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09-0602_UNION BANK OF CALIFORNIA_License Agreement t , RIGHT OF ENTRY LICENSE AGREEMENT BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND UNION BANK OF CALIFORNIA, N.A. (Temporary Construction — Del Obispo Street and Camino Capistrano Intersection Improvements Project) THIS RIGHT OF ENTRY LICENSE AGREEMENT ("Agreement') is made and entered into this —9-- day of 1 ;QQ009 by and among the UNION BANK, N.A. ("Licensor"), a national bank formerly known as Union Bank of California, N.A., and the CITY OF SAN JUAN CAPISTRANO ("Licensee'), a California municipal corporation. RECITALS A. Licensee intends to embark on a public construction project for intersection improvements and road right-of-way improvements along certain portions of Del Obispo Street and Camino Capistrano in the City of San Juan Capistrano, California, which area is more particularly depicted on Exhibit "A", attached hereto and incorporated herein by reference, commonly referred to as the area located at the Del Obispo Street and Camino Capistrano Intersection, City of San Juan Capistrano, California, (hereinafter referred to as the "Street Improvement Project Area"). B. Licensor is the fee owner of the Union Bank of California depicted on Exhibit "B" attached hereto, Assessor Parcel No. 121-150-17, located at 31971 Camino Capistrano, City of San Juan Capistrano, California, which is directly adjacent to the Street Improvement Project Area (the "Subject Property"). C. In order to complete construction of the proposed improvements within the Street Improvement Project Area, Licensee requires temporary construction access to 1 that certain portion of the Subject Property, which is more particularly depicted on Exhibit "C," attached hereto and incorporated herein by reference (hereinafter referred to as the "Temporary Construction Area"), for ingress, egress, and other construction-related purposes associated with completing the proposed street and sidewalk improvements within the Street Improvement Project Area. D. Subject to the terms and conditions below, Licensor desires to give permission to Licensee, and its authorized agents, to access the Temporary Construction Area for ingress, egress, and other construction-related activities associated with completing the proposed street and sidewalk improvements within the Street Improvement Project Area. NOW, THEREFORE, for valuable consideration receipt of which is hereby acknowledged, and in consideration of the foregoing recitals and the mutual promises, covenants, and conditions contained herein, the parties hereto agree as follows: AGREEMENT 1. RIGHT OF ENTRY Licensor hereby grants to Licensee, its agents, contractors, and invitees, the non- exclusive right to access the Temporary Construction Area for the express purpose of allowing ingress, egress, and other construction-related activities associated with completing the proposed street improvements within the Street Improvement Project Area ("Right of Entry"); provided, however, that such Right of Entry shall not unreasonably interfere with Licensor's business operations at the Subject Property. 2 • 2. NOT A REAL PROPERTY INTEREST It is expressly understood that.this Right of Entry does not in any way whatsoever grant or convey any permanent or temporary easement, fee, leasehold or any other real property interest in the Temporary Construction Area to Licensee. 3. TERM This Right of Entry shall be effective at 8:00 a.m. on July 6, 2009 and shall automatically terminate and expire thirty-five days of Licensee's recording of the notice of completion of the improvements. Licensee may not use the Temporary Construction Area for any other purpose or activity without first obtaining Licensor's prior written consent. Upon termination, Licensee shall remove all of Licensee's personal property and shall surrender possession of the Temporary Construction Area to Licensor in good order and repair to the satisfaction of Licensor, normal wear and tear excepted. 4. INDEMNIFICATION Licensee hereby agrees to indemnify, defend, assume all liability for, and hold harmless Licensor and its officers, directors, employees, agents and representatives from all actions, claims, suits, penalties, obligations, liabilities or damages for property or personal or bodily injury (including death) or for violation of any law or regulation, which may be caused by or related to in any way to Licensee's construction-related activities pursuant to this Right of Entry, whether such activities or performance thereof is by the Licensee or anyone directly or indirectly working for or by the direction of the Licensee, and whether such damage or claim shall accrue or be discovered before or after the termination of this Right of Entry. This indemnification obligation of Licensee shall survive the termination of this Agreement. 3 5. CHANGE OF CIRCUMSTANCES Each party shall promptly notify the other party of any legal impediment, change of circumstances, pending litigation, or any other event or condition that may adversely affect the ability to carry out any of the rights and obligations under this Agreement. 