%n Siegel, City Manager

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1 5/17/2016 F13 City of San Juan Capistrano Agenda Report TO: FROM: SUBMITTED BY: Honorable Mayor and Members of the City Council %n Siegel, City Manager Steve May, Public Works and Utilities Director ~f/1/ia.-- PREPARED BY: George Alvarez, P.E., T.E., City EngineerfTraffic Engineer.f/J- ((/ DATE: May 17, 2016 SUBJECT: Consideration to Expand on an Existing Temporary Construction Easement with a Temporary Right-of-Entry Permit to the County of Orange for the La Pata Avenue Widening Project from Ortega Highway to the Prima Deshecha Landfill (County of Orange) RECOMMENDATION: By motion, approve a Temporary Right of Entry Permit from the City of San Juan Capistrano to the County of Orange within Assessor Parcel Nos , and and adjacent to the previously approved Temporary Construction Easement described as Parcel No EXECUTIVE SUMMARY: The County of Orange (County) is the lead agency for the La Pata Avenue/Camino Del Rio Extension to widen La Pata from 750 feet south of Ortega Highway to the existing road terminus of the County's Prima Deshecha Landfill, and to extend La Pata Avenue south to the City of San Clemente. During construction of the project, and upon further review of the plans, the City and the County identified a need to expand the temporary construction area located at the entrance to the Riding Park Facility. The west side sidewalks and slopes of the roadway between Ortega Highway and Vista Montana are within the City limits. Staff recommends that the City Council approve a Temporary Right-of-Entry Permit to the County for expanded grading at the entry to the Riding Park Facility. DISCUSSION/ANALYSIS: The County awarded the Construction Contract on December 1 0, 2013, for the La Pata Avenue Project. Construction of the project is currently on-going and the entire project is

2 City Council Agenda Report May 17, 2016 Page 2 of 3 expected to be completed by the summer of The County has already started the widening phase, known as Schedule 8, from 750 feet south of Ortega Highway to the road terminus at the Prima Deshecha Landfill. The La Pata Avenue widening will require construction of a new driveway to the Riding Park Facility. To construct the new driveway at the Riding Park Facility, it is necessary to expand the temporary construction area beyond that granted as a temporary construction easement in February To maintain the construction schedule and progress, a Temporary Right-of-Entry Permit to the County is proposed to allow the County to work within City property. The Permit area is shown in Attachment 1, Exhibit A. All construction that affects the City is being closely monitored by the City's Public Works and Utilities Department to minimize disruption and inconvenience. Road and utility work is being coordinated with Blenheim Facilities Management, the operator of the City's Rancho Mission Viejo Riding Park at San Juan Capistrano. The work at the Riding Park entry is scheduled to begin by June The existing access to the Riding Park will be open at all times during construction until such time that the new entry is completed and available for access. The existing temporary construction easement (Temporary Construction) includes approximately 1.63 acres and is intended to be in place for the time needed to accommodate the construction of the roadway. The expanded construction area in the Temporary Right of Entry Permit is approximately an additional 0.62 acres (Attachment 1 ). The Right-of-Entry Permit will terminate and expire upon either a filing of a Notice of Completion for the Project or the second anniversary of the Effective Date (date executed by the City of San Juan Capistrano), whichever date shall first occur. FISCAL IMPACT: There is no fiscal impact to the City. The County is funding the roadway improvement project. ENVIRONMENTAL IMPACT: Not applicable. PRIOR CITY COUNCIL REVIEW: On August 20, 2013, the City Council approved an Agreement with the County of Orange to relocate a City water line. On February 4, 2014, the City Council approved sidewalk, slope, drainage and temporary construction easements to the County of Orange and pipeline and temporary construction easements to Santa Fe Pacific Pipeline. COMMISSION/COMMITTEE/REVIEW AND RECOMMENDATIONS: This item does not require Commission review.

3 City Council Agenda Report May 17, 2016 Page 3 of 3 NOTIFICATION: Hugo Pineda, Project Manager for Orange County Public Works Blenheim Facilities Management A TI ACHMENT(S): Attachment 1 - Temporary Right-of-Entry Permit (Schedule B) including Exhibit "A" showing the Temporary Right of Entry area

4 PROJECT NO.: ER09018 PROJECT: La Pata Avenue Gap Closure Project (Schedule B) TEMPORARY RIGHT-OF-ENTRY PERMIT does hereby grant to CITY OF SAN JUAN CAPISTRANO, a California limited liability company, hereinafter referred to as "GRANTOR," COUNTY OF ORANGE, a political subdivision of the State of California, hereinafter referred to as "COUNTY," a temporary, non-exclusive right-of-entry permit ("Permit") for construction-related purposes in, over, under and across those portions of real property (the "Permit Areas") located in the County of Orange, State of California, and depicted on Exhibit "A," attached hereto and by this reference made a part hereof, SUBJECT TO the following: I. Basis for the Permit. Issuance of the Permit is based upon the following facts: A. GRANTOR is the owner of the real property located in the County of Orange, State of California, and commonly identified as Assessor Parcel Nos , and on the tax rolls of the Orange County Assessor (the "Grantor Propertv"). B. COUNTY is presently engaged in the widening of that certain public right-of-way known as "La Pata Avenue" (the "Project"); portions of the Project area are located adjacent and proximate to the Grantor Property. C. GRANTOR has heretofore granted to COUNTY certain temporary rights to enter upon and use portions of the Grantor Property for activities related to the development and construction of the Project; said prior rights are embodied within that certain Temporary Construction Easement recorded on May 27, 2014 in the Official Records of Orange County, California as Instrument No (the "TCE"). D. COUNTY has concluded that (i) the geographic scope of the TCE may not be broad enough to allow COUNTY to perform all construction-related activities that are relevant to the Project and (ii) COUNTY may require rights of entry and access onto and over additional portions of the Grantor Property (i.e., the Permit Areas) in order to complete the Project. E. Subject to the terms and conditions set forth below, GRANTOR is willing and able to grant to COUNTY rights of entry and access onto and over the Permit Areas that are supplemental to the TCE. 2. Use of the Permit Areas. Use of the Permit Areas, and exercise of the access rights granted herein, shall be limited solely to those activities which are related to and necessary for the development and widening of those portions of La Pata Avenue that are located adjacent and/or proximate to the Grantor Property. Specifically, during the Term of this Permit (as defined in Section 3, below), COUNTY shall have the following rights relative to the Permit Areas: -1- ATTACHMENT 1

5 Temporary Right-of-Entry Permit Project No. ER09018: La Pata Avenue Extension Project (Schedule B) a. The right to enter upon and pass and repass over and along the Permit Areas for the purpose of facilitating COUNTY's construction of such right-of-way improvements and related facilities as are required for, or otherwise necessitated by, the Project. b. The right to transport such personnel, trucks, cars, equipment and materials over, through and across all portions of the Permit Areas as are reasonable and necessary for COUNTY's implementation of the Project. 3. Term of Permit. The Temporary Right-of-Entry Permit shall commence on the Effective Date hereof (as defined below) and shall automatically terminate and expire upon (i) filing of a Notice of Completion for the Project or (ii) the second anniversary of the Effective Date, whichever date shall first occur (the "Term"). Upon the expiration of the Term, all of the rights and benefits of COUNTY in, to and under the Permit shall automatically terminate and be of no further force and effect. 4. Notice to GRANTOR. Prior to commence of work and any entry onto or use of the Permit Areas, COUNTY shall provide written notice to GRANTOR (via to galvarezcw.sanjuancapistrano.org) that identifies, at a minimum: a. the portions of the Permit Areas that COUNTY intends to access; b. the dates of the proposed access; and c. the precise activities that COUNTY intends to conduct upon the designated Permit Areas. Moreover, COUNTY shall provide to GRANTOR sufficient documentation which demonstrates that COUNTY has received all required Approvals (see Section 8, below) in connection with the proposed activities. In the event that GRANTOR has any questions or concerns relative to COUNTY's proposed activities within the Permit Areas and/or the Approvals related thereto, GRANTOR shall so notify COUNTY (via at nardy.khan@ocpw.ocgov.com and hugo.pineda@ocpw.ocgov.corn); whereupon, representatives of GRANTOR and COUNTY shall meet and confer in good faith for the purpose of addressing and resolving said questions and concerns prior to COUNTY's entry onto the Permit Areas. 5. Separation of Activities. At all times during COUNTY's exercise of the rights granted herein, COUNTY shall be responsible for appropriately separating COUNTY's activities from GRANTOR's activities as well as maintaining continuous public access to GRANTOR's facilities. 6. Obligation to Restore Pennit Areas. After completion of any work performed by COUNTY or its agents, contractors or employees which disturbs the surface of the Permit Areas or any other land owned by GRANTOR and/or its affiliates, COUNTY shall, at its sole cost and expense, restore the surface of such area as close as reasonably possible to its original character (as existing/measured at the time of the Effective Date of this Permit). -2-

