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19-0917_C.S. LEGACY CONSTRUCTION, INC._F2a_Agenda ReportTO : FROM : SUBMITTED BY : PREPARED BY : DATE : SUBJECT: City of San Juan Capistrano Agenda Report Honorable Mayor and Members of the City Council ;;m:njamin Siegel, City Manager Steve May, Public Works and Utilities Director ,L~ Ken Al-Imam, Chief Finance Officer/City Treasurer Joe, Parco, City Engineer Paul Meshkin, Senior Civil Engineer September 17, 2019 9/17/2019 F2a Award of Contract for Construction of the Verdugo Street Beautification Project; Budget Appropriation; and, License Agreements with Adjacent Property Owners (CIP14106) (C . S. Legacy Construction Inc.) RECOMMENDAT ION: 1. Award a construction contract for the Verdugo Street Beautification Project (CIP14106) to the lowest bidder, C.S. Legacy Construction Inc., in the amount of $1,721,939 .98; and, 2. Authorize the City Manager to execute the contract and approve change orders for a total contract increase amount not to exceed $275,000; and, 3. Increase the Project budget by $690,000 and appropriate that amount from Successor Agency Non-Housing Bonds ($120,000), Systems Development Funds ($120 ,000), and Community Facilities District (CFO) Bond Funds ($450,000) to supplement the Project budget; and, 4. Approve license agreements with property owners along both sides of Verdugo Street, substantially in the form attached, to allow the City to affix overhead string lights to adjacent buildings, and authorize the City Manager to execute the license agreements. City Council Agenda Report September 17, 2019 Page 2 of 6 EXECUTIVE SUMMARY: The Verdugo Street Beautification Project (CIP 14106) was advertised for construction on July 25, 2019, and four bids were received on August 27, 2019. The Project area is shown on Attachment 1. Staff recommends that the City Council award a construction contract (Attachment 2) to the lowest bidder, C.S. Legacy Construction Inc. in the amount of $1,721,939.98. It is also recommended that the City Manager be authorized to approve change orders in an amount not to exceed $275,000, which is 16% of the base contract amount. Due to higher than anticipated bid prices on certain items, an additional $333,000 is required beyond the anticipated budget shortfall of $357,000 that was reported to the City Council on July 16, 2019, when the Council approved the Project plans and specifications. As discussed in the Fiscal Impact section of this report, staff has identified sufficient funding to cover the additional amount needed to deliver the Project. DISCUSSION/ANALYSIS: The design of the Verdugo Street Beautification Project was initiated following approval of an engineering design contract on November 5, 2018, with Adams-Streeter Civil Engineers. The Council then approved the Project plans and specifications and authorized staff to advertise the construction bid package on July 16, 2019. Below is a summary of the bids received listed in order of bid amount. All bids were complete and responsive to the Notice of Inviting Bids, and are valid until December 26, 2019. Summa of Bid Results Bidders Bid Amounts $1,721,939 $1,813, 177 $2,217,355 $2,579,962 Overall, the City received positive interest in the Project and the bid amounts for the four bids received were reasonably spread, with the lowest two bids being separated by less than $100,000 (5%). The lowest bid was $1,721,939 submitted by CS Legacy Construction Inc. Staff has checked CS Legacy Construction Inc. references, licenses, and payment bonds, and has received positive feedback on the past performance of this contractor. A time limit of 100 working days from the date of a Notice to Proceed has been set for completion of construction, with expected completion in the spring of 2020. As with any construction project, the schedule may be extended by inclement weather or discovery of unknown underground conditions. The total Project costs -including contingencies, construction management, contract inspection services, and archeological and Native American monitoring services -are expected to exceed the original projections by $333,000 more than previously anticipated due to: City Council Agenda Report September 17, 2019 Page 3 of 6 1. Higher estimated bid costs, mainly attributed to the construction of the concrete pavers, new street lighting fixtures including new string lights, new irrigation system, and general site work; 2. Overall higher cost of construction labor due to a shortage of skilled laborers; and 3. Higher costs of materials due to favorable economic conditions . The major differences between the engineer's estimated costs and the actual low bid prices received by C.S. Legacy Construction Inc. are summarized in the table below: M . It E f t a1or em s 1ma es vs B"d p . I nces Bid Item Engineer's Low Bid Costs Difference Estimated Cost Concrete Pavers $153,794 $248,430 $94,636 Electrical and Lighting $136,356 $231,317 $94 ,961 Automatic Irrigation System $ 40,000 $ 74, 100 $34,100 General Site Work $ 94,800 $190,332 $95,532 License Agreements The overhead string lighting component of the Project will cross above the sidewalk and street, and is proposed to be attached atop the Project's newly installed streetlights and to the adjacent privately-owned building structures. In order to facilitate connection of the City-owned street lights to the privately-owned buildings, license agreements between the City and the adjacent property owners (Capistrano Plaza, LLC. and Alfa Plaza, LLC.) are required. The proposed license agreements (Attachments 4 and 5) would release the private owners from liability associated with any damage that the string lights may cause, and would establish responsibility for maintenance of the lights by the City when required. Staff is recommending that the City Council approve the draft license agreements, substantially in the form attached, and authorize the City Manager to execute the agreements. Rotary Clock On July 16, 2019, the City Council accepted the donation of a four-face clock from the San Juan Capistrano Rotary Club. The Rotary Club would purchase and provide the four-face clock to the City, and the City would build the footing, install the necessary conduit required for the clock, and attach the clock to the footing. The Rotary Club is proposing to affix a dedication plaque to the clock, and has indicated that final wording will be approved by the Rotary Club on October 4, 2019. After wording is approved by the Rotary Club, staff will present the proposed wording to the City Council for approval prior to construction of the four-faced clock. City Council Agenda Report September 17, 2019 Page 4 of 6 FISCAL IMPACT : The original Project budget was $1,866,000. After expenditures for concept design and final design, the remaining available Project budget for construction and construction- related support services is $1,505,000 . Based on the low bid, construction contingencies, and other construction related expenses, the expected cost to deliver the Project is $2, 195,000, resulting in a budget shortfall of $690,000. It is recommended that funding from Successor Agency Non-Housing Bonds, Systems Development Funds, and Community Facilities District (CFO) Funds be used to supplement the Project budget. The Project is eligible to receive funding from each of these three sources. When the City Council approved the Project plans and Mitigated Negative Declaration on July 16, 2019, the expected budget shortfall was $357,000. This was based on the construction cost estimate of $1,640,000, which included a 15% contingency, by the design engineer, Adam Streeter Civil Engineers. The low bid plus contingency is now $1,996,940, resulting in an additional shortfall of $333,000, or a total shortfall of $690,000. The table below provides a summary of the expected Project costs, available budget, and the funds that are proposed to be used to cover the Project budget shortfall. P . tF dS dU ro1ec un ources an ses Items Amounts C.S. Legacy Construction Inc. construction contract $1,721,939 16% contingency $ 275,000 Contract administration and support services * $ 198,061 Total $2, 195,000 Current available Project budget ($1,505,000) Total Shortfall $ 690,000 Funding of Shortfall : Successor Agency Non-Housing Bonds (Fund 53) $ 120,000 Systems Development Funds (Fund 10) $ 120,000 CFO Bond Funds (Fund 52) $ 450,000 * Contract Administration includes staff project management, material testing & inspection, contract inspection services, and archeological and Native American monitoring services. ENVIRONMENTAL IMPACT: A Mitigated Negative Declaration (MND) was adopted for the Project on July 16, 2019 , by Resolution No. 19-07-16-03 (Attachment 3). A Notice of Determination (NOD) was filed on July 19, 2019. The proposed action is consistent with the previously adopted MND. City Council Agenda Report September 