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12-1116_SAN JUAN CAPISTRANO,CITY OF_Agenda Report_D12 k��t 11/1312012 LL' - D17r City of San Juan Capistrano Agenda Report TO: Karen P. Brust, glity Manage C4 FROM: James G., o , Interim Public Works Director Prepay d by' isha A. Patel, P.E., Associate Enginee DATE: Bove eer 13, 2012 SUBJECT: Consideration of a License Agreement, Easement Deeds, and Quitclaim Deeds for the Del Obispo Street Widening from Alipaz Street to Paseo Adelanto Project (CIP 07107) (Orange County Flood Control District) RECOMMENDATION: By motion, approve the following documents with Orange County Flood Control District (OCFCD): 1) License Agreement for construction of permanent best management practices (BMPs) in OCFCD right of way to serve City of San Juan Capistrano infrastructure improvements; and, 2) Quitclaim from OCFCD to the City of San Juan Capistrano for a portion of Parcel L02-102.2; and, 3) Quitclaim from OCFCD to the City of San Juan Capistrano for a portion of Parcel 1-02-116; and, 4) Easement Deed from OCFCD to the City of San Juan Capistrano for a portion of Parcel 1-02-151; and, a). Easement Deed from the City of San Juan Capistrano to OCFCD for a portion of Parcel L02-118. EXECUTIVE SUMMARY: The City of San Juan Capistrano (the City) had been coordinating. with the ©range County Flood Control District (OCFCD) of the County of Orange Public Works Department for approval of construction of the Del Obispo Street Widening from Alipaz Street to Paseo Adelanto Project since 2006. In review of the project plans, the City and OCFCD determined that they needed to release or obtain rights within each ether's property as a result of the project, and they needed to clean up right of way issues from the past. Staff requests the City Council approve the right of way documents prepared for OCFCD to grant the City a license agreement to construct a bio-Swale; OCFCD to City Council Agenda Report November 13, 2012 Pace 2 of 3 � release two easements they no banger need; OCFCD to grant an easement for a 12 foot wide easement for the Del Obispo Bridge; and the City to grant the County an 80 foot easement for an area under the Del Obispo Bridge over Trabuco Creek. DISC USSIONIANALYSI& The City Council of San Juan Capistrano approved the plans, specifications, and cost estimate of the Del Obispo Street Widening from Alipaz Street to Paseo Adelanto on August 18, 2009. The County of Orange Public Works Department approved the Dei Obispo Street Widening from Alipaz Street from Paseo Adelanto project plans and issued a permit for construction on May 23, 2011. Plans were approved with the expectation that the City would process right of way documents for the project before or near the project construction completion. The City needs to execute a License Agreement (Attachment 1) with OCFCD to construct a bio-swale, a permanent best management practice for water quality, on OCFCD property at the northeast corner of Del Obispo Street and Alipaz Street. The City will own, operate, and maintain the bio-swale. OCFCD will undergo improvements in the channel in the future to,accommodate for the 100 year flood condition at which time the northeast corner of Del Obispo Street and Alipaz Street will be needed for channel widening and/or construction staging. The City will need to relocate the bite swale if the License Area is reduced or the License Agreement is terminated. OCFCD would like to quitclaim an easement within Parcel L02-102.2 (a portion of Lot 60 of Tract No. 103) at the northwest corner of Del Obispo Street and Paseo Adeianto to the City so that the City can properly construct a sidewalk and handicap ramp at the corner as part of the Del Obispo Street Widening from Alipaz Street to Paseo Adelanto project. The City Manager has the authority to execute the quitclaim deed (Attachment 2) to accept this real property interest per Resolution 09-05-05-01(Attachment 6). OCFCD would like to quitclaim an easement within Parcel L02-116 (a portion of APN 649-201-02) just west of Paseo Adelanto and approximately 110 feet north of the centerline of Del Obispo Street where the OCFCD maintenance road access driveway previously resided. The Del Obispo Street Widening from Alipaz Street to Paseo Adelanto project relocated the driveway 227 feet north onto OCFCD property. So, a new easement is not required. The City Manager has the authority to execute the quitclaim deed (Attachment 3) to accept this real property interest per Resolution 09-05-05- 01(Attachment 9-05.05_01(Attachment 6). OCFCD has agreed to give the City an easement over the Trabuco Creek for the southern 12 feet of the Del Obispo Street Bridge. When the City widened Trabuco Creek on the southern side in 1974, the City did not get an easement over the creek for the portion outside of the City's right of way. The easement Gleed to accept the conveyance is attached as Attachment 4. City Council Agenda Report November 13, 2012 Page 3 of 3 City staff recommends giving OCFCD an 80 foot easement in Trabuco Creek where the City owns creek property. OCFCD acquired right of way for Trabuco Creek south and north of the Del Obispo Street Bridge but had never acquired rights under the bridge. The easement deed to accept the conveyance is attached as Attachment 5. Staff request the City Council approve documents for conveyance of real property interests to clean up right of way ownership matters in Del Obispo Street Widening from Alipaz Street to Paseo Adelanto project area. FISCAL IMPACT, The Easement Deeds, License Agreement, and Quitclaim Deeds will be processed at no cost to the City and OCFCD. ENVIRONMENTAL IMPACT: Not applicable. PRIOR CITY COUNCIL REVIEW, 0 On August 18, 2009, the City Council approved the plans, specifications, and cost estimate for the Del Obispo Street Widening form Alipaz Street to Paseo Adelanto project. 0 On March 1, 2011, the City Council awarded a Construction Contract to Peterson-Chase in the amount of $3,453,842-46 to construct the Del Obispo Street Widening from Alipaz Street to Paseo Adelanto project. COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: Not applicable NOTIFICATION; Catherine Lapid, Real Estate Services, Orange County Public Works Josephine Alvarez, Real Estate Services, Orange County Public Works ATTACHMENT(S).- Attachment 1- Bio-swale Area License Agreement Attachment 2- Quitclaim Deed for Parcel No. L02-102.2 Attachment 3- Quitclaim Deed for Parcel No. L02-116 Attachment 4- Easement Deed for Parcel No. L02-151 Attachment 5- Easement Deed for Parcel No, L02-118 Attachment 6- Resolution No. 09-05-05-01 L02-102 Trabuco Creek Channel LICENSE AGREEMENT THIS LICENSE AGREEMENT("License") is made 20—, ("Effective Date")by and between the Orange County Flood Control District, body corporate and politic ("DISTRICT") and the City of San Juan Capistrano, a municipal corporation ("LICENSEE'). DISTRICT and LICENSEE are sometimes referred to herein individually as the"Party"or collectively as the "Parties." RECYFAI,S A. DISTRICT owns that certain parcel located in the northeast quadrant of Alipaz Street and Del Obispo Street, in the city of San Juan Capistrano ("Alipaz Parcel"),which parcel lies adjacent to the Trabuco Creek Channel ("Channel"). B. As of the Effective Date of this License, the segment of the Channel abutting the Alipaz Parcel has yet to be built to 100-year flood:control conditions("ultimate condition") and will undergo reconstruction at sometime in the future. It is anticipated that at the time of reconstruction, the Alipaz Parcel will be needed for the widening of the Channel and/or for construction staging purposes. C. LICENSEE acknowledges that DISTRICT'S pending use of the Alipaz parcel in conjunction with the reconstruction of the Channel as part of DISTRICT'S flood control system, is a higher public use and purpose than any other use contemplated by any other party, D. LICENSEE desires a license to utilize the Alipaz Parcel for a bio-swale needed to comply with regulatory requirements for LICENSEE'S Del Obispo Bridge Widening Project in the vicinity of the Channel. E. LICENSEE acknowledge that(i)any rights granted for LICENSEES use of the Alipaz Parcel shall be on a temporary basis and a may be revoked by DISTRICT at DISTRICTS sole and absolute discretion; and(ii) if required, it shall be LICENSEE'S sole responsibility to disclose to any regulatory authority having,jurisdiction over the proposed bio-swale, with the temporary nature of any rights granted under this License. NOVTHEREFORE, in consideration of the above recitals and the mutual covenants and agreements set forth below, DISTRICT and LICENSEE agree as follows, 1. RECITALS The Recitals set forth above are herein included and by this reference made a part hereof. 21 DEFINITIONS (PML2.1 S) The following words in this License have the significance attached to them in this clause, unless otherwise apparent from context: Bio-swale License((,i1yof San Suan Capistrano) Attachment 1 1,02-102 Trabuco Creek Channel "County"means the County of Orange, a political subdivision of the State of California. "Director"means the Director OC Public Works, County of Orange, or designee. 3, LICENSE AREA(PM L4.IS) DISTRICT grants to LICENSEE the non-exclusive right to use that portion of the Alipaz :Parcel identified as the"License Area"on Exhibit A, attached hereto and made a part hereof(hereinafter referred to as the"License Area"). 4. USE (PML5.1 N) LICENSEE'S use of the License Area is non-exclusive and shall be limited to the installation and maintenance of a vegetated bio-swale to be located approximately at the site depicted on Exhibit A. LICENSEE is permitted to keep and maintain irrigation lilies, pipelines,drains,backflow preventer,meters, valves, filtration devices or other equipment necessary for the vegetated bice-swale ("Facilities"). LICENSEE agrees not to use the License.Area for any other purpose nor to engage in or permit any other activity on, within or from the License Area. LICENSEE further agrees to conduct all operations in the License Area in a safe manner and in compliance with all governmental laves and regulations and agrees that Licensee shall not to conduct or permit to be conducted any public or private nuisance in, on, or fxom the License Area,nor to commit or permit to be committed waste on the License Area. LICENSEE acknowledges that the primary purpose of the License Area is for flood control purposes and LICENSEE agrees that DISTRlcr shall not, for any reason, be liable for any loss resulting from any interruption in LICENSEE'S use of the License Area,including, but not limited to any interruption, restricted, or prevented use of the License Area due to DISTRICT use of, or operations conducted in, on,or about the License Area. Except in an emergency, Director shall endeavor to provide LICENSEE reasonable advance notice of planned activities which may restrict LICENSEE'S use ofthe License Area. 5. TERM (PML3.1 N) This.License shall commence on the Effective Date and shall continue in effect for ten (10) years thereafter, unless sooner terminated as provided in Section 7(Termination)of this License. 6. OPTION TO EXTEND TERM Provided LICENSEE; is not in material default of any term, covenant, condition, restriction or reservation of this License, LICENSEE shall have the option to extend the term of this License under the sane teras and conditions for two consecutive Eve(5)year periods following the expiration of the License terra specified in Section 5 cre-rrn), by providing Director with written notice of each election to extend, a minimurn of sixty(60)days prior to the expiration of the term then in effect:. Bw-swage ,ic�nse(City of San.tuna Ca iwanc)) 8.28.20x2, L02-1021'rabuco Creek Channel 7. TEPMINATIO (PML3.2 N) This License may be terminated by DISTRICT, for any reason upon one hundred eighty (180)days' prier written notice to the LICENSEE. 8. LICENSE AREA MODIFICA'r>IoN LICENSEE acknowledges that in lieu of terminating this License, Director may, at the Director's sole and absolute discretion reduce or modify the License Area as may be required.for the re-construction of the Channel.to an ultimate condition or for construction staging purposes by providing LICENSEE-with one hundred eighty (180)days' advanced written notice("Modification Notice"). A. Modification due to Channel Ultimate Condition In the event the License Area is to be modified for re-construction of the Channel to an ultimate condition,LICENSEE shall have the option of(i)reconfiguring LICENSEE'S Facilities to ht within the rriodified License Area, at LICENSEE'S sole cost and expense, with such reconfiguration to be completed within the 180 day notice period and in accordance with the provisions of Section 12.8. (Construction/Maintenance), or(ii)terminating this License and removing all LICENSEE'S facilities within the 180 day notice period. Within sixty(60) days of LICENSEE'S receipt of a Modification Notice for Channel re-construction, LICENSEE shall send written notice to:Director specifying which of the two options LICENSEE has chosen from this Section 8.A. B, Modification for Construction.Staging Purposes. In the event the License Area is to be modified for construction staging purposes, LICENSEE may (i) offer DISTRICT a suitable alternate site for construction staging purposes, satisfactory to Director, in which case the License Area would remain unchanged,or(ii) reconfigure LICENSEE'S Facilities to fit within the modified License Area at LICENSEE'S sale cost and expense and in accordance with the provisions of SeotioD I2.13. (Construction/Mainteriance), with such reconfiguration to be completed within the 180 day notice period, or(iii)terminate this:License and remove all LICENSEE'S Facilities within the 180 day notice period. Within sixty (60) days of LICENSEE'S receipt of a Modification Notice due to staging, LICENSEE shall send written notice to Director specifying which of the three options LLCENSEE has chosen from this Section 8.13. C. Revision of License Area Description In the event the attached.Exhibit A is subsequently determined to inaccurately depict the License.Area, LICENSEE shall, at no cost to DISTRICT, cause the illustration of the License Area to be revised, and upon written approval of both Parties of the revised depiction of the License Area, this LICENSE shall be amended with the revised depiction,of the License Area attached thereto as "Revised Exhibit A." The Bio-swa.ly user ,(City of San Juan Capis-vano) 3 28.2flI2 L02-102'1 rabuco Creek Channel Parties agree that the amendment of Exhibit A shall not affect, alter, or change any of the terms,conditions or reservations of this License. LIChNSEE shall, at no cost to DISTRICT, retract in whale or in part, any and all outstanding regulatory permits, including but not limited permits issued by the California Regional Water Quality Control Beard,to accurately reflect LICENSEE'S Facilities or absence thereof, and provide DISTRICT acknowledgement of said retraction, to the Director's satisfaction, upon written request of Director, 9. No Relocation Obligation A. Relocation. LICENSEE agrees that DISTRICT shall not under any circumstance be obligated to provide or locate for LICENSEE a replacement site for LICENSEE'S Facilities or operations in the event this License is terminated or the License Area is reduced or otherwise modified as provided in this License. B. Water Quality Feature Obligations LICENSEE acknowledges that DISTRICT has no duty whatsoever with respect to any regulatory water quality obligation that LICENSEE'S Facilities may satisfy,anti. any noticing, clearances,or approvals that may be required by any regulatory authority, including but not limited to the California Regional Water Quality Control Board with respect to the provisional nature of this License, or any removal or modification or relocation of LICFNSE,E'S facilities shall be LICENSEE'S sole responsibility. 