6 Temporary Right-of-Entry Permit Project No. ER09018: La Pata Avenue Extension Project (Schedule B) 7. Obligation to Human Health or the Environment. Nothing in this Permit is intended nor shall anything in this Permit be construed to transfer to COUNTY or its successors or assigns or to relieve GRANTOR or its successors or assigns or predecessors in title of any responsibility or liability GRANTOR or its successors or assigns or predecessors in title now has, has had or comes to have with respect to human health or the environment, including but not limited to responsibility or liability relating to hazardous or toxic substances or materials (as such terms as those used in this sentence or defined by statute, ordinance, case law, governmental regulation or other provision of the law). Furthermore, COUNTY may exercise its rights under law to bring action, if necessary, to recover clean-up costs and penalties paid, if any, from GRANTOR or any others who are ultimately determined by a court of competent jurisdiction and/or a federal, state or local regulatory or administrative governmental agency or body having jurisdiction, to have responsibility for said hazardous toxic substances or materials upon, within, or under the Permit Areas. Notwithstanding the foregoing, COUNTY shall be and remain liable for any hazardous or toxic substances or materials which become located upon the Permit Areas and/or the Grantor Property because of COUNTY's operations, upon, within, or under same. 8. Obligation to Obtain Necessary Approvals. Prior to engaging in any activity upon the Permit Areas, COUNTY shall, at its sole cost and expense, apply for and obtain all necessary permits, authorizations, licenses and approvals (collectively, "Approvals") which are or may be required from any body, agency, or department with jurisdiction over the Permit Areas and the conservation values located thereon. 9. Rights Retained by GRANTOR. The rights acquired by COUNTY pursuant to this instrument are acquired subject to the right of GRANTOR, its successors and assigns to use the surface and subsurface of the land within the Permit Areas to the extent that such use is compatible with the full and free exercise of the Permit by COUNTY; provided, however, that no fences, block walls, or other structures or other improvements shall be constructed upon, over and along the Permit Areas without the prior written consent of COUNTY, which consent shall not be unreasonably withheld or delayed. GRANTOR has had its rights under Uniform Relocation Assistance and Real Property Acquisition Policies Act (Public Law ), Chapter 17 of Division 7 of Title 1 of the Government Code, and Title 25, Chapter 6 of the California Code of Regulations, all as amended, explained. GRANTOR understands that it has the right to have the Permit Areas appraised and receive full compensation based on an appraisal. However, GRANTOR has waived its right under the above-referenced laws and has offered to donate to COUNTY the rights identified in this Permit in order to facilitate COUNTY's implementation of the Project. l 0. Indemnification. a. COUNTY. COUNTY hereby agrees to indemnify, defend (with counsel acceptable to GRANTOR), release and hold harmless GRANTOR, its successors and assigns, including their respective affiliates, partners, directors, members, officers, shareholders, agents, representatives, contractors and employees (collectively, the "Grantor Representatives '), and each of them, and their property from all loss, liability, damages, -3-

7 Temporary Right-of-Entry Permit Project No. ER09018: La Pata Avenue Extension Project (Schedule B) claims, costs and expenses (including attorneys' fees and court costs) arising directly or indirectly out of the acts or omissions, intentional or otherwise, of COUNTY, or its officers, elected officials, employees, agents, contractors and representatives (collectively, the "County Representatives') in connection with the use of the Permit Areas by COUNTY and/or the County Representatives or any material breach of this Permit by COUNTY; provided, however, that nothing contained in this paragraph shall operate to relieve GRANTOR from any loss, liability, damages, claims, costs or expenses to the extent determined by a court of competent jurisdiction to have been proximately caused by the willful misconduct or negligent acts or omissions of GRANTOR, the Grantor Representatives, or any of them. Payment shall not be a condition precedent to recovery under the forgoing indemnity. b. GRANTOR. GRANTOR hereby agrees to indemnify, defend (with counsel acceptable to COUNTY), release and hold harmless COUNTY and the County Representatives, and each of them, and its and their property from all loss, liability, damages, claims, costs and expenses (including attorneys' fee and court costs) arising directly or indirectly out of the acts or omissions, intentional or otherwise, of GRANTOR or the Grantor Representatives in connection with the use of the Permit Areas by GRANTOR and/or the Grantor Representatives or any material breach of this Permit by GRANTOR; provided, however that nothing contained in this paragraph shall operate to relieve COUNTY from any loss, liability, damages, claims, costs or expenses to the extent determined by a court of competent jurisdiction to have been proximately caused by the willful misconduct or negligent acts or omissions of COUNTY, the County Representatives, or any of them. Payment shall not be a condition precedent to recovery under the forgoing indemnity. 11. General Provisions. a. Covenants Ru1ming with U1e Land. COUNTY and GRANTOR acknowledge and agree that the rights conferred by this Permit are intended to, and do, constitute covenants that run with the land and shall inure to the benefit of and be binding upon the parties and their respective grantees, heirs, successors and assigns. b. Effective Date. This Permit shall be effective upon the Effective Date that is set forth above the signature lines identified for GRANTOR on page 5 of this instrument. c. Authorized Representative. Each individual signing on behalf of a party to this Permit states that he or she is the duly authorized representative of the signing party and that his or her signature on this Permit has been duly authorized by, and creates the binding and enforceable obligation of, the party on whose behalf the representative is signing. d. Attorney's Fees. In the event of any dispute between GRANTOR and COUNTY regarding the enforcement or effect of this Permit, each party shall be responsible for its own attorney's fees and costs. e. Further Cooperation. GRANTOR and COUNTY agree to execute such other documents and to perform such other acts as may be reasonably necessary or desirable to further the expressed intent and purpose of this Permit. -4-

8 Temporary Right-of-Entry Permit Project No. ER09018: La Pata Avenue Extension Project (Schedule B) IN WITNESS WHEREOF, this instrument has been executed this day of, 2016 (the "Effective Date"). CITY OF SAN JUAN CAPISTRANO, a California municipal corporation By: _ Name: _ Title: County of Orange, a political subdivision of the State of California Date: By:_----:;;<''f'F-~.:: :_="" '~=--=,,.~~~..!!!>q_:'+---- Sl?a'nri:Silsby "//- Director, OC Public Works {/ Per Resolution No Date: '-\{\'LI \ fo Approved as to Form: Office of the County Counsel County of Orange, California -5-

9 EXHIBIT A Description of Permit Areas [See Attached]

10 EXHIBIT A Description of Permit Areas PROPOSED TROE LIMIT ---- SCALE 1" = 60' TEMPORARY RIGHT -OF-ENTRY (TROE) PERMIT AREA for LA PATA AVENUE WIDENING PROJECT at RMV RIDING PARK, SAN JUAN CAPISTRANO, CA