17, 2019 Page 5 of 6 PRIOR CITY COUNCIL REVIEW : • On July 16, 2019, the City Council approved plans and specifications for the Verdugo Street Beautification Project, approved a resolution adopting a Mitigated Negative Declaration for the Project, accepted a donation from the Rotary Club of San Juan Capistrano for the purchase of a four-faced clock for the plaza area of the Project, and authorized staff to advertise and receive construction bids for the Project. • On November 5, 2018, the City Council approved and authorized the City Manager to execute a Professional Services Agreement with Adams Streeter Civil Engineers Inc. to perform design services and to prepare environmental documents, specifications, and cost estimates for the Project for an amount not to exceed $279,738, which included a 10% contingency. • On September 19, 2018, the City Council approved and authorized the City Manager to execute the Second Amendment to the Personal Services Agreement with RRM Design Group Inc. for design services for the Project in an amount not-to-exceed $81,440, and directed staff to include the area of Verdugo Street west of the train tracks in the conceptual design scope of work for the Project at no additional cost. • On August 1, 2017, the City Council received a presentation on the Project and considered options for reallocating funds. The Council elected to retain the Project fund balance of $1.94 million and directed staff to work with the prior designer, RRM Design Group, to create two conceptual design options similar to the 2007 and 2014 concepts. COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS : • On June 25, 2019, the Planning Commission adopted resolutions recommending that the City Council approve the Project and adopt a Mitigated Negative Declaration and Mitigated Monitoring Reporting Program for the Project. • On February 28, 2019, the Design Review Committee reviewed the proposed Project's street, sidewalk, lighting, and landscaping design plans . • On March 27, 2018, the Planning Commission reviewed and commented on the revised Conceptual Design for the Project. • On March 27, 2018, the Cultural Heritage Commission reviewed and commented on the Revised 2014 Conceptual Design for the Project. • On February 8, 2018, the Design Review Committee reviewed and commented on the revised 2014 conceptual design for the Project. NOTIFICATIONS : C.S. Legacy Construction Inc. Calpromax Engineering Inc. EBS General Engineering, Inc. City Council Agenda Report September 17, 2019 Page 6 of 6 Palp Inc. OBA Excel Paving Company Mayan Authentic Imports Ruby's Antiques of Laguna Monica Mukai Heritage Tourism Association Paul Hennessey Adams Streeter (Khoon Tan) Mission Grill Chamber of Commerce Trevor's At the Tracks Swallow's Inn, El Adobe Bob Larsen, Provincial Building Teri Chambers , Zia Jewelry Dan Almquist, Frontier Investment 3: 16 Bakery Shop Dave Busk, Busk Development Company Conservatory & Curiosity Guy Edwards, Capistrano Depot Alfa Plaza LLC Eric Altman, 26755 Verdugo LLC Mechelle Lawrence Adams, Mission San Juan Capistrano Ralph Bertolino, Capistrano Plaza Rancho Capistrano Winery John Collins, Collins and Associates Alberto Mobrici, Sunrise Property Management Guavas Karen Crocker, President San Juan Capistrano Rotary ATTACHMENTS : Attachment 1-Location Map Attachment 2-Construction Contract Attachment 3-MND Resolution 17-03-21-04 Attachment 4-License agreement with Capistrano Plaza LLC Attachment 5-License agreement with Alfa Plaza LLC Location Map: Verdugo Street Beautification Project (CIP 14106) Attachment 1, Page 1 of 1 00 52 13 -CONTRACT This CONTRACT, No . _is made and entered into this __ day of , , by and between City of San Juan Capistrano, sometimes hereinafter called "City," and C. S. Legacy Construction , Inc . sometimes hereinafter called "Contractor." WITNESSETH : That the parties hereto have mutually covenanted and agreed, and by these presents do covenant and agree with each other as follows: a. SCOPE OF WORK. The Contractor shall perform all Work within the time stipulated in the Contract, and shall provide all labor, materials, equipment, tools, utility services, and transportation to complete all of the Work required in strict compliance with the Contract Documents as specified in Article 5, below, for the following Project: VERDUGO STREET BEAUTIFICATION PROJECT, CIP 14106 The Contractor and its surety shall be liable to the City for any damages arising as a result of the Contractor's failure to comply with this obligation. a. TIME FOR COMPLETION. Time is of the essence in the performance of the Work. The Work shall be commenced on the date stated in the City's Notice to Proceed . The Contractor shall complete all Work required by the Contract Documents within 100 Working Days from the commencement date stated in the Notice to Proceed. By its signature hereunder, Contractor agrees the time for completion set forth above is adequate and reasonable to complete the Work. b . CONTRACT PRICE. The City shall pay to the Contractor as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents, and including all applicable taxes and costs, the sum of One million seven hundred twenty one thousand nine hundred thirty nine Dollars ($ 1 721 939 ). Payment shall be made as set forth in the General Conditions. c. LIQUIDATED DAMAGES. In accordance with Government Code section 53069.85, it is agreed that the Contractor will pay the City the sum set forth in Section 00 73 13, Article 1.11 for each and every calendar day of delay beyond the time prescribed in the Contract Documents for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture . In the event this is not paid, the Contractor agrees the City may deduct that amount from any money due or that may become due the Contractor under the Contract. This Article does not exclude recovery of other damages specified in the Contract Documents . d. COMPONENT PARTS OF THE CONTRACT. The "Contract Documents" include the following: Notice Inviting Bids Instructions to Bidders Bid Form Bid Bond Designation of Subcontractors Information Required of Bidders Attachment 2, Page 1 of 4 Non-Collusion Declaration Form Iran Contracting Act Certification Public Works Contractor Registration Certification Performance Bond Payment (Labor and Materials) Bond General Conditions Special Conditions Technical Specifications Addenda Plans and Drawings Standard Specifications for Public Works Construction "Greenbook", latest edition, Except Sections 1-9 Applicable Local Agency Standards and Specifications, as last revised Approved and fully executed change orders Any other documents contained in or incorporated into the Contract The Contractor shall complete the Work in strict accordance with all of the Contract Documents. All of the Contract Documents are intended to be complementary. Work required by one of the Contract Documents and not by others shall be done as if required by all. This Contract shall supersede any prior agreement of the parties. e. PROVISIONS REQUIRED BY LAW AND CONTRACTOR COMPLIANCE. Each and every provision of law required to be included in these Contract Documents shall be deemed to be included in these Contract Documents. The Contractor shall comply with all requirements of applicable federal, state and local laws, rules and regulations, including, but not limited to, the provisions of the California Labor Code and California Public Contract Code which are applicable to this Work. f. INDEMNIFICATION. Contractor shall provide indemnification and defense as set forth in the General Conditions. g. PREVAILING WAGES. Contractor shall be required to pay the prevailing rate of wages in accordance with the Labor Code which such rates shall be made available at the City's Administrative Office or may be obtained online at http://www.dir.ca.gov and which must be posted at the job site. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] Attachment 2, Page 2 of 4 IN WITNESS WHEREOF, this Contract has been duly executed by the above-named parties, on the day and year above written. C.S. LEGACY CONSTRUCTION , INC . Name of Contractor By Name and Title: License No . Date: (CONTRACTOR'S SIGNATURE MUST BE NOTARIZED AND CORPORATE SEAL AFFIXED, IF APPLICABLE) CITY OF SAN JUAN CAPISTRANO By ___________ ~ Benjamin Siegel, City Manager Date: Approved as to form this _____ day of ________ 20_ Attorney for City of San Juan Capistrano ATTEST : By: City Clerk San Juan Capistrano END OF CONTRACT Attachment 2, Page 3 of 4 Notary Acknowledgment A notary public or other officer comp let ing this certific ate ve rifies only the id entity of the individual who signed the do cument to wh ich t his certificate is attached , ana not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF ------ On ________ _... 