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CC SR 20151215 E - Temp Easement Sunnyside Ridge TrailCrTYOF RANCHO PALOS VERDES MEMORANDUM TO: FROM: DATE: HONORABLE MAYOR & CITY COUNCIL MEMBERS MICHAEL THRONE, DIRECTOR OF PUBLIC WORKS #)) DECEMBER 15, 2015 SUBJECT: APPROVE DESIGN CHANGES AND TEMPORARY CONSTRUCTION EASEMENT RELATED TO CONSTRUCTION OF THE SUNNYSIDE RIDGE TRAIL SEGMENT PROJECT (SUPPORTS 2014 CITY COUNCIL GOAL #2, INFRASTRUCTURE) DOUG WILLMORE, CITY MANAGER ~ Andy Winje, Senior Engineer ~ REVIEWED: Project Manager: RECOMMENDATION 1. Approve revisions to the project design relocating the easterly retaining wall off private property and onto the public trail easement. 2. Approve a temporary construction easement with the property owner at 2443 Sunnyside Ridge Road to provide access to construct a portion of the project from his property and to make provision for a privacy fence to protect his back yard . 3. Authorize execution of the easement by the City Manager pending final approval as to form by the City Attorney. FISCAL IMPACT No new funding is requested at this time. However, the change in design will necessitate a change order to the project that may impact project cost. At this time we expect the impact will be less than funds available from the project contingency previously authorized. If it becomes apparent the total contingency will be exceeded, Staff will return for additional funding authorization. Budgeted Amount: Encumbered to Date: Contingency Fund Balance $ 465,000 $ 431,314 $ 30,000 $ 3,686 1 Design Modification and Construction Easement for SunnysideRidge Trail Project December 15, 2015 Page 2 of 3 Account Number(s): 330-3033-461-73-00 EXECUTIVE SUMMARY The change to the design of the project is required in response to the direction given by City Council to construct the easterly retaining wall on the City's trail easement and off the property at 2443 Sunnyside Ridge Road. As a result the usable trail width will be reduced by about two feet. The Temporary Construction Easement is necessary to allow the City to enter private property at 2443 Sunnyside Ridge Road to construct the wall. No part of the wall is on private property, but the layout of the site requires some activity on the private property during construction. The property owner has not objected to the temporary easement. In addition, the Temporary Construction Easement includes provision of a permanent privacy fence to protect the property owner from trespassers. The costs of the fence will be shared by the City and the property owner. BACKGROUND On July 7, 2015 the City Council approved the design of the project (including this wall) and authorized the advertisement for construction bids. A construction contract was awarded by City Council on November 4, 2015 that included this particular wall along the boundary of the trail easement at this location. A discussion of the need for a temporary agreement was included in the November 4, 2015 staff report; however, the details of that agreement had not yet been finalized. On December 1, 2015, due to difficulties arising from future maintenance of the wall, the City Council directed staff to modify the design of the project to eliminate the difficulties related to responsibility for wall maintenance by relocating the wall inside the easement. In addition, on July 15, 2014, the City Council provided direction to Public Works to provide solutions to neighborhood concerns regarding privacy, trespassing and security, including the use of City funds if necessary. Subsequently, a privacy fence was found to be a satisfactory resolution to the private property owner's concerns. DISCUSSION The redesigned wall will be aligned along and immediately adjacent to the property line with 2443 Sunnyside Ridge Trail Road while staying within the trail easement. The temporary construction easement provides temporary permission for the City to enter private property for the purpose of building the wall. This is necessary for footing excavation, form setting, wall construction, and applying the stucco finish. The access portion of the easement will expire at the conclusion of the project. Ownership of the new wall and maintenance responsibility for it will remain with the City, along with the balance of the project improvements. The details of the easement are settled in concept and the final language is being worked out between the parties. The final easement is expected to be presented with late correspondence for this item. However, staff is asking the City Council to authorize the City Manager to execute the final easement, after the approval in form by the City 2 Design Modification and Construction Easement for SunnysideRidge Trail Project December 15, 2015 Page 3 of 3 Attorney, in the event the final language is not available at the time of this meeting. The provision of the privacy fence was negotiated in response to the City Council's prior direction to Staff (July 15, 2014) to find solutions that address neighborhood concerns, including the potential expenditure of City funds. The privacy fence is not included in the formal project plans and will be built by a contractor selected by the property owner. Staff is proposing to reimburse the property owner $6,500 (roughly half of the estimates received) after the fence is installed utilizing funds authorized for