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14-0506_EXCAVATING ENGINEERS, INC._Notice of Entry License Agreement AgreementRIGHT OF ENTRY LICENSE AGREEMENT BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND THE CAPISTRANO UNIFIED SCHOOL DISTRICT (Temporary Construction - CIP 07111 El Camino Real at Don Juan Avenue Retaining Wall Project) THIS RIGHT OF ENTRY LICENSE AGREEMENT ("Agreement") is made and entered into this day of W\<\\j 2014 by and among THE CAPISTRANO UNIFIED SCHOOL DISTRICT ("Licensor"), a school district duly organized and operated under the laws of the State of California, and the CITY OF SAN JUAN CAPISTRANO ("Licensee"), a California municipal corporation. i - RECITALS A. Licensee intends to embark on a public construction project to construct a retaining wall and related improvements ("Retaining Wall Project"), as more specifically described in Exhibit "A," along certain portions of El Camino Real at Don Juan Avenue in the City of San Juan Capistrano, California, which area is more particularly depicted on Exhibit "B", attached hereto and incorporated herein by reference, commonly referred to as the area located along El Camino Real at Don Juan Avenue, City of San Juan Capistrano, California, (hereinafter referred to as the "El Camino Real Retaining Wall Project Area"). B. Licensor is the fee owner of the Serra High School Facility depicted on Exhibit "C" attached hereto. Assessor Parcel No. 124-190-23, located at 31422 Camino Capistrano, City of San Juan Capistrano, California, which is directly adjacent to the Retaining Wall Project Area (hereinafter referred to as the "Subject Property"). 1 C. In order to complete construction of the proposed improvements within the El Camino Real Retaining Wail Project Area, Licensee requires temporary use of a portion of existing parking area on that certain portion of the Subject Property, which is more particularly depicted on Exhibit "D," 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 improvements within the El Camino Real Retaining Wall 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 retaining wall and related improvements within the El Camino Real Retaining Wall Project Area for the duration of construction within the terms as stipulated in Section 3 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, 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 retaining wall and related improvements within the El Camino Real Retaining Wall Project Area ("Right of Entry"). Licensee will obtain or cause to be obtained all necessary permits and approvals, including but not limited to the Department of General Services Division of the State Architect, if any, relating to the construction- related activities associated with completing the proposed Retaining Wall Project within the El Camino Real Retaining Wall Project Area. 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 at 7:00 a.m. on June 25, 2014 and shall automatically terminate and expire upon the start of the school session, but in no event later than September 1, 2014. Licensee may not use the Temporary Construction Area for any other purpose or activity without obtaining Licensor's prior written consent. Prior to termination. Licensee shall remove all of Licensee's personal property, vacate the premises of the Temporary Construction Area and restore the Temporary Construction Area in good order and repair to the satisfaction of Licensor, with normal wear and tear excepted. 4. LIQUIDATED DAMAGES Licensee agrees to begin, complete or cause to be completed the construction- related activities associated with the proposed improvements within the El Camino Real Retaining Wall Project Area within the time specified above in Section 3. It Is agreed that it would be impractical and/or extremely difficult to fix the actual amount of damages, and loss sustained by Licensor, should Licensee fail to vacate or cause to vacate the Temporary Construction Area in the specified time; therefore. Licensee shall pay Licensor, as liquidated damages, not in the nature of a penalty. Five Hundred Dollars ($500) per calendar day for each day delayed. The Licensor and Licensee each hereby expressly agree that such liquidated damages amount constitutes fair and reasonable compensation to the Licensor for such delay, regardless of whether such amount is at any time determined not to constitute actual full-compensation, as evidenced by the respective acknowledgements below. The Licensor may also pursue other remedies as are permitted by law. 5. INSURANCE Licensee shall or cause to be maintained at all times during this Agreement liability and property damage insurance naming the Licensor and its elected and appointed officials as a named additional insured, which such policies shall be of an amount not less than Two Million Dollars ($2,000,000) combined single limit. Insurance certificates shall be for a minimum period of one (1) year. Licensee shall or cause to be maintained in full force and effect comprehensive automobile liability coverage, including owned, hired, and non-owned vehicles in the following minimum amounts: $1,000,000 property damage; $1,000,000 injury to one person/any one occurrence/ not limited to contractual period; $2,000,000 injury to more than one person/any one occurrence/not limited to contractual period. The insurance policies shall bear an endorsement or shall have an attached rider providing that in the event of expiration of proposed cancellation of such policies for any reason whatsoever, the Licensor shall be notified by registered mail, return receipt requested, giving a sufficient time before the date thereof to comply with the applicable law or statute but in no event less than thirty (30) days before expiration or cancellation is 4 effective. Licensee shall provide to Licensor the policy certificate establishing that the required level of insurance has been satisfied. 