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HomeMy WebLinkAboutTHRIVE (3)A-2018-117-02 INSURANCE ON FILE WORK MAY PROCEED UNTIL IUTANCE EXPIRES CI.CRK0 COU CIL DATE'. Vtj 7 2 201) LICENSE AGREEMENT FOR DUE DILIGENCE .7,6vVw �}k7-1da9i This License Agreement for Due Diligence ( _"License") is entered as of the 7 day of lvov2iki6et" , 2018, by and between the CITY OF SANTA ANA, a California charter city in the County of Orange of the State of California ("City") and THRIVE Santa Ana, Inc., a 501(c)(3) tax exempt California public benefit corporation ("Developer"). RECITALS: 1.1 The property contemplated is located at 1901 West Walnut Street, Santa Ana, CA, APN 007-332-08, and more particularly described in the legal description attached hereto as Exhibit "A" and incorporated by reference herein ("Property"). Developer proposes to develop a community micro -farm can the Property ("Project"). 1.2 Pursuant to an Exclusive Negotiation Agreement ("ENA"), Developer and City have a specified period of time to attempt to negotiate a Disposition and Development Agreement ("DDA") for the Project on the Property. 1.3 The Developer wishes to enter the Property for the purpose of undertaking certain studies, plans and other activities necessary to define the scope of development and determine the feasibility of the Project on the Property ("Work"). The Work may include, but is not limited to, inspections, surveys, and drilling and testing for needed soils reports. The Work may be performed by Developer in phases with any subsequent: phases dependent upon the findings of the prior phase(s). AGREEMENT 2.1 In consideration of the mutual promises and covenants contained herein, the City does hereby grant to Developer, its employees, contractors, agents, representatives and assigns ("Licensees"), the right to enter upon the Property. 2.2 The Licensee, in return for City granting permission to enter the Property, agrees: 2.2.1 To retain a qualified contractor ("Contractor") to perform the Work and to determine, in Developer's sole and absolute discretion and without any liability resulting to the City, and their officials, officers, employees, agents and attorneys from such determination, whether or not further Work must be done. 2.2.2 To require the Contractor to not unreasonably interfere with any operation, or other work or activities conducted on-site by the City. 2.2.3 To require the Contractor to perform the Work in a safe and workmanlike manner, and in accordance with all applicable laws, ordinances, permits and regulations. 2.2.4 Licensees shall have the right, at their sole cost, expense and liability, to commence the Work at the Property. Copies of data, surveys and tests obtained or made pursuant to the Work authorized by this License shall be provided to the City within fifteen (1.5) days after receipt by any Licensee. Any Work shall be undertaken only after securing any necessary permits, at Licensees' sole cost and expense, from the appropriate governmental agencies. Licensees shall use care and consideration in connection with any of the Work and City shall have the right to be present during any Work performed at the Property. Developer shall restore the Property to its original condition, normal wear and tear excepted, immediately after any and all Work is completed. 2.2.5 Developer shall protect, indemnify, defend (with counsel reasonably acceptable to City) and hold the Property, City and their officials, officers, employees, agents and attorneys free and harmless from and against any and all claims, damages, liens, stop notices, liabilities, losses, costs and expenses, including reasonable attorneys' fees and court costs and expenses (all of the foregoing, collectively "Liabilities"), resulting from the Work authorized by this License, including, without limitation, repairing any and all damages to any portion of the Property, arising out of or related (directly or indirectly) to Licensees' conducting inspections, surveys, tests, and studies, except as to those Liabilities attributable to the negligence or willful misconduct of the City and their officials, officers, employees, agents, contractors and attorneys or the mere discovery of pre-existing conditions. Developer's indemnification obligations set forth herein shall survive the close of escrow for the Property, shall not be merged with any grant deed in connection therewith and shall survive the termination of this License. The indenmity provided in this paragraph shall not extend to any injury, death or property damage to the extent caused by or arising from any condition existing on the Property prior to the commencement of the Work, including, but not limited to, any preexisting environmental condition on or about the Property. 