TOWN OF WOODSIDE. Report to Town Council Agenda Item 6 From: Susan George, Town Manager July 26, 2011

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1 TOWN OF WOODSIDE Report to Town Council Agenda Item 6 From: Susan George, Town Manager July 26, 2011 SUBJECT: RESOLUTION APPROVING A HOLD HARMLESS AND INDEMNIFICATION AGREEMENT FOR THE PROPERTY LOCATED AT 503 OLD LA HONDA ROAD (SERRURIER) AND AUTHORIZING THE TOWN MANAGER TO EXECUTE THE AGREEMENT ON BEHALF OF THE TOWN RECOMMENDATION It is recommended that the Town Council adopt the attached resolution, approving a Hold Harmless and Indemnification Agreement, attached to the resolution as Exhibit A, between the Town and the Serruriers, owners of property located at 503 Old La Honda Road. DISCUSSION On June 15, 2011, the Planning Commission approved a lot merger and new residential project at 503 Old La Honda Road, owned by the Serruriers. The Project is to be constructed across an old paper easement established by a 1973 Easement Agreement (amended in 1979). The easement created by that agreement crosses the Property and allows access across the Property to those who reside at 7, 9, and 15 Orchard Hill Road and 485 Old La Honda Road. Although it has existed for decades, this paper easement was never used and an alternative route through the property has been used for over 50 years. Attachments 1 and 2 depict the existing unused easement and the proposed new easement locations, respectively. The Serruriers were advised that in order to proceed with construction of their residential project, they would be required to abandon the paper easement and formalize an easement along the traveled route. The Serruriers and all the involved property owners, except the owner of 15 Orchard Hill Road, have executed a Second Amendment to the Easement Agreement which (1) abandons the paper easement through the Property and (2) dedicates the existing travelled alternative route through the Property as access. The Serruriers plan to record this Second Amendment in the County Recorder s Office of San Mateo County prior to the Town Council s July 26 th meeting. Because the owner at 15 Orchard Hill Road has not, to date, executed the Second Amendment, the Town, in order to allow the Project to proceed, requires the Serruriers to hold the Town harmless and indemnify and defend the Town against any claims brought by the current or future owners of 15 Orchard Hill Road regarding the right to access the paper easement established by the Easement Agreement. The Serruriers attorney and the Town Attorney have both approved the language contained in the attached Agreement. It is staff s recommendation that the Council approve this Agreement and authorize its execution on behalf of the Town by adopting the attached resolution. Attachments Town Council Meeting July 26, 2011 Page 1

2 RESOLUTION NO A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF WOODSIDE APPROVING A HOLD HARMLESS AND INDEMNIFICATION AGREEMENT FOR THE PROPERTY LOCATED AT 503 OLD LA HONDA ROAD (SERRURIER) AND AUTHORIZING THE TOWN MANAGER TO EXECUTE THE AGREEMENT ON BEHALF OF THE TOWN WHEREAS, on June 15, 2011, the Planning Commission approved a lot merger and new residential project at 503 Old La Honda Road, owned by the Gregory and Nancy Serrurier; and WHEREAS, the project is to be constructed in the location of a paper access easement established by a 1973 Easement Agreement; and WHEREAS, this paper easement has never been utilized and access has instead been established across another portion of the Serrurier property; and WHEREAS, the Serruriers were advised by the Town that in order to proceed with construction of their residential project, they would be required to abandon the paper easement and formalize an easement along the traveled route; and WHEREAS, the Serruriers have reached agreement with three of the four involved property owners and have executed the needed amendment to the 1973 Easement Agreement; and WHEREAS, the Serruriers are desirous of starting the construction process for their project prior to obtaining the signature of the fourth involved property owner at 15 Orchard Hill Lane and have agreed to hold the Town harmless and indemnify and defend the Town against any claims brought by the current or future owners of 15 Orchard Hill Road regarding the right to access the paper easement established by the Easement Agreement. NOW, THEREFORE, IT IS HEREBY RESOLVED that the Town Council of the Town of Woodside does hereby approve a Hold Harmless and Indemnification Agreement, attached hereto as Exhibit A, and authorizes the Town Manager to execute the agreement on behalf of the Town. * * * * * * * * * *

3 Passed and adopted by the Town Council of the Town of Woodside, California, at a meeting thereof held on the 26 th of July, 2011, by the following vote of the members thereof: AYES, and in favor thereof, Councilmembers: NOES, Councilmembers: ABSENT, Councilmembers: ABSTAIN, Councilmembers: Mayor of the Town of Woodside ATTEST: Clerk of the Town of Woodside