10. INSURANCE(PML 10.2 N) LICENSEE agrees, at its sole expense, to obtain insurance as required below, at to deposit with Director prior to the use of the License Area,Certificates of Insurance, including all endorsements required herein, necessary to satisfy Director that the insurance provisions of this License have been complied with, and to keep such insurance and the certificates and endorsements therefor on deposit with Director during the entire terra of this License. In addition, any employees, contractors, operators,or agents performing work on behalf of LICENSEE pursuant to this License, shall be covered under LICENSEE'S insurance or shall obtain insurance subject to the same terms and conditions as set forth herein for LICENSEE. All insurance policies required by this License shall declare any deductible or self-insured retention (SIR)-which shall specifically be approved by the County Executive Office/Office of Risk Management. LICENSEE shall be responsible for reimbursement of any deductible to the insurer. .Any deductibles or self-insured retentions (SIR) shall be clearly stated on the certificate of insurance and shall specifically be approved by the DISTRICT'S County Exeuukive Office (CEO)/Office of Risk Management. LICENSEE shall be responsible for reimbursement of any deductible to the insurer. The policy or policies of insurance roust be issued by an insurer licensed to do business in Bio-male Licwnse(City Qtsazl Juan Cap=strano) 4 8.2&2012 L02-102 Trabuco Creek Charnel the state of California(California Admitted Carrier). Minimum insurance company ratings as determined by the most current edition of the Best's Key Rating Guide/Property-Casualty/United States or arnbest.com shall be A- (Secure Best's Rating) and VIII(Financial Size Category). If the carrier is a non-admitted carrier in the state of California, CEO/Office of Risk Management retains the right to approve or reject carrier after a review of the company's performance and financial ratings. The policy or policies of insurance maintained by the LICEN SEE shall provide the minimum limits and overage as set forth below: Coverages Minimum Limits Commercial General Liability with broad $1.,000,000 combinedsingle limit per form property damage,contractual liability occurrence$2,000,000 aggregate and products liability Automobile Liability including coverage $1,000,000 combined single limit per for owned, non-owned and hired vehicles occurrence Workers'Compensation Statutory Employers' Liability Insurance $1,000,000 per occurrence Notwithstanding anything to the contrary contained herein,LICENSEE shall have the right to self-insure for the requirements set forth herein, provided Haat LICENSEE shall provide written documentation satisfactory to County's CEO/Office of Risk Management evidencing such self-insurance Except as noted,each insurance policy required by this License shall include the following provisions and/or endorsements; A. Cancellation: "This insurance shall not be cancelled, limited in scope of coverage or non-renewed until after 30 days'written notice has been given to the County of Orange,OCPW/Real Estate Services, P.0.Box 4048, Santa Ana, California 92702- 4048." If an endorsement with such cancellation provision cannot be provided, the pre-printed ACORN certificate must be edited as follows to provide for an unconditional 30-day notice of cancellation: "SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE T14E EXPIRATION DATE THEREOF,THE ISSUING; COMPANY WILL ENDEAVOR TO MAIL 30 DAYS' WRITTEN NOTICE TO THE CERTIF'ICAT'E HOLDER TAMED TO THE LETT. BUT FAILURE TO MAIL SUCH:NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON Dio-swafe License(Ci-.y of San Juan Capistrano) 5 8.2$.2012 L02-102 Trabuco Creek Channel THE COMPANY, ITS AGENT OR.REPRESENTA11VE". B. Additional Insured: "Orange County Flood Control District and the County of Orange are added as insured as respects operations of the named insured at or from the PREMISES occupied and used by the named insured pursuant to that certain License issued by the Orange County Flood Control District." An additional insured endorsement evidencing that Orange County Flood Control District and County of Orange are additional insureds shall accompany the Certificate of Insurance. (Additional Insured Endorsement not required for Property, Worker's Compensation and Employers'Liability.) C. Primary Insurance: "It is agreed that any insurance maintained by the Orange County Flood Control District and County of Orange will apply in excess of, and not contribute with, insurance provided by this policy." An endorsement evidencing that the LICENSEE'S insurance is primary and non-contributing shall accompany the Commercial General Liability Certificates of Insurance. (Primary Insurance Endorsement only required for Commercial General Liability.) D. Waiver of Subrogation: "All rights of subrogation are hereby waived against the Orange County Flood Control District and County of Orange and members of the Board of Supervisors, its elected and appointed officials, officers and employees, when acting within the scope of their appointment or employment," A waiver of subrogation endorsement with such language shall accompany the Certificate of Insurance. THIS LICENSE SHALL AUTOMATICALLY TERMINATE AT THE SAME,TIME LICENSEE'S INSURANCE COVERAGE IS TERMINATED. IF WITHIN 10 DAYS AFTER TERMINATION UNDER THIS CLAUSE,LICENSEE OBTAINS AND PROVIDES EVIDENCE OF THE REQUIRED INSURANCE COVERAGE ACCEPTABLE TO DIRECTOR., THIS LICENSE MAY BE REINS-FATED,AT THE SOLE DISCRETION OF DIRECTOR. IF REINSTATED, LICENSEE SHALL PAY$200 TO COVER THE PROCESSING COSTS INCURRED BY DISTRICT, LICENSEE agrees that LICENSEE shall not operate on the License Area at any time the required insurance is not in full force and effect as evidenced by a certificate or official binder being in the possession of Director. In no cases shall assurances by LICENSEE, its employees, agents, including any insurance agent, be construed as adequate evidence of insurance. LICENSEE also agrees that upon cancellation,termination, or expiration of LI.CENSEF'S insurance, that DISTRICT may take whatever steps are necessary to interrupt any operation from or on the PREMISES until such time as the License is reinstated by the Director. LICENSEE further agrees to hold DISTRICT harmless for any damages resulting from such interruption of business including but not limited to damages resulting from any loss of income or business resulting from DIS'I'RICT'S action. DIRECTOR expressly retains the right to require LICENSEE to increase or decrease Bio-swale Liceiiso'Ply of San Juan Capistrano) .6 8,28.2012 L02-102 Trabuco Creek C:hwinel insurance ofany of the above insurance types throughout the term of this License. Any increase or decrease in insurance will be deemed by County of Orange Risk:Manager as appropriate to adequately protect.DISTRICT. DIRECTOR shall notify LICENSEE in writing of changes in the insurance requirements. If LICENSEE does not deposit copies of acceptable certificates of insurance and endorsements with Director incorporating such changes within thirty days of receipt of such notice, this License Agreement may be in breach without Further notice to LICENSEE, and DISTRICT shall be entitled to all legal remedies. The procuring of such required policy or policies of insurance shall not be construed to limit LICENSEE'S liability hereunder nor to fulfill the indemnification and hold harmless provisions and requirements. LICENSEE liability is limited to the availability of the insurance in the marketplace at the time the License is executed by DISTRICT. 1.1. HAZARDOUS MATERIALS (PMl~9.1 N) A. ee,.t ition of Hazardous Materials. For purposes of this License,the term "Hazardous Material(s)" shall mean any hazardous or toxic substance,material, product, byproduct, or waste which is or shall become regulated by any governmental entity, including, without limitation, County, the State of California, or the United States government. B. Use of Hazardous Materials. LICENSEE or LICENSEE'S employees, agents, contractors,operators,or invitees (collectively "LICENSEE Parties") shall not cause or permit any Hazardous Materials to be brought upon., stored, kept, used, generated, released into the environment or disposed of on, under, from or about the License Area(which for purposes of this clause shall include the subsurface soil and ground water). C. LICENSEE Obligations. If the presence of any Hazardous Materials on, under or about the License Area caused or permitted by LICENSEE or LICENSEE Parties results in(i) injury to any person, (ii) injury to or contamination of the License Area(or a portion thereof), or (iii) injury to or contamination of any real or personal property wherever situated, LICENSEE, at its sole cost and expense,shall promptly take all actions necessary.or appropriate to return the License Area and/or ether property to the condition existing prior to the introduction of such Hazardous:Materials in, on, or about the License Area and to remedy or repair any such injury or contamination. Without limiting ally ether rights or remedies of DISTRICT under this License, LICENSEE shall pay the cost of any cleanup or remedial work performed on, under, or about the License Area as required by this License or by applicable laws in connection with the removal, disposal, neutralization or other treatment of such Hazardous Materials caused or Bio-swaie Ucemc:(City of Spn Juan Capistrano) 7 8.78.2012 L02- .02 Trabuco Creek Charnel permitted by LICENSEE or LICENSEE Parties. Notwithstanding the foregoing, LICENSEE shall not take any remedial action.in response to the presence, discharge or release,of any Hazardous Materials on, under or about the:License Area caused or permitted by LICENSEE or LICENSEE Patties, or enter into any settlement agreement, consent decree or other compromise with any governmental or quasi- governmental entity without :first obtaining the prior written consent of Director. All work performed or caused to be performed by LICENSEE as provided for above shall be dune in good and workmanlike mariner and in compliance with plans, specifications,permits,and ether requirements for such work approved by Director. D. Indemnification for Hazardous Materials. To the fullest extent permitted by law, LICENSEE hereby agrees to indemnify, hold harmless, protect and defend [with attorney(s)approved in writing by.Director] DISTRICT and County,their elected officials, officers,employees, agents, and independent contractors and the License Area, from and against any and all liabilities, losses, damages (including, but not limited to, damages for the loss or restriction of use of rentable or usable space or any amenity of the License Area or damages arising from any adverse impact on marketing and diminution in the value of the License Area),judgments, fines, demands,claims,recoveries, deficiencies, costs and expenses (including, but not limited to, reasonable attorney fives, disbursements and court costs and all other professional or consultant expenses), whether foreseeable or unforeseeable, arising directly or indirectly out of the presence, use, generation, storage, treatment, on or off-site disposal or transportation of Hazardous Materials on, into, from, under or about the License Area.by LICENSEE or LICENSEE,Parties. The foregoing indemnity shall also specifically include the cost of any required or necessary repair,restoration, cican-up or detoxification of the License Area anti/or other real property andthe preparation of any closure or other required plans. 12. OPERATIONS, MAINTENANCE& REP URS A. Operations(PMES6.2N) LICENSEE shall,at its own cost and expense, promptly and at all tunes observe, comply with and carry out all present and future orders,regulations, directions, rules, laves, ordinances, permits and requirements of all governmental authorities, including but not limited to the California Regional Water Quality Control board and ether environmental regulatory authorities,with jurisdiction i , on, over and about the License Area, which arise froze LICENSEE'S use of or performance of any activities permitted to be conducted in, on, over, or across the License Area. LICENSEE shall, at no cost to DISTRICT,maintain the License Area in a safe, clean, wholesome, and sanitary condition, free and clear of rubbish and litter and all Facilities constructed, used or placed upon the License Area by or on behalf of LICENSEE pursuant to.this License Agreement shall be operated and maintained in a safe condition. No approvals or consents given hereunder by DISTRICT, as a party to this License Bio-swale License(City cif San,Tum Capistrano) 8 8.28.2012 L02-102 Trabuco Creek Charnel , Agreement, shall be deemed approval as to compliance or conformance with applicable governmental codes, laws, rules or regulations. B. Construction/Maintenance; (I'.MES2.2N) LICENSEE shall have all construction/and/or maintenance plans approved in writing, by Director prior to cominencement of any work in, on or about the License Area; and upon completion of any such work,LICENSEE shall immediately notify Director in writing of such completion. Director's approval of LICENSEE'S construction and/or maintenance plans shall not be deemed approval from the standpoint of structural safety,suitability for purpose or conformance with building or other codes or other governmental requirements. DIS'TRICI'is not responsible for permitting of any construction and/or maintenance, design, assumptions or accuracy of LICENSEE'S construction and/or maintenance plans. Director will rely on,the professional expertise of the Engineer of Record when approving LICENSEE'S construction and/or maintenance plans. LICENSEE shall per=form all construction and/or maintenance in such a manner that will allow for unobstructed flood control operations and maintenance of the Channel by DISTRICT. Should it be necessary for LICENSEE to conduct any construction or excavation activities or otherwise disturb the surface of the License Area subsequent to the. completion of the initial installation of LICENSEE'S Facilities, LICENSEE agrees to notify Director in writing sixty(60)days in advance of such planned activities, obtain Director's written approval of all pians, and obtain a permit for construction from the County of Orange("County")with payment of normal processing fees prior to commencement of any such.activities. Said approval shalt not be withheld unreasonably, nor shall said approval be necessary in any emergency situation or in conducting routine maintenance activities which do not involve disturbance of the surface area. Except in areas in which such activities require regulatory agency approval, or are otherwise designated as environmentally sensitive,LICENSEE shall have the right to cut such roots as may endanger or interfere with LICENSEE'S Facilities provided, however, that any excavation shall be made in such a manner as will cause the least injury to the surface of the ground and any improvements and/or landscaping;around such excavation, and that the earth so removed shall be replaced and the surface of the ground and any improvements and/or landscaping around such excavation, damaged shall be promptly restored by LICENSEE at its expense to the sante condition as existed prior to excavation,to Director's satisfaction. C. Deferred Maintenance or Repairs. If LICENSEE fails to maintain or/Hake repairs as required herein, Director may notify LICENSEE in writing of such failure. Should LICENSEE fail to make the Bic,-swale License(CiCy+of San Juan Capistrano) 9 8.29.2012 L02-102 Trabuco Creek Channel necessary maintenance, repairs or replacements within five(5) days of the date of such notice, Director may have the necessary correction made, and the cost thereof, including but not limited to the cost of labor, materials, and equipment and an administration fee equal to fifteen percent(1 S) of the sum of such items, shall be paid by LICENSEE within ten (10) days of receipt of a statement of said cost from Director, provided,however, if the nature of the required maintenance, or repair is such that it cannot be completed within the five-day period,Director may make the necessary correction or cause it to be made only if LICENSEE fails to cornmence the correction within the five-day period and diligently complete the correction within a reasonable period of time riot to exceed sixty(60) days. Director may,at Director's option, choose other remedies available herein, or by law. 13. BEST MANAGEMENT PRACTICES (PML 11.2 N) LICENSEE and all of LICENSEE Parties shall conduct operations under this License so as to assure that pollutants do not enter municipal storm drain systems which systems.are comprised of, but are.not limited to curbs and gutters that are part of the street systems ("Storrnwater Drainage System"), and to ensure that pollutants do not directly impact "Receiving'Waters"(as used herein,Receiving Waters include,but are not limited to, rivers, creeks, streams, estuaries, lakes,harbors, bays and oceans). The Santa Ana and San Diego Regional Water Quality Control Boards have issued National Pollutant.Discharge Elimination System permits("Stormwater Permits") to the County of Orange, and to the Orange County Flood Control District and cities within Orange County, as co-permittees (hereinafter collectively referred to as "County Parties")which regulate the discharge of urban runoff from areas within the County of Orange, including the License. Area. The County Parties have enacted water quality ordinances that prohibit conditions and activities that may result in.polluted runoff being discharged into the Stormwater Drainage System, To assure compliance with the.Storrnwater Permits and water quality ordinances, the County :Parties have developed a Drainage Area Management Plan (DAMP)which includes a Local Implementation Plan (LIF) for each jurisdiction that contains Best Management Practices (BMPs)that parties using properties within Orange County must adhere to. As used herein, a BMP is defined as a technique. measure, or structural control that is used for a given set of conditions to manage the quantity and improve the quality of stormwater runoff in a cost effective:manner. These BMPs are found within the DISTRICT'S LIP in the farm of Model Maintenance Procedures and BMP T=act Sheets(the Model Maintenance Procedures and BMP Fact Sheets contained in the DAMP/LIP shall be referred to hereinafter collectively as "BMP Fact.Sheets")and contain pollution prevention and source control techniques to eliminate non-stormwater discharges and minimize the impact of pollutants on stormwater runoff. These BMP Fact Sheets may be modified during the term of the License; and Director shall provide LICENSEE with any such modified BMP Fact Sheets. LICENSEE and LICENSEE Parties and all persons authorized by LICENSEE to conduct activities on the License Area shall,throughout the terra of this License, comply with all applicable BMP Fact Sheets as Bio-Swale License(City Bdsan Jul-,Capistrano) 10 8.28.2012 L02-102 Trabuco Creek Channel they exist now or are modified,and shall comply with all other requirements of the Stormwater Permits, as they exist at the time this License commences or as the Stormwater Permits may be modified. L.I.CENSEE agrees to maintain current copies of all BMP Fact Sheets on the License Area throughout the term of this License. The 131-v4Ps applicable to uses authorized under this License must be performed as described within the BMP Fact Sheets. LICENSEE may propose alternative BMPs that meet or exceed the pollution prevention performance of the BMP Fact Sheets. Any such alternative$MPs shall be submitted to the Director for review and approval prior to implementation. Director may enter the License Area and/or review LICENSEE'S records at any time to assure Haat activities conducted on the License Area comply with the requirements of this section and all water quality permits, including but not limited to the Water Quality Certification. LICENSEE may be required to implement a self-evaluation program to demonstrate compliance with the requirements of this section. 14. LIMITATION OF THE LICENSE(PM1.13.1 S) This License and the rights and privileges granted LICENSEE in and to the License Area are subject to all covenants, conditions, restrictions, and exceptions of record or apparent from a physical inspection of the License Area. Nothing contained in this License or in any document related hereto shall be construed to imply the conveyance to LICENSEE of rights in the License Area which exceed these owned by DISTRICT. 1.5. NOTICES (PML 14.1 N) All communications, notices and/or demands of any kind which either party may be required or desire to give to or serve upon the other party shall be made in writing and delivered.by personal service,Federal Express or similar courier service, U.S. mail, postage prepaid,or seat by registered or certified mail, postage prepaid, return receipt requested, to the addresses set forth below: ToDISTRICT: To LICENSEE: County of Orange City of San Juan Capistrano OC Public 'Forks/Real Estate Services 32400 Paseo Adelanto P. 0. Box 4048 San Juan Capistrano, CA 92675 Santa Ana, CA 92702-4048 Re: L02-102 Trabuco Creek License 1.6. AUTHORITY(PNIES20.IS) The Parties to this License represent and warrant that this License has been duly authorized and executed and constitutes the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. Bio-swage License(City of Sun J'um Capistrano) 1 I 8.N 2012 L02-102 Trahttco Creep Channel 17. GENERAL CONATION This License includes the General Conditions attached hereto and by this reference made a part hereof in the event of any conflict betweeD the provisions of this License and the provisions in the General Conditions,the provision of this License shall control. 18. COUNTERPARTS This License Agreement may be executed in one or more counterparts,each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Il 11 H i� 1I 11 Signature Pa es.Follow H fl H Bio-swale License(City of San Juan Capistbano) 12 8.28.2012 L02-102 Trabuco Creek Channel IN WITNESS W]EREOF,the Parties have executed this License the day and year first above written.. DISTRICT ORANGE COUNTY FLOOD CONTROL, DISTRICT,a body corporate and politic By: _ Chair,Board of Supervisor _ Orange County,California Approved as to Form Office of the County Counsel Orange. County, California By: Deputy Date: Signed and certified that a copy of this document has been delivered to the Chair of the Board per G.C. See, 25103,Reso 79-1535 ATTEST: Susan Novak - -- Clerk of the Board of Supervisors Orange County Flood Control.District Orange County, California LICENSEE SIGNATURE ON FOLLOWING PAGE Bio-swale Lieense(City of San jinni Capistrano) 13 9,2&2012 L02-!02 Trabuco CrQek Chaniie} LICENSEE CITY OF SAN JUAN CAPISTRANO, a municipal corporation Larry Kramer, Mayor Attest: Maria N orris City Clerk Approved as the fo d , Hia 's Van Ligten City Attorney E3io-swale tJcccrise(city of san Juan Capistrano) 14 828.20112 L02-182TrabmooCrmek Channel GENERAL CONDITIONS -LICENgE � . TABLE OFCONTENTS Clause Nu�boo�d��o� �uu�wr ...... ...............---............ --......... ............... ......... ................... ........ Page I DEFINITION — ............. —' .......... ......... --^--- .................... —'---.i� 2' 8lGNS—.......... ................... .................. ......... '^—'—'—'—'—`'~--'—'—^^---~-- i 3. PERMITS AND LICENSES.............................-- ...........~ .................. —.—_----~---''� 4, LICENSE ODGANIZA]ION............ ........... ............_....................................... ..--.---..0 5. AMENDMENTS................................... ............. ----.'—.—~'---'_—.—'.''—'--..8 6, UNLAWFUL USE ......— ............. ....... -- ........ ............... ........ '.^~----------.--..� 7. INSPECTION....... --. ....................... ------^..^~. ................... —'_---.^------i\ 8. HOLD HARMLESS ............... .......... ............. ............. .—~........... .--.----.—...—_.—.—D 4. TAXES AND&SSES8MUEN7S ._—.._.—.--~—._'_—^.—.---.....—.------'�i� |U. PARTIAL INVALIDITY.... —............ ............. .......... —_--''.---------_-----�� 11. WAIVER OF RIGHTS.......... ........... .-- .............. .......~~ ....... ...... —.—_—..—^----jii lZ COST 0FSUSTAINING AN ACTlON—.—...... ...... .................~—.^—........... .................... .iv 13 ��8��\�\I}U�81�)�0ST�lCT . ..................._,_^___'_^.............. _.—. .......---...... ''/v 14. CONDITION OF LICENSE AREA UPON T8RMDNATl0N^.............. ................. ..................iv 15. DISPOSITION OF ABANDONED PERSONAL 9R0PBRIY .................—................... --.,'iv l6. TIME..................... ~. ..... ..— ................ ....... -----~-----...—._.----._..�v 17. ADSlG0�O8N{PR0Hl�lTBD--'--- _---_—'-------'----iv ` Biro.m^u*ense(Ci�yof SawJuan Capistrano) i xz«zoz 1,02-IO2 Trabuco Creek Channel GENERAL CONDITIONS-LICENSE(LGI7 S) 1. DEFINITION O "DIS'T'RICT" (LG I S) The term "DISTRICT shall mean the Orange County Flood Control District. Actions to be taken by the DISTRIC l'under this License shall be taken by the Board of Supervisors of the political body which executed this License or its authorized representatives specifically authorized to take such actions under this I..icense. 2. SIGNS (LG2 N) LICENSEE agrees not to constmet, maintain, or allow any sign upon License Area except as approved by Director. Unapproved signs,banners,flags,etc.,.may be removed by Director at LICENSEE'S sole cost and expense. 3. PERMITS AND LICENSES(LG3 S) LICENSEE shall be required to obtain any and all permits and/or Iicenses which may be required in connection with the operation of the License Area as set out herein. No permit,approval or consent given hereunder by DISTRICT in its governmental capacity, shall affect or limit LICENSEE'S obligations hereunder nor shall any approvals or consents given by DISTRICT,as a party to this License,be deemed approval as to compliance or conformance with applicable,governmental codes,laws,ordinances,rules,or reguia.tions. 4. LICENSE ORGANIZATION(LG4 S) The various headings andnumbers herein,the grouping of provisions of this License into separate clauses and paragraphs,and the organization hereof, are for the purpose of convenience only and shall not be considered otherwise. S. kME,NDME NTS(LG5 S) This License sets forth all of the agreements and understandings of the Parties and any mortification must be written and properly executed by both Parties. 6. UNLAWFUL USE(LG6 S) LICENSEE agrees no improvements shall be erected,placed upon,operated,nor maintained on the.License Area,nor any business conducted or carried on therein or therefrom, in violation of the terms of this License, or of any regulation, order of law,statute,bylaw, or ordinance of a governmental agency having jurisdiction. 7. INSPECTION(L07 S) DISTRICT or its authorized representative shall have the right at all reasonable tunes to inspect the operation to determine if the provisions of this License are being;complied with. 8. HOLT) HARMLESS(LG8 S) LICENSEE acknowledges that the License Area lies in, on, or adjacent to a,flood control channel and may be subject to all hazards associated with flood conditions and LICENSEE agrees to assume all risks, financial or otherwise associated therewith, including, but not limited to any interruption in or restricted use of the.License Area,whether temporary or permanent due to DISTRICT'S use of, or operations conducted in,on,or about the License Area. ilio-swale License(City of San Juan Capistrano) rr 8.28.2012 L02-102 Trabaco Creels Channel LICENSEE hereby releases mid waives all claims and recourse against DISTRICT,including the right of contribution for loss or damage of persons or property,arising froth,growing out of or in any way connected with or related to this License,except claims arising from the concurrent active or sole negligence: of DISTINCT, its officers,agents,employees and contractors. LICENSEE hereby agrees to indemnify,defend (with counsel approved in writing by Director), and hold harmless,DISTRICT,its elected and appointed officials,officers,agents,employees and contractors against any and all claims, losses,demands, damages, cosi,expenses or liability for injury to any persons or property,arising out of the operation or maintenance of the property described herein,and/or LICENSEE'S or LICENSEE Parties' exercise of the rights under this License,except for liability arising out of the concurrent active or sole negligence of DISTRICT,its elected and appointed officials,officers,agents,employees or contractors including the cost of defense of any lawsuit arising therefrom, If DISTRICT is named as co-defendant.in a lawsuit,LICENSEE shall notify DISTRICT of such fact and shall represent DISTRICT in such legal action unless DISTRICT undertakes to represent itself as co-defendant in such legal action,in which event,LICENSEE shall pay to DISTRICT its litigation costs,expenses, and attorney`s fees. If judgment is entered against DISTRICT and LICENSEE by a court of competent jurisdiction because of the concurrent active negligence of DISTRICT and LICENSEE, DISTRICT and LICENSEE agree that Iiability will be apportioned as determinedby the court. Neither party shall request a jury apportionment. LICENSEE acknowledges that it is familiar with the language and provisions of California Civil Code Section 1542 which provides as follows: A general release does riot 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 ky him or her must have materially affected his or her settlement with the debtor. LICENSEE,being aware of and understanding the terms of Section 1542,hereby waives all benefit of its provisions to the extent described in this paragraph. 9. TAXES AND ASSESSMENTS(LGe3 S) Although not anticipated,should this License create a possessory interest which is subject to the payment of taxes levied on such interest,it is understood and agreed that all taxes and assessments(including but not limited to said possessory interest tax)which become due and payable in connection with this License or upon fixtures,equipment,or other property used in connection with this License,shall be the full responsibility of LICENSEE, and LICENSEE shall cause said taxes and assessments to be paid promptly. 1.0. PARTIAL INVALIDITY(LGI0 S) If any term,covenant, condition,or provision ofthis License is held by a court of competent jurisdiction to be invalid,void,or unenforceable,the remainder of the provisions hereof shall remain in fall force and effect and shall in no way be affected, impaired,or invalidated thereby. I1.. WAIVER OF RIGHTS(LG II S) The failure of DISTRICT to insist upon strict performance of any of the terms, covenants,or conditions of this License shall not be deemed a waiver of any right or remedy that DISTRICT may have,and shall.not be deemed a waiver of the right to require strict performance of all the terms, covenants,and conditions of the License thereafter, nor a waiver of any remedy for the subsequent breach or default of any term.,covenant,or condition of the License.Any waiver, in order to be effective,must be signed by the party whose right or remedy is being waived. Bio-swaie license(City cf Sar,Juan Capistrano> 111 8.28.2012 L02-102'I'rabuco Creek Channel 12. COSTS OF SUSTAINING AN ACTION (LG12 S) In the event ofadispute between DISTRICT and LICENSED concerning claims arising out of this License, the prevailing Party in such dispute shall be entitled.to recover from the other costs of such dispute,including reasonable attorney fees,as may be fixed by the Court, or arbitrator. 13. RESERVATIONS TO DISTRICT(LG 13 N) The I.,icense Area is accepted as is and where is by LICENSEE,subject to any and all existing easements, encumbrances and physical characteristics. LICENSEE acknowledges that except as specifically herein provided,neither DISTRICT nor any of its employees,agents,or representatives has made any representations, warranties or agreements to or with LICENSEE on behalf of DISTRICT as to any matters concerning the License Area, access to the License Area,.the present use thereof, or the suitability of LICENSEE'S intended use of the License Area. Without Iimiting DISTRICT'S rights with respect to the License Area, DISTRICT reserves the right to install, lay,construct,maintain,repair,and operate such retarding basin, flood control facility,sanitary sewers,drains,storm water sewers,pipelines,manholes, and connections;water, oil,and gas pipelines;telephone and telegraph power lines;and the appliances and appurtenances necessary or convenient in connection.therewith, in, over,upon.,through,across,under,and along the License Area or any part thereof, and to enter the License Area for any and all such purposes. DISTRICT also reserves the right to grant franchises,easements,rights of way,and permits in,over, upon, through,across,ander, and along any and all portions of the License Area. No right reserved by DJS'I'RICT in this clause shall be so exercised as to interfere unreasonably with LICENSEE'S'use hereunder. DISTRICT agrees that rights granted to third parties by reason of this Clause shall contain provisions that the surrface of the laud shall be restored as nearly as practicable to its original condition upon the completion of any construction. DISTRICT further agrees that should the exercise of these rights temporarily interfere with the use of any or all of the License Area by LICENSEE.any use fee(if a use fee is required pursuant to this License)shall be reduced in proportion to the interference with LICENSEE'S use of the License Area, W. CONDITION OF LICENSE AREA UPON TERMINATION (LG 14 N) Except as otherwise agreed to herein,upon termination of this License,LICENSEE shall remove all Facilities and redeliver possession of said License Area to DISTRICT free from liens and other encumbrances in substantially the same condition that existed immediately prior to LICENSEE'S entry thereon,reasonable wear and tear,flood,earthquakes, war,and any act sof war,excepted. 15. DISPOSITION OF ABANDONED PERSONAL P'ROPER.TY(LG 15 N) If LICENSEE abandons the License Area or is dispossessed thereof by process of law or otherwise,title to any personal property belonging to LICENSEE and left on the License Area 15 clays after such event shall be deemed to have been transferred.to DISTRICT. DISTRICT shall have the right to remove and to dispose of such property at LICENSEE'S sole cast and expense,without liability therefor to LICENSEE or to any person claiming under LICENSEE, and shall have no need to account therefor. 16. TIME(LG 16 S) Time is of the essence of this License. 17. ASSIGNMENT PROHIBI'T'ED(LG17 S) LICENSEE understands that this License is not an interest in real property nor is it an assignable right. Any attempt to assign or otherwise transfer this License by LICENSEE, voluntarily or by operation of law, shall automatically terminate this License. Bio-swale License(City of San Jim Capistrano) iv 8.28.2012 -A, rf,�l rs, 3¢K�` kti 3• St :.�Y �a LLJ t - M q s ✓)� 3 co 7 rs, "° y�r � a�'�'rr�h 'e� 7{ k E_� fit#"��4wr(�3• �'� � � ui P=R S� i Ltf " rx, 5 9 . 1Y� -7Yi N.l� 3x •,i , 6 RECORDED AT THE REQUEST OF AND WHEN RECORDED MAIL TO: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92575 Mail Tax Statements as shown above THIS SPACE FOR RECORDER'S 1,35E ONLY APN: Portion of Lot 60 of Tract No, 103 DOCUMENTARY TRANSFER TAX$ Computed on the consideration or value of property conveyed Exempt per Revenue&Taxation Code section 11922 Exempt from Recording Fees per Govt.Code Section 27383&6103 By: SI1 UIC AT-4W!" t{ ❑ Unincorporated area of Orange County EI Incorporated-City of San Juan Capistrano Parcel No: L02-102.2 Project. Trabuco Creep Channel QUITCLAIM DEED FOR A VALUABLE CONSIDERATION, receipt and adequacy of which is hereby acknowledged, ORANGE COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic, hereinafter referred to as "DISTRICT" does hereby REMISE, RELEASE AND FOREVER QUITCLAIM to the CITY OF SAN JUAN CAPISTI ANO, a municipal corporation of the State of California, hereinafter referred to as"GRANTEE", in an "as is condition, at[ RIGHTS, TITLE and INTEREST in and to that certain real property in the city of San duan Capistrano, county of Orange, state of California, legally described in E=xhibit A and illustrated in Exhibit 13, which Exhibits are attached hereto and made a part hereof. Nothing contained herein, or in any document related hereto: shall be construed to imply the conveyance to GRANTEE= of rights in the property which exceed those owned by DISTRICT, or any representation or warranty, either express or implied, relating to the nature or condition of the property or DISTRICT'S interest therein. /l L.02-402.2 Traduco Creek-OCFCO Quitclaim to City of San Juan Capistrano Approved as to Form GRANTOR: Office of the County Counsel ORANGE COUNTY FLOOD CONTROL Orange County, California DISTRICT By: Deputy BY.' Chair, Board of Supervisors Date- Orange County, California Signed and certified that a copy of this document has been delivered to the Chair of the Beard per G.C. Sec. 25103, Reso 79-1535 ATTEST: Susan Novak Cleric of the Board of Supervisors Orange County Flood Control District Orange County, California GRANTEE SIGNATURE ON FOLLOWING PAGE ACKNOWLEDGEMENT State of California County of Orange On 20_, before me, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)is/are subscribed to the within instrument and acknowledged to me that hefshelthey executed the same in hislherltheir authorized capacity(ies), and that by histherttheir signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s)acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public 1.02--Ia2.2 Trabuco Greek-OCFCD Quifc€airy to City of San Juan Capistrano GRANTEE, CITY CSP SAN JUAN CAPISTRANO By: Karen P. Brust, City Manager ACKNOWLEDGEMENT State of Califoia County of Orange On 2© , before me, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that helshe/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the instrument the persons), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the lags of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public 1-02-102.2 Trabucc Creek-OCFCD Quildaim to City of San Juan Capistrano CERTIFICATE OF ACCEPTANCE THIS IS TO CERTIFY that the interest in real property conveyed by this Quitclaim Deed dated 20 , from the Orange County Flood Control District to the City of San Juan Capistrano, is hereby accepted by on behalf of pursuant to Resolution No. 99-05-05-01, CITY OF SAN JUAN CAPISTRANO Dated: Karen P. Srust City Manager pr .ved as to n I-icgt City Attorney L02-102.2 Trabuc o Creek-oCFCD Quitdalm to City of San Juan Capistrano EXHIBIT"A" LEGAL DESCRIPTION Fee Conveyance to the City of San Juan Capistrano Parcel No, L02-102.2. Fee jnte�rest-Qpnveyaqqe That portion of Lot 60 of Tract No. 103, in the City of San Juan Capistrano, County of orange, State of California, as shown on map recorded in Book 11 Pages 29 through 33, inclusive, of Miscellaneous Maps, Records of said county, described as follows: Beginning at the intersection of the north line of Del Obispo Street, 80 feet wide, as described in deed to the County of Orange, recorded December 9, 1943 in Book 1224 Page 177 of Official Records of said County, and the east fine of Parcels I and 2 of the land described in the deed to the Orange County Flood Control District recorded June 28, 1963 in Book 6609, Page 379 of Official Records of said County; Thence along said north filne, South 81"48'51"West, 11.40 feet to a point of cusp yvith a tangent curve concave northwesterly and having a radius of 29.00 feet; Thence northeasterly along said curve, 10,67 feet through a central angle of 21"04'43.' to said east line of Parcels 1 and 2; Thence along said east line, South 34045'03" East, 2,17 feet to the Point of Beginning. Contains 8 square feet, more or less As shown on Exhibit"B"attached hereto and by this reference made a part hereof '41 David O. Krell PLS 5301 Date y', CA5anJuancsp;strmW00FCD north dor January 17,2011 -31 11 41, !Qj EXHIBIT 'B" 'i1�€c 13EAF21NGS S�04LTt HEREON AR THE tiESt T t3F A FEELD SURVEI' THRJU6H FOUND MONUMENTS WHERE 41 ?1tE Cid BEARINr OF 'NOR'M 69'57'4 WEST FOR THE w m CENTERLINE OF DEL OBISPO (} 57REFT (,UST KST OF 4 CAMINO CAPIS'MANO) AS SHOWN ON PARCEL. MAP FILED 3N BOOK 45. PAGE 44 SLOPE EAS MENTOF PARCEL AAPS, RECORDS � i` � � OF ORANGE COUNTY, WAS g� USED AS THE BASIS OF L... t C.R. 66033/382 cn; (_5 W rTl c) 6 0 � APN 649-201-02 SAN JUAN CAPISTFdANO/ ; I REDEVELOPMENT AGENCY N34'45'03"W R=29,03'" 2.17' 6--21'04'43" N 81^48' i"E Al 11.40' T" OEL a 5 a- 12- / p��-`�-C1 P[^ JFL .f �[ TO ACCOMPANYDRAWN .9 LEGAL DESCRIPTION . - 1E.