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HomeMy WebLinkAboutItem No.16CITY OF LAKE ELSINORE REPORT TO -CITY COUNCIL /REDEVELOPMENT AGENCY -TO: MAYOR &-CITY COUNCIL. CHAIRMAN i BOARDMEMBERS ]FROM RON MOLENDYKV CITY MANAGER/ EKECUTIVS DIRECTOR DATE: December 14i.1993 SUBJECT: Entry License Agreement BACKGROUND Attached is a Entry License Agreement for the Retail Site between the City /RDA Board and the Lehrs. A document substantially the same as this one was recently approved by the City Council/ Redevelopment Agency, however an additional modification concerning the obligation to. replace soil excavated from that site has been requested by the Lehr's representatives.. . -City Attorney Harper will be available to clarify this item if necessary.'. RECOMMENDATION Approve Entry License Agreement. PREPARED BY: APPROVED FOR AGENDA LIS ENTRY LICENSE AGREEMENT This Entry License Agreement ( "Agreement ") is made by and between PETER J. LEHIZ, SR., and ERNESTINE V. LEHR, Co- Trustees of the Lehr Family Trust dated June 1, 1989, as amended on March 20, 1991 by First Amendment to and Complete Restatement of the Lehr Family Trust dated June 18, 1989 ( "Licensor ") and the CITY OF LAKE ELSINORE REDEVELOPMENT AGENCY ( "Licensee "), who may be collectively referred to herein as the "Parties." PREAMBLE: A. Licensor is the owner of that certain real property (the "Property") located in the City of Lake Elsinore, County of Riverside, State of California, consisting of approximately five hundred fifty -three and twenty-seven one - hundredths (553.27) acres for which the City Council in part on June 8, 1993 adopted the East Lake Specific Plan for the future development of the Property. Included within the Specific Plan is the proposed construction of a public minor league baseball stadium and amphitheater ( "Stadium ") by Licensor as well as a related retail center. B. Licensor and Licensee have previously entered into that certain Amended and Restated .Option Agreement Under Threat of Condemnation dated March 26, 1992 ( "Option Agreement ") as amended on August 5, 1993 by that certain First Amendment to Amended and Restated Option Agreement Under Threat of Condemnation ( "First Amendment ") by which Licensor has granted Licensee an option to purchase the Property. Concurrently therewith, Licensor and Licensee have previously entered into that certain Agreement for Purchase and Sale of Real Property and Escrow Instructions Under Threat of Condemnation dated August 5, 1993 whereby Licensee has partially exercised that option to purchase approximately thirty-six and ninety-nine one - hundredths (36.99) acres of the Property. ' C. On August 5, 1993, Licensee approved construction of the Stadium as a public works project by Resolution No. D. Licensor and Licensee also on August 5, 1993 entered into'that certain Entry License Agreement ( "August 5, 1993 License ") whereby Licensor granted to Licensee a License to enter upon the Stadium Site, Stadium Access Parcel, Parking Site and Right -of- Way Parcel (all as defined in the August 5, 1993 License) for the purposes of site preparation, grading and dewatering operations prepatory to the construction of the Stadium, Stadium Access Road, Parking Site and Right -of -Way. E. The parties contemplate that in the near future Licensee will also be exercising its option to purchase additional property under the Option Agreement and First Amendment consisting of approxamitely 30.5 acres and refered to and shown on attached Exhibit A as Parcels 1 and 4 of Parcel Map No. 27852 ( "License Area "),which as of the date of this Agreement has not yet been recorded in the Office of the Riverside County Recorder, for the purposes of constructing a retail center thereon. -1- AGENDA ITEIi NO.1` r— PAGE �� F. In preparing the grading improvement plans for the Stadium Site,' Stadium Access Parcel, Parking Site and Right- of -1Vay Parcel, it was determined that it would be most efficient and appropriate to also concurrently prepare, grade and dewater the License Area (the "Purposes "), and thereafter such site preparation, grading and dewatering was, undertaken and completed. G. Although site preparation, grading and dewatering operations have been completed on the License Area, the Parties desire to enter into this Agreement to provide for the mutual covenants, limitations and conditions as are set forth herein. NOW, THEREFORE, the Parties hereby agree as follows: 1. ; i nse. Licensor hereby grants to Licensee and its employees, authorized agents and contractors a nonexclusive limited license for purposes of access, ingress and egress upon the License Area (the "License ") as necessary to accomplish the Purposes specified in Recital F, above. The License is expressly conditioned upon the performance by Licensee of each of its covenants hereunder. Licensee shall not cause, nor permit to be caused by its ' employees, authorized agents or contractors, any damage or destruction to the Property, other than the License Area pursuant to the undertaking of the purposes, or to any improvements or individuals thereon. 2. Term. The License shall be effective during the period beginning immediately upon execution of this Agreement by both Parties and compliance by Licensee with the terms of Section 5 hereof, and ending on the date which is the earlier to occur of (a) December 31, 1993 or (b) the termination of the Option Agreement (the "Tenn "), unless extended by mutual written consent of the Parties or earlier terminated by licensor as provided herein. 3. No Assnment. The License is personal to Licensee, may be exercised only by Licensee and its employees, authorized' agents and contractors, and may not be assigned -to any other person or entity: Any assignment of the License by Licensee or by any of its employees, authorized agents or contractors shall be void and shall, without more, permit Licensor to immediately terininate the License as provided herein. 4. Indemnit . a) In General. Licensee, by its execution of this Agreement, hereby agrees to indemnify, defend (with counsel reasonably acceptable to Licensor) and hold Licensor harmless from and against all claims, demands, loss or liability, including without limitation attorneys' fees and costs of suit, arising out of or caused by Licensee's or Licensee's employees', authorized agents' or contractors' performance or nonperformance or exercise of ' rights hereunder, or for any other loss or damage arising out of or occurring upon the License Area or related to Licensee's activities hereunder, Auning the term of this License, whether or not such loss, claim, demand or damage is caused by Licensee or Licensee's employees, agents or contractors, or by a third party, without regard to the degree of care or lack of care by Licensee, by any employee, authorized agent or contractor of Licensee, or by any other person -2- Ll ADEN A ITEM ':O. /QT acting on Licensee's behalf pursuant to this Agreement, or otherwise. This indemnification by Licensee shall survive the termination of the License and of this Agreement. i b) Liens. Licensee and each of its employees, authorized agents and contractors shall pay when due all claims asserted. pursuant to labor, material, services, fixtures or equipment furnished to or by order of any of them with respect to the License Area. Should a mechanic's or materialman's lien or similar claim ( "Lien ") be filed so as to encumber title to the Property or the License Area or any portion thereof, Licensee shall (i) cause each such Lien to be released no later than five (5) business days after its filing; and (H) indemnify, defend (with counsel reasonably acceptable to Licensor) and hold Licensor harmless from and against all claims, demands, loss or liability, including without limitation attorneys' fees and costs of suit, arising out of the filing and release of the Lien, which indemnification shall survive the termination of the License and of this Agreement. Licensee shall notify Licensor in each instance prior to entry by Licensor or its authorized employees, agents or contractors,. upon.the License Area so that Licensor may record and post notices of nonresponsibility. 5. Restoration of License Area. If for any reason this License terminates, but Licensee has conducted operations or construction activities on the License Area, then Licensee, at its sole expense, shall promptly restore the License Area as nearly as possible to its natural condition existing on the date that this License has been granted. This restoration obligation shall survive the termination of the License. In addition, prior to the expiration of the License, Licensee shall restore the License Area and replace all soil that has been excavated from the License Area and, in Licensee's sole discretion, shall fill the License Area with additional soil to an elevation which conforms with proposed street elevations ( "Replacement Soil"). The Replacement Soil shall be (i) substantially free from trash, debris or cement; (ii) free from hazardous substances or hazardous waste; and ('iii) capable of compaction to the degree reasonably required by the City of Lake Elsinore or the County and Licensor for remedial earth work and fill purposes, and is otherwise structurally sound. For purposes of this Agreement, the terms "hazardous substances" and "hazardous waste" shall have the same definitions as set forth in the Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq., as amended, and a meaning as may be set _ forth in California Health and Safety Code sections 25316, 25117, 25140, 25501 and 25281. A licensed soils engineer retained by Licensor shall have the continual right to enter upon the portions of the License Area to monitor importation and compaction of soil to the License Area. Licensee shall conduct such importation and recompaction in accordance with all applicable laws, at its sole cost and expense, and shall obtain all required permits and approvals from all appropriate government entities with respect to such activities, and pay all fees associated with the issuance of grading permits. 6. Attomeys' Fees. In any legal action or suit brought to enforce the provisions of this Agreement or to secure damages for its breach, the prevailing Party shall be entitled to reasonable attorneys' fees and costs actually incurred. 7. Termination. If Licensee fails to comply with any of the terms of this Agreement or does not perform any other duty related to the License which is imposed by law, Licensor may immediately terminate the License and exclude Licensee and all of its employees, agents and contractors from the License Area. Licensor shag confirm any such termination by -3- AGENDA ITEM N• . /(p PAGE O giving notice to Licensee within twenty -four (24) hours after the effective date of the termination. The to "rmination of the License shall not relieve Licensee of its obligations hereunder, including, but not limited to its' obligations of restoration of the License Area or indemnification. S. Notic . Any notice or statement required or designated to be given under this Agreement shall be in writing and shall be personally'served or sent by United States mail to the respective address of each of the Parties, as indicated below, until notice of a different address is given in the manner specified in this Section. Notices not personally delivered shall be deemed received two (2) business days after deposit in the United States mail, properly addressed, first class postage prepaid. I -4- AGENDA ITEM NO. 16 PAGE G Licensee: City of Lake Elsinore Redevelopment Agency: 130 S. Main Street Lake Elsinore, CA 92531 Attn: C. Ray Wood, CPA And Copies to: Harper & Burns 453 S. Glassell Street Orange, CA 92666 Attn: John R. Harper, Esq. . Young Investment Group 650 Town Center Drive, Suite 1900 Costa Mesa, CA 92626 Attn: Daniel H. Young, President Nossaman, Guthner, Knox & Elliott 18101 Von Karman Ave, Suite 1800 Irvine, CA 92715 Attn: David L. Colgan, Esq. Licensor: c/o Peter J. Lehr, Sr. P.O. Box 145 Lake Elsinore, CA 92531 And Copies to: Southwest Realty 39840 Los Alamos Road, Suite 13 Murrieta, CA 92562 Attn: Carmela R. Loelkes Lorenz, Alhadeff, Cannon & Rose 550 West "C" Street, Suite 1900 San Diego, CA 92101 Attn: Robert B. Lapidus, Esq. [Signatures appear on following page] -5- AGENDA ITEM NO. PAGE—LO-07- IN WITNESS WHEREOF, the undersigned Parties have executed this Agreement effective this day of 19 "Licensor" Peter J. Lehr, Sr., Co- Trustee of the Lehr Family Trust dated June 18, 1989, as amended on March 20, 1991 by First Amendment to and Complete Restatement of the Lehr Family Trust dated June 18, 1989 Ernestine V. Lehr, Co- Trustee of the Lehr Family Trust dated June 18, 1989, as amended on March 20, 1991 by First Amendment to and Complete Restatement of the Lehr Family Trust dated June 18, 1989 "Licensee" CITY OF LAKE ELSINORE REDEVELOP- MENT AGENCY, a redevelopment agency of the City of Lake Elsinore By: Its: 1A AGENDA ITEM NO, PAGE 1— OF 9327700K.oc1 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY x AGENDA ITEM NO. _ ! 6 PAGE O OF 9