6. 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. 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. 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 parol 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. 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. 12. 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 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. 13. 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" Retaining Wall Project Exhibit "B" Retaining Wall Project Area Exhibit "C" Subject Property Exhibit "D" Temporary Construction Area 14. 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] 7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written above. LICENSOR CAPISTRANO UNIFIED SCHOOL DISTRICT LICENSEE CITY OF SAN JUAN CAPISTRANO rris. City^Clerk APPROVED AS TO FORM: By: Hans Van Ligten, City Attorney By: Alexander Bowie, Counsel for Capistrano Unified School District 8 EXHIBIT A RETAINING WALL PROJECT The El Camino Real at Don Juan Avenue Retaining Wall Project will provide for the construction of a gravity retaining wall along the steep westerly slope area of El Camino Real at the Don Juan Avenue Intersection adjacent to the Capistrano Unified School District (CUSD) property located at 31422 Camino Capistrano to prevent potential road failure/collapse resulting from severe slope erosion that has taken place over the years. The proposed retaining wall will replace temporary / makeshift structures that were put in place in prior years to reduce the potential of slope failures that could lead to road failure. The proposed gravity wall consist of massive precast concrete blocks weighing over a ton each that are stacked on a five degree battered angle to create the desired wall and has the look and essence of natural stone with a "ledgestone" texture. A new parkway space on the westerly side of El Camino Real within the existing slope area will also be created to facilitate planting of native trees, grasses, and shrubs to maintain the aesthetic landscape character of the neighborhood. EXHIBIT B DEMCXinO N NOTE S a SMCU l MUt M M D laSKIS t «. tJUBIIM G HOC K HtlMM M lu a KM ) rootM:. sM.wc e HOCK S t POCSAO . S MMM : «e ncpo a or . oostM c awoci E BOC K w a tm ftxtim. (7 ] leO C M O DBTOS E or . DOSn O CM W IM ( FDtC L [t ] KMC M Dsn c «m H n «i . (SIZ E f w ruo ) I ill FOf l COniC I MCr^MTO H FO H SOU e M O o n CMU L 0 woirc r BftMx . CMIM : •'ws^^Jl^i [•] mniiC T H nxz . EXBI M nwn c SIQN . 0 PHDlU n •« HKC t ItSlMi K C BD M f 3 PWRC T M HUa , uetM i HOMHM l MKl . [T ^ pfuit a H piKCE . 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O H ME T J L -OAIUUt l IP C iHAn n w a TO P QtAH n >A U BATTTW D FAC E UBSTN G m » O R cowci e m ABBREVIATION S A C ASFMAt l COWtT E PAaWH I BL C OiJ M a cuii m u * C Y CU K VAMt S O A aAiuw i £A £AC » C P eOG E 0 1 PAiUCH I U ( tWSIM C F D IMS f GHAU : F H r W HIWAN T F U HO B L*» f S FKS H MtfA a M T iHHRSECnC H RV I RnAMN G BA U IC R «/* MflW T OF «r ST A SlAK M S T SBB T I B K P O F BFR H I P tOPOFPAincN I n H P O f lA a EXHIBI T "B " RE T A I N I N G WAL L PROJEC T ARE A •sPROVEKCN T PLA N Stc n O H A 3 H / A 3 1 7 O F T H E C O \ t R N M L M I C O U l HE O U M E S A O K M i S I O C N n K A D O N N U U H U I B E IS S U E D B O X P E A -P E R H n 1 0 E X C A V A T T , M L a c V A U Q . T O R Y O * O O A U J I T li ) . M M K R CA U . U N O E R O t a i N O S E R S K C A L E R I TO U F K E l- a O O - 4 Z 2 - 4 i U 1w a r a W M S D A T S B E F O R E Y O U Q I C ^ a C A M N O (C A E K M C H O t W ? f t J ' 4 l ' lE S l A S E K W C M IC C O R O O f s t r n r r w i ti - x o a . c i * . JlB V 4 B - 4 7 . CE N T D U C O F A C A A C t O M S I R E n A M ) S B B ' S O U n M C S I E } a . r O f : T H E N O f m n O I D L r C O R N O i O F A 1 0 ' H U H C M M L M K F E N C E lU M O A 1 D M S C O u m . L E W . H U M T I C T O P O F C U R B . AL L C O H T R A C r O W S A N D S U O C O H I S A C T O H S S H A L L C O M P L Y V H T H A L L S f c C D O N b O F T H E M U H M C I P A L C O D E O F T H E C I T Y O F SA N J U A N C A E n S T P A N O E f i P E C i A l l Y SE C T I O N : S -1 Q B (b ) , |c ] . |d ) A N D (• ) A N D S H A a S E C U R E T H E S E R V K E S O F T H E CIT Y ' S E X C L U S I V E S O U O V M S T E K A A E R F O R T H E I R S O C I O V H A S T E H A N O L M Q ME E D S CI T V O F SA N JUA N CAPISTRAN O IMPROVEMEN T PLAN S FO R E L C A M I N O REA L RETAININ G WAL L A T DO N JUA N AVENU E y BA N ju «F i aMAsniAN D SHEE T 4 EXHIBIT C ••^^w*. •'iraL^% > NORTH EXHIBIT C SUBJECT PROPERTY S 2012 Digital Map Products. All rights reserved. EXHIBIT D