18-0515_RAINER W. METZ, INC._E9_Agenda ReportCity of San Juan Capistrano
Agenda Report
TO : Honorable Mayor and Members of the City Council
FROM: ~njamin Siegel, City Manager
SUBMITTED BY: Steve May, Public Works & Utilities Director ,./f(AA._
PREPARED BY: Eric Bauman, Assistant Utilities Director
DATE: May 15, 2018
5/15/2018
E9
SUBJECT: Consent to Assignment Agreement with Metz Properties LLC and
Rainer W. Metz Inc. for Assignment of License Agreement for City
Sewer Pump Station and Pipelines on Metz Property
RECOMMENDATION :
1. Approve a Consent to Assignment Agreement with Rainer W. Metz Inc. (Assignor)
and Metz Properties LLC (Assignee) to assign the License Agreement with the City,
dated April 7, 2015, for a sewer pump station and pipelines on Metz property
(Assessor's Parcel 649-111-01 ); and
2. Authorize the City Manager to execute the Consent to Assignment Agreement and to
approve future amendments extending the term of the Agreement or assigning the
Agreement.
DISCUSSION/ANALYSIS :
The City has accessed, maintained, and operated the City owned Avenida de Ia Vista
Sewer Pump Station located on private property (Assessor's Parcel No. 649-111-01)
under a License Agreement originally approved on February 1, 1994. There have been
several License Agreement extensions since 1994. The most recent License Agreement
extension expires on December 30, 2020. The ownership of the property has changed,
and it is necessary to assign the License Agreement to the new owner, Metz Properties
LLC.
The original licensor, Rainer W. Metz Inc., was partially owned by Rainer W. Metz who
passed away last year. The sole remaining owner, Donna Kathleen Metz, dissolved
Rainer W. Metz Inc., returning the property to the marital estate. Donna Kathleen Metz,
successor in interest to Rainer W. Metz Inc., formed a new entity-Metz Properties LLC.
Donna Kathleen Metz now desires to obtain consent of the City to assign the rights,
City Council Agenda Report
May 15,2018
Page 2 of 2
duties, and obligations under the Agreement from Rainer W. Metz Inc. to the new entity,
Metz Properties LLC. Staff recommends that the City Council approve the Consent to
Assignment Agreement provided as Attachment 1, and authorize the City Manager to
execute the Consent to Assignment Agreement. Staff also recommends that the Council
authorize the City Manager to approve future amendments extending the term of the
Agreement or assigning the Agreement.
FISCAL IMPACT:
The monthly $500 license fee has remained unchanged since the initial License
Agreement execution in 1994. The current adopted Fiscal Year 2017-2018 budget
includes funding for the annual license fee of $6,000.
ENVIRONMENTAL IMPACT:
Not applicable.
PRIOR CITY COUNCIL REVIEW :
• The City Council approved the initial License Agreement on February 1, 1994 .
• The City Council approved the first License Agreement Amendment on May 17, 1994 .
• The City Council approved a License Agreement Extension on December 9, 2002 .
• The City Council approved a License Agreement Extension on November 1, 2005 .
• The City Council approved a License Agreement Extension on May 5, 2009 .
• The City Council approved a License Agreement Extension on August 2, 2011 .
• The City Council approved a License Agreement Extension on March 17, 2015.
COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS:
• The first License Agreement was presented to the Utilities Commission on July 26,
2011.
• An agreement extension was presented to the Utilities Commission on February 10,
2015.
NOTIFICATIONS.:
Rainer W. Metz Inc.
Metz Properties LLC.
ATTACHMENT :
Attachment 1 : Consent to Assignment Agreement
CITY OF SAN JUAN CAPISTRANO
CONSENT TO ASSIGNMENT AGREEMENT
THIS CONSENT TO ASSIGNMENT AGREEMENT ("Consent") is made as of this 151h
day of May, 2018 ("Effective Date"), by and among the City of San Juan Capistrano
("City"), Rainer W. Metz, Inc. ("Assignor"); and Metz Properties, LLC, a California Limited
Liability Company ("Assignee"). City, Assignor, and Assignee may be individually
referred to herein as a "party," and collectively referred to as the "parties ."
RECITALS
A . City and Assignor have entered into a License Agreement dated April 7, 2015
("Agreement") whereby Assignor granted to the City a license to utilize real
property within Assessor's Parcel No. 649-111-01 ("Property") for the operation
and maintenance of City owned sewer pump station and associated pipelines
and for ingress and egress on Assignor's road on the Property from Avenida De
La Vista to the sewer pump station ("Agreement"). Copies of the Agreement are
attached hereto as Exhibit A and incorporated herein by this reference.