project contingencies. CONCLUSION Adopting Staff's recommendations will authorize the City Manager and City Clerk to execute a Temporary Construction Easement to complete the Sunnyside Ridge Trail Project and address a neighborhood safety and security concerns without an additional funding authorization. Attachments Temporary Construction Easement (page 4) 3 TEMPORARY CONSTRUCTION EASEMENT CONFERRING PERMISSION TO ENTER PRIVATE PROPERTY FOR THE PURPOSE OF DEMOLITION OF AN EXISTING WALL AND INSTALLATION OF A NEW RETAINING WALL AND OTHER RELATED WORK This Temporary Construction Easement is dated for reference December 15, 2015, and is made by and between the City of Rancho Palo Verdes, a California municipal corporation (hereinafter referred to as "Grantee") and John J. Degirolamo, an individual (hereinafter referred to as "Grantor"). RECITALS WHEREAS, Grantor is the record owner of that certain real property described as Los Angeles County Assessor's Parcel No. 7554-011-001, located at 2443 Sunnyside Ridge Road, Rancho Palos Verdes, California (hereinafter referred to as "the Property"); and WHEREAS, Grantee intends to improve the public trail located adjacent to the Property, which project is known as the Sunnyside Ridge Trail Segment Project (the "Project"); and WHEREAS, Grantee seeks to perform certain work on the Project at its own cost and expense using a state licensed and properly insured general contractor, which will benefit adjacent residential properties, including the Property, and the City's trail network; and WHEREAS, the Project includes the construction of a trail and retaining wall (hereinafter referred to as "the Work") adjacent to the Property, along the southwesterly 60 feet (approximate) of the Property's westerly property line; and WHEREAS, the Work is located immediately adjacent to the Grantor's property and will require some construction activity on the Property. The Grantee and the Grantor desire to enter into this Agreement to establish entry permission to construct the Work. NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows: 1. TEMPORARY EASEMENT Permission for Entry. Grantor by this instrument grants to Grantee, and to Grantee's agents, permittees, and employees, including Grantee's contractors, the temporary right, privilege, and permission to enter the Property from the future trail, for the sole and exclusive purpose to perform demolition of an existing wall owned by Grantor, preparation of site, and installation of a new trail and retaining wall adjacent to the Property (the "Work"). The Work will include, but may not be limited to, clearing trees and interfering brush in the vicinity of the Work, demolition of portions of an 01203.0006/277770.1 4 existing block wall, regrading in the vicinity of the new wall, construction of a masonry and concrete pilaster, retaining wall and railing per Project plans. In connection with conducting the construction, Grantor hereby agrees that Grantee and its agents may bring onto the Property such equipment as may be reasonably necessary to conduct the construction. Hours of Construction. Unless other mutually agreed upon arrangements are made, Grantee and its agents, permittees, employees and contractors shall perform the construction between 8 a.m. and 5 p.m., Monday to Friday. Exhibit A, which is attached hereto and incorporated herein by this reference, is a map showing the general area of the Work adjacent to the Property. The portion of the Property onto which Grantee will enter to complete the Work (the "Work Area") is a strip approximately 8-foot wide along the southwesterly 60 feet of the Property's westerly property line. Grantee shall also have the right to erect a temporary fence around the perimeter of the Work Area, within the 8-foot strip. The precise location of the Work is depicted in the construction documents issued for construction of the project, which are on file with the Public Works office of the Grantee and are incorporated herein by reference. Access to the Work via the Grantor's driveway is strictly precluded. Should Grantee access the project through the driveway, Grantee is trespassing and this Agreement will be materially breached. 2. TERM Time is of the essence for the Grantee's contractor, who has 60 working days, weather permitting, to complete the project after the Grantee issues a notice to proceed. The temporary easement created by this Temporary Construction Easement shall expire upon recordation of the Notice of Completion for the Project by Grantee. The obligations set out in Section 3, entitled Liability, shall survive the expiration or termination of this Temporary Construction Easement. 