20_, before me, --------------' Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY 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 of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. CAPACITY CLAIMED BY SIGNER o Individual o Corporate Officer o Partner(s) o Attorney-In-Fact o Trustee(s) o Guardian/Conservator o Other: Signer is representing: Tl lle (s) D D Name Of Person(s) Or Entity(ies) Limited General DESCRIPTION OF ATTACHED DOCUMENT Title or Type of Document Number of Pages Date of Document Signer(s) Other Than Named Above Attachment 2, Page 4 of 4 LJ LJ u RESOLUTION NO. 19-07-16-03 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA ADOPTING A MITIGATED NEGATIVE DECLARATION AND APPROVING A MITIGATION MONITORING AND REPORTING PROGRAM FOR THE VERDUGO STREET BEAUTIFICATION PROJECT (CIP14106) WHEREAS, the City's Capital Improvement Program represents an important mechanism for implementing the goals, policies, and recommendations of the General Plan, in particular the circulation, safety, parks and recreation, and growth management policies; and, WHEREAS, the City has established an administrative policy for developing a Capital Improvement Program, and the Capital Improvement Program Committee developed a draft Fiscal Year (FY) 2013-2020 Capital Improvement Program pursuant to the City's Capital Improvement Guidelines; and, WHEREAS, among other things, one of the major capital improvement projects in the draft FY 2013-2020 Capital Improvement Program included the Verdugo Street Beautification Project (CIP14106) (the "Project"); and, WHEREAS, the proposed Project includes the widening of the sidewalk. Among other things, the proposed Project includes installation of landscaping, enhanced paving, lighting, and street furniture to provide a pedestrian-friendly experience in the downtown area and the area adjacent to the train station and Los Rios District; and, WHEREAS, on June 18, 2013, the City Council approved the FY 2013-2020 Capital Improvement Program, including the Project; and, WHEREAS, pursuant to section 21067 of the Public Resources Code, and section 15367 of the State CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.), the City of San Juan Capistrano is the lead agency for the proposed Project; and, WHEREAS, in accordance with State CEQA Guidelines section 15063 the City prepared an Initial Study to determine if the Project could have a significant effect on the environment: and, WHEREAS, based upon the information contained in the Initial Study, which concluded that the Project would not have a significant impact on the environment with mitigation incorporated, the City determined that a Mitigated Negative Declaration ("MND") should be prepared for the Project, and an MND was prepared pursuant to CEQA and the State CEQA Guidelines; and, WHEREAS, in accordance with State CEQA Guidelines section 15072(b), a Notice of Intent to Adopt an MND was mailed to all organizations and individuals who previously 1 7/16/2019 Attachment 3, Page 1 of 14 n~queste~. such no~ice in ~riting, and notice was also by way of publication, posting, or direct mailing consistent with CEQA's requirements; and, WHEREAS, as required by State CEQA Guidelines section 15072(d), on May 22, 2019, the Notice of Intent to Adopt an MND was also posted by the Clerk for the County of Orange; and, WHEREAS, during the public comment period, copies of the MND and its technical appendices were available for review and inspection at City Hall and on the City's website: and, WHEREAS, pursuant to State CEQA Guidelines section 15073, the MND was circulated for at least a 20-day review period, from May 23, 2019 through Jun 11, 2019, during which the City four (4) comment letters, three (3) of which contained comments on the project: and, WHEREAS, the MND prepared in connection with the Project sufficiently analyzes the feasible mitigation measures necessary to avoid or substantially lessen the Project's potentially significant environmental impacts: and, WHEREAS, on June 25, 2019, the Planning Commission conducted a duly-noticed public hearing where members of the public were afforded an opportunity to comment n upon the Project and the MND, and at the conclusion of the hearing, the Planning Commission adopted a resolution recommending that the City Council adopt the MND n and approve the related Mitigation and Monitoring Program: and, WHEREAS, the findings and conclusions made by the City Council in this Resolution are based upon the oral and written evidence presented as well as the entirety of the administrative record for the Project, which is incorporated herein by reference. The findings are not based solely on the information provided in this Resolution; and, WHEREAS, the MND reflects the City's response to the three (3) comment letters that contained comments on the project (the fourth comment letter indicated that the commenter had no comment); and, WHEREAS, the MND reflects the independent judgment of the City Council and is deemed adequate for purposes of making decisions on the merits of the Project; and, WHEREAS, a Mitigation Monitoring and Reporting Program ("MMRP") has been prepared for the Project, and is attached hereto as Exhibit "A"; and, WHEREAS, no comments made in the public hearing conducted by the City Council, and no additional information submitted to the City Council, has produced substantial new information requiring substantial revisions that would trigger recirculation of the MND or additional environmental review of the Project under State CEQA n Guidelines section 15073.5. 2 7/16/2019 Attachment 3, Page 2 of 14 1 I u . I ....J NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of San Juan Capistrano as follows: Section 1. Recita ls. The City Council hereby finds that the foregoing recitals are true and correct and are incorporated herein as substantive findings of this Resolution. Section 2. Compliance with the Cal ifornia Environmental Quality Act. The City Council has reviewed and considered the information contained in the MND, Initial Study, comments received, and other documents contained in the administrative record for the Project. The City Council finds that the MND, Initial Study and administrative record contain a complete and accurate reporting of the environmental impacts associated with the Project and that the MND and the Initial Study have been completed in compliance with CEQA and the State CEQA Guidelines. Section 3. Find ings on Environmental Impacts. Based on the whole record before it, including the MND, Initial Study, the administrative record and all other written and oral evidence presented to the City Council, the City Council hereby finds that all environmental impacts of the Project are either less than significant or can be mitigated to less than significant levels pursuant to the mitigation measures outlined in the MND, the Initial Study and the MMRP. The City Council further finds that the MND contains a complete, objective and accurate reporting of the environmental impacts associated with the Project and reflects the independent judgment and analysis of the City. Section 4 . Adoption of MND and Approval of MMRP . The City Council of the City of San Juan Capistrano hereby adopts the Mitigated Negative Declaration for the Verdugo Street Beautification Project (CIP14106) and approves the Mitigation Monitoring and Reporting Program for the same, attached hereto as Exhibit "A". Section 5. Custodian of Records. The documents and materials associated with this Resolution that constitute the record of proceedings on which these findings are based are located at San Juan Capistrano City Hall, 32400 Paseo Adelanto, San Juan Capistrano, California 92675. The City Clerk is the custodian of the record of proceedings. Sectio n 6. Notice of Determination. The City Council hereby directs staff to prepare, execute, and file a CEQA Notice of Determination with the Orange County Clerk's Office and the State Office of Planning and Research within five (5) working days of the approval of this Resolution. Section 7. Seve rability . If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Resolution which can be given effect without the invalid provision or application, and to this end the provisions of this Resolution are severable. The City Council hereby declares that it would have adopted this Resolution irrespective of the invalidity of any particular portion thereof. 3 7116/2019 Attachment 3, Page 3 of 14 Section 8 . Effective Date. This Resolution shall take effect immediately upon adoption. APPROVED AND AD<?PTED this 15th day of July 2019 . ~RlA'N 'l. MARYOTT, MAYOR STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. COUNTY OF SAN JUAN CAPISTRANO) I, Maria Morris, appointed City Clerk of the City of San Juan Capistrano, do hereby certify that the foregoing Resolution No. 19-07-15-03 was duly adopted by the City Council of the City of San Juan Capistrano at a Regular meeting thereof, held the 15th day of July 2019, by the following vote : AYE ~: / NOE : I ABS Nir: REC UJ ED : COUNCIL MEMBERS: COUNCIL MEMBERS: COUNCIL MEMBERS: COUNCIL MEMBERS: MARIA ' 4 Reeve, Farias, Bourne and Mayor Maryott None None Taylor 7/15/2019 Attachment 3, Page 4 of 14 I I LJ I . I w Exhibit 11 A11 Mitigation Monitoring and Reporting Program (MMRP) DUE TO THE SIZE OF THE EXHIBIT, A COPY IS AVAILABLE IN THE CITY CLERK'S OFFICE. 