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08-0205_26755 VERDUGO LLC_Shared Use Agreement0 0 AGREEMENT FOR SHARED USE OF ELECTRICAL PANEL LOCATED IN THE MUTLI-MODAL TERMINAL AREA BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND 26755 VERDUGO, LLC This AGREEMENT ("Agreement") is entered into this 5th day of February, 2008 by and between THE CITY OF SAN JUAN CAPISTRANO, a California municipal corporation ("SJC) and 26755 VERDUGO LLC, a California Limited Liability Company ("VERDUGO"). SJC and VERDUGO are hereafter together referred to as the "Parties' and each individually as a "Party'. RECITALS: Whereas SJC leases a portion of Lot 4 of Tract 50 for the purpose of maintaining and operating the Multi -Modal Terminal Area (MMTA); and, Whereas SJC has installed and maintains a certain electrical panel (meter number 68987654) hereinafter "Electrical Panel" for the purposes of energizing irrigation timers and parking lot lighting within the MMTA; and, Whereas, VERDUGO is the fee owner of Lot 4 and desires to redevelop its property in the near future but needs additional power for its current tenant operations, and has approached SJC regarding the use of SJC's Electrical Panel to meet VERDUGO's power demands until such time as redevelopment on VERDUGO's property can occur; and, Whereas, SJC desires to assist VERDUGO to minimize the costs of providing additional power to 26755 Verdugo Street, by sharing its Electrical Panel located on Lot 4 as depicted on the plot plan provided as Exhibit "A" attached to and incorporated herein; and, Whereas, this agreement is only for the purpose of sharing the Electrical Panel, mutually exclusive of any and all existing Agreements between VERDUGO and SJC. AGREEMENT: NOW THEREFORE, in consideration of the mutual covenants and obligations of the parties herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1.OMAINTENCE AND OPERATION OF THE ELECTRICAL PANEL 1.1 Recitals The recitals set forth above are incorporated herein by this reference. Page 1 of 5 O 0 1.2 Shared Cost for Maintenance and Operation VERDUGO and SJC agree to mutually share the cost of maintenance and operation of the Electrical Panel. Costs may include, but are not limited to electricity, routine maintenance, repair, and all other miscellaneous costs associated with the Electrical Panel and its operation. The Parties have calculated and agree that SJC's monthly power consumption costs are $170.00 per month, and agree that SJC shall be liable for only a flat costs of $170.00 per month or $680.00 per quarter for its electrical usage during the term of this Agreement. VERDUGO shall be responsible for all electrical consumption costs in excess of $170.00 per month. VERDUGO shall be solely responsible for any costs to bring both power and the capacity to use the power from the Electrical Panel to VERDUGO's property. 1.3 Meter and Contract Administration The Meter shall be changed from SJC to VERDUGO and VERDUGO shall be responsible for the meter, power charges, and contract administration, to include preparation of a quarterly billing to SJC for the maintenance and SJC share of electrical usage of the panel as provided for in Section 1.2 herein. VERDUGO shall send the billing for the electrical usage to SJC at the address listed in the notice section below. VERDUGO agrees to provide all information requested by SJC in order for SJC to determine whether the bills are accurate and reasonable. SJC shall remit payment within thirty (30) days of receipt of the bill unless it contests the charges (which charges shall then become due until the parties mutually settle the same to their mutual satisfaction). 1.4 Indemnification As the parry responsible for the actual operation and maintenance of the Electrical Panel, VERDUGO shall be solely responsible for costs of any claims, liability or related defense costs, including attorney's fees arising out of its operation and maintenance of the Electrical Panel, and performance of the Agreement. VERDUGO shall indemnify, hold harmless and defend SJC and its officers, employees and agents from any claim or liability arising out of VERDUGO's operation of Electrical Panel or VERDUGO's performance of its obligations under this agreement. SJC shall only be responsible for any injuries or damages resulting from its own fault or negligence, and shall not be held liable for any fault or negligence of VERDUGO in the operation and maintenance of the Electrical Panel. After consultation with VERDUGO, SJC shall employ any legal counsel deemed necessary to defend an action arising out of this agreement. Page 2 of 5 0 s This hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by VERDUGO. 1.5 Mutual Cooperation regarding Operation of Electrical Panel In the event that the Electrical Panel malfunctions, VERDUGO shall be responsible for all repairs to the Electrical Panel that are the result of VERDUGO's use. Any and all costs that are related to VERDUGO's use shall be the sole responsibility of VERDGUO. Any and all costs that are related to SJC's use shall be the sole responsibility of SJC. Any costs for normal wear and tear to the Panel shall be split equal between the parties. Furthermore, VERDUGO agrees that SJC shall have reasonable access to the Electrical Panel upon reasonable notice to VERDUGO. 