6. SEVERABILITY If any term, covenant, condition, or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby. 7. ENTIRE AGREEMENT This Agreement, together with any Exhibits attached hereto (which are incorporated herein by reference) fully expresses all understandings between the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings or agreement regarding such subject matter. No parol evidence shall be permitted to contradict or vary the terms of this Agreement. 8. AMENDMENT No modification, amendment, addition to, or alteration of the terms of this Agreement, or any Exhibits thereto, whether written or verbal, shall be valid unless made in writing and formally approved and executed by all parties. 9. ENFORCEMENT In the event suit is brought by any party to enforce the terms and conditions of this Agreement, or to secure performance hereof, the prevailing party shall be entitled to recover reasonable attorneys' fees in connection therewith, in addition to costs incurred 4 and other costs permitted by law. This Agreement shall be governed and construed in accordance with the laws of the State of California. In the event of any legal action to enforce or interpret this Agreement, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California. 10. COUNTERPARTS This Agreement may be executed in counterparts, all of which shall constitute the same Agreement, notwithstanding that alt parties to this Agreement are not signatory to the same counterpart. Delivery of an executed counterpart of this Agreement by telefacsimile shall be equally as effective as delivery of an original executed counterpart. Any party delivering an executed counterpart of this Agreement by telefacsimile also shall deliver an original executed counterpart of this Agreement. Signature and acknowledgement pages may be detached from the counterparts and attached to a single copy of this Agreement to physically form one (1) original document. 11. EXHIBITS This Agreement includes the following Exhibits that are attached hereto and are incorporated herein by reference as though fully set forth herein: Exhibit "A" Location Map of Street Improvement Project Area Exhibit "B" Depiction of Street Improvement Project Area and Licensor's Property Location Exhibit "C" Depiction of Temporary Construction Area 12. AUTHORITY TO EXECUTE The persons executing this Agreement warrant and represent that they have the authority to execute this Agreement and represent that they have the authority to bind the party for which they are signing to the performance of the obligations hereunder. 5 13. HAZARDOUS OR TOXIC MATERIALS Licensee shall not use, deposit, or permit the use or deposit of any hazardous material or toxic waste in the Subject Property or in the Temporary Construction Area. [SIGNATURE PAGE FOLLOWS] 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. LICENSOR Union Bank, N.A., a national bank Timothy S. odraza LICENSEE CITY OF SAN JUAN CAPISTRANO, a municipal corporation By: �Qn . City Manager ATT S By: jCit e k APPROVED AS TO FORM: l By. 1,-Jl a City Attorney 7 THE CITY OF SAN JUAN CAPISTRANO o k. Ar 7 k CIP 111- DEL OBISPO fil STREET AND CAMINO CAPISTRANO INTERSECTION IMPROVEMENTS 47 tj 3000 6000 9000 Feet P� Exhibit A �Al. d • .. ,F tr� d CS yy� `3 w I OELOBISPOST; - W t "� a;.• T V tS R I•t �'. '. r Ft by i f r � 9l • . a 6645TV IMF1 1 1 • 11 ' • • CITY OF SAN JUAN CAPISTRANO 32400 Paseo Adelanto �® ®e San Juan Capistrano, California 92675 949 493-1171 FAX: 949 493-1251 G4�N�r ENGINEERING DIVISION TRANSMITTAL DATE: 6/19/2009 TO: Union bank, N.A. Attention:John Lee Legal Division-Los Angeles 445 S. Figueroa St. Los Angeles, CA 90071 FROM: Nisha Patel (949)443-6350 PROJECT/DESCRIPTION: Del Obispo and Camino Capistrano Intersection Improvements STATUS SENT FOR YOUR PLEASE NOTE ❑ Preliminary ❑ Comment ❑ Corrections ❑ Reviewed ❑ Review ❑ Revisions ❑ Revised ❑ Approval ❑ Additions ❑ Approved ❑ Distribution/Use ❑ Omissions ❑ Permitted ® Inforrnationtfile ❑ Deletions Number of Documents: 1- Executed Right of Entry License Agreement Please note the following comments: Attached is an orginal fully executed Right-of Entry Agreement. Please forward this to the proper person if it is not you.Thank you. Sincerely, Nisha Patel cc: Today's Date: 5-31-09 Transmittal Routing (Check All That Apply) ❑ City Attorney ❑ City Manager ❑ City Clerk CONTRACT TRANSMITTAL CIP No. (if any): 111 Project Manager's Last Name: _Patel Phone Extension:-6350— Council xtension: 6350Council or CRA Meeting Date (if applicable): APPROVING AUTHORITY: (Check One) ❑ Mayor ❑ CRA Chair �. ❑ City Manager Low- Provide (1) executed original contract for ea he City. If the agreement is to be recorded–only (1) original will be recorded wi _ _ _ter parties. Please provide the mailing address of any party to receive an agreement – unless the mailing address is included within the body of the agreement: Names Street City St Zi OTHER INSTRUCTIONS: TCE from the Union Bank of CA: Please return fully signed copy to Nisha. She will handle sending it out. Nisha will cc the City Clerk's office on the transmittal she sends out. Form Date:01-2004 D-7