10-1012_S.J. HILLS L.P._ROE License AgreementRIGHT OF ENTRY
LICENSE AGREEMENT
BETWEEN THE
CITY OF SAN JUAN CAPISTRANO
AND
S. J. HILLS, 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
c
entered into this day of
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
1
of the Subject Property, which is more particularly depicted on Exhibit I," 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:
'. 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
K
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
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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")
51
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 NII as set forth in the most current issue of "Best's Insurance
Guide".
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
Ia]: a.11to] a
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
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
I/
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]
E.,
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first written above.
M
11136T4,11100 -U-01
S. J. HILLS, a California Limited Partnership
Nelson Chung resident
Pacific Com unities Builder, Inc.,
its Genera artner
LICENSEE
CITY OF SAN JUAN CAPISTRANO,
a municipal corporation
ity Attorney
By:
City M nager
9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first written above.
'w
LICENSOR
S. J. HILLS, a California Limited Partnership
Nelson Chun , President
Pacific Co munities Builder, Inc.,
its Gener6l Partner
LICENSEE
CITY OF SAN JUAN CAPISTRANO,
a municipal corporation
By.
City Pjanaiger
ATTEST:
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y
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EXHIBIT 1
in
686
FINAL UNIT OF TENTATIVE TRACT ND. 13436
SHEET 7 OF 6 SHEETS TRACT
g°nuM AL ACRE9 i ss I LETTERED'OT !N TH CITY OF SAN JUAN CAPISTP.ANO
DATE OF SURVEY. COUNTY OF ORANGE
wM3ER Ina
STATE OF CALIFORNIA
FOCKMAN & ASSOCIATES
LFIAN4 f, JGHNSON R;C.E. 13964 -
SCALE
f' = 50
PORNOwuMENT NDTES SEE SHEET 3
rQR 3454 9E OEARiNG, 8PUi* 9Y &
O' S0 INGE% NAP SCE SHFtt
CASEMENT mare Na. .
NBN-E%CLUS'�w EI IE�E.4T FOR IAwRCgS. CHESS, $FWER,
PUBLIC SERAFE ANO Pia c ll$u TY PLftPO5E5 :N PAYOR fF TH.F
`. tYIY tlI' SAN .eIAN C^ PWR Mp EASEMENT Eq
IIMMS. ESRES9 ANO OClY.Era WAFER SYSTEMS AND APY'RTENANCES,
\
IN
PA'09 Or CA }"ANO VALLEY WATER OVSTItIG?. ALL AS OEaCATEO
Mrs 4nP,
LINE TABU ♦ LEG"
�W .. iN°, w ........... INUCATES 'ME 60:NVAAY lr THE UND UtINC
i}
LOT I ♦ SUBBMBER BY THIS VAP.
4 ` \
g 4 a \
♦
5�� raT A ,s` • North Eastern most
y. f corder of parcel 5
6� ,4 ,, r ♦ of Tract 13436
� a •^ a s
/
Loa
EAGEMENi fy\� r sF :Egress
ess
GateTrue POB � P Storage
4oT $
SEE SHEET S OF 8
CURVE TABLE
A
e.a} r3q
LOT s
SEE SNxc7 6 OF 8
,-M UPiN SPACE
R,S. d3-1768
9K kR8136-•31
SEE SHEET 3 OF 8
SEs [ 5cu ,T
,are NO. :,`
.E'iEnw
aot CP Storage
area
RANA— I—EL
SEE SHEET 3 OF 8
Exhibit "I"
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 41° 10' 57" East 195.5 feet to the
True Point of Beginning, then
Traveling South 410 10' 57" East 120.0 feet, then South 48° 49' 03" West 100.€3 feet, then North 41° 10'
57" West 120.0 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
32400 PASEO ALJEL.ANTO
SAN JUAN CAPISTRANO, CA 52675
(949) 493-1979
(549) 453-9053 FAX
wwwsaiyuancapi tr ano. orfir
0
TRANSMITTAL
TO:
Unique Performance Construction, Inc.
Attn: Moumtaz Kabany, President
1931 Newport Blvd., Ste #D
Costa Mesa, CA 92627
DATE: October 21, 2914
MEMBERS OF THE CITY COUNCIL
SAM ALLEVATO
o LAURA FREESE
THOMAS W. HREBAR
MARK NIELSEN
® DR. LONORES USO
FROM: Kristen Lewis, Administrative Specialist (949) 443-6308
RE: Right of Entry License Agreement — Storage of equipment and materials in vacant lot
Thank you for maintaining documentation confirming compliance with the terms of the
agreement related to insurance.
Please keep in mind this documentation must remain current with our office during the term of
this agreement. If you have questions related to insurance requirements, please call me at
(949) 443-6308.
If you have questions concerning the agreement, please contact Eric Bauman, Utilities
Engineer at (949) 487-4312.
An original agreement is enclosed for your records.
Cc: Eric Bauman, Utilities Engineer
San .duan Capistrano: Preserving the Past to Enhance the Future
Q Printed an 100 % recyded paper
Todays Trams ....mf ttal—Routing
'
(Check All That Apply)
City Attorney
City Manager
F-1 City Clerk
CONTRACT TRANSMITTAL
CIP No. (if any):. . .......
Project Manager's Last Name.
Council or CRA Meeting Date (if applicable):
APPROVING AUTHORITY; (Check One)
Mayor
CRA Chair
City Manager
Phone Extension: 4
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: (Not necessary if information is included in the contract)
Name(s) Street Cit St Zip
. ... . .......... . .
OTHER INSTRUCTIONS:
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a" V-4k'I'vn 40 rVW -