1.6Term This Agreement shall remain in effect until amended or terminated by mutual consent of the Parties hereto. This agreement may also be terminated by either party upon one hundred eighty (180) days notice to the other party. Upon termination, VERDUGO shall be required to place the Electrical Panel in substantially the same condition as it was prior to VERDUGO's use thereof, all at VERDUGO's sole cost. 1.7Amendment This Agreement may be amended by a written instrument executed and acknowledged by both parties. 1.8VERDUGO's Non -responsibility for SJC Leased Property Except for the specific rights conferred to, VERDUGO under this Agreement, nothing confer upon VERDUGO any property right leasehold interest identified above. 1.9 Insurance or liabilities imposed upon, herein shall be interpreted to upon, or liability for, SJC's On or before beginning the operation of the Electrical Panel by VERDUGO pursuant to this Agreement, VERDUGO, at its own cost and expense, shall carry, maintain for the duration of the agreement, and provide proof thereof that is acceptable to SJC, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to SJC. VERDUGO shall not allow any contractor to perform any work or maintenance until all insurance required of VERDUGO has also been obtained for the contractor. Insurance required herein shall be provided by insurers in good standing with Page 3 of 5 the State of California having a minimum Best's Guide Rating of A- Class VII or better. Comprehensive General Liability. Throughout the term of this Agreement, VERDUGO shall maintain in full force and effect Comprehensive General Liability coverage in an amount not less than one million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks associated with the operations contemplated by this agreement. If a Commercial General Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this agreement or the general aggregate limit shall be at least twice the required occurrence limit. Worker's Compensation. If VERDUGO intends to employ employees to perform operations under this Agreement, VERDUGO shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. Proof of Insurance Requirements/Endorsement. Prior to beginning any operations under this Agreement, VERDUGO shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement naming SJC, its officers, employees, agents, and volunteers as additional insureds as respects to liability arising out of operations or activities performed by or on behalf of VERDUGO, including the insured's general supervision of VERDUGO. The coverage shall contain no special limitations on the scope of protection afforded SJC, its officers, employees, agents, or volunteers. Notice of Cancellationfrermination of Insurance. The above policy shall not terminate, nor shall they be cancelled, nor the coverages reduced, until after thirty (30) days' written notice is given to SJC, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 2.OGENERAL PROVISIONS 2.1 Notice All notices, requests, demands, claims, and other communications hereunder will be in writing and duly addressed to the parties as follows: To SJC: City of San Juan Capistrano Attn: Economic Development/Redevelopment Manager 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Page 4 of 5 0 To VERDUGO: 26755 Verdugo, LLC Attn: Eric Altman 26755 Verdugo Street, Suite 200 San Juan Capistrano, CA 92675 2.2 Attorney's Fee In the event a dispute (with or without litigation) arises under this Agreement, or either Party is required to bring an action against the other Party for enforcement of its terms, the prevailing party in such action shall be entitled to recover its reasonable attorney's fees and costs from the other party. 2.3 No Partnership or Joint Venture Nothing in this agreement shall be construed to create a partnership or joint venture between the Parties with respect to the subject matter of this Agreement. 2.4 Severability In the event that any provision or provisions of this Agreement are held unenforceable, all provisions not so held shall remain in full force and effect. 2.5 Authority of Signatories The persons executing this Agreement on behalf of the Parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said Parties and that by so executing this Agreement the Parties are formally bound to the provisions of this Aqreement. n, City Clerk APPROVED AS TO FORM: (��Vto�l &(iwa C Omar Sandoval, City Attor ey CAPISTRANO Joe 26755 VERDUGO LLC Eric Altman, Managing Member Page 5 of 5 a) as U V] 0 0 EA N 0 z C) 0 z z Iii z PL Exhibit A TRACT LOT 11 N0, 50 \ LOT 5 . - 1 LOT 6 �qc r LOT PL 4'0 7 LOT 3 I LOT 2 J I LOT 8 — N W E S 9 LOT 705r riJ PL VERDUW STREET Lot 4 Property Lines Location of Electrical Panel Location Description— The electrical panel is located 13.12 feet North; thence South 83°26'00" and 24.29 feet West of the Northeast corner of the Mexican Lindo Building. On Lot 4, Tract 134 commonly referenced as 26775 Verdugo Street, San Juan Capis- trano, CA 92675.