2.2.6 Prior to any entry upon the Property by any Licensee, Developer shall deliver to City an original endorsement to Developer's commercial general liability insurance policy evidencing that Developer is carrying a commercial general liability insurance policy with a financially responsible insurance company acceptable to City, covering: (1) the activities of Licensees on or upon the Property and (2) Developer's indemnity obligation contained in section 2.2.5, above. Such endorsement to such insurance policy shall evidence that such insurance policy shall have a per occurrence limit of at least One Million Dollars ($1,000,000) and an aggregate limit of at least One Million Dollars ($1,000,000), shall name City and their officials, officers, employees, and agents as additional insureds, shall be primary and non-contributing with any other insurance available to City and shall contain a full waiver of subrogation clause. 2.2.7 To give the City two (2) business days' notice prior to entry upon the Property as provided in section 3.5 hereof. 2.2.8 To require the Contractor to remove and dispose of any waste materials generated in the course of performing the Work. Such removal and disposal shall be done in accordance with applicable federal, state, and local law. -2- 2.3 The term of this License shall extend from the full execution of this License until the earlier of the following to occur: (1) the expiration of the ENA; (2) the termination as set forth in Section 3.2 hereof. MISCELANEOUS 3.1 The Licensee agrees that permission to enter is not a waiver of the right to receive compensation for the acquisition of the Property or any remedy authorized by law to secure payment therefore. Nothing in this License shall be interpreted as, or otherwise be deemed to be, a transfer or conveyance of any interest in real property whatsoever between City and the Licensees (or any of them), except as otherwise specifically provided in writing. The parties acknowledge and agree that nothing in this License shall be interpreted as an agreement for the lease or other use of the Property by the Licensees (or any of them). Any agreement for the use of the Property for any purpose(s) other than those set forth in this License or for the conveyance of an interest in real property must be the subject of a separate written agreement between the parties. 3.2 This License may be terminated by either party, with or without cause, by providing two (2) days' written notice to the other party at the address set forth in section 3.5 hereof. 3.3 In the event of the bringing of any action or suit by a party against another party under this License to enforce this License, the prevailing party shall, in addition to any other relief to which that party may be entitled, be entitled to have and recover from the other attorney's fees and costs, as determined by a court of competent jurisdiction. 3.4 Neither party shall be liable for any delay in the performance of any of their respective obligations hereunder, or for any damages suffered by City or the indemnitees listed herein by reason of such delay, if such delay is, directly or indirectly, caused by, or in any manner arises from, fires, floods, accidents, civil unrest, acts of God, war, governmental interference or embargoes, strikes, labor difficulties, shortage of labor, fuel, power, materials, or supplies, transportation delays, or any other cause or causes whether or not similar in nature to any of these hereinbefore specified beyond the City's control. Any such delay shall automatically extend the term of this License one whole day for each day or portion thereof during which such delay shall exist. 