-. RECORDED AT THE REQUEST OF AND WHEN RECORDED MAIL TO: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, Ca 92676 1 Mail Tax Statements as shown above THIS SPACE FOR RECORDER'S USE ONLY APP- Portion of 649-201-02 DOCUMENTARY TRANSFER TAX� Computed on the consideration or value of property conveyer! Exempt per Revenue&Taxation Code Section 11922 ,_,_, Exempt from Recording Fees per Govt.Code Section 27383&6103 By: ❑ Unincorporated area of Orange County E Incorporated-City of San,Tuan Capistrano Parcel No: L02-116 Project: Trabuco Creek Channel QUITCLAIM DEED FOR A VALUABLE CONSIDERATION, receipt and adequacy of which is hereby acknowledged, ORANGE COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic, hereinafter referred to as "DISTRICT" does hereby REMISE, RELEASE AND FOREVER QUITCLAIM to the CITY OF SAN JUAN CAPISTRANO, a public body, corporate and politic, hereinafter referred to as"GRANTEE", in an"as is" condition, all RIGHTS, TITLE and INTEREST in and to that certain real property in the city of San ,Juan Capistrano, county of Orange, state of California, legally described in Exhibit A and illustrated in Exhibit B, which Exhibits are attached hereto and made a part hereof. Lathing contained herein, or in any document related hereto, shall be construed to imply the conveyance to GRANTEE of rights in the property which exceed those owned by DISTRICT, or any representation or warranty, either express or implied, relating to the nature or condition of the property or DISTRICT'S interest therein. !1 II L02-116 Trabucca Creek-00FCD Chu€,claim to'SIc Att achmen+C 3 Approved as to Form GRANTOR.: Office of the County Counsel ORANGE COUNTY FLOOD CONTROL Orange County, California DISTRICT By- Deputy By. Chair, Board of Supervisors Date: Orange County, California Signed and certified that a copy of this document has been delivered to the Chair of the Board per G.C. Sec. 25103, Reso 79-1535 ATTEST: Susan Novak, Clerk of the Board of Supervisors Orange County Flood Control District Orange County, California GRANTEE SIGNATURE ON FOLLOWING PAGE ACKNOWLEDGEMENT State of California County of Orange On 20_, before me, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that helshe/they executed the same in hislherttheir authorized capacity(ies), and that by hislherltheie signature(s)on the instrument the person(s),or the entty upon behalf of which the person(s)acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct_ WITNESS my hand and official seal. Signature of Notary public L02-116 Trabuco Creek-OCFCD Quitclaim to SJC GRANTEE: CITY OF SAN JUAN CAPISTRANO By: Karen P. Brust, City Manager ACKNOWLEDGEMENT State of California County of Orange On 120 , before me, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s)whose;name(s)is/are subscribed to the within instrument and acknowledged to me that helshelthey executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s)acted, executed the instrument. ]certify under PENALTY OF PERJURY under the laws of the State of.California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public L02-116 Trabuco Greek-OCFCD Quitclaim to SJC CERTIFICATE OF ACCEPTANCE THIS IS TO CERTIFY, that the interest in real property conveyed by this Quitclaim Deed dated 20_, from the Orange County Flood Control District to the City of San Juan Capistrano, is hereby accepted by on behalf of pursuant to Resolution No. 09-05-05-01, Dated: Karen P. Brust City Manager ApprLvas o form: anr� City Attorney x02-196 Trabuco Greek-OCFCD Quitdaim to SJC EXHIBIT"A" LEGAL DESCRIPTIONS QUITCLAIM OF ORANGE COUNTY FLOOD CONTROL DISTRICT EASEMENT Full Quitclaim of Easement for Ingress and Egress purposes to the Orange County Flood Control Distdrat Parcel No. L02-116, In the City of San Juan Capistrano, County of Orange. State of Caii1fornia All of that certain easernent recorded April 29; 1939 as Instrument No. 19990315012 of Official Records of 8aid Orange County, being a portion of Lot 60 of Tract No. 103, as per map recorded in Book 11, Pages 29 to 33, inclusive, of Miscellaneous Maps, in the Office of the County Recorder of said county. All as shown on Exhibit"B" attached hereto and by this reference made a part hereof David 0, Knell PLS 530,11 Date C:NSanJuanouplstfanoOCFCD Quftfalm L02-11,6-dcc is January i7,2011 'SHEET OF 1 EXHIBIT "BEXHI1 FIJI_ C?�.liTC A(a11 u...._ jig ` LO2--i i 153 �- C3l " wp yea � �• ..^-. ��..::�-.�•.,f 2'�'�l i�_� _, -.,�-P-�,� �F 5 j t 4 0 � yy ',.-'"RA CO CRdl( CHANNEL FM PEP: MR.i6609/3"71 HATCHED ARF-A iS t 5UNG OUI TCLAIMIED1 . k] tYE DAT 02-23-2-011 SCALL SKETCH TO ACCO f 1 1 Cr CMD F, zoic I ( C j'�"� ON 1}t9t L'ROSSRc.�tS aAflt4YAY HOkiH.S1L'r a"5 � - .. � SAI ��.7��5� {7=�°P l° weu r� ra fl.;�s-a<vi ?�.15Ai�,'11AP3C'A.FISIT?�NG��F.tC9'SF�J�G3 5�� 8C� S.�Ki f.(Y RECORDED AT THE REQUEST OF AND WHEN RECORDED MAIL TO: City of San Juan Capistrano 32400 Paseo Adelanto San.Tuan Capistrano,CA 92675 Maii Tax Statements as shown above 'THIS SPACE FOR RECORDER'$U.SE ONLY APN; DOCUM NTARY TRANSFER TAX$ Computed on the consideration or value ofproperty conveyed Exempt per Revenue&'taxation Code Section 11922 Exempt from Recording Fees per Govt_Code Section 27383&6103 By. 53GN.ASUI£.OkD't1.A N ZA7I3,E,"BRIWNINGTAx F h4-NAME �� ❑ Unincorporated Area Z Incorporated-City of San.Tuan Capistrano Parcel No: I,02-151. Project: Trabuco Creek Channel EASEMENT DEED For valuable consideration,recent of which is hereby acknowledged, ORANGE COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic, hereinafter referred to as"DISTRICT," does hereby grant to CITY OF SAN JUAN CAPi STRANO, a municipal corporation, hereinafter referred to as"GRANTEE,"its, successor and assigns, a nor!-exclusive bridge and roadway easement on,over,and across that certain real property(hereinafter referred to as"Easement Area")described in"Exhibit A,"and illustrated in"Exhibit I3,"which exhibits are attached hereto and made a part hereof DISTRICT and GRANTEE, may sometimes hereinafter be individually referred.to as"Party"or jointly as"Parties". GRANTEE'S rights shall include rights to construct,reconstruct,improve,repair, inspect,and maintain a bridge, footings,roadway,curbs,gutters,and sidewalks("Facilities")and shall include reasonable access to the Easement Area for the purpose of exercising the rights herein granted. It is understood and agreed by the Parties hereto and their successor and assigns that said easement and right of way herein granted in this easement deed ("Easement Deed")shall be subject to the following terms, conditions,and reservations: Trabuco Creek Easement-OCFC73 to City of San Jua:Capistrano l 08/23!2012 Attachment 4 L CONSTRUCTION AND MAINTENANCE(PMES2.2S) GRANTEE shall have all construction and/or maintenance plans approved in writing by DISTRICT'S Director GC Public Works,or designee,(hereinafter referred to as"Director")prior to commencement of any work in,on or about the Easement Area;and upon completion of any such work, GRANTEE shall immediately notify Director in writing of such completion. Director's approval of GRANTEE'S construction and/or maintenance plans shall not be deemed approval from the standpoint of structural safety,suitability for purpose or conformance with building or other codes or other governmental requirements.. DISTRICT is not responsible for permitting of any construction and/or maintenance, design,assumptions or accuracy of GRANTEE'S construction and/or maintenance plans. Director will rely on the professional expertise of the Engineer of Record when approving GRANTEE'S construction and/or maintenance plans. GRANTEE hereby acknowledges that the Easement Area lies within a portion of DIS'TRICT'S flood control facility,commonly referred to as the Trabuco Creek Channel (hereinafter"the Channel"). GRANTEE hereby acknowledges that the Del Obispo Street which crosses over Trabuco Creek Channel (hereinafter"the Bridge")is ars existing bridge structure that is owned and maintained by the GRANTEE. DISTRICT assumes no responsibility for the,structural integrity or stability of the Bridge. GRANTEE shall perform all construction and/or maintenance in.such a manner that will allow for unobstructed flood control operations and maintenance of the Channel by DISTRICT. Should it be necessary for GRANTEE to conduct any construction or excavation activities or otherwise disturb the surface of the Easement Area subsequent to the completion of the initial installation of ORANTEE'S Facilities,GRANTEE agrees to notify Director in writing sixty(60)days in advance of such planned activities,obtain Director's written approval of all plans,and obtain a pen-nit for construction from the County of Orange("County")with payment of normal processing fees prior to commencement of any such activities. Said approval shall not be withheld unreasonably,nor shall said approval be necessary in any emergency situation or in conducting-routine maintenance activities which do not involve disturbance of the surface area. Except in areas in which such activities require regulatory agency approval,or are otherwise designated as environmentally sensitive, GRANTEE shall have the right to out such roots as may endanger or interfere with GRANTEES Facilities provided,however,that any excavation shall be made in such a manner as will cause the least injury to the surface of the ground and any improvements and/or landscaping around such excavation,and that the earth so removed shall be replaced and the surface of the ground and any improvernents and/or landscaping around such excavation,damaged shall be promptly restored by GRANTEE at its expense to the same condition as existed.prior to excavation,to Director's satisfaction, GRANTEE shall,at no cost to DISTRICT,maintain in good repair and in safe condition all Facilities constructed,used or placed upon the Easement Area by or on behalf of GRANTEE pursuant to this.Easement Deed. 2. REMOVAL VAL ANIS/OR ABANDONMENT(PMES11 N) GRANTEE agrees that in the event(a)GRANTEE'S facilities are no longer required,or(b)GRANTEE'S use of said Facilities ceases for a continuous period of more than one(1)year without written notice from GRANTEE to DISTRICT of the circumstances affecting such suspension and of GRANTEE'S intention to resume usage of the Facilities, GRANTEE shall,at Director's request and at no cost to DISTRICT,remove and/or abandon said Facilities within.ninety(90)days alter receipt of written notice from.Director to remove and/or abandon. Following such removal and/or abandonment,GRANTEE shall,at no cost to DISTRICT, Trabuco Creek Easement-OCFCD to City o;San hUan Capistrano 2U8;'2SlLGt 2 restore the Easement Area to the condition that existed prior to the installation of GRANT'EE'S Facilities,to Director's satisfaction. GRANTEE shall also execute and deliver to Director,within ninety(90)slays of such removal and/or abandonment,for recordation in the Official Records of Orange County,California.,a Quitclaim Deed sufficient to remove the encumbrance of this Easement Deed fxozn title. 3. RELOCATION(PMES4.IS) GRANTEE agrees that in the event GRAMFEli'S Facilities shall at any time interfere with the operation, maintenance, replacement,or improvement of DISTRICT'S property as determined by Director,GRANTEE shall,within ninety(90)days of receipt of written notice from Director, relocate at GRANTEE'S expense GRANTEE'S Facilities in a manner approved by Director. All other terms and conditions of this Easement Deed shall remain the same. 4. COMPLIANCE WITH REGULATORY AUTHORITIES(PMES6.2S) GRANTEE shall,at its own cost and expense,promptly and at all tunes observe,comply with and carry out all present and future orders,regulations,directions,rules, laws,ordinances, permits and requirements of all governmental authorities, including but not limited to environmental regulatory authorities, with jurisdiction in,on, over and about the Easement Area,which arise from GRANTEE'S use of or performance of any activities permitted to be conducted in,on, over, or across the Easement Area. In addition,GRANTEE shall ensure that all construction in the Easement Area is performed in accordance with any'-NTPDES permit requirements or other water quality statutes,regulations,ordinances,or permits, applicable to the construction,including but not limited to use of appropriate'best management practices,so as to ensure that pollutants are not discharged into the Channel nor into DISTRICT'S flood control system, No approvals or consents given hereunder by DISTRICT,as a party to this Easement Deed, shall be deemed approval as to compliance or conformance with applicable governmental codes,laws,rales or regulations. 5. HOLT)HARMLESS(PME S7.25) GRANTEE acknowledges the Easement Area is in, on,and over DISTRICT'S Channel and may be subject to all hazards associated with flood conditions. GRANTEE agrees to assume all risks, financial or otherwise, associated therewith. GRANTEE hereby releases and waives all claims and recourse against DISTRICT and County including the right of contribution for loss of or damage to property,or injury to or death of any person arising from, growing out of or in any way connected with or related to this Easement Deed including any damage to or interruption of use of GRANTEE'S Facilities caused by erosion,flood., or flood overflow conditions of the Channel,or caused by the operation,maintenance,repair, reconstruction;replacement,enlargement or improvement of the Channel or by DISTRICT'S flood control operations,except claims arising from the concurrent active or sole negligence of DISTRICT and/or County,their officers;agents,employees and contractors. GRANTEE hereby agrees to indemnify,defend(with counsel approved in writing by DISTRICT'), and hold harmless, DISTRICT and County,their elected and appointed officials, officers,agents,employees and contractors against any and all claims.losses,demands,damages,cost,expenses or liability for injury to any persons or property,arising out of the maintenance, use of or operations or activities conducted in,on, or over the Easement Area,and/or the exercise of the rights under this Easement Deed by GRANTEE,its agents,officers, employees,invitees or licensees including,but not limited to,use of the Easement Area by members of the general public. GRANTEE, `S indemnity obligation shall not extend to any liability arising Trabnc o Creek Eascmcnt-UCFCD to City of San Juan Capistrano 3 08,128/2012 out of the concurrent active or sole negligence of DISTRICT,and/or County,their elected and appointed officials,officers,agents,employees or contractors including the cost of defense of any lawsuit axisig therefrom. If DISTRICT and/or County is/are,lamed as co-d.efendangs)in a lawsuit,GRANTEE shall notify Director of such fact and shall represent DISTRICTICounty in such legal action unless DISTRICT/County undertake(s)to represent itsel#IthernseIves as co-defendants)in such legal action,in which event, GRAN'T'EE shall pay to DISTRICT/County its/their litigation costs,expenses,and attorneys'fees, if judgment is entered against DISTRICT/County and GRANTEE by a court of competent jurisdiction because of the concurrent active negligence of DISTRICT1County and GRANTEE,DISTRICT and GRANTEE agree that liability will be apportioned as determined by the court. Neither party shall request a jury apportionment. GRANTEE acknowledges that it is familiar with the language and provisions of California Civil Code Section 1512 which provides as follows: 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 kno-Wn by him or her must have matcrially affected his or hersettlement with the debtor. GRANTEE, being aware of and understanding the terms of Section 1542,hereby waives all benefit of its provisions to the extent described in this section. 