5 7/16/2019 Attachment 3, Page 5 of 14 Verdugo Street Beautification Project Final Initial Study/Mitigated Negative Declaration SECTION 4. MITIGATION MONITORING AND REPORTING PROGRAM 4.1 Mitigation Monitoring and Reporting Requirements Public Resources Code (PRC) Section 21081.6 (enacted by the passage of Assembly Bill [AB] 3180) mandates that the following requirements shall apply to all reporting or mitigation monitoring programs: • The public agency shall adopt a reporting or monitoring program for the changes made to the project or conditions of project approval in order to mitigate or avoid significant effects on the environment. The reporting or monitoring program shall be designed to ensure compliance during project implementation . For those changes which have been required or incorporated into the project at the request of a Responsible Agency or a public agency having jurisdiction by law over natural resources affected by the project, that agency shall, if so requested by the Lead Agency or a Responsible Agency, prepare and submit a proposed reporting or monitoring program. • The Lead Agency shall specify the location and custodian of the documents or other material, which constitute the record of proceedings upon which its decision is based . A public agency shall provide the measures to mitigate or avoid significant effects on the environment that are fully enforceable through permit conditions, agreements, or other measures. Conditions of project approval may be set forth in referenced documents which address required mitigation measures or in the case of the adoption of a plan, policy, regulation, or other project, by incorporating the mitigation measures into the plan, policy, regulation, or project design. • Prior to the close of the public review period for a draft Environmental Impact Report (EIR) or Mitigated Negative Declaration (MND), a Responsible Agency, or a public agency having jurisdiction over natural resources affected by the project, shall either submit to the Lead Agency complete and detailed performance objectives for mitigation measures which would address the significant effects on the environment identified by the Responsible Agency or agency having jurisdiction over natural resources affected by the project, or refer the Lead Agency to appropriate, readily available guidelines or reference documents. Any mitigation measures submitted to a Lead Agency by a Responsible Agency or an agency having jurisdiction over natural resources affected by the project shall be limited to measures that mitigate impacts to resources, which are subject to the statutory authority of, and definitions applicable to, that agency. Compliance or noncompliance by a Responsible Agency or agency having jurisdiction over natural resources affected by a project with that requirement shall not limit that authority of the Responsible Agency or agency having jurisdiction over natural resources affected by a project, or the authority of the Lead Agency, to approve, condition, or deny projects as provided by this division or any other provision of law . 24 EXHIBIT A , Page 2of10 Attachment 3, Page 6 of 14 Verdugo Street Beautification Project Final Initial Study/Mitigated Negative Declaration 4.2 Mitigation Monitoring and Reporting Procedures The Mitigation Monitoring and Reporting Program (MMRP) has been prepared in compliance with PRC Section 21081.6. It describes the requirements and procedures to be followed by the City of San Juan Capistrano to ensure that all mitigation measures adopted as part of the proposed project will be carried out as described in this IS/MND. Table 5.2-1 lists each of the mitigation measures specified in this document and identifies the party or parties responsible for implementation and monitoring of each measure. 25 EXHIBIT A, Page 3of10 Attachment 3, Page 7 of 14 ;e -Q) (") ;;;;; 3 (1) :::J -(I.) "U Q) co (1) CX> 0 ...., ...... .to. Verdugo Street Beautification Project Final Initial Study/Mitigated Negative Declaration Table 5.2-1. Verdugo Street Project Mitigation Monitoring and Reporting Program Timing for Standard Compliance Condition or Verification (Date and Mitigation Measures Responsible Party Mitigation Measure Signature Required) 4.1 Aesthetics The proposed project would not result in significant adverse impacts related to aesthetics. No mitigatio n would be required . -4.2 Agricultural ~ Forest Resources The proposed project would not result in significant adverse impacts related to agriculture and forest resources. No mitigation would be requi red. 4.3 Air Quality The proposed project would not result in significant adverse impacts related to air qua lity. No mitigation would be required. 4.4 Biologfcal Resources 810 -1 Migratory Bird Treaty Act. In the event that construction City of San Juan In the event that activities occur during the breed ing season (February 15-August 15), the Capistrano Development construction activities Applicant shal l retain a qualified biologis to conduct a nesting bird survey Services Director, or occur during the breeding w ithin 5 days prio r to commencement of construction activ ities . The designee season (February 15- nesting bird survey sh all iden tify and document active nesting w ithin 100 August 15)/ Prior to feet o f the constructio n limits. If nesting b irds are discovered during commencement of preconsuuctio n surveys, the biologists s.hall identify an appropriate bu ffer grading activities and (i.e., up t o 500 fe et depend i ng on the circumstances and specific bird issuance of any building species) where no construe ion activities or other disturbances are permits. al lowed to occ ur until after the bi rds ha ve fledged from the nest. Prior t o com mencement of grading activities and Issuance o f any building permits, the City of San Juan Capistrano Director of Development Serv ices, or des ignee, shall verify that all project grading and constructi on plans i nclude specific documentation regarding the re qu irements of th e M igratory Bird Treaty Act (MBTA), that preconstru ction surveys have been completed and the results reviewed by staff, and that the appropriate buffers (if needed) are noted on the plans and establ ishe d in the field with o range snow fencing. 26 EXHIBIT A, Page 4of10 )> --m C') =r 3 CD ::J - Verdugo Street Beautification Project Final Initial Study/Mitigated Negative Declaration Mitigation Measures 4.5 Cultura l Resources CUL-1: Archaeological Monitor. Prior to issuance of grading permits, and in adherence to the recommendations of the cultural resources records search, the Applicant shall retain, with approval of the City of San Juan Capistrano (City) Development Services Director, or designee, a qualified archaeological monitor. Monitoring by a qualified archaeologist should be conducted under the supervision of an Orange County Certified archaeologist and by a Native American monitor from one of the Juafieno groups recognized by the Native American Heritage Commission (NAHC). Monitoring will be conducted in accordance with the City of San Juan Capistrano's Council Policy 601 on historic, archaeological, and paleontological resource management.2 The monitor shall be present on the project site during ground-disturbing activities to monitor rough and finish grading, excavation, and other ground-disturbing activities in the native soils. Because no cultural resources were identified on the project site, archaeological monitors are not required to be present on a full-time basis but shall spot check ground-disturbing activities to ensure that no cultural resources are impacted during construction activities. The exact timing of monitoring activities shall be consistent with the provisions established in the Monitoring Plan, which is required as part of Mitigation Measure CUL-2 . CUL-2: Archaeological Monitoring Plan and Accidental Discovery. Prior to commencement of any grading activities on site, the Applicant shall retain a qualified archaeologist to prepare a Monitoring Plan. The Monitoring Plan shall be prepared by a qualified archaeologist and shall be reviewed by the City Development Services Director, or designee . The Monitoring Plan should include at a minimum: (1) a list of personnel involved in the monitoring activities; (2) a description of how the monitoring shall occur; (3) a description of the frequency of monitoring (e.g., full-time, part-time, spot checking); (4) a description of what resources may be encountered; {5) a description of-circumstances that would result in the halting of