonably adversely
affect the business and operation on the Property, including without limitation, its drive-
thru operation. City will not interfere with any utility lines, facilities, or easements within
the Construction Easement Area or elsewhere on the Property, except for the electric lines
which are being temporarily redirected during City's Work. City will separate the
Construction Easement Area by cones or by other appropriate construction safety barriers
while City performs City's Work, and will not block or interfere with the access drives or
drive-thru lanes on the Property.
c. No City Storage. City will not park on or store any construction vehicles,
equipment or materials on the Construction Easement Area in a manner or at times that
unreasonably disrupt McDonald's business operations. City will not move, remove, or
demolish any of McDonald's signs, access drives, curbing, or other improvements located
within the Construction Easement Area, except as unavoidably necessary to perform the
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Work in compliance with applicable laws, including laws protecting worker safety and the
general public, and subject to City's restoration obligations set forth in Section 5f.
d. No City Liens. City will perform all of City's Work at its sole cost and expense,
and will not allow any mechanics' or other lien to be placed on the Property. If any lien
arises, City will fully discharge the lien at its expense no later than 15 days after the lien is
filed and will promptly send written notice to Wooldridge and McDonald's, along with a
copy of the recorded release or other proof in a form acceptable to Wooldridge and
McDonald's that the lien was discharged.
e. No Hazardous Substances. City agrees that it will not bring any hazardous
substances in, on or under the Construction Easement Area or the Property, or cause any
release of hazardous substances in, on, under or from the Construction Easement Area or
the Property. City further represents that if it introduces, releases, contacts or discovers
any hazardous substances on, above, or below the Construction Easement Area or the
Property in connection with its activities, it will promptly notify Wooldridge and
McDonald's.
f. Restoration of Property. City covenants and agrees to (i) restore, immediately
after City completes City's Work and prior to the expiration or earlier termination of this
Agreement, the Construction Easement Area to the same or better condition as it existed
before City began City's Work, and to a safe condition, and (ii) remove all of its equipment,
materials, tools, trash and debris from the Construction Easement Area. City will repair
any damage that occurs to the Construction Easement Area or to the Property which was
caused by the City Work or the acts or omissions of the City or its contractors or
subcontactors.
6. Indemnification. The City will indemnify Wooldridge and McDonald's and its
affiliates, and their respective lessees, franchisees, licensees, employees, agents, personal
representatives, contractors, and any of their respective successors and assigns
(collectively, the "Grantor's Parties") for any damage to the Construction Easement Area or
the Property or any person or property caused by the negligence or other wrongful conduct
by the City, or its consultants, contractors or subcontractors while performing pursuant to
this Agreement. The City will indemnify and defend Wooldridge and McDonald's against
any claim by a third party, including employees of the City or its consultants, contractors or
subcontractors against Wooldridge and McDonald's for damages or personal injuries,
including death, which damages are proximately caused by the negligent or willfully
wrongful act or omission of City, its contractors, subcontractors or consultants in
performing under this Agreement. This indemnification shall include subrogation actions
initiated by City or City's Workers' compensation insurance carrier, and for any other
matter based on City's Workers' compensation insurance, any actual or alleged violation of
applicable laws, regulations, ordinances, administrative orders or rules and the entry upon
and/or use of the Property outside the PUE or the Construction Easement Area by City
and/or City's consultants, contractors or subcontractors..
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7. Release. City will enter upon the Construction Easement Area and conduct City's
Work at its sole risk, cost and expense. City agrees and acknowledges that Wooldridge and
McDonald's make no representations or warranties as to the condition of the Construction
Easement Area or the Property.
8. Insurance.
(a) The City shall maintain coverage under the Memorandum of Coverage from the
Redwood Empire Municipal Insurance Fund C REMIF").
(b) As to the REMIF coverage, McDonald's Corporation, Thomas H. Wooldridge and
Lynn K. Wooldridge, Robert Mendes (the McDonald's restaurant store owner/operator), and
their respective successors and assigns will be named as additional insureds as their
interests may appear. These policies will be primary insurance for all additional insureds.
All policies will be endorsed to provide a waiver of rights of subrogation in favor of the
additional insureds. Before commencing City's Work or entering upon the Construction
Easement Area, City will furnish evidence to McDonald's of the required insurance in the
form of certificates of insurance.
(c) City will neither allow the required insurance coverages to lapse, nor decrease
the insurance coverage to levels below those required under this Section 8.
9. Default.
If there is a failure by City to perform, fulfill or observe any agreement or obligation
contained within this Agreement, to be performed, fulfilled or observed by it which failure
is not cured within 15 days after written notice from Wooldridge or McDonald's, or
immediately after notice from Wooldridge or McDonald's, in situations involving potential
danger to the health or safety of persons in, on or about the Construction Easement Area or
the Property, or substantial deterioration of the Construction Easement Area or the
Property, then Wooldridge and McDonald's will be entitled to: (1) terminate this
Agreement; (2) seek specific performance; (3) exercise any other remedies available at law
or in equity against City and/or Grantee's Parties; and/or (4) cure such failure or breach on
behalf of City and collect without contest from City, upon delivery of an invoice, the actual
costs for the cure. The exercise of any or all remedies in this Section will not preclude the
exercise of any other remedies.
10. Notice. All notices under this Agreement will be in writing and sent by U.S.
certified mail return receipt requested or nationally recognized overnight courier. If
intended for City, the notice will be sent to City of Ukiah, Electric Utility Division, 300
Seminary Avenue, Ukiah, CA 95482, Attention: Tim Santos, and if intended for
McDonald's, the notice will be sent to One McDonald's Plaza, Oak Brook, Illinois 60523,
Attn: Director, U.S. Legal Dept. #091, L/C: 004-0351 with a copy to McDonald's USA, LLC,
2999 Oak Road, Suite 900, Walnut Creek, CA 94597; L/C: 004-0351, Attn: Glenda
Hollenbeck, and if intended for Wooldridge, the notice will be sent to 281 Mercedes Lane,
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Arroyo Grande, CA 93420. Any party may lodge a change of address by sending notice of
such change to the other party in the manner provided under this Section. Each notice will
be deemed to have been given at the time it is deposited in the United States Mail or with
the overnight courier.
11. Survival of Obligations. City's obligations under this Agreement will survive the
expiration or earlier termination of this Agreement.
12. No Expense. Neither Wooldridge nor McDonald's nor Grantor's Parties are required
to perform any activity or incur any expense for any purpose under this Agreement, except
as otherwise expressly stated in this Agreement.
13. Captions. Captions to the sections in this Agreement are included for convenience
only and do not modify any of the terms of this Agreement.
14. Binding Effect. The easement and the rights and obligations granted herein will run
with and bind the Property for the Term, and will inure to the benefit of and bind City and
its successors, assigns, agents, employees, contractors, subcontractors and personal
representatives during the Term.
15. Severability. if any one or more of the provisions set forth in this Agreement is held
to be invalid, illegal, or unenforceable in any respect, then such invalidity, illegality, or
unenforceability will not affect any other provision of this Agreement, and this Agreement
will be construed as if such provision never existed.
16. No Waiver. No waiver by Wooldridge and McDonald's of any term, covenant or
condition under this Agreement will be effective or binding upon Wooldridge and
McDonald's unless given in the form of a written instrument signed by Wooldridge and
McDonald's, and no such waiver will be implied from any omission by Wooldridge and
McDonald's to take action with respect to such term, covenant or condition.
17. Waiver of Trial By Jury and consent to venue. Wooldridge McDonald's and City
each knowingly, voluntarily and intelligently waive any rights that it may have to a trial by
jury with respect to any lawsuit based on this Agreement, or arising out of, under, or in
connection with, this Agreement or any course of conduct, course of dealing, statements
(oral or written) or actions of Wooldridge, McDonald's and City respectively in connection
with this Agreement. This provision is a material inducement for Wooldridge, McDonald's
and City, respectively, to enter into this Agreement. The Parties agree to venue in
Mendocino County Superior Court and agree not to seek a change of venue pursuant to Cal.
Code of Civil Procedure Section 394.
18. Authorization to Sign. Wooldridge, McDonald's and City each represent and
warrant that the individual signing this Agreement on their behalf is duly authorized to
enter into this Agreement and to execute and legally bind such party to it.
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19. Anti -Terrorism Representation and Warranty. Wooldridge, McDonald's and City
each represent and warrant that neither they nor the officers and directors controlling
McDonald's and City, respectively, are acting, directly or indirectly, for or on behalf of any
person, group, entity, or nation named by the United States Treasury Department as a
Specially Designated National and Blocked Person, or for or on behalf of any person, group,
entity, or nation designated in Presidential Executive Order 13224 as a person who
commits, threatens to commit or supports terrorism; and that they are not engaged in this
transaction directly or indirectly on behalf of, or facilitating this transaction directly or
indirectly on behalf of, any such person, group, entity or nation. Each party agrees that in
the event of a breach of this provision or any applicable law relating to the subject of this
provision, the non -breaching party may take such action as may be necessary in order to
comply with this provision and/or the applicable law, including, but not limited to,
terminating this Agreement.
20. Counterparts. This Agreement may be executed in separate counterparts, each of
which when so executed and delivered will be deemed to be an original, and all of which,
taken together, will constitute one and the same instrument.
21. Exhibits. This Agreement includes the following Exhibits, which are an integral
part of this Agreement and are fully incorporated by reference:
Exhibit A â Legal Description of the Property
Exhibit B â Legal Description of Construction Easement Area
Exhibit C â Depiction of Construction Easement Area
[SIGNATURE PAGE TO FOLLOW]
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In witness whereof, McDonald's, Wooldridge, and City have caused this Agreement to
be executed on the date first set forth above.
McDONALD'S: CITY:
McDONALD'S CORPORATION, a CITY OF U7KLAH, ELECTRIC UTILITY
Delaware corporation DIVISION
Name: e. a, Awft Na a# -Atm
Its: As-j1GnW 'SE Its '.:.
WOOLDRIDGE:
THOMAS H. WOOLDRIDGE
LYNN K. WOOLDRIDGE
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In witness whereof, McDonald's, Wooldridge, and City have caused this Agreement to
be executed on the date first set forth above.
McDONAIHS: CITY:
McDON 'S RPORATION, a CITY OF UKIAH, ELECTRIC UTILITY
Delaware o o ation DIVISION
S5 By: By:
Name G. i Name:
Its: s Its:
WO GE:
lV1AS H. W O RI GE i
LYNN WO RIDGE
ACKNOWLE EMENTS TO FOLLOW
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EXHIBIT A
Legal Description of the Property
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF UKIAH. COUNTY OF
MENDOCINO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT A 112 INCH PIPE, MARKED LS 3080, SET TO MARK A POINT IN THE RIGHT OF WAY
LINE OF THE CALIFORNIA STATE HIGHWAY, AT THE WESTERLY TERMINUS OF THE COURSE
"SOUTH 74°15'27" WEST, 106.89 FEET", AS DESCRIBED IN THE FINAL ORDER OF
CONDEMNATION, RECORDED FEBRUARY 26, INS IN BOOK 683, OFFICIAL RECORDS, PAGE! 142,
MENDOCINO COUNTY RECORDS, THE SAID POINT BEING 1N THE NORT14ERLY RIGHT OF WAY
LINE OF PERKINS STREET, FROM WHICH POINT ENGINEER'S STATION 24+42,18 BF -ARS NORTH
87030'95" EAST', 531.78 FEET; THENCE FROM SAID POINT OF BEGINNING, ALONG A CURVE TO
THE LEFT, FROM A TANGENT THAT BEARS SOUTH 73'09'10" WEST, WITH A RADIUS OF 270
FEET, A CENTRAL ANGLE OF 1a°50'30", AND AN ARC LENGTH OF 51,09 FEET TOA LEAD PLUG
AND TACE MARKED LS 3069; THENCE ALONG A CURVE TO THE RIGHT FROM A TANGENT THAT
SEARS NORTH SW42`18r' WEST, WITH A RADIUS OF 20 FEET, A CENTRAL. ANGLE OF 82-54136,
AND AN ARC LENGTH OF 26.94 FEET TO A LEAD PLUG AND TAG MARKED LS 3069; THENCE
NORTH 00°4740" WEST, 128.49 FEET TO A If2 INCH PIPE MARKED LS 3W%THENCE
CONTINUING NORTH 00*47,4âŽy, WEST, 69.47 FEET TO A 112 INCH PIPE MARKED LS 3089; THENCE
NORTH 74-16'27"' EAST, 191.05 FEET TO A 112 INCH PIPE MARKED LS 3089 IN THE WESTERLY
RIGHT OF WAY LINE OF THE SAID CALIFORNIA STATE HIGHWAY; THENCE ALONG SAID RIGHT
OF WAY LINE, ALONG A CURVE TO THE LEFT, FROM A TANGENT THAT SEARS SOUTH 22°28`27"
WEST, WITH A RADIUS OF 223 FEET, A CENTRAL ANGLE OF 2900426", AND AN ARC LENGTH OF
113.16 FEET" TO A 112 INCH PIPE MARKED LS 3089; THENCE SOUTH 01°10'46" EAST, 100.17 FEET
TO A 112 INCH PIPE MARKED LS 3089, THENCE SOUTH 74016'27" WEST, 105.89 FEET TO THE
POINT OF BEGINNING.
EKCEPTING THEREFROM ANY PORTION THEREOF CONVEYED .IN THEE_17EED_TO THE_CITY OF
UKIAH. RECORDED OCT013E=R 18, 1972 IN BOOK 903, OFFICIAL RECORDS AT PAGE 430,
MENDOCINO COUNTY RECORDS.
ALSO EXCEPTING THEPWROM ANY PORTION THEREOF CONVEYED IN THE DEED TO THE CITY
OF UICEAH, RECORDED OCTOBER 26, 1976 IN BOOK 1061 OFFICIAL RECORDS AT PAGE 165,
MENDOCINO COUNTY RECORDS.
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