6. GRANTEE'S LIABILITY FOR HAZARDOUS OR TOXIC MATERIALS(PMES8.2S) GRANTEE shall not cause or perinit any"Hazardous Material,"as hereinafter defined,to be brought upon, kept,or used in or about the Easement Area, If GRANTEE breaches the obligations stated herein,or if contarnination of the Easement Area by Hazardous Material otherwise occurs for which GRANTEE is legally liable to DISTRICT"for damage resulting therefrom,,then GRANTEE shall indemnify,defend with counsel approved in writing by DISTRICT,and hold harmless,DISTRICT and/or County,and their elected or appointed officials,officers, agents,and employees from any and all claims,judgments,damages, penalties,fines,costs,liabilities,or losses(including,without limitation,diminution in value of the Easement Area,sums paid in settlement of claims,attorney fees,consultant fees,and expert witness fees)which arise during or after GRANTEE'S use of the Easement Area as a result of such contamination. This indemnification includes,without limitation,costs incurred by DISTRICT in connection with any investigation of site conditions or any cleanup,remedial,removal,or restoration work required by any federal,state,or local governmental entity or agency because of F-lazardous Material being present in the soil or ground water under the Easement Area, GRANTEE shall promptly take all action, at its sole cost and expense,as is necessary to clean,remove,and restore the'Easement Area to its condition prior to the introduction of such hazardous Material by GRANTEE, provided GRANTEE. shall first have obtained Director's written approval and the approval of any necessary governmental entities or agencies for any such remedial action. As used herein,the term"Hazardous Material",neaps any hazardous or toxic substance,material,or waste which is or shall become regulated by any governmental entity or agency-,including,without limitation,the County,the state of California,or the United States government. 7. RESERVATIONS (PMES91 N) DISTRICT hereby reserves for itself and its successors and assigns,such surface,subsurface and aerial rights in the Easement Area as will not unreasonably interfere with or prohibit the use by GRANTEE of the rights and easement herein granted. In the event DISTRICT exercises such rights to utilize the Easement Arca which use results in the disturbance of the Easement Area, DISTRICT'S only responsibility shall be to backfill with compacted earth. Trabuco Creek Easement-OUCD io City of Sap.Tuan Capistr ano 4 08,'28/2012 to the grade of the surrounding property following completion of DISTRICT'S activity. GRANTEE shall,at its sale cost and expense,and sub,ect to the provisions of Section I hereinabove,be responsible for the restoration.of any of GRANTEE'S Facilities. 8. CONVEYANCE SUBJECT TO EXISTING INTERESTS(PME51.0.1 S) This Easement Deed is subject to existing contracts, leases,licenses,easements,encumbrances,and claims which may affect the Easement Area,and the use of the word"grant"herein shall not be construed as a covenant against the existence of any thereof. Nothing contained herein, or in any document related hereto, shall be construed to imply the conveyance to GRANTEE of rights in the Easement Area which exceed those owned by DISTRICT,or any representation or warranty,either express or implied,relating to the nature or condition of the Easement Area.or DISTRIC'T'S interest therein. 9. TAXES ANTI ASSESSMENTS (PIMES11.1S) Should this Easement Deed create a possessory interest which is subject to the payment of taxes levied on such interest, it is understood and agreed that all taxes and assessments(including but not limited to said possessory interest tax)which become due and payable upon the Easement Area or upon fixtures, equipment, or other property installed,constructed or used by GRANTEE thereon in connection with this Easement Deed,shall be the full responsibility of GRANTEE,and GRANTEE shall cause said taxes and assessments to be paid promptly when due. I0. NOTICES(PMES12.IS) All notices,documents,correspondence and communications concerning this Easement Deed.shall be addressed as set forth in this Section,or as the Parties may hereafter designate by written notice,and shall he sent through the United States avail with postage prepaid. Any such mailing shall be deemed served or delivered twenty-four(24)hours after mailing. Each Party may change the address for notices by giving the other party at least ten.(10)calendar days' prior written notice of the new address. Notwithstanding the above,either Party may also provide notices,documents,correspondence,or such other communications to the other by personal delivery or by facsimile and so given shall be deemed to.have been given upon receipt if provided by personal delivery; or if by facsimile on the day transmitted provided. transmitted by 4:30 P.M.(PT)on the receiving Party's regular business day,otherwise delivery shall be deemed to have been given on the next business clay. To:DIS'IRICT: To GRANTEE: Orange County Flood Control District City of San Juan Capistrano c/o OC Public Works/Real Estate Services 32400 Paseo Adelanto 30€3 N.Flower Street,6th.Floor San.Tuan Capistrano,CA 92675 Santa Ana,CA 92703 Facsimile:9491493-1053 Facsimile.7141834-2870 Re: L02-151 Trabuco Creels Channel 11. VENUE (PMES13.1S) The Parties hereto agree that this Easement Deed has been negotiated and executed in the state of California and shall be governed by and construed under the laws of California. In the event of any legal action to enforce or interpret this Easement Deed.,the sole and exclusive venue shall be a court of competent jurisdiction located in the County of Orange,California,and the Parties hereto agree to and do Hereby submit Tmbuco Creek-Easernesat-OCFCD to City o1'San Rixi Capistrano 5 08/28/2012 to the jurisdiction of such court,notwithstanding Code of Civil Procedure Section 394. F0rtherrnore, the Parties hereto specifically agree to waive any and all rights to request that an action be transferred for trial to another county. 1.2. WAIVER OF RIGHTS (PMES 14.1 S) The failure of DISTRICT to insist upon strict performance of any of the terms, covenants,or conditions of this Easement Deed shall not be deemed a waiver of any right or remedy that DISTRICT may have,and shall not be deemed a waiver of the right to require strict performance of all the terms, covenants,and conditions of the Easement Deed thereafter,nor a waiver of any remedy for the subsequent breach or default of any term,covenant,or condition of the Easement Deed. 13. SEVERABILITY(PMES 15.IS) If any term.covenant,condition,or provision of this Easement Deed is held by a court ofcompet:eut jurisdiction to be invalid,void,or unenforceable,the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected,impaired or invalidated thereby. 14. AllfORNEYS' FEES(PMES 16,1 S) In any action or proceeding brought to enforce or interpret any provision of this Easeanent Deed,or cohere any provision hereof is validly asserted as a defense,each Party shall bear its own attorneys'fees and casts. 15. SUCCESSORS AND ASSIGNS (PMES 18.1S) The terms,covenants,and conditions contained herein shall apply to and bind the heirs,.successors, executors,administrators and assigns of the Parties hereto. 16. AUTHORITY(PMES20,IS) The Parties to this Easement Deed represent and warrant that this Easement Deed has been duly authorized and oxecuted and constitutes the legally banding obligation oftheir respective organization or entity, enforceable in accordance with its terms. 11 11 i( /l 11 Signature Pages Follow 1I Il /1 11 T`rabun Creek Easement-OCFCD to City 0"San AM Capistrano 6Q&128 2012 Approved as to Form DISTRICT Office of the County Counsel ORANGE COUNTY FLOOD CONTROL, Orange County,California DISTRICT By Deputy Date: By: Chair,Board of Supervisor Orange County,California Signed and certified that a copy of this document has been delivered to the Chair of the Board per G.C.Sec.25103,Reso 79-1535 A`I"TEST: Clerk of the Board of Supervisors Orange County Flood Control District Orange County,California GRANTEE SIGNATURE ON FOLLOWING PA GE ACKNOWLEDGMENT STATE OF CALIFORNIA ) 1 COUNTY OF ORANGE ) On 20_ before me, _._ _... ,personally appeared _ __ __ _ _ who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)is/are subscribed to the within instrument and acknowledged to me that helshehhey executed the sank;in hislher{their authorized capacity(ies1,and that by his/her/their signature(s)on the instrument the person(s),or the entity upon behalf of which the person(s)acted,executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and.correct. WITNI ESS my band and official seal. Signature .. ._ _ (Seal) T muco Creek Gzs znent flCFCD to City of Sart itian Capistrano- 7 , 08/2812012 GRANTED CITY OF SAN JUAN CAPI STRANO By: Larry Kramer Mayor Date-,-- ACKNOWLEDGMENT ate: _ACKNOWLE,DGMENT STAI'E OF CALIFORNIA ) ) COUNTY OF ORANGE } On_-- mm 20 before me, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)is/are subscribed to the within instrument and acknowledged to me that helshe/they executed the same in his/her/their authorizer]capacity(ics),and that by hislher/their sigr,ature(s)on the instrument the person(s),or the entity upon behalf'of which the person(s)acted, executed the instrument. I certify under PENAL,T`Y OF PLRJURY under the lawns of the State of California that the foregoing;paragraph is true and correct. W rUNZESS my hand and ofticiai seal. Signature (Seal) Docurnent: Easement Deed Grantor/Grantee: OC Rood Control District/City of Sat,Juan Capistrano Trabuco Creel:Fascment-OCFCD to City of Sari Juan Cagistranv � [3S1?&2fl12 CERTIFICATE OF ACCEPTANCE THIS IS TO CERTIFY,that the interest conveyed try this Easement Deed from the ORANGE COUNTY FLOOD CONTROL DISTRICT,a body corporate and politic,to the CITY OF SAN JUAN CAPISTRANO, a is hereby accepted pursuant to authority granted to the undersigned by order of _ _ the on — _>20 .subject to the terms,conditions and reservations set forth therein,and GRANTEE consents to the recordation.of sa;.d Easement Beed. GRANTEE CITY OF SAN.YUAN CAPI STRAND, Larry Kramer,Mayor Approved as to form: Cittorney Hans Van Ligten `1'rabuco Creek Eascmcnt-OCFCD to City of san Juan Capistrano CERTIFICATE OF ACCEPTANCE THIS IS TO CERTTFY, that the interest conveyed by this Easement Deed from the ORANGE COUNTY FLOOD CONTROL DISTRICT,a.body corporate and politic,to the CITY OF SAN JUAN CAPISTRANO, a is hereby accepted pursuant to authority granted to the undersigned by order of the on , 20_m, subject to the teens, conditions and reservations set forth therein,and GRANTEE consents to the recordation of said Easement Deed. GRANTEE CITY OF SAN JUAN CAPISTRANO, By: _ T� Larry Kramer, Mayor Date: Approved s to f City Attorney Dans Van Ligten Tsabuco Creek Easement-OCFCD to City of Sall 3uati.Capistrano EXHIBIT"A" LEGAL DESCRIPTION Street Easement to the City of San Juan Capistrano Pa�cel -t io—A 0 2--1�51 A 12 foot wide strip over portions of Lots 60 and 61 of Tract No. 103, in the City of San Juan Capistrano, County of orange, State of California, as shown on map recorded in Book 11 Pages 29 through 33, inclusive, of Miscellaneous Maps, Records of said county, the northerly line of Which is the south line of Del Obispo Street, 80 feet wide, as described in deed to the County of Orange, recorded December 9, 1943 in Book 1224 Page 177 of Official Records of said County, and which is bounded easterly by the easterly line of the land described as Parcel 1 of Parcel No. 101 in the deed to the Orange County Flood Control District recorded June 28, 1963 in Book 6609, Page 371 of official Records of said county and which is bounded westerly by the easterly line of the land described as Parcel No. 101.4 in the deed to the Orange County Flood Control District recorded June 28, 1963 in Book 6609, Page 376 of official Records of said county. Contains 2304 square feet, move or less As shown on Exhibit'11311 attached hereto and by this reference made a part hereof yl D.avid O. Knell PLS 5301 Date CaSanJuancapistrano'%OCFCD south,doc L.S.a, 01 January 20,2011 F-x fi � r��e�rsac - EXHIBIT 1"r€E 6E;44�,NCS SFiOW�V FIERECfV ARE :HF RESULT OF A FIELD $URvEY WI.IFRi-lN =HF BEARING OF "NORTH �q &9'57`45"K'r FOR THF INTERLINE OF DFL QHISP€3 STREET tiJUST '"VEST OF CAMINOO CAPIS?RANCY) AS SHOWN ON PARCEL MAP FLED IN &OCK 46, { OFy RA Of PARCEL COUNTY,MS wAS USED ASi THE 9ASSS OF BEARINGS. 05 sp.0 w - 4 `I � Noel1'e09"w a: g9,0 / 0 F-- z - ClY .3 L L PCL 101.4 Ld PER 0,R. < 66091/376 cn . .C.D FEE FUER E. 6609,/:371 CCOMPANY SKETCH TO A xvLLA LEGAL DESCRIPTION { b �Z i 7 RECORDED AT THE REQUEST OF, WHEN RECORDED MAIL TO: County of Orange CSC Public Works Real Estate Services 300 North Plower, 6`h Floor Santa Ana,California 92703 Attn:Catherine Lapid Mall Tax Statements as shown above THIS SPACE FOR RECORDER'S USE ONLY u — This is to certify that this docurnent is exempt from recording fees per Govt.Code See, 273 83 � Unincorporated Area anti is exempt from Documentary Transfer`fax.per ® Incorporated,incororat City of Sala Juan Capistrano Ke-v.