work at the project site (e.g., what is considered a "significant" archaeological Responsible Party City of San Juan Capistrano Development Services Director, or designee City of San Juan Capistrano Development Services Director, or designee/ City Department of Public Works and Utilities Director, or designee 27 Timing for Standard Condition or Mitigation Measure Prior to issuance of grading permits Prior to commencement of any grading activities on site/During project excavation and grading activities Compliance Verification (Date and Signature Required) EXHIBIT A, Page 5of10 Verdugo Street Beautification Project Final Initial Study/Mitigated Negative Declaration site); (6) a description of procedures for halting work on site and notification procedures; and (7) a description of monitoring reporting procedures. If any significant historical resources, archaeological resources, or human remains are found during monitoring, work shall be stopped within the immediate vicinity (precise area to be determined by the archaeologist in the field) of the resource until such time as the resource can be evaluated by an archaeologist and any other appropriate individuals. Project personnel shall not collect or move any archaeological materials or human remains and associated materials. To the extent feasible, project activities shall avoid these deposits. Where avoidance is not feasible, the archaeological deposits shall be evaluated for their eligibility for listing on the California Register of Historic Places. If the deposits are not eligible, avoidance is not necessary. If the deposits are eligible, adverse effects on the deposits must be avoided, or such effects must be mitigated. Mitigation can include, but is not necessarily limited to: leaving the deposits in place, excavation of the deposit in accordance with a data recovery plan (see California Code of Regulations [CCR) Title 4(3) Section 5126.4(b)(3){C)) and standard archaeological field methods and procedures; laboratory and technical analyses of recovered archaeological materials; production of a report detailing the methods, findings, and significance of the archaeological site and associated materials; curation of archaeological materials at an appropriate facility for future research and/or display; an interpretive display of recovered archaeological materials at a local school, museum, or library; and public lectures at local schools and/or historical societies on the findings and significance of the site and recovered archaeological materials . It shall be the responsibility of the City Building Official, or designee, to verify that the Monitoring Plan is implemented during project excavation and grading. Upon completion of all monitoring/mitigation activities, the consulting archaeologist shall submit a monitoring report to the City Development Services Director, or designee, and to the South-Central Coastal Information Center summarizing all monitoring/mitigation activities and confirming that all recommended mitigation measures have been met. The monitoring report shall be prepared consistent with the guidelines of the Office of Historic Preservation's Archaeological Resources Management Reports (ARMR}: Recommended Contents and Format. The City Deve l opment Services Director, or des ignee, shall be r esponsible for 28 EXHIBIT A, Page 6of10 )> --D> (') ::::; 3 CD ::::s - ....... ....... 0 -....... .::. Verdugo Street Beautification Project Final Initial Study/Mitigated Negative Declaration reviewing any reports produced by the archaeologist to determine the appropriateness and adequacy of the findings and recommendations. CUL-3: Human Remains. Consistent with the requirements of CCR Section 15064.S(e), if human remains are encountered during site disturbance, grading, or other construction activities on the project site, the construction contractor shall halt work within 25 feet of the discovery; all work shall be redirected and the Orange County (County) Coroner notified immediately. No further disturbance shall occur until the County Coroner has made a determination of origin and disposition pursuant to Public Resources Code Section 5097.98 . If the remains are determ i ned to be Native American, the County Coroner shall notify the Native American Heritage Commission (NAHC), which will determine and notify a Most Likely Descendant (MLD). The MLD may inspect the site of the discovery. The MLD shall complete the inspection within 48 hours of notification by the NAHC. The MLD may recommend scientific removal and nondestructive analysis of human remains and items associated with Native American burials. Consistent with CCR Section 15064.S(d), if the remains are determined to be Native American and an MLD is notified, the City shall consult with the MLD identified by the NAHC to develop an agreement for the treatment and disposition of the remains. Upon completion of the assessment, the consulting archaeologist shall prepare a report documenting the methods and results and provide recommendations regarding the treatment of the human remains and any associated cultural materials, as appropriate, and in coordination with the recommendations of the MLD . The report shall be submitted to the City Development Services Director, or designee, and the South-Central Coastal Information Center. The City Development Services Director, or designee, shall be responsible for reviewing any reports produced by the archaeologist to determine the appropriateness and adequacy of the find ings and recommendations . 4.6EneflY The proposed project would not result in significant adverse impacts related to energy. No mitigati on is re qu i red . City of San Juan Capistrano Development Services Director, or designee 29 If human remains are encountered during site disturbance, grading, or other construction activities on the project site EXHIBIT A , Page 7of10 )> --Q) (') ::::r 3 CD :::I - Verdugo Street Beautification Project Final Initial Study/Mitigated Negative Declaration Timing for Standard Condition or Mitigation Measures Responsible Party Mitigation Measure 4.7 Geology and Soils GE0-1 : Compliance with Geotechnical Investigations. These studies sha ll City of San Juan Prior to issuance of be submitted for review and approval by the City of San Juan Capistrano Capi strano Engineer, or grading permits City Engineer, or designee, to ensure that future development has been designee evaluated at an appropriate level of detail by a profess ional geologist . Prior to issuance of grading permits, the City Engineer shall confirm that all grading and construction plans incorporate and comply with the recommendations included in the Final Geotechnical Report . Design, grading, and constr ucti on shall adhere to all of t he seismic requ i rements incorporated into the most current version of the California Bu i lding Code (CBC) and the requirements and standards contained in the applicable chapters of the City of San Juan Capistrano Munici pal Code , as well as appropriate local grading regulations, and the specifications of the project ge otechnical consultant. 4.8 Greenhouse Gas Emissions The proposed project would not result i n sign ificant adverse impacts re lated to g reenhouse gas emissions . No m i tiga tion would be r eq ui red . - 4 .9 Haz.ards and Hazardous Materials The proposed project would not result i n sign ificant adverse impacts related to hazards and hazardous materials . No mitigation would be required. 4.10 Hydrology and Water Quality The proposed project would not result in sign ificant adverse i mpact s related to Hydr ology and Water Qua lity . No m itigati o n would be required . 4.11 Land Ose/Plan The proposed project would not result in significant adverse i mpacts related to Land Use and Plann in g . No mitig ation would be required. 4.U Mineral ResourCies The proposed project would not result in significant adverse impacts related to mineral resources . No mitiga tion would be r eq ui red . 4.13 N<Hse The proposed project would not result in significant adverse impacts related to noise . No m itigat i on would be req uired . 30 Compliance Verification (Date and Signature Required) - - . EXHIBIT A, Page 8of10 ~ -Q) (") ~ 3 CD :::::s - Verdugo Street Beautification Project Final Initial Study/Mitigated Negative Declaration Timing for Standard Condition or Mitigation Measures Responsible Party Mitigation Measure 4.14 Population and HOUSing The proposed project would not result in significant adverse impacts related to population and housi ng. No mi tigat ion would be r equired. 4.15 Public Servkes and Utilitie5 The proposed project would not result in significant adverse impacts related to public services and utilities . No m i tigation would be required. 4.1"6 Recreation The proposed project would not result in significant adverse impacts related to recreation. No m itigati on would be required. 