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09-0602_LESTER AND FISHER COMPANY_ROE License AgreementRIGHT OF ENTRY LICENSE AGREEMENT BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND LESTER AND FISHER COMPANY (Temporary Construction — Del Obispo Street and Camino Capistrano Intersection Improvements Project) THIS RIGHT OF ENTRY LICENSE AGREEMENT ("Agreement') is made and entered into this 6_ day of C1Mk, , 2009 by and among the LESTER AND FISHER COMPANY ("Licensor"), a California limited partnership, 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 EI Adobe Plaza depicted on Exhibit "B" attached hereto, Assessor Parcel Numbers 121-150-18 and 121-150-23, located at 31931 Camino Capistrano and 31901 Camino Capistrano, respectively, 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 0 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. 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"). 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 easement, lease, fee or other leasehold interest in the Temporary Construction Area to Licensee. 2 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. 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 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"). 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 easement, lease, fee or other leasehold interest in the Temporary Construction Area to Licensee. 2 0 3. TERM 0 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 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 personal or bodily injury (including death) or for violation of any law or regulation, which may be caused by 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 employed under contract with Licensee, and whether such damage or claim shall accrue or be discovered before or after the termination of this Right of Entry. S. 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 4.1 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 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 all parties to this Agreement are not signatory to 4 0 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. [SIGNATURE PAGE FOLLOWS] 5 9 0 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. FA 0 APPROVED AS TO FORM: B {/ Y� ityAttorney LICENSOR Lester and Fisher Company, a California limited partnership By: 6 r'jfJLQL r fN`� [TITI-Pr LICENSEE CITY OF SAN JUAN CAPISTRANO, a municipal corporation City Manager n Tyr THE CITY OF SAN JUAN CAPISTRANO N . 7,T, CIP 111- DEL OBISPO STREET AND CAMINO CAPISTRANO INTERSECTION IMPROVEMENTS m .4 0 3000 6000 9000 Feet Seem Exhibit A Ja" 1 1 142 ft Exhibit B N CityGIS Copyright O 2006 All Rights Reserved. The information contained herein is the proprietary property of the contributor supplied under license and may not be approved except as licensed by Digital Map Products. Page 1 of 1 http://maps.digitaimapcentral.com/production/CityGIS/v07_01_059/index.html 4/1/2009 DATE: 6/19/2009 0 0 CITY OF SAN JUAN CAPISTRANO 32400 Paseo Adelanto San Juan Capistrano, California 92675 949 493-1171 FAX: 949 493-1251 DIVISION TRANSMITTAL L&M Property Management Attention: Bill Munce 1810 Newport Boulevard, Suite C Costa Mesa, CA 92627 Nisha Patel (949)443-6350 Del Obispo and Camino Capistrano Intersection Improvements ❑ Preliminary ❑ Comment ❑ Corrections ❑ Reviewed ❑ Review ❑ Revisions ❑ Revised ❑ Approval ❑ Additions ❑ Approved ❑ Distribution/Use ❑ Omissions ❑ Permitted ® Information/file ❑ 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. The City Clerk office will send you the other document, the Grant of Easement, once it has been recorded by the County. Sincerely, Nisha Pate rdai Today's Date: 5-31-09 • • Transmittal Routing (Check All That Apply) ❑ City Attorney ❑ City Manager ❑ City Clerk CONTRACT TRANSMITTAL CIP No. (ff any): 111 Project Manager's Last Name: ---POW_ Phone Extension: 6350 Council or CRA Meeting Date (ff applicable): APPROVING AUTHORITY: (Check One) ❑ Mayor ❑ CRA Chair ❑ City Manager Provide (1) executed original contract for each signing party, including the City. If the agreement is to be recorded — only (1) original will be recorded with certified copies going to other 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: OTHER INSTRUCTIONS: TCE from the EI Adobe Plaza (Lester and Fisher Co.): Please return fully signed copy to Nisha. She will handle sen Nisha will cc the City Clerk's office on the transmittal C form Date: 01-2004 D-7