&Taxation Code See. 11922. By. + Pro ect/Parcel: L€12-118 OC Public Works(I2eal Estate Services J Project Name: Trab:aco Creek Cha?inel EASEMENT DEED FOR A VALUABLE CONSIDERATION,receipt of which is hereby acknowledged, CITY OF SAN JUAN CAPISTRANO, a municipal corporation hereinafter referred to as"GRANTOR", does hereby GRANT to ORANGE COUNTY FLOOD CONTROL,DISTRICT; a body corporate and politic, hereinafter referred to as "DISTRICT," perpetual, easement (collectively,the"Easement") for flood control and water conservation purposes in, on,along, over, under,through, and across that certain real property (hereinafter the "Easement Area")in.the city of Sart Juan Capistrano, county of Orange, state of California, described in Exhibit `=A" and shown on Exhibit"B", both attached hereto and by this reference made a part hereof, GRANTOR and DISTRICT(hereinafter sometimes jointly referred to as"Parties"or individually as"Party") agree to the following: DISTRICT'S rights shall include the right to operate, inspect, maintain, repair,replace, construct, and enlarge a flood control channel (hereinafter the"Facilities"), and shall include reasonable access to the Easement Area for the purpose of exercising the rights herein granted. 1411 i3f2GI2 s Trab=.loo Cre--k Channel F&sennet? Attacli meat I. RIGHTS CONVEYED The Easement Area lies beneath GRANTOR'S Del Obispo Street bridge("Bridge") which crosses over the Trabuco Creek Channel.as depicted on said Exhibit'B": The existing Bridge, including but not limited to any pier noses,structural footings or embankments which support the Bridge or the adjoining Del Obispo Street(:`GRANTOR'S Improvements") are owned and maintained by GRANTOR,are expressly excluded from the Easement Area. GRANTOR covenants that GRANTOR.shall not grant or transfer any rights or privileges in., on, along, under, through, across, or about the Easement Area without obtaining DISTRICT'S. prior written approval. GRANTOR further agrees that: A. No buildings, permanent structures or additional earth fill shall be permitted within the Easement Area nor shall any block walls creating a water barrier across or within the Easement Area be permitted, and., B. No improvements or structural renovations shall be constructed, placed or permitted about,within,upon, under or above the Easement Area by or on behalf of GRANTOR until such plans have first been approvedin writing by the Director, OC Public Works, or designee, (hereinafter referred to as-Director") and a County property permit fbr such construction has been obtained from the County of Orange (hereinafter referred to as"County")with payment of-normal processing fees therefor. DISTRICT agrees that such plans shall be approved or disapproved within a reasonable time following receipt thereof, and that approval will not be withheld without good cause. Director's approval of GRANTOR'S plans shall not be deemed approval from the standpoint of structural safety, suitability for purpose or conformance with building or other codes or other governmental requirements. C. DISTRICT shall not be responsible nor share in the cost to operate,maintain,repair, or replace GRANTOR Improveznerzt~s or other permitted improvements within upon, under,above or abutting the Easement Area. 2. OPERATIONS AND MAINTENANCE All Facilities constructed or placed-within the Easement Area by or on behalf of DISTRICT shall be operated and maintained in a good state of repair by DISTRICT at no cost to GRANTOR. 3. HOLD I]AR.MI3ESS(DIA N) GRANTOR acknowledges the Bridge and Easement Area may be subject to all hazards associated with flood conditions resulting in stormwater overflowing or"tapping"the GRANTOR's Bridge;. GRANTOR agrees to assume all risks; financial or otherwise associated therewith except as provided herein. DISTRICT agrees to indemnify, defend with counsel approved by GRANTOR and save GRANTOR, and its elected and appointed officials, officers, agents, employees and contractors L02-1 I S Tint mo Creek Chanrei I asetnenY harmless from any or all penalties, liabilities or losses resulting from claims or court actions arising directly or.indirectly out of any injury to persons or damage to property by reason of negligent acts of DISTRICT, its agents, employees or independent contractors employed by DISTRICT in the performance of any work car maintenance within the Easement Area . If judgment is entered against GRANTOR.and DISTRICT by a court of competent jurisdiction because of the concurrent active negligence of GRANTOR and DISTRICT, GRANTOR and DISTRICT agree that liability shall be apportioned as determined by the court. NTeither party shall request a jury apportionment. For purposes of this section,GRANTOR acknowledges and agrees that DISTRICT shall not be deemed.negligent in the maintenance and/or operation of its flood control facilities if DISTRICT operates and maintains the flood control facilities in substantial conformance with standard DISTRICT practices used for similar DISTRICT facilities. Payment shall not be a condition precedent to recovery under the indemnity provided in this paragraph. 4. VENUE(DES9.1 S) The Parties hereto agree that this Easement Deed has been negotiated and executed in the State of California and shall be governed by and construed under the laws of California. In the event of any legal action to enforce or interpret this Easement Deed, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California,and the parties hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394, furthermore,the Parties hereto specifically agree to waive any and all rights to request that an action be transferred for trial to another county. 5 SEVERABILITY (DES 14.1 S) If any terra,covenant, condition,or provision of this Easement Deed is held by a court of competent jurisdiction to be invalid, void, or unenforceable,the remainder of the Provisions hereof shall remain in full force and effect and shall in no way be affected,unpaired,or invalidated thereby. 6. NOTICES (DES I I.I S) All notices,documents,correspondence, and communications concerning this Easement Deed shall be addressed as set forth: in this paragraph, or as the Parties may hereafter designate by written notice,and shall be sent through ted States lewith rs postage prepaid. Any such;trailing shall be deemed served ordl delivered twenty-four(24)hours after mailing. Each Party may change the address for notices by giving the other Party at least ten (1 U) calendar days prior written notice of the new address. Notwithstanding the above,either Party may also provide notices, documents,correspondence, or such other comintinications to the other by personal delivery,regular mail, or facsimile and, so given, shall be deemed to have been given upon receipt if provided by personal delivery car facsimile, or forty-eight(48) hours after mailing if provided by regular mail, 10/02012 L02-2 18 Trabuco Creek C annei�aserrent3 To QRANT'OR: To 1)1STRI.CT: City of San Juan Capistrano Orange County Flood Control District 32400 Paseo Adelanto c/o OC Public Works/Real Estate Services San Juan Capistrano,CA 92675 Re: Trabuco Creek 1.,02-118 Facsimile: 949/493-1053 P.O. Box 4048 Santa Ana, CA 92702-40148 Facsimile No.: (71.4) 834-2870 7. SUCCESSORS AND ASSIGNS (DES13.1 S) The terms, covenants,and conditions contained herein shall apply to and bind the heirs, successors, executors, administrators, and assigns of the Parties hereto. 8. ENTIRE AGREEMENT(DES 15.1 S) This Easement Deed contains the entire agreement between the Parties with respect to the matters herein and thea;are no restrictions,promises, warranties or undertakings other than those set forth or referred to herein. Additionally,this Easement Deed supersedes all prior agreements and understandings between the GRANTOR and any other parties with respect to GRANTOR'S real property that is the subject of this Easement Deed, and in the event of a conflict between the terms of this Easement Deed and any other deed or agreement between GRANTOR or its predecessors in interest and another parties,the provisions of this Easement Deed shall prevail. 9. ATTORNEY'S FEES(DES ITIS) In any action or proceeding;brought to enforce orinterpret any provision of this Easement Deed, or where any provision hereof is validly asserted as a defense, each Party shall bear its own attorney's fees and costs. 10. AMENDMENTS(DES 19.1 S) No alteration or variation of the terns of this Easement Deed shall be valid unless shade in. writing and signed by the Parties, and no oral understanding;or agreement not incorporated. herein shall be binding on any of the Parties. Any amendment or cancellation of'this Easement Deed shall be recorded in the Official Records of the County of Orange. GItA�NTOR CJTY OP SANJUAN CAns`rRANO, a municipal corporation .Approved as to form: By: _ Larry Kramer,Mayor Hans Van Ligten City Attorney Date. 10/10/2012 L02-118€rabuco Creek Chansle Easement 4 _DISTRICT Approved as to Form ORANGE COUNTY FLOOD CONTROL Off ce of the County Counsel DISTRICT, Orange County, California By: -- By-..._- Chairman, Board of Supervisors Deputy Orange County, California Date: Signed and certified that a copy of this document has been delivered to the Chair of the Board per G.C.See.25103,Reso 79-1535 ATTEST: Susan Novak Clerk of the Board of supmisors Orange County Flood Control District orange County,California ACKNOWLEDGMENT State of California County of Change On 20 ,before me..----------,.-personally appeared who proved to me on the basis of satisfactory evidence to be the persons(s)whose name(s)islare subscribed to the within instrument and acknowledged to me that be/she/they executed the some in his/her/their authorized capacity(ies),and that by his/her/their authorized capaeity(iesl,and that by his/her/their signature(s)on the instrument the person(s),or the entity upon behalf of which the person(s)acted,executed the instrument. 1 certify tinder PENALTY OF PERJURY tinder the laws of the State of California that the foregoing paragraph is true and correct. WITNESS nay band and official seat. Signature of Notary Public ��t�i2orz L02-1;9 Traluco Creek C32anne2 Easement 5 ACKNOWLEDGMENT state of California County of Orange On�._._�...Y.� ..,,..�Z{l ,before me, personally appeared who proved to roe on the'basis of satisfactory evidence to be the persons(s)whose name(s)in/are subscribed his/her/their o the zed thincapinstrument and d. acknowledged to me that he/she/they executed the sarn at by his/hentheir authorized capacity(ies),and that by his/her/their-signatures)on the instrument the per'90n(s),or the entity upon behalf of which the Person(s)acted,executed the instrument, I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WIT-NESS my hand and official seat. Signature of Notary Public i CII012012 1.,G2-11 TrabucOCreek Channel F,asesne-t CERTlFlCATL:OF ACCEPTANCE property co��eyed by the within deed or grant to by order of that the interest in real prop y cor orate and Witic,is hereby accepted T is is to certify as tl e governing board of the COiNTY ILOQD CQNTRQI I)TSTRICI abo�yQal ornia,acting QNTRQL DISTRICT,and the ORANGri C d off Y FLOOD the Board of Supervisor; of the County of orange' authorized o�'I'ieez. ORANGE ta€?l3NTY FLOOD C CQI�`I'IZOL DISTRICT consents to recordation thereof by its duly DISTRICT ORANGE CC3UNTY FLOOD CO N'IROI DISTRICT By. Chair Boar d of Supe�'liforisors Orange C©unty,Cania Date: I oil 0/2012 1p2-118'1' c o CYEanrel aserr�nt EXHIBIT All LEGAL OF-SCF"PT10N Trabuoo CreekChal el parcel NCapistrano, o ion of the [del OWSPa Street= S{1 feet wide, in the Gita, of fan ,1uan That �` of off Records of said C Irl�, the County o� rangy of{range, Stag of California 2 P e 1777s descr -d n deed to �ti� and 76 feet east Ccaun� �, b Ernes parallel��irolr�n�a�ir�n recorded December 9, 133 In '° and which is bounded easterly and Westerly SnoiC 7 , Page 4 of Records of centerline of Trabuco Creek Channel and the nartherly p and westerly of the Bled thereof. Said c centerline e is sheen on a map Survey of say Contains 12,160 square feet, more€�r less tt��t+��s�r�tes and by this r.terenre made a Part r� �� :�at As-shown on xhlb.it«g,o a w Date Jav id jj PLS 0. 1Prl'e i Easement uveE'�'rabuca Greek,doc - z.;,; ��sib tstsancrlGau�t'i , ,..;,- e s septss�Iber 23,2159 X.r ':: o ui LO CL.. .—TRABUCO EEK CHANNEL 56c)9/371 SKETCH To ACCOMPANY WILLo LEGAL DE�Ct�IPT#�}[� RESOLUTION NO., 09-05--05-01 A RESOLUTION dF THE CITY COUNCIL. OF THE CITY�OF SAN ,DUAN. CAPISTRANO'; CALIFORNIA AUTHORIZING THE CITY MANAGER TO ACCEPT INTERESTS IN REAL PROPERTY ON BEHALF OF THE CITY. THE CITY COUNCIL 4I^ THE CITY OF SAN JUAN CAPISTRANO HEREBY RESOLVES: I. The City Manager is authorized to accept interests in real property and to execute and record a certificate of acceptance and such other legal notices as may be required by the office of the County Recorder and to evidence ac�pmay be roa vee OPriate by the City Attorney interests on behalf of the City may be necessary or of San Juan Capistrano. of the said property int 2. The City Clerk is authorized to record with theother documents eats referred ffice of the ounty to in Recorder the certificate of acceptance and such c� Section I above for recordation purposes only, �h f Ma , 2009. PASSED, APPROVED AND ADOPTED this day y e_N MARNIELWMYOR_ ATT MA.R T R. MON AN, lTY C K 5-5-2009 Attachment 5 STATE OF CALIFORNIA COUNT` OF ORANGE CiT OF SAN,JUAN CAPiSTRANO i MARGARET R, MONAHAN, appoint6d City Clerk of the City of San Juan Capistrano, heran Capistrano eby do certify that the foregoing 1Resolutian NO- 09-05-05-01 was duly adapted by the City Councli of the 2ityof by the follow ng vote: at a Regular San Ju meeting thereof, Feld the 5day of y . AYES: COUNCIL MEMBERS: Alievato, geese, Hribar, Uso and Mayor Niels NO OUNCIL MEMBER: None AB E OUNCiLMEMBER; None MA R. MO A City C k 5,5-2t3o9 2 :32400 PASFO ADELAN TO %I MEMBERS OF THE O Y COUNCIL sA m..€E"iAN CAPISTFdANO,CA ( �3 )49.1-1171 SAM ALLE.VATO y trto P®Ref€� LAURAFREESE (949)493-1053 PAX a JOHK TAYLOR TRANSMITTAL TO: OC PUNIC Works Real Estate Services Attn: Catherine sapid PO Box 4048 Santa Ana, CA 927424048 DATE: November 27, 2412 FROM: Christy Jakl, Deputy City Clerk (949) 443-6810 RE: License Agreements and Easement Deeds for the Del Obispo Street Widening from Alipaz Street to Paseo Adelanto Project (CIP 47107) Enclosure: (3) Original License Agreements, for construction of permanent best management practices (BU[Ps) in OCPCD right-of-way. (1) Original Easement Deed from OC `CD to the City of San Juan Capistrano for a portion of Parcel L02-151; and, (1) Original Easement Deed from the City of San Juan Capistrano to OCFCD for a portion of Parcel L02118. Once the final signatures are received on the License Agreement, please return 1 original agreement to the City of San Juan Capistrano, City Clerk's Office. Once the final Easement Deeds are recorded, please return a copy of the recorded documents to the City of San Juan Capistrano, City Clerk's Office. Thank you. If you have questions concerning the agreement, please contact Nisha Patel, Associate Engineer at (949) 443-6350. Cc: Nisha Patel, Associate Engineer Sari Juan Capistrano: Preserving the Past to Enhance the P'uture Printed err 100%recyd: d PaPer RECORDED AT THE REQUESTOF, WHEN RECORDED MAIL TO: Comity of Orange OC Public Works Real Estate Services 300 North Flower, 6r, Moor Santa Ana, California 92703 I E Atte; Catherine Lapid Mail Tax Statements as shown above THIS SPACE FOR RECORDER'S USE ONLY "Phis is to certify that this docu hent is exempt from recording fees per Govt,Code Sec. 27383 and is exempt from Documentary Transfer Tax per El Unincorporated Area Rev. & Taxation Code Sec. 11922, Z1 Incorporated, City of San Juan Capistrano By: OC Public Works/Real EstateServices Project/Parcel: I,02-118 Project Name, Trab€aco Creek Channel EASEMENT DEED FOR A VALI TABLE CONSIDERATION, receipt of which is hereby acknowledged, CITY OF SAN .1IJAN CAPISTRANO, a municipal corporation hereinafter referred to as "GRANTOR", does hereby GRANT to ORANGE COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic, hereinafter referred to as "DISTRICT," perpetual, easement(collectively, the "Easement")for flood control and water conservation purposes in, on, along, over, under, through, and across that certain real property (hereinafter the "Easement.Area") in the city of Satz .Tuan Capistrano, county of Orange,state.of California, described in Exhibit "A" and shown on Exhibit "B", both attached hereto and by this reference made a part hereof. ORANTOR and DISTRICT (hereinafter sometimes jointly referred to as "Parties" or individually as"Party") agree to the following: DISTRICT'S rights shail include the right to operate, inspect, maintain, repair, replace, construct, and enlarge a flood control channel (hereinafter the "I+aciiitics"), and shall include reasonable access to the Easement Area for the purpose of exercising the rights herein granted. C..t�2-I I$�'rai��e�CreekC}atr�ILasenent 1 E6iIt332�12(City E�,23.12) I. RIGHTS CONVEYED The Easement Area lies beneath GRANTOR'S Del Obispo Street]fridge ("Bridge")which crosses over the Trabuco Creek Channel as depicted on said Exhibit"B". 'fhe existing Bridge, including but not Iii-sited to any pier noses, structural footings or embankments which support the Bridge or the adjoining Del Obispo Street("GRANTOR'S Irnprovemems")are owned and maintained by GRANTOR., are expressly excluded from the Easement Area. GRANTOR covenants that GRANTOR. shall not grant or transfer any rights or privileges in, on, along, under, through, across, or about the Easement Area without obtaining .DIST'RICT'S prior written approval, GRANTOR further agrees that: A. No buildings, permanent structures or additional eanh fill shall be permitted within the Easement Area nor shall any block walls creating a water barrier across or within the Easement Area be permitted; and, B. No improvements or structural renovations skull be constructed, placed or permitted abort, wiihin, upon,ender or above the Easement Area by or on behalf of GRANTOR until such plans have first been approved in writing by the Director, OC Public Works,or designee, (hereinafter referred to as "Director") and a County Property Permit for such construction has been obtained from the County of Orange (hereinafter referred to as "County") with payment of normal processing fees therefor. DISTRICT"agrees that such plans shall be approved or disapproved within a reasonable time following receipt thereof, and that approval will not be withheld without good cause. Director's approval of GRANTOR'S plans shall not be deemed approval from the standpoint of structural safety, suitability for purpose or conformance with building or other codes or other governmental requirements. C. DIS'T'RICT shall not be responsible nor share in the cost to operate, maintain, repair, or replace GRANTOR Improvements or other permitted improvements within, upon, under, above or abutting the Easement Area. 2. OPERATIONS AND MAINTENANCE All Facilities constructed or placed-within the Easement Area by or on behalf of DISTRICT shall be operated and maintained in a good state of repair by DISTRIC]"at no cost to GRANTOR. 3. HOLT:) IIARMLESS (D . N) GRANTOR acknowledges the Bridge and Easement Area may be subject to all hazards associated with flood conditions resulting in stormwater overflowing or"topping„ the GRANTOR's Bridge, GRANTOR agrees to assume all risks, financial or otherwise associated therewith except as provided herein. 1,02-1 18 7-rabueo 2 101/10/2012 Wky 10.23,12) DISTRICT agrees to indemnify, defend with counsel approved by GRANTOR and save GRANTOR, and its elected and appointed officials, officers, agents, employees and contractors harmless from any or all penalties, liabilities or losses resulting from claims or court actions arising directly or indirectly out of any injury to persons or damage to property by reason o negligent acts of'DISTRICT, its agents, employees or independent contractors employed by DISTRICT in the performance of any work or maintenance within the Easement Area , If judgment is entered against GRANTOR and DISTRICT by a court of competent jurisdiction because of the concurrent active negligence of GRANTOR and DISTRICT, GRANTOR and D STRICT agree that liability shall be apportioned as determined by the court. Neither party shall request a jury apportionment, For purposes of this section, Gl�ANT0'R acknowledges and agrees that DISTRICT'shall not be deemed negligent in the maintenance and/or operation of its flood control facilities if DIS'T'RICT operates and maintains the flood control facilities in substantial conformance with. standard DISTRICT practices used for similar DISTRICT facilities. Payment shall not be a condition precedent to recovery under the indemnity provided in this paragraph. 4. VENAL (DES9.1 S) The Parties hereto agree that this.Easemcnt Deed has been negotiated and executed in the State of California and shall be governed by and construed under the laws of California. In the event of any legal action to enforce or interpret this Easement Deed, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California, and the parties hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394. Furthermore, the Parties hereto specifically agree to waive any and all rights to request that an.action be transferrer{ for trial to another county. S SEVERABfLITY(DES 10,1 S) If any term, covenant, condition, or provision of this Easernent Deed is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby. C. NOTICES (DES 11.1 S) All notices, documents, correspondence, and communications concerning this Easement Deed shall be addressed as set forth in this paragraph, or as the Parties may hereafter designate by written notice, and shall be sent through the United States mail, duly registered or certified with postage prepaid. .any such mailing shall be deemed served or delivered twenty-four (2 4) hours after nailing. Each Party may change the address for notices by giving the other Party at least ton (10)calendar days prior written notice of the new address. Notwithstanding the above, either Party.may also provide notices, documents, correspondence, or such other communications to the other by personal delivery, regular mail, or facsimile and., so given, shall be deemed to have been given upon receipt if provided by personal delivery or facsimile, or forty-eight(48) hours after mailing if provided by regular mail. L02-1 18.nrabucu CreekC:hannel Eascment 3 1 Oilal'?012(City 10.23,12) To-COANTOR.: To DISTRICT: City of San Juan Capistrano Orange County Flood Control District 32400 Pasec) Adelanto c/o OC Public, Works/Real Estate Services San Juan Capistrano, CA 92675 Re. Trabuco Creek L02-1 IS Facsimile: 949/493-1053 P.O. Box 4048 Santa Ana, CA 92702-4048 Facsimile No.: (714) 8')4-2870 7. SUCCESSORS AND ASSIGNS (DES 13,1 S) The terms, covenants, and.conditions contained herein shall apply to and bind the heirs, successors, executors, administrators, and assigns of the Parties hereto. 8. ENTIRE AGREEMENT (DES 15.1 S) This Easement Deed contains the entire agreement between,the Parties with respect to the matters herein and there are no restrictions, promises, warranties or undertakings other than those set forth or referred to herein. Additionally, this Easement Deed supersedes all prior agreements and understandings between the GRAN,rOR and any other parties with respect to GRANTOR'S real property that is the subject of this Easement Deed, and in the event of a Conflict between the terns of this Easement Deed and any other deed or agreement between GRANTOR or its predecessors in interest and another parties, the provisions of this Easement Deed shall prevail, 9. ATTORNEY'S FEES (DES 17.1 S) In any action or proceeding brought to enforce or interpret any provision of this Easement Deed, or where any provision hereof is validly asserted as a defense, each Party shall bear its own attorney's fees and costs, 10. AMENDMENTS (DES 19.1 S)- No alteration or variation of the terms of this Easement Deed shall be valid. unless made in writing and signed by the Parties, and no oral understanding or agreement not incorporated herein shall be binding on any of the Parties. Any amendment or cancellation of this Easement Deed shall be recorded in the Official Records of the County of Orange, SIGNA TUR E PAGE FOLL 0 W Trabuoo Cree.kMannel Eawrnent 4 10/10/2012(City 10.23.12) GRANTOR CITY CP SAN RJAN CAPISTRA O, a municipal..pporporation Approved as it rm: 461 / .a`ry KnM6r, Mayor Haas Van I.,igten A f-1 i �T: City AttomQy Date: maris 1 iris, C ty Clerk DhSTR1CT SIGA TURE F OLLOW,S ACKNOWLEDGMENT State of California. COLInty of Orange On 20 before lire, personally appeared who proved to meon the basis of satisfactory evidence;to be the persons(s) whose narne(s) is/are subscribed to the withitnstrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their authorized capacity(ies), and that by his/he r/their•signature(s) on the instrument the person(s), or the entity upon bdia.lf of which the person(s)acted, executed the instmment. I certify under PENALTY OF PERJURY under the laws of the State of California.that the foregoing paragraph is trite and correct, WITNESS my hand and official seal, Signature of Notary Public 1 02 !18`I'rab�ic Cra ftC.,'ha,�3�ei a er eni 5 10110 2012(city 10.2112) PUBLIC AGENCY FORM OF ACKNOWLEDGLME-NT State of California ) County of Orange } ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 118 1) On NoVeLnber_ 13, 2012, before me, Maria Morris, City Clerk, personally appeared Karry Kramer,Mavor,who proved to nae on the basis of satisfactory evidence to the be persorl(s) whose narne(s) is/axe subscribed to the within instrument and ac1mowledged to Lire that e/she/they execrated the sane in his/her/their authorized capacity, and that by his/her/there signature ort the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument . I certify under Pl✓1iALTY Oh"l?l",RJUIRY under the laws of the State of California that the foregoing paragraph is true and correct. (SEAL) Z wrrp�E 5 n v hand and official seal. 1vSar a_ Krii City Cleric OP'T'IONAL Capacity Claimed by Signers Description of Attached Document Tits or Type of Document Mayor Easement Teed—City of San.Juan.Capistrano Title Gr4z is to Orange County Flood Control District 1.02-118 Trabuco Creek Channel Signer is representing City off San ,Tuan Capistrano Member of gages: 10 DISTRICT Approved as to Form ORANGE COUNTY FLOOD CONTROL Office of the County Counsel DISTRICT, Orange County, California �3y: Y _ _ _ _ Chairman, Board of Supervisors Deputy Orange; County, California Date: Signed and certified that a copy of this docume=nt has been delivered to the Chair of the Board pet G.C, Sea, 25103, Reso 79-1535 A' ' S T; Susan NovaJc Clerk of the Board of Sgervisors Orange County Flood Control District Orange County, California Lot-I 18'T'rz�b tct�CreekC:hannel Easement 1 Ui 1012012 CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by the within deed or grant to the ORANGE, COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic, is hereby accepted by order of the Board of Supervisors of the County of Orange, California, acting as the governing board of the MANGE COUNTY Y FLOOD CONTROL DISTRICT, and the ORANGE COUNTY FLOOD CONTROL DISTRICTconsents to recordation thereof by its duly authorized officer, DISTRICT ORANGE,COUNTY FLOOD CONTROL DISTRICT" By: Chair,Board of Supervisors Orange County, California Date: L02-118"rrabo Crc kO)RrInd Rasement 1 011 0,t2012 EXHIBIT"A" LEGAL DESCRIPTION Trabuco Creek Channel Parcel No. L02-118 That portion of the Del Obispo Street, 80 feet wide, in the City of San Juan Capistrano, County of Orange, State of California, as described in deed to the County of Orange, recorded December 9, 1943 in Book 1224 Page 177 of Official Records of said County, and which is bounded easterly and westerly by lines parallel with and 76 feet easterly and westerly of the centerline of Trabuco Greek Channel and the northerly prolongation thereof. Said centerline is shown on a map filed in Back 76, Page 4 of Records of Survey of said county. Contains:12,1613 square feet, more or less As shown on Exhibit"S" attached hereto and by this reference made a part hereof IjOid O. Knell PLS 5301 Date Easernllnt over rrziburo creek.doc September 23,?010 EXHIBIT F C : . W m i a. ---TRABUCO REEK CHANNEL FEE PER R� 6609/371 1 �g t� 1 l LLDAl sr t•-�a Ug t; 1 SKETCH TO ACCOMPANY Y Engln ring a www y t,mN 'E 06 nAJ` ; R"K LEGAL DESCRIPTION ,WV,,13 iTc"FiP