4.17 Transportation/rraffk The proposed project would not result in significant adverse impacts re l ated to transportation/traffic. No mitigation would be r equ i red 4.18 Tribal CulturaJ Resources TCR-1. Prior to commencement of any ground-disturbing activities, the Director of the City of Prior to commencement City will assure that a qualified Native American monitor has been San Juan Capistrano of any ground disturbing retained to provide Native American monitoring services during ground -Community activities disturbing activities in native soils. Because no known resources have been Development identified on the site, monitors are not required on a full-time basis, but Department, or designee shall spot check ground-disturbing activities in compliance with the monitoring procedures outlined in the Monitoring Plan (which itself is required as part of Mitigation Measure CUL-2) to ensure that no resources are impacted during construction. The Native American monitor shall be selected by the project Archaeologist in coordination with the Juaneiio Band of Mission Ind ians Acjachemen Nation. The Native American monitor shall be present at the pre-grading conference to establish procedures for tribal cultural resource surveillance. Those procedures shall include provisions for temporarily halting or redirecting work to permit sampling, identification, and evaluation of resources deemed by the Native American monitor to be tribal cultural resources as defined in Public Resources Code Section 21074. These procedures shall be reviewed and approved by the City of San Juan Capistrano Community Department Director, or designee, prior to commencement of any surface disturbance on the project site . 31 Compliance Verification (Date and Signature Required) EXHIBIT A, Page 9of10 )> :::: Ill 0 ::T 3 CD ::I -w "U Ill cc CD Verdugo Street Beautification Project Final Initial Study/Mitigated Negative Declaration Timing for Standard Compliance Condition or Verification (Date and Mitigation Measures Responsible Party Mitigation Measure Signature Required) 4.19 Utilitlesf 5ervice System The proposed project would not result in significant adverse impacts related to Utilities/Serv ice Sys t ems. No mitiga tion would be r equired. 4.20 Wildfire The proposed project would not result in significant adverse impacts related to wildfire. No mit igation would be req uired . 32 EXHIBIT A, Page 10of10 RECORDING REQUESTED BY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AND WHEN RECORDED, MAIL TO: Maria Morris, City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Exempt from Recording Fees: Gov Code 27383 & 6103 City of San Juan Capistrano This Space for Recorder's Use Only Title of Document: LICENSE AGREEMENT for Affixing String Lights to Private Property; APN 121-141-16 (31751 Camino Capistrano) Attachment 4, Page 1 of 8 License Agreement Page 2 of 8 LICENSE AGREEMENT THIS LICENSE AGREEMENT ("Agreement") is made this __ day of , 2019 ("Effective Date"), by and between CAPISTRANO PLAZA LLC, hereinafter referred to as "Licensor" and the CITY OF SAN JUAN CAPISTRANO, hereinafter referred to as "Licensee". Licensee and Licensor are individually referred to herein as a "Party" and collectively as the "Parties." RECITALS WHEREAS, Licensor is the owner of certain real property referred to as 31751 and 31761 Camino Capistrano, located within the City of San Juan Capistrano, County of Orange, State of California, and identified as Assessor Parcel Number 121-141-16 ("Property"), and WHEREAS, on July 16, 2019, Licensee approved the Verdugo Street Beautification Project, which includes the widening of sidewalks, installation of landscaping, enhanced paving, lighting, and street furniture to provide a pedestrian- friendly experience in the downtown area and area adjacent to the train station and Los Rios District. On the same day, Licensee also adopted a Mitigated Negative Declaration and made a finding that all environmental impacts of the Project are either less than significant or can be mitigated to less than significant levels pursuant to the mitigation measures outlined in the Mitigated Negative Declaration, the Initial Study, and the Mitigation Monitoring Reporting Program, and WHEREAS, pursuant to the Verdugo Street Beautification Project, Licensee and its contractor require access to and use of [eight (8)] eye-bolts to be installed by Licensor along a portion of the exterior walls located on the Property (the "Licensor Installed Hooks") facing Verdugo Street for the purpose of affixing string lights to the Licensor Installed Hooks ("Improvements"), and WHEREAS, Licensor desires to grant a license to Licensee for the purpose of making the Improvements upon the terms and conditions set forth below. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this License and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Licensor and Licensee mutually agree as follows: I. GRANT OF LICENSE AND CONDITIONS. 1. Grant of License. Licensor hereby grants to Licensee a license right to use the Licensor Installed Hooks for the purpose of the Improvements (i.e., affixing string lights within Verdugo Street to the Licensor Installed Hooks). The Licensee will provide the power source for these string lights and the proposed work, Attachment 4, Page 2 of 8 License Agreement Page 3 of 8 including the locations of the Licensor Installed Hooks, is described in Exhibit "A", attached hereto. Licensee will affix the string lights as indicated in the Verdugo Street Beautification Project CIP 14106 design plans and as recommended and approved by the City Engineer of City of San Juan Capistrano and in consultation with the Licensor and his/her representatives. Licensee shall notify Licensor at least twenty-four (24) hours prior to each entry on the Property. 2. Indemnification. Licensee agrees to indemnify, defend and hold the Licensor, its managers, members, lenders, agents and employees harmless from and against any and all injuries to and deaths of persons and injuries to property or other interests and all claims, demands, costs, loss, damage, and liability, arising out of the use of the Licensor Installed Hooks, the Improvements and the performance of Licensee's rights and obligations under this Agreement. The foregoing indemnification and the insurance obligations in paragraph 3 below shall be in effect for perpetuity or as such time that the Improvements are removed to the satisfaction of Licensor. Licensor shall promptly provide Licensee with written notice of any claim, demand, lawsuit or the like for which it seeks indemnification pursuant to this Agreement. A delay in notice shall not relieve Licensee of its indemnity obligation, except (1} to the extent the Licensee can show it was prejudiced by the delay; and (2) Licensee shall not be liable for any settlement or litigation expenses incurred before the time when notice was given. 3. Insurance. During the term of this Agreement, Licensee shall maintain in effect a policy of comprehensive general liability or commercial general liability insurance with respect to its activities on the Property, including liability arising from a negligent or wrongful act of Licensee or Licensee's contractor and its subcontractors, in which the limits of liability for personal injury, loss of life and property damage shall not be less than One Million Dollars ($1,000,000.00) per occurrence and Three Million Dollars ($3,000,000.00) aggregate. Licensor and its constituent members and managers shall be named as additional insureds on such policy and an endorsement or copy of the such policy shall be provided to Licensor proving that said insurance coverage is in place. Licensor shall promptly and no later than thirty (30) days after notice thereof provide Licensee with written notice of any claim, demand, lawsuit or the like for which it seeks coverage pursuant to this Section and provide Licensee with copies of any demands, notices, summons, or legal papers received in connection with such claim, demand, lawsuit or the like. Further, Licensor shall not settle any such claim, demand, lawsuit or the like without the prior written consent of Licensee, which shall not be unreasonably withheld, conditioned or delayed. Licensor shall reasonably cooperate with Licensee in the defense of the claim, demand, lawsuit or the like. 4 . Responsibility of Licensee to Maintain, Repair, Remove and/or Relocate Attachment 4, Page 3 of 8 License Agreement Page 4 of 8 Private Improvements . The license granted to Licensee pursuant to this Agreement allows the Licensee, at Licensee's sole expense, to install and re- install string lights as described in Exhibit "A". Licensee acknowledges that Licensor will need to access the Property for general maintenance and/or repair and/or replacement of the building thereon. Any costs and construction work needed to repair, remove and/or relocate the Improvements occasioned by such work by or on behalf of Licensor shall be borne by Licensee. Licensee further acknowledges if, during the course of construction and/or maintenance of the Improvements by Licensee, any portion of the Property is damaged arising out of incident to acts, omissions, and/or operations by Licensee, the cost to repair and/or replace said portion of the Property shall be borne by Licensee. The Improvements will be and remain Licensee's personal property and, at Licensee's option, may be removed by Licensee at any time during or after the term of this Agreement. Licensor covenants and agrees that no part of the Improvements will become, or be considered as being affixed to or a part of, the Property. Licensor reserves the right to terminate this Agreement immediately if Licensor determines that the Improvements become detrimental to the public health, safety and welfare. In the event of the termination of this Agreement, all costs to remove all of the Improvements shall be borne by Licensee. 