3.5 All notices or other communication provided for under this License shall be in writing, and shall be delivered personally, sent by reputable overnight mail equivalent carrier, or sent by registered or certified mail, return receipt requested, postage prepaid, addressed to the person to receive such notice or communication at the following address and shall be effective upon the earlier of actual receipt (including by facsimile) or refusal to accept delivery: If to the City: The City of Santa Ana Executive Director Community Development Agency 20 Civic Center Plaza (M-20) P.O. Box 1988 Santa Ana, CA 92702 -3- With a copy to: City Attorney 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, CA 92702 If to the Developer: THRIVE Santa Ana, Inc. Cesar Covarrubias, Treasurer P.O. Box 1935 Santa Ana, CA 92702 Telephone (949) 250-0909 Facsimile (949) 263-0647 With a copy to: THRIVE Santa Ana, Inc. c/o Carrie Hempel 401 East Peltason Drive Law 3500-F Irvine, CA 92697 Telephone (949) 824-3575 chempel@law.uci.edu Notice of change of address shall be given by written notice in the manner set forth in this subsection. 3.6 This ,License shall be binding upon and shall inure to the benefit of the parties and their respective heirs, executors, administrators, successors and assigns. 3.7 The parties agree to execute all instruments and documents and to take all actions as may be required in order to consummate the transactions contemplated by this License. 3.8 This License contains the entire agreement between the parties concerning the subject matter of this License and supersedes any prior agreements, understandings or negotiations (whether oral or written). No addition or modification of any term or provision hereof shall be effective unless set forth in writing and signed by the parties. 3.9 This License may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. 3.10 Developer and City agree that no party is intended to be or shall be construed as a partner, joint venturer, alter ego, manager, controlling person or other business associate or participant of any kind of any other party and no party intends ever to assume such status. 3.11 Except as specifically set forth herein, this License shall not be deemed to confer any rights upon any individual or entity which is not a party hereto, and the Parties hereto expressly disclaim any such third -party benefit. -4- IN WITNESS WHEREOF, the Parties have executed this License Agreement on the dates indicated next to each of the signatures of their authorized representatives, as appear below. ATTEST: er..r CITY OF SANTA ANA MARIA D. HUIZAR RAUL GODINEZ II Clerk of the Council City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City Attopcy By: ' Ll Ryan 0. , Assistant RECOMMENDED FOR APPROVAL 72 > STEVEN A. MEND07A Executive Director Community Development Agency -5- THRIVE SANTA ANA, INC. By: �-� ANA tJ tA President Dated: j EXHIBIT "A" TO LICENSE AGREEMENT Property Legal Descri tp ion 1901 West Walnut Street ("Property") is situated in the State of California, County of Orange, and the City of Santa Ana. The Property has a lot size of 16,558 square feet (.38 acre) as shown on a Map recorded as parcel 8 in Book 7 on page 332 of Assessor Parcel Maps of Orange County, California. The Property is bounded on its easterly edge by South Daisy Avenue and its southern edge by West Walnut Street. The following is the Property Legal Description: P BK 54 PG 50 PAR 3 EXHIBIT "A" -6- ACORO CERTIFICATE OF LIABILITY INSURANCE AM Dovozo s THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policy(les) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsemen s . PRODUCER Baker, Romero & ASSOCIateS Insurance Brokers, Inc. 750 Terrado Plaza #238 Covina, CA 91723 License #: OG22790 CONTACT NAM • Emma L Becerra PHONE I (626)392.2253 AaD N,. (626)339-9921 wl ' EMAIL Do emma bakerromero.com INSURER(Sl AFFORDING COVERAGE SAIDN INSURER A i Nonprofits Ins Alliance INSURED INSURERS: INSURERC_ Thrive Santa Ana, Inc. INSURER D: 401 East Peltason Dr., Suite 1000 INSURER E: Santa Ana, CA 92702 INSURER P: COVERAGES CERTIFICATE NUMBER- DnGnOnnn.25719 RPVICInN NIIMRFa• a THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OP INSURANCE ADD SUER POLICY NUMBER POLICOY SPP POUOYFXP LIMITS A X COMMERCIAL GENERAL LIABILITY CLAIMSMADEI OCCUR 2018-57335 1012712018 1012712019 EACHOCCURRENCE $ 1000000 T S 600,000 MEDEXP one mon) S 20,000 PERSONAL& AOV INJURY S 1,000,000 GENT AGGREGATE LIMIT APPUES PER; X POLICY ❑ O. JET 11 LOC 00000 GENERAL AGGRETpemm)$ PRODUCTS - COM11100:1010 OTHER: AUTOMOSILELIABUJTY EaM E¢D SINGLANY a001LY INJURY(AUTOS AUTO ONLY OWNED AUTOSULED BODILY INJURY(PAUTOSONLY BOSS ONLYY PROR jE Y DAMA UMBRELLA UAB OCCUR EACH OCCURRENCE $ AGGREGATE S EXCESS LIAR CLAIMS -MADE DED I I RETENTION$ S WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN ANY PROPRIETORPARTNERMSCUTIVE OFFIOERMEMBEREXCLUDED? NIA PER H. TA E.L. EACH