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10-1012_S.J. HILLS L.P._ROE License Agreement (2)RIGHT OF ENTRY LICENSE AGREEMENT BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND S. J. DILLS, L.P., a California limited partnership (Temporary Construction —Storage of equipment and materials in vacant lot) THIS RIGHT OF ENTRY LICENSE AGREEMENT ("Agreement") is made and , 1,D be entered into this day of ( e , 2010 by and among the S. J. HILLS, a California Limited Partnership ("Licensor"), and the CITY OF SAN JUAN CAPISTRANO ("Licensee"), a California municipal corporation. RECITALS A. Licensee intends to embark on a public construction project for water system improvements in Tract 13437 also known as the San Juan Hills Estates in the City of San Juan Capistrano, California, commonly referred to as the as the San Juan Hills Estates, City of San Juan Capistrano, California, (hereinafter referred to as the "San Juan Hills Estates — Corrosion Protection System Project" or "the CP Project"). B. Licensor is the fee owner of the certain real property located in the County of Orange, State of California commonly known as the C-2 Area and more particularly described as Lots 1 to 6 inclusive and Lettered Lot A of Tract 13436 as shown on a map filed in Book 680, Pages 1 through 8 inclusive of Miscellaneous Maps, Records of Orange County, California (the "Subject Property") , located in the City of San Juan Capistrano, California, which is adjacent to the CP Site (the " CP Project"). C. In order to complete construction of the proposed improvements within the CP Project Area, Licensee requires temporary construction access to that certain portion E of the Subject Property, which is more particularly depicted on Exhibit 1," attached hereto and incorporated herein by reference (hereinafter referred to as the "Temporary Construction Storage Area"), for ingress, egress, storage of materials and equipment related to the CP Project, and other construction -related purposes associated with the CP Project. 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 CP Project, subject to the terms and provisions of this Agreement. 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, ("Licensee") the non-exclusive right to access the Temporary Construction Area for the sole and express purposes of allowing ingress, egress, storage of material and equipment, and other construction -related activities associated with completing the proposed CP Project ("Right of Entry"). Licensee shall (i) use the Right of Entry in such a manner as not to interfere with Licensor's use or enjoyment of (including without limitation development activities on) the Subject Property, (ii) take all measures reasonably required to protect the Subject Property from injury or damage arising out of this Agreement, (iii) promptly repair and restore any damage to the Subject Property which 2 results from the exercise of the Right of Entry, (iv) not use (or permit the use of) the Subject Property in any manner that will tend to create waste or a nuisance. Licensee shall not permit any activity undertaken by Licensee or its agents, contractors or consultants on the Subject Property to result in any liens, judgments or other encumbrances being filed or recorded against the Subject Property, and Licensee shall, at its sole cost and expense, promptly discharge of record, or bond around, any such lien, judgment or other encumbrance that is so filed or recorded (including without limitation any lien for services, labor or materials furnished). Licensee shall be solely responsible for the safekeeping of any materials, supplies and equipment placed on the Subject Property by Licensee or its agents. 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. 3. TERM This Right of Entry shall be effective from the signature date of this agreement and shall automatically terminate and expire March 1, 2011. 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 promptly restore the Subject Property, including without limitation all fencing, as nearly as practicable to the condition that existed prior to Licensee's entry. 4. INDEMNIFICATION 3 Licensee hereby agrees to indemnify, defend (with counsel selected by Licensor), assume all liability for, and hold harmless Licensor and its partners, officers, directors, employees, agents and representatives, and its and their respective successors and assigns, and the Subject Property (collectively, the "Licensor Indemnitees") from all actions, claims, suits, penalties, obligations, liabilities, legal or administrative orders or proceedings, losses, costs and expenses (including without limitation, reasonable attorneys' and expert fees), liens or damages arising from, in connection with, or related to Licensee's use of the Right of Entry, entry upon the Subject Property or 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 (collectively, the "Claims"). Licensee shall also require its agents, contractors and consultants to agree in writing to defend and indemnify Licensor and the other Licensor Indemnitees against all Claims to the same extent that Licensee is obligated to defend and indemnify Licensor and the other Licensor Indemnitees under this Section. 5. INSURANCE Licensee shall require its agents, contractors and consultants to (a) provide Licensor with no less than one (1) business day's advance notice before entering onto the Subject Property and (b) furnish Licensor with certificates of insurance evidencing workers compensation insurance as required by law, commercial automobile insurance (all autos, owned and non -owned) with limits of liability not less than $1,000,000 for each accident for bodily injury and property damage, and commercial general liability ("CGL") 0 coverage (occurrence form) with limits of liability not less than $2,000,000.00 (combined single limit). All CGL policies shall name Licensor as an additional insured. The CGL insurance required hereunder shall be in a company holding a "General Policyholders Rating" of at least A /VII as set forth in the most current issue of "Best's Insurance Guide". 6. RELEASE Licensor shall have no duty to inspect the Subject Project and shall have no duty to warn any person of any latent or patent defect, condition or risk that may exist in or around the Subject Property or that might be incurred in the exercise of the rights granted herein. In addition, Licensee hereby releases Licensor and the Licensor Indemnitees from any and all claims that Licensee may suffer or incur arising out of or in any manner related to (directly or indirectly) the nature or condition of the Subject Property or any portion thereof (collectively, the "Released Matters"). With respect to the Released Matters, Licensee waives the benefits of California Civil Code Section 1542 which reads as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." 7. 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. 5 8. 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. 9. 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 prior evidence shall be permitted to contradict or vary the terms of this Agreement. 10. 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. 11. SURVIVAL OF LICENSEE'S OBLIGATIONS Licensee's representations, warranties, covenants, and obligations under this Agreement, including without limitation Licensee's obligation to indemnify and hold harmless Licensor and the other Licensor Indemnitees, shall survive any termination of this Agreement. 12. TIME IS OF THE ESSENCE 101 Time is of the essence of this Agreement, it being understood that the time for performance of each obligation has been the subject of negotiation by the parties. 13. NO ASSIGNMENT This Agreement may not be assigned by Licensee without the prior written consent of Licensor, which consent may be withheld by Licensor in its sole and absolute discretion. Any attempted assignment by Licensee in violation of this provision shall be null and void. 14. BINDING EFFECT The provisions of this Agreement shall be binding upon the parties hereto and, subject to the restrictions on assignment herein provided, their respective successors in interest. 15. 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. 16. 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 the same counterpart. Delivery of an executed counterpart of this Agreement by 7 telefacsimile or email shall be equally as effective as delivery of an original executed counterpart. Any party delivering an executed counterpart of this Agreement by telefacsimile or email 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. 17. RECITALS AND EXHIBITS This Agreement includes the Recitals and the following Exhibits that are attached hereto and are incorporated herein by reference as though fully set forth herein: Exhibit 1" Depiction of Temporary Storage Area 18. 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] IN WITNESS WHEREOF, the parties hereto have execrated this Agreement on the day and year first written above. AT' LICENSOR S. J. HILLS, a California Limited Partnership elson Chun Pacific Comr its Genera LICENSEE /'resident anities Builder, Inc., rtner CITY OF SAN JUAN CAPISTRANO, a municipal corporation APPROVED AS TO FORM: in ity Attorney s By. City M Wager 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. ►.r IN LICENSOR S. J. HILLS, a California Limited Partnership Nelson Chun , President Pacific Co munities Builder, Inc., its GenerAl Partner LICENSEE CITY OF SAN JUAN CAPISTRANO, a municipal corporation By: City Oanaiger TEST: C Ir 0 w 10 ,;A . €:80 RRAL UNIT OF TENTATIVE TRW,- N0. !aQ5 SHEET 7 OF 8 SHEETSTRACT W 13436 K'PuELSumaAn OTs LtrraEp trn IN THE CfTY OF SAN JUAN CAPISTRANO DATE OF SURVEY: COUNTY OF ORANGE OCTOBER IS88 STATE OF CAL!FORN€A LOCKMAN & ASSOCIATES LELaND F. JOHNSON R,C,E. 13560 - SCA„E i" W 50 FOR AIONL ENT 105 SEE SHEET ] 10R 9 V 0: DMINO, a0i.'N'JARY & 8 8o INOE% -A SCE SKET j CASEMENT MOTE 10. t; N0.Y^E%C usI EARWCtiT FCR INLR m ECSF,SS. Sure, TIRAINAGF, -u c SERACI mP,K.: unuTY pvgns0 �5 fN PAv 0e TNC - {ITY aSAN 9 AN :0..' TPANO I NQ,,UcL AE EAS{MEUT $gA Sc�E55 -t 00VC5AC Wy ?Ea SYST@I AK AWPVATE .CE5. \ lM rA`OR OT CAPYSTRANO YALIEY WATER P6TR'CT, AT,;. AS XEiCATFD 6Y SM9 MAP, L;Ny TABLE \ 4EaE6'n �- N=A7S THE 80L'NBAQY Cf THZ tvti•A arj.,r SAOV.3EC aY 915 MA?. \ O �ry h �•ra \ b �y OPEN SPACBJ North Eastern most corner of parcel 5 :,5ro �. L. ♦ of Tract 13436 fJ SIF �/I I 1€ cvr r �O A� SEEEASEMh=/y 9f �^� Ingress uarE va. I Q ¢, stip Egress Gate True P( B �� to CP Storage ��� ` 5� EL9EtdENT di sTF, � gj' SE'c SH£E-C S OF 8 fuRW TALE 1 5L5] I } - :u— 1120 foot by 100 t foot CP Storage 1 t Area LGM s / 1 i 7 j � ftY.`.4UN0� EARCEL SEE SHEET 6 OF R n ' �- ♦ • tib, a + �f � �' i ♦ ` /� / �4 s[[ ensEue�n y?' / CITY 0!'EN SPADE \� q,vTA OEL iA7�R�G�M SEE SNE�T 3 tlf 8 R.S. aa -T153 RK "SY39-41 �• \Ja T.srar >m j xrawwo¢N rnftce. e SEE SHEET s or 6 Exhibit 'T' Description of CP Storage Area to be used for storage of Cathodic Protection equipment and material: Starting from the point of beginning at the north eastern most corner of parcel 5 of Tract 13436 as defined on Tract Map No. 13436, Sheet 7 of 8,. then traveling South 410 10' 57" East 195.5 feet to the True Point of Beginning, then Traveling South 41° 10' 57" East 120.0 feet, then South 48° 49' 03" West 100.0 feet, then North 410 10' 57" West 1.20.0 feet, then North 48° 49'03" East 100.0 feet back to the True Point of Beginning, to form a storage area approximately 1,200 square feet. Description of ingress and egress Route: Passage due South and East from the CP Storage Area to the existing gate bordering Via Entrada