5. Successors in Interest. This Agreement shall inure to and be binding on the heirs, successors, executors, administrators, and assignees of Licensee and Licensor. 6. No Waiver. Any failures or delays by Licensor in asserting any of its rights and remedies as to any default by Licensee hereunder shall not operate as a waiver of any default or any such rights or remedies, or deprive Licensor of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. II. TERMS. 1. This Agreement shall continue in ful~ force and effect, subject to paragraph 4 above, unless terminated by Licensee or Licensor upon 90 days written notice for any reason; or, shall be terminated on 10 days notice if Licensee fails to adhere to any conditions of this Agreement. Upon termination, Licensee shall remove the Improvements and the Licensor Installed Hooks, patch and repair any damage to the walls of the building on the Property caused thereby, including matching the color and texture of the repaired areas of the walls to the color and texture of the surrounding areas of the walls. Ill. NOTICES. Attachment 4, Page 4 of 8 License Agreement Page 5 of 8 1. All notices, requests and demands hereunder will be given by first class mail, postage repaid, and deposited in the U.S. mail, or personally served upon the other party. If to Licensor: If to Licensee : Attn: Dan Almquist Capistrano Plaza LLC c/o Frontier Real Estate Investments 610 Newport Center Drive, Suite 1520 Newport Beach, CA 92660 Joe Parco City Engineer City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 IV. MISCELLANEOUS. 1. Amendment/Waiver. This Agreement cannot be amended, modified or revised unless done in writing and signed by Licensor and Licensee. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions, whether or not similar, nor shall any waiver be a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver. 2. Entire Agreement. This Agreement and the exhibits attached hereto, all being a part hereof, constitute the entire agreement of the parties and supersedes and replaces all prior negotiations and proposed agreements, written or oral regarding the license granted pursuant hereto. Licensor and Licensee understand, acknowledge and agree that no Party, or the agents or attorney for any Party, has made any promise, representation or warranty of any kind whatsoever, express or implied not contained herein to induce the execution of this Agreement. Licensor and Licensee understand, acknowledge, and agree that this Agreement has not been executed in reliance upon any promise, representation, or warranty not contained herein. 3. Applicable Law. This Agreement and all rights and obligations arising out of it shall be construed in accordance with the laws of the State of California. Any legal or administrative action arising out of this Agreement shall be conducted in Orange County, California. 4. Severabilitv. If any section, subsection, sentence, clause or phrase of this Agreement, or the application thereof to any of the Parties, is for any reason held invalid or unenforceable, the validity of the remainder of the Agreement shall not be affected thereby and may be enforced by the Parties to this Agreement. Attachment 4, Page 5 of 8 License Agreement Page 6 of 8 5. Recitals . The recitals set forth above are fully incorporated into the terms of this Agreement by reference. 6. Attorneys ' Fees. In the event that any dispute between the Parties related to this Agreement should result in litigation , the prevailing Party in such litigation shall be entitled to recover from the other Party all reasonable fees and expenses of enforcing any right of the prevailing Party, including without limitation, reasonable attorneys' fees and expenses. 7. No Thi rd -P arty Beneficiary . This Agreement is entered into solely for the benefit of Licensor and Licensee. Other than Licensor and Licensee, no third person shall be entitled, directly or indirectly, to base any claim or to have any right arising from, or related to, this Agreement. 8. Time of Essence. Time is expressly declared to be of the essence in the performance of each and every provision of this Agreement. DATED this __ day of ____ , 2019, at San Juan Capistrano . LICENSEE CAPISTRANO PLAZA LLC By: Frontier SJC LLC, Manager By :~--------~ Dan Almquist, Manager APPROVED AS TO FORM : ELIZABETH HULL, CITY ATTORNEY CITY OF SAN JUAN CAPISTRANO BY : -----------~ BENJAMIN SIEGEL, CITY MANAGER ATTEST: MARIA MORRIS, CITY CLERK Attachment 4, Page 6 of 8 License Agreement :v RS PEDCSTRIAN WAU<WAY EYE-BOLT 0 ~ STRUCTURE OR POLE CD Page 7 of 8 EXHIBIT A PLAZA FRANCISCAN PLAZA ROAJJNAY CABLE LOCK 0 AIRCRAFT rj1 CABLE L.'..J Attachment 4, Page 7 of 8 License Agreement Page 8 of 8 Attachment 4, Page 8 of 8 RECORDING REQUESTED BY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 AND WHEN RECORDED, MAIL TO : Maria Morris, City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Exempt from Recording Fees: Gov Code 27383 & 6103 City of San Juan Capistrano This Space for Recorder's Use Only Title of Document: LICENSE AGREEMENT for Affixing String Lights to Private Property; APN 121-150-27 (31781 Camino Capistrano and 26762 Verdugo Street) Attachment 5, Page 1 of 7 License Agreement Page 2 of 7 LICENSE AGREEMENT THIS LICENSE AGREEMENT ("Agreement") is made this __ day of , 2019 ("Effective Date"), by and between ALBERTO MOBRICI, PRESIDENT ALFA PLAZA, LLC., hereinafter referred to as "Licensor" and the CITY OF SAN JUAN CAPISTRANO, hereinafter referred to as "Licensee". Licensee and Licensor are individually referred to herein as a "Party" and collectively as the "Parties." RECITALS WHEREAS, Licensor is the owner of certain real property referred to as 31781 Camino Capistrano and 26762 Verdugo Street, located within the City of San Juan Capistrano, County of Orange, State of California, and identified as Assessor Parcel Number 121-150-27, ("Property") and WHEREAS , on July 16, 2019 , Licensee approved the Verdugo Street Beautification Project, which includes the widening of sidewalks, installation of landscaping, enhanced paving, lighting, and street furniture to provide a pedestrian- friendly experience in the downtown area and area adjacent to the train station and Los Rios District. On the same day, Licensee also adopted a Mitigated Negative Declaration and made a finding that all environmental impacts of the Project are either less than significant or can be mitigated to less than significant levels pursuant to the mitigation measures outlined in the Mitigated Negative Declaration, the Initial Study, and the Mitigation Monitoring Reporting Program, and WHEREAS, pursuant to the Verdugo Street Beautification Project, Licensee and its contractor require access to use a portion of the existing exterior walls located at the Property for the purpose of affixing string lights within Verdugo Street ("Improvements"), and WHEREAS, Licensor desires to grant a license to Licensee for the purpose of performing the Activities upon the terms and conditions set forth below. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this License and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Licensor and Licensee mutually resolve as follows: I. GRANT OF LICENSE AND CONDITIONS. 1. Grant of License. Licensor hereby grants to Licensee a license right to use a portion of the existing exterior walls located at Property for the purpose of affixing string lights within Verdugo Street. The Licensee will provide the power source for these string lights and the proposed work is described in Exhibit "A", attached hereto. Licensee will affix the string lights as indicated in the Verdugo Street Beautification Project CIP 14106 design plans and as recommended and Attachment 5, Page 2 of 7 License Agreement Page 3of7 approved by the City Engineer of City of San Juan Capistrano and in consultation with the Licensor and his/her representatives. Licensee shall notify Licensor at least twenty-four (24) hours prior to each entry on the Property. 2. Indemn ification . Licensee agrees to indemnify, defend and hold the Licensor, his agents and employees harmless from and against any and all injuries to and deaths of persons and injuries to property or other interests and all claims, demands, costs, loss , damage, and liability, arising out of the performance of Licensee's rights and obligations under this Agreement. The foregoing indemnification and insurance obligations shall be in effect for perpetuity or as such time that the Improvements are removed to the satisfaction of the Licensor, his agents and representatives. Licensor shall promptly provide Licensee with written notice of any claim, demand, lawsuit or the like for which it seeks indemnification pursuant to this Section. A delay in notice shall not relieve Licensee of its indemnity obligation, except (1) to the extent the Licensee can show it was prejudiced by the delay; and (2) Licensee shall not be liable for any settlement or litigation expenses incurred before the time when notice was given. The Licensee agrees to add the Licensor as an additional protected party, pending approval by the City's insurance provider, the California Joint Powers Insurance Authority. 3. Insurance. During the term of this Agreement, Licensee shall maintain in effect a policy of comprehensive general liability or commercial general liability insurance with respect to its activities on the Property, including liability arising from a negligent or wrongful act of Licensee or Licensee's contractor and sdubcontractor, in which the limits of liability shall not be less than One Million Dollars ($1,000,000.00). Licensor shall be named as an additional insured on such policy and an endorsement shall be provided to Licensor proving that said insurance coverage is in place. Licensor shall promptly and no later than thirty (30) days after notice thereof provide Licensee with written notice of any claim, demand, lawsuit or the like for which it seeks coverage pursuant to this Section and provide Licensee with copies of any demands, notices, summons, or legal papers received in connection with such claim, demand, lawsuit or the like. Further, Licensor shall not settle any such claim, demand, lawsuit or the like without the prior written consent of Licensee , which shall not be unreasonably withheld, conditioned or delayed. Licensor shall reasonably cooperate with Licensee in the defense of the claim, demand, lawsuit or the like . 3. Responsibi lit y of Licensee to Ma inta in. Repair . Remove and/or Re loca te Priva te Improvements. Execution of this Agreement allows the Licensee, at Attachment 5, Page 3 of 7 License Agreement Page 4of7 Licensee's sole expense, to install and re-install string lights as described in Exhibit "A". Licensee acknowledges that the property in which the lights will be affixed may need to be accessed by the Licensor for general maintenance and/or repair of the structure. Any costs and construction work needed to repair, remove and/or relocate said string light improvements occasioned by the above shall be borne by the Licensee. Prior to the issuance of construction permits, private improvements found to be in conflict with existing utility facilities or systems shall be redesigned, or utilities shall be relocated, subject to the approval of the specific agency/utility company, at the expense of the Licensee. Licensee further acknowledges if, during the course of construction and/or maintenance of the improvements by the Licensee, any of the Licensor's property is damaged arising out of incident to acts, omissions, and/or operations by Licensee, the cost to repair and/or replace said equipment shall be borne by the Licensee. Any and all Improvements brought onto the Property by Licensee will be and remain Licensee's personal property and, at Licensee's option, may be removed by Licensee at any time during or after the term of this Agreement. Licensor covenants and agrees that no part of the Improvements will become, or be considered as being affixed to or a part of, the Property. The Licensor reserves the right to terminate this License Agreement immediately if Licensor determines that the Improvements become detrimental to the public health, safety and welfare. In the event of the termination of this Agreement, all costs to remove all of the Improvements shall be born by the Licensee. 4. Successors in Interest. The License Agreement shall inure to and be binding on the heirs, successors, executors, administrators, and assignees of the Licensee. 5. No Waiver. Any failures or delays by Licensor in asserting any of its rights and remedies as to any default by Licensee hereunder shall not operate as a waiver of any default or any such rights or remedies, or deprive Licensor of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. Ill. TERMS. 1. This License Agreement shall continue in full force and effect, subject to paragraph 4, unless terminated by the Licensee or Licensor upon 90 days written notice for any reason; or, shall be terminated on 10 days notice if Licensee fails to adhere to any conditions of this Agreement. Upon termination, Licensee shall restore the right-of-way to its original condition to the satisfaction of the City Engineer. Attachment 5, Page 4 of 7 License Agreement Page 5 of 7 IV. NOTICES. 1. All notices, requests and demands hereunder will be given by first class mail, postage repaid, and deposited in the U.S. mails, or personally served upon the other party. If to Licensor: If to Licensee: Alberto Mobrici Alfa Plaza LLC 31781 Camino Capistrano, Suite 107 San Juan Capistrano, CA 92675 Joe Parco City Engineer City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 V. MISCELLANEOUS. 1. Amendment/Waiver. This Agreement cannot be amended, modified or revised unless done in writing and signed by Licensor and Licensee. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions, whether or not similar, nor shall any waiver be a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver. 2. Entire Agreement. This Agreement and the exhibits attached hereto, all being a part hereof, constitute the entire agreement of the parties and supersedes and replaces all prior negotiations and proposed agreements, written or oral regarding the License conveyed herein. Licensor and Licensee understand, acknowledge and agree that no Party, or the agents or attorney for any Party, has made any promise, representation or warranty of any kind whatsoever, express or implied not contained herein to induce the execution of this Agreement. Licensor and Licensee understand, acknowledge, and agree that this Agreement has not been executed in reliance upon any promise, representation, or warranty not contained herein. 3. Applicable Law . This Agreement and all rights and obligations arising out of it shall be construed in accordance with the laws of the State of California. Any legal or administrative action arising out of this Agreement shall be conducted in Orange County, California. 4. Severability. If any section, subsection, sentence, clause or phrase of this Agreement, or the application thereof to any of the Parties, is for any reason held invalid or unenforceable, the validity of the remainder of the Agreement shall not be affected thereby and may be enforced by the Parties to this Agreement. Attachment 5, Page 5 of 7 License Agreement Page 6 of 7 5. Recitals. The recitals set forth above are fully incorporated into the terms of this Agreement by reference. 6. Attorneys ' Fees. In the event that any dispute between the Parties related to this Agreement should result in litigation, the prevailing Party in such litigation shall be entitled to recover from the other Party all reasonable fees and expenses of enforcing any right of the prevailing Party, including without limitation, reasonable attorneys' fees and expenses. 7. No T h ird Party Beneficiary. This Agreement is entered into solely for the benefit of the Licensor and Licensee. Other than Licensor and Licensee, no third person shall be entitled, directly or indirectly, to base any claim or to have any right arising from, or related to, this Agreement. 8. Time of Essence. Time is expressly declared to be of the essence in the performance of each and every provision of this Agreement. DATED this __ day of ____ , 2019, at San Juan Capistrano . LICENSEE CITY OF SAN JUAN CAPISTRANO BY: BY : ----------~ -----------~ ALBERTO MOBRICI, OWNER BENJAMIN SIEGEL, CITY MANAGER APPROVED AS TO FORM : ATTEST : ---------- MAR I A MORRIS, CITY CLERK ELIZABETH HULL, CITY ATTORNEY Attachment 5, Page 6 of 7 License Agreement y RS PCDCSTRIAN WALKWAY EYE-BOLT 0 "---STRUCTURE OR POLE 8J Page 7 of 7 EXHIBIT A PLAZA FRANCISCAN PLAZA ·-~.,,.,....-,,---,, --rr-tl~ 0 CJ Cl 0 0 ROMJ//AY CABLE LOCK 0 AIRCRAFT f1l CABLE LJ Attachment 5, Page 7 of 7