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1998-0616_ORTEGA PROPERTIES, INC_Agreement • • AGREEMENT THIS AGREEMENT is entered into and effective as of joa.e_, /6 , 1998, 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 October 31, 1998, 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. SCOPE OF WORK BY CITY (1) Grading Plan/Condition of Property/City to do work as of date hereof. 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 Owner's property which shall not be unreasonably withheld. Said grading plan is to be executed by City at City's expense. (2) Soil Testing and Certification/Fencing 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. (3) Remedial or Incidental Work/Outside Contractors 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. (4) Vacation of Property 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. (5) Bike Trail Relocation The existing temporary bike trail through Owner's property shall be relocated to its predisaster location, or other location of mutually agreeable benefit to both parties, concurrent with City's grading work. -2- (6) Security Fencing/Signage 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. 5. WORK; COST FOR WORK; COMPLETE SCOPE All work by City shall be completed in a workmanlike manner. There will be no cost to the Owner for the work described under the heading "Scope of Work by City". In addition to Scope of Work by City, all existing piles of dirt on property shall be utilized by City work or removed. 6. 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. 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. 7. 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. -3- 8. INDEMNIFICATION City agrees to protect, defend and hold Owner 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. 9. DURATION This agreement will become binding and considered in full force when endorsed by authorized representatives of the parties involved and shall continue until October 31, 1998, with the extension of additional time as mutually agreed or until dissolved by mutual agreement of both parties. 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. 10. AMENDMENTS This agreement may be amended but any amendment must be in writing and signed by both parties. 11. 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 -4- 12. 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. 13. 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. 14. 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 thereof. 15. 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 SAN P. • N CA' STRANO By: By: �. Richard Bybee, Vice President Gil Jo. - dif"or APPROVED AS TO FORM: By: John Shaw, City Attorney -5-