B. Assignor's President passed away on May, 5, 2017, and the sole remaining
director of Assignor, Donna Kathleen Metz, dissolved the company returning the
Property to the trust of the marital estate; which quit claimed the Property to
Assignee.
C. Assignor and Assignee now desire to obtain the Consent of the City to the
assignment by Assignor to Assignee of all of Assignor's rights, duties, and
obligations in, to, and under the Agreement ("Assignment").
D. Pursuant to Section 6 of the Agreement, "Successors in Interest," the License
Agreement shall inure to and be binding on the heirs, successors, executors,
administrators, and assignees of the Assignor.
E. Assignor and Assignee desire to obtain City's Consent to the Assignment
and City is willing to consent to the Assignment on the following terms and
conditions .
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Consent, and for valuable consideration, the receipt and sufficiency of which are
acknowledged by the parties, the parties agree as follows.
1 . Representations and Warranties. Assignor and Assignee jointly represent and
warrant to the City :
1.1 That Assignee is an organization in good standing as a California limited
1
ATTACHMENT 1, Page 1 of 10
liability corporation and duly qualified to transact business under the laws of the State of
California.
1.2 That the execution, delivery and performance of the Agreement by
Assignee have been duly authorized.
2. Assumption and No Release. Assignee expressly assumes, acknowledges
and agrees for the benefit of City to be bound by, and to perform and comply with, every
obligation of Assignor under the Agreement. City shall have the same rights and
remedies as against the Assignee as City under the terms and provisions of the
Agreement has against Assignor with the same force and effect as though every such
duty, obligation, responsibility, right or remedy were set forth herein in full.
3. References. All references and meaning assigned to the term "Property
Owner" in the Agreement shall be understood to mean Assignee, and shall include all
of the corresponding rights, obligations and benefits thereof as provided by this Consent
and the Agreement.
4. Subsequent Assignments. This Consent does not constitute a consent to any
subsequent assignment and does not relieve Assignee or any person claiming under or
through Assignee of the obligation to obtain the consent of City to any future
assignment. Notwithstanding the foregoing, City may consent to subsequent
assignments of the Agreement, or amend the Agreement without notifying Assignor,
including but not limited to any of Assignor's guarantors, and without obtaining their
consent, and that action by Assignee will not relieve those persons of liability.
5. Default; Breach. In the event of any default or breach of Assignee under the
Agreement, City may proceed directly against Assignee, any guarantors, or anyone else
liable under the Agreement without first exhausting City's remedies against any other
person or entity liable under the Agreement to City.
6. Effect of Execution. Assignee's execution of this Consent shall be deemed an
execution by Assignee of the Agreement. Upon execution of this Consent, Assignee
shall be deemed a signatory and party to the Agreement as if Assignee had directly
executed the Agreement. Assignee agrees to be firmly bound by all covenants,
obligations and conditions of the Agreement by its execution hereunder.
7. General Provisions.
7.1 Invalidity. If this Consent or the Assignment is determined by a court,
administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by
any rule of law or public policy, the Agreement as originally executed shall nevertheless
be deemed to remain in full force and effect as if this Consent and the Assignment had
not been made or attempted.
7.2 Severability. If any term or other provision of this Consent is determined
by a court, administrative agency or arbitrator to be invalid, illegal or incapable of being
enforced by any rule of law or public policy, all other conditions and provisions of this
2
ATTACHMENT 1, Page 2 of 10
Consent shall remain in full force and effect.
7.3 Governing Law. This Consent will be construed in accordance with and
will be governed by the laws of the State of California. Venue shall lie in Orange
County, California.
7.4 Notices. Notices, offers, requests or other communications required or
permitted to be given by the parties pursuant to the terms of this Consent shall be given
in writing to the respective parties.
7.5 Counterparts. This Consent may be executed in counterparts, each of
which shall be deemed to be an original but all of which shall constitute one and the
same agreement.
7.6 Binding Effect; Assignment. This Consent shall inure to the benefit of
and be binding upon the parties hereto and their respective legal representatives and
successors, and nothing in this Consent, express or implied, is intended to confer upon
any other person any rights or remedies of any nature whatsoever under or by reason of
this Consent. Assignee may not assign this Consent nor any rights or obligations
hereunder, without the prior written consent of the City, and any such assignment shall
be void.
7. 7 Authority. Each of the parties hereto represents to the other parties that
(a) it has the requisite power and authority to execute, deliver and perform this Consent;
(b) the execution, delivery and performance of this Consent by it have been duly
authorized by all necessary corporate or other actions; (c) it has duly and validly
executed and delivered this Consent; and (d) this Consent is a legal, valid and binding
obligation, enforceable against it in accordance with its terms.
7.8 Interpretation. The headings to sections contained in this Consent are
included for reference purposes only and shall not affect or modify in any way the
meaning or interpretation of this Consent.
7.9 Attorneys' Fees. Should any of the parties initiate any action at law or in
equity to enforce or interpret the terms of this Consent, the prevailing party(ies) shall be
entitled to reasonable attorneys' fees and legal costs from the non-prevailing party(ies)
in addition to any other appropriate relief.
7.10 Waiver. Except as explicitly stated in this Consent, nothing contained in
this Consent will be deemed or construed to modify, waive, impair, or affect any of the
covenants, agreements, terms, provisions, or conditions contained in the Agreement. In
addition, City's acceptance and waiver of any breach of this Consent by Assignee,
Assignor or anyone else liable under the Agreement will not be deemed a waiver by City
of any other provision of this Consent or the Agreement.
7.11 Entire Agreement; Amendment. This Consent constitutes the final,
complete and exclusive statement between the parties to this Consent pertaining to the
terms of City's consent to the Assignment, and supersedes all prior and
3
ATTACHMENT 1, Page 3 of 10
contemporaneous written and oral agreements. No party has been induced to enter
into this Consent by, nor is any party relying on, any representation or warranty outside
those expressly set forth in this Consent. Any agreement made after the date of this
Consent is ineffective to modify, waive or terminate this Consent, in whole or in part,
unless that agreement is in writing, is signed by the City and Assignee, and specifically
states that agreement modifies this Consent.
8. Amendments to the Agreement.
8.1 Term. Section 3(d) of the Agreement is hereby amended to state "May 30,
2023."
8.2 License Fee. Section 4(a) of the Agreement is hereby deleted in its
entirety and replaced with the following:
"Pay Property Owner, its designee or as otherwise directed by Property Owner in writing,
the sum of Five Hundred Dollars ($500.00) per month commencing on June 1, 2018 and
continuing each month thereafter until terminated with first payment due June 30, 2018.
City will also remit retroactive payments to the Property Owner, its designee or as
otherwise directed by Property Owner in writing, in the amount of One Thousand Five
Hundred Dollars ($1 ,500.00) for prior access granted to the Property during the period
March 1, 2018 through May 31, 2018, consistent with the terms of the agreement."
[SIGNATURES ON FOLLOWING PAGE]
4
ATTACHMENT 1, Page 4 of 10
WHEREFORE, the City, Assignor and Assignee have executed this Consent as of the
Effective Date first set forth above.
FOR CITY:
City of San Juan Capistrano
By : ________________________ __
Printed Name :. _________ _
Its: --------------------------
ATTEST:
Maria Morris, City Clerk
APPROVED AS TO F~
~~c:::::7
~er, City Attorney
5
FOR ASSIGNOR:
Donna Kathleen Metz successor in interest
to Rainer W. Metz, Inc.
By:. ________________________ _
Printed Name:. _________ _
Its: -------------------------
FOR ASSIGNEE:
Metz Properties, LLC
By: _____________________ _
Printed Name: _________ _
Its: ·-------------------------
ATTACHMENT 1, Page 5 of 10
EXHIBIT A
AGREEMENT
[Attached Behind This Page]
6
ATTACHMENT 1, Page 6 of 10
LICENSE AGREEMENT
PUMPING STATION AND PIPELINES
(METZ)
THIS LICENSE AGREEMENT is made this ·r.}~"'-day of ~( -~ \ , 2015, by and
between the CITY OF SAN JUAN CAPISTRANO, a Municipal Corporation hereinafter
referred to as "City" and Rainer W. Metz, Inc., hereinafter referred to as "Property
Owner".