3. LIABILITY Grantee shall exercise the privilege granted in this instrument at Grantee's sole and exclusive risk. Grantee hereby agrees to hold Grantor harmless from any injury or damage suffered by Grantee, its agents, permittees, employees, or contractors on account of the exercise of such privilege. Grantee further agrees to indemnify and defend Grantor against any and all liability for damages and expenses resulting from, arising out of, or in any way connected with, the exercise of this privilege by Grantee, its agents, permittees, employees, or contractors. Grantee further agrees to warrant that the Work will be done in a workmanlike manner and to the standards described in the construction documents. The standard of performance for labor and materials will be secured by a performance bond. If requested by the Grantor the Grantee will provide copies of the performance bond and the contractor's insurance certificates to the Grantor, prior to the commencement of work. 01203.0006/277770.l 5 4. NO RELEASE Notwithstanding any other provision contained, neither the fact of this Temporary Construction Easement nor anything herein shall be construed to release, hold harmless, indemnify or otherwise relieve Grantee of any obligation, responsibility, duty, cost, or obligation respecting the Property and arising under the law, whether known or unknown and including those causes of action that may not yet have arisen. 5. RESTORATION OF PROPERTY At the conclusion of the performance of the Work, Grantee shcill, at its own expense, remove any equipment and excess materials from the Property and restore the Property, to the extent reasonably possible, and to Grantors' reasonable satisfaction, to its original condition at the beginning of the Work. Grantee will secure photo documentation of the potentially impacted areas prior to the beginning of Work. Grantor will identify any areas of special concern prior to the beginning of Work, so that the appropriate standard of care can be taken to protect, preserve or restore these areas. 6. PROVISION OF PRIVACY FENCE Pursuant to the desires of the Grantee and Grantor to maintain the security and privacy of the Grantor upon completion of the Project, Grantor agrees to reimburse Grantee for a share of the costs to install a 6-foot high chain link privacy fence along a portion of the Property's westerly and northerly property lines. Payment shall be processed upon provision of a receipt for the work to install the fence, and shall not exceed $6,500. 7. TERMINATION Grantor acknowledges that Grantee is entering into a public works contract with a contractor to complete the Project, that the Work is a component of the Project, and that this Temporary Construction Easement is required in order to complete the Work. Grantor agrees not to terminate this Temporary Construction Easement, for any reason, unless Grantee is in breach of this Temporary Construction Easement. Grantor may terminate this Grantee Agreement if Grantee is in breach of this Temporary Construction Easement and has failed to correct the breach within fifteen (15) days after written notice from Grantor. 8. MISCELLANEOUS a. Limitations. Grantor does not hereby convey to Grantee any right, title or interest in or to the Property, but merely grants the specific rights and privileges set forth herein. b. Notices. Communication regarding day to day logistics pertaining to the Work shall be handled informally between the Grantor and the Grantee's construction manager. This informal communication may take place in person, by phone or by 6 email. Grantee and Granter shall reply to concerns from the other party as quickly as possible but not less than 24-hours after the informal communication is received. If the 24-hour period is exceeded parties may proceed with more formal communication as follows. Whenever any notice, demand, or request is delivered under or in connection with this Temporary Construction Easement, such notice, demand, or request shall be in writing and shall be delivered by hand; registered or certified mail, postage prepaid, return receipt requested; or nationally recognized commercial courier for next business day delivery, to the addresses set forth below the respective executions of the parties hereof, or to such other addresses as are specified by written notice given in accordance herewith. All notices, demands, or requests delivered by hand shall be deemed given upon the date so delivered; those given by mailing as hereinabove provided shall be deemed given on the date of deposit in the United States Mail; those given by commercial courier as hereinabove provided shall be deemed given on the date that is one (1) day after deposit with the commercial courier. Any notice, demand, or request not received because of changed address of which no notice was given as hereinabove provided or because of refusal to accept delivery shall be deemed received by the party to whom addressed on the date of hand delivery, on the date of facsimile transmittal, on the first calendar day after deposit with commercial courier, or on the third calendar day following deposit in the United States Mail, as the case may be. c. Governing Law. This Temporary Construction Easement shall be construed, enforced and interpreted in accordance with the laws of the State of California, excluding California's choice of law rules. Venue for any lawsuit regarding this License shall be in Los Angeles County. d. Counterparts. This Temporary Construction Easement may be executed in several counterparts, each of which shall be deemed an original, and all of such counterparts together shall constitute one and the same instrument. e. Compliance with Law. All of the Work shall be performed in compliance with applicable law. IN WITNESS OF THIS AGREEMENT, THE PARTIES HAVE EXECUTED THIS AGREEMENT BY AFFIXING THEIR SIGNATURES BELOW: CITY OF RANCHO PALOS VERDES By:~~~~~~~~~~~~ Doug Willmore, City Manager Date: ~~~~~~~~~~~ PROPERTY OWNER By: ~~~~~~~~~~~~ John J. Degirolamo, Owner Date: 7 01203.0006/277770.1 EXHIBIT A WORK AREA 8