4 EXHIBIT A THIS DOCUMENT IS RECORDED AT THE REQUEST OF: Town of Woodside WHEN RECORDED MAIL TO: Town Clerk Town of Woodside P.O. Box Woodside, CA HOLD HARMLESS AND INDEMNIFICATION AGREEMENT This Hold Harmless and Indemnification Agreement ( Agreement ) is made and dated this day of, 2011, by and between Gregory R. Serrurier and Nancy B. Serrurier, Trustees of the Serrurier Family 1996 Trust dated 10/25/1996 ( Serruriers ) and the Town of Woodside ( Town ). A. The Serruriers own the real property ( Property ) commonly known as 503 Old La Honda Road and more specifically described in Exhibit A hereto. B. The Town approved a lot merger and new residential project ( Project ) at 503 Old La Honda Road on June 15, C. The Project is to be constructed across an old paper easement established by a 1973 Easement Agreement (amended in 1979) ( Easement Agreement ) that crosses the Property and allows access across the Property to those ( Orchard Hill Property Owners ) who reside at 15 Orchard Hill Road, 7 Orchard Hill Road, 485 Old La Honda Road and 9 Orchard Hill Road. This paper easement was never used, but instead an alternative route through the Property has been used for over 50 years. D. The Serruriers and all Orchard Hill Property Owners, except the owner of 15 Orchard Hill Road have executed a Second Amendment to the Easement Agreement which (1) abandons the paper easement through the Property and (2) dedicates the existing travelled alternative route through the Property as access. This Second Amendment was recorded in the County Recorder s Office of San Mateo County on, 2011 as Document No.. E. The Town, in consideration of allowing the Project to proceed, requires the Serruriers to hold the Town harmless and indemnify and defend the Town against any claims, brought by the current or future owners of 15 Orchard Hill Road regarding the right to access the paper easement established by the Easement Agreement.

5 NOW, THEREFORE, the Serruriers and Town agree as follows: 1. Indemnity. The Serruriers hereby agree to indemnify and hold harmless the Town and its officers, agents and employees against any and all suits, claims or actions ( Actions ) arising out of the Town s approval of the Project brought by the current or future owners of the real property located at 15 Orchard Hill Road. The Serruriers further agree to defend any and all such Actions and pay all charges of attorneys and all other costs and expenses arising therefrom or incurred in connection therewith, and if any judgment be rendered against the Town or any other individuals enumerated above in any such Action, the Serruriers, at their expense, shall satisfy and discharge such judgment. 2. Lien. If Serruriers do not pay any monetary damages that are levied against the Town in any Action arising out of the Town s approval of the Project within thirty (30) days of the Town s notification to the Serruriers at the address noted above, the Town may institute lien proceedings against the Property, and all costs, attorneys fees and damages awarded as a result of such proceedings shall be incorporated into the lien. 3. Successors and Assigns. This Agreement is made for the direct, mutual and reciprocal benefit of the Serruriers and the Town, shall run with the land, and shall be binding on the parties and their successors and assigns. Every person or other entity who now or thereafter owns or acquires the right, title or interest in or to any portion of the Property is and shall be conclusively deemed to have consented, agreed to and be bound by each and every one of the terms and conditions and obligations contained in this Agreement, whether or not any reference to this Agreement is contained in the instrument by which such person or entity acquired an interest in the Property. Any owners who have transferred title to the Property and are no longer the owners thereof shall have no liability for any obligations which solely arise during a period when such owners are not the owners of the Property. 4. Termination. If all the owners of 15 Orchard Hill Road execute the Second Amendment, and the Second Amendment with such execution is recorded, this Agreement shall terminate, and Town and the Serruriers agree to execute and record a document indicating such termination. / / / / / / / / / / / / IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date written below. 2

6 Gregory R. Serrurier Dated: Nancy B. Serrurier Dated: TOWN: Susan E. George, Town Manager Dated: STATE OF CALIFORNIA ) ) ss: COUNTY OF SAN MATEO ) On, before me,, Notary Public, personally appeared Gregory R. Serrurier, who proved to me on the basis of satisfactory evidence 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. 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. Signature STATE OF CALIFORNIA ) ) ss: 3

7 COUNTY OF SAN MATEO ) On, before me,, Notary Public, personally appeared Nancy B. Serrurier, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person 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. Signature STATE OF CALIFORNIA ) ) ss: COUNTY OF SAN MATEO ) On, before me,, Notary Public, personally appeared Susan E. George, who proved to me on the basis of satisfactory evidence 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. 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. Signature 4

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