WHEREAS, Property Owner acquired title to subject property described as
Assessor's Parcel Number 649-111-01 on May 20, 2002; and,
WHEREAS, City owns, maintains, and operates Avenida De La Vista Sewer
Pump Station facility and associated pipelines located on Owner's real property
(Attachment A); and,
WHEREAS, City requires the use of Property Owner's road for ingress and
egress from Avenida De La Vista to the pump station; and,
WHEREAS, upon becoming the owner of said property, Property Owner entered
into the initial February 1, 1994, License Agreement and May 7, 1994, Amendment
between the City and previous Property Owner, Hideo Shibata; and,
WHEREAS, Property Owner extended the Agreement and Amendment again on
December 9, 2002, November 1, 2005, May 5, 2009, and August 2, 2011; and,
WHEREAS, said Agreement and Amendment No.1 expired on December 31,
2012; and,
WHEREAS, Property Owner and City both wish to enter into a new Agreement.
NOW, THEREFORE BE IT MUTUALLY RESOLVED, Property Owner and City
agree as follows:
1. Grant of License . Property Owner hereby grants to the City a temporary
license:
a. To utilize real property within Property Owner Assessor's Parcel No. 649-
111-01 for the operation and maintenance of City owned sewer pump
station and associated pipelines.
b. For ingress and egress on Property Owner's road from Avenida De La
Vista to the sewer pump station.
2. Right of Entry . City shall be entitled to place a lock on the gated area so as to
allow 24 hour unrestricted access to the sewer pump station. The gate will be
closed and locked after each entry or exit when the Property Owner is not
open for business.
ATTACHMENT 1 .~~jf>tf ~
3. Term. This License Agreement will commence upon the effective date of this
Agreement, and will terminate when one of the first of the following occurs:
a. Cessation of the use of the pump station and facility by the City.
b. Termination by mutual agreement.
c. Upon a 90 day written notice by either party.
d. April 30, 2020.
4. Consideration. In consideration of the granting of the License, the City shall:
a. License Fee . Pay Property Owner the sum of Five Hundred Dollars
($500.00) per month commencing on the execution of this agreement and
continuing each month thereafter until terminated with first payment due
May 2015. City will also remit retroactive payments to the Property Owner
in the amount of Eight Thousand Dollars ($8,000.00) for prior property
access granted during the period January 2014 through April 2015,
consistent with the terms of the agreement.
b. Use of Road and Avenida De La Vi sta Sewer Pump Station Land Area .
Use the road and area safely and in such a manner as not to disturb or
create a hazard or nuisance to Property Owner, his neighbors, tenants, or
any of the surrounding property. Any damages caused by the City or any
of its agents, employees or contractors shall be promptly repaired by the
City.
5 . Extension. This License Agreement may be extended by mutual agreement
of the parties hereto.
6 . Successors in Interest. The License Agreement shall inure to and be binding
on the heirs, successors, executors, administrators, and assignees of the
Property Owner.
7 . Indemnification. City shall hold harmless, indemnify and defend Property
Owner, its partners, officers employees agents and successors from all
liabilities, penalties, losses, damages, costs, expenses, causes of actions,
claims and/or judgments arising out of the negligence or willful misconduct of
City, its agents, employees, contractors and invitees, or activities pursuant to
this License Agreement.
8. Counterparts. This Agreement may be executed by the Parties in
counterparts, which counterparts shall be construed together and have the
same effect as if all the parties had executed the same instrument.
Counterpart signatures may be transmitted by facsimile, email or other
electronic means and has the same force and effect as if they were original
signatures.
[SIGNATURE PAGE FOLLOWS]
ATTACHMENT 1, Page 8 of 10
In Witness Whereof, the parties have read and understood the above License Agreement.
DATED this '1,\"'day of A0 \\ , 2015 , at San Juan Capistrano .
APPROVED AS TO FORM:
City Attorney
CITY OF SAN JUAN CAPISTRANO
By:-~=---~~---
Derek Reeve, Mayor
PROPERTY OWNER
By: _____________________ ___
Rainer W. Metz, Inc.
ATTACHMENT 1, Page 9 of 10
In Witness Whereof, the parties have read and understood the above License Agreement.
DATED this __ day of ____ , 2015, at San Juan Capistrano.
CITY OF SAN JUAN CAPISTRANO
By: -----------------------Derek Reeve, Mayor
PROPERTY OWNER
By: :at!~. If: tv(
ATTEST:
Maria Morris, City Clerk
APPROVED AS TO FORM:
I ,.
1
/c:: ··.-_!:-, ~ -,..) ~ .,.. ,. ./ ,.. , .., --. -/' /'' " t. --• .,---~ ........
City Attorney ·
Attachment I
ATTACHMENT 1, Page 10 of 10