ACCIDENT $ E.L DISEASE -EA EMPLOYE S (Mandatory in NH) ITyea deealbe under 0 SGtRIPTION OF OPERATIONS belay E.L. DISEASE -POLICY LIMIT S A Directors & Officers 201857335 -DO 1012712018 1012712019 $1M Each qct $1M Aggregate DESCRIPTION OF OPENATONS I LOCATIONS / VEHICLES (ACORD 101, Addllontl RamaNn SohodVle, may bo.o mhad N mom apaaa Is mSVlmm Certificate holder named as Additional Insured - Landlord, client working to acquire land for lancitrust. �15t' CERTIFICATE HOLDER neNeFl I ATInN m 1988-2015 ACORD CORPORATIOW All rights reserved. ACORD 25 (2016103) The ACORD name and logo are registered marks of ACORD Printed by ELB on January 08, 2019 at 10:56AM SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE The City of Santa Ana THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 20 Civic Center Plazxa, M-25 Santa Ana, CA 92701 AUTHORED REPRESENTATIVE ELB m 1988-2015 ACORD CORPORATIOW All rights reserved. ACORD 25 (2016103) The ACORD name and logo are registered marks of ACORD Printed by ELB on January 08, 2019 at 10:56AM POLICY NUMBER: 2018-57335 Named Insured: Thrive Santa Ana, Inc. COMMERCIAL GENERAL LIABILITY CO 20 26 D413 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): City of Santa Ana City of Santa Ana named as Additional Insured, landlord; Primary Non -Contributory included as per endorsement NIAC-E61 Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section 11— Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury",'property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: 1. in the performance of your ongoing operations; or 2. In connection with your premises owned by or rented to you. However: 1. The Insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. Wllh respect to the Insurance afforded to these additional Insureds, the following is added to Section III—Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional Insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown In the Declarations. CG 20 26 04 13 0 Insurance Services Office, Inc., 2012 Page 1 of 1 NONPROFITS ' POLICY NUMBER: 2015-57335 FORM: NIAC-E61 11 '17 INSURANCE NAMED INSURED: Thrive Santa Ana Inc. 0 ALLIA.NCL OF CALIFORNIA A Head for tnsuranCo. A Heart for Nonprofits. THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY. PRIMARY AND NON-CONTRIBUTORY ENDORSEMENT FOR PUBLIC ENTITIES This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of person or Organization: (Information required to complete this Schedule, if not shown above, will be shown in the Declarations.) A, Section 11– Who is An Insured is amended to include any public entity as an additional Insured for whom you are performing operations, who may be named in the schedule above, when you have agreed in a written contract or written agreement that such public entity be added as an additional insured(s) on your policy, but only with respect to liability far "bodily injury', `;property damage" or "personal and advertising injury'caused, in whole or in part, by: 1. Your negligent acts or omissions; or 2. The negligent acts or omissions of those acting on your behalf; in the performance of your ongoing operations: No such public entity is an additional insured for liability arising out of the "products -completed operations hazard" or for liability arising out of the sole negligence of that pubic entity. B. With respect to the insurance afforded to these additional insured(s), the following additional exclusions apply. This insurance does not apply to "bodily injury" or "property damage" occurring after: 1. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which injury or damage arises has been put to its inteided use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. r, ) C. The following is added to SECTION III — LIMITS OF INSURANCE: 99A The limits of insurance applicable to the additional insured(s) are those specified in the written contract between L69, you and the additional insured(s), or the limits available under this policy, whichever are less. These limits are part of and not in addition to the limits of insurance under this policy. NIAC-E61 11 17 Page 1 of 2 NONPROFITS INSURANCE 19 ALLIANCE or CALIfoBNrA A Hood far insurance. A Heart for Nonprofits. POLICY NUMBER: 2018-51335 FORM: NIAC-E61 11 17 NAMED INSURED: Thrive Santa Ana Inc. D. A. With respect to the insurance provided to the additional insured(s), Condition 4. Other Insurance of SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS Is replