1999-0406_ORTEGA PROPERTIES, INC._Agreement ,
e T
AGREEMENT
THIS AGREEMENT is entered into and effective as of April 6 , 1999, by
Ortega Properties, Inc., hereinafter referred to as "Owner", and the City of San Juan Capistrano,
hereinafter referred to as "City".
RECITALS
Owner and City desire to enter into an agreement to facilitate the storage and removal of
all direct and other appurtenances adjacent to the San Juan Creek on property belonging to
Owner. This agreement will be governed by the laws of the State of California for the purposes
and on the terms and conditions stated in this agreement. Therefore, the parties agree to and
further acknowledge as follows:
1. PROPERTY DESCRIPTION
The property is a portion of Assessors Parcel No. 666-131-09, Parcel Map 143,
Page 108, described as follows: all of the vacant land proceeding north from the San Juan Creek
to the extension of Calle Arroyo, and from California Interstate 5 Freeway right-of-way
proceeding northeasterly to 100 feet east of the end of Paseo Tirador, in the City of San Juan
Capistrano. This will include the damaged area adjacent to the creek between Paseo Tirador and
Interstate 5 Freeway.
2. PURPOSE
The purpose of the agreement is:
(A) To provide storm damage improvements and rebuilding improvements to
the subject property adjacent to San Juan Creek "hereinafter referred to as improvements", by
filling and grading work performed by the City without cost to Owner as per plans to be reviewed
and approved by Owner with respect to Owner's property. Said approval shall not be
unreasonably withheld.
(B) To grant temporary easement for ingress and egress and fencing as well as
for storage of equipment and materials on the property for the City or its contractors until
December 31, 1999, in exchange for the above improvements.
(C) To protect the parties against liabilities resulting from this agreement and
to mutually benefit the parties.
3. ENGINEERING AND PERMITS
The City will provide necessary engineering,plans and specifications and survey
required to complete the improvements. Assessments resulting from the improvements to the
land will not be considered a part of this agreement and will be paid by the Owner. However,
without Owner's written permission, City WILL NOT make any improvements which create a tax
increase or assessment which will result in a later tax increase.
4. CONDITIONS
A. In the event the remedial grading cannot be done such as to restore the
trail to its original location, and the City will require the bike trail easement
to extend further north as a condition of approval on development. The
easement will not be included in City's calculations for building setbacks or
reduce buildable area, nor will it adversely impact upon landscaping,
parking, etc..
B. Upon City approval of an Architectural Control application for the subject
property, or upon expiration of the agreement, or upon sale of the
property, whichever occurs first, the owner may opt for any of the
following:
1) The City will remove all stockpiled material at no cost to the
owner.
2) The City will prepare a final grading plan consistent with the
Architectural Control approval, obtain the required grading permit
together with any necessary authorizations from other regulating
public agencies, and complete all grading to City standards within
90 days of the Architectural Control approval date, a t no cost to owner.
• In the event the agreement expires prior to approval of an
AC application, the said grading plan must provide for an
engineered fill meeting specifications mutually agreeable to
City and owner as described in "C" below.
• In reviewing and acting upon the AC application prior to
expiration of the agreement the City may not set
requirements or conditions on the grading in order to limit ,
minimize, or avoid its obligations as herein described.
3) Owner may choose either option(1) or option (2). However,
owner agrees to pay to City any cost differential if the owner
chooses Option (2) and Option (2) is more expensive to complete
than Option (1).
C. The City will, at its expense, survey and generate a grading plan for
submittal to the Owner for Owner's review and approval as it pertains to
-2-
Owner's property which shall not be unreasonably withheld. Said grading
plan is to be executed by City at City's expense.
The City shall have a licensed geologist review the site and the proposed
grading plan for recommendations and approval. The geologist will
monitor and test for compaction as needed during grading operations. The
City will supply a letter from the geologist to Owner certifying that all
work was done according to City standards and that the work was
completed as indicated in the geotechnical report. City shall maintain
temporary fences around all areas while work is in progress.
Work of a remedial nature such as the relocation of utilities or removal and
recompaction of native soils on site will be done by the City, at City's
expense, under this agreement in conjunction with the embankment repair
and stabilization project. City shall, prior to plan approval, advise Owner
of any such remedial work required on Owner's property. Any outside
contractors used by City to do work under this agreement shall be qualified
and licensed to perform the work. Contractors shall provide Owner and
City with additional insured certificate and proof of workman's
compensation insurance.
Upon completion of all work specified and when City vacates said
property, property shall be left in a condition free of debris and any
hazardous material deposited as a result of City's work. Owner and City
shall inspect the site and, by mutual agreement, determine the extent of
cleanup and removal required.
D. City shall install and maintain temporary security fencing and appropriate
signage around Owner's property to prevent further dumping on property.
Owner shall make its best effort to prohibit dumping on property. City
shall immediately replace any downed fences and signage so as to help
prevent further dumping on property, and City shall assign code
enforcement and/or police patrols to monitor the property to assist in the
overall effort to prevent dumping.
E. In the event the City performs remedial grading of the eroded creek bank,
the bike trail will be aligned along the most southerly edge of the berm, and
the unneeded portion of the easement will be quitclaimed back to the
owner.
-3-
5. LAND USE
In return for the improvements to the land, City will have use of the property for
the duration of this agreement as herein described. City will have the right of ingress as required
to construct said improvements and conduct necessary surveys and soils testing. Should the
Owner sell the property and the new Owner(s)require use of the property, the City agrees to
either commence repairs, have the property cleared of all dirt, or spread the dirt on site per an
approved plan with the Owner, and relocation of bike trail as required by new Owner's schedule
to build facilities and make beneficial use of property as herein described. This agreement shall be
recorded and shall inure to the benefit of subsequent Owner of the property.
The City shall not assign, transfer mortgage, pledge, hypothecate or encumber this
agreement or any interest therein and shall not sublet the said property or any part thereof, or
grant any right or privilege, or allow any other person to occupy or use the property, or any
portion thereof,without first obtaining the written consent of the Owner. Any consent to one
assignment, subletting or use by any other person shall not be deemed to be a consent to any
subsequent assignment, subletting, occupation or use by any other person. Consent to any such
assignment or subletting shall in no way relieve the City of any liability under this agreement. Any
such assignment or subletting without such consent shall be void and shall, at the option of the
Owner, constitute a termination of this agreement.
6. GOVERNING AGENCIES
The City will conduct all operations in a professional manner in accordance with
the prevailing laws administered by the State and Federal Government.
7. INDEMNIFICATION
City agrees to protect, defend and hold Owner and Newco Management Co.,
L.L.C. harmless from any and all claims, liabilities, expenses or damages of any nature, including
attorneys' fees, for injury or death of any person or damage to property or interference with use
of property and for errors and omissions committed by City arising out of or in connection with
the work, operation or activities of City, its agents, employees and subcontractors in carrying out
its obligations under this agreement.
8. DURATION
This agreement will become binding and considered in full force when endorsed by
authorized representatives of the parties involved and shall continue until December 31, 1999.
Time extensions may be granted by letter with signature of both parties. Council delegates its
-4-
•
authority to the City Manager for purposes of executing time extensions. At any time, the Owner
may offer for sale or lease that portion of the property in use by the City. If the Owner is
successful and the property is sold or leased, the City will be notified in writing. Owner shall have
the right to their property at any time subject to the use contemplated by this agreement. The
City shall vacate the property upon the Owner's, lessees', or successors' need to construct
improvements upon the property.
9. AMENDMENTS
This agreement may be amended but any amendment must be in writing and signed
by both parties.
10. NOTICES
All notices shall be personally delivered or mailed to the addresses listed below or
to such other addresses as may be designated by written notice. These addresses shall be used for
delivery or service of process:
To City: City of San Juan Capistrano
Attn: Director of Engineering & Building
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
To Owner: Ortega Properties,Inc.
31738 Rancho Viejo Road, #B
San Juan Capistrano, CA 92675
11. SUCCESSORS
This agreement shall be binding on and inure to the benefit of the respective
successors, assigns, and personal representatives of the parties, except to the extent of any
contrary provision in this agreement.
12. SEVERABILITY
If any term, provision, covenant or condition of this agreement is held by a court
of competent jurisdiction to be invalid, void or unenforceable,the rest of the agreement shall
remain in full force and effect and shall in no way be affected, impaired or invalidated.
13. ENTIRE AGREEMENT
This agreement constitutes the entire understanding and agreement between the
parties and supersedes all previous negotiations between them pertaining to the subject matter
-5-
thereof.
14. ATTORNEY FEES
If any action at law or in equity is necessary to enforce or interpret the terms of
this agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which the prevailing party may be
entitled.
IN WITNESS WHEREOF, the parties have executed this agreement as of the date first
shown above.
ORTEGA PROPERTIES, INC. CITY OF AN JUAN APISTRANO
By: By:
Richard Bybee, Vi e President J h hn Greiner, Mayor
APPROVED AS TO FORM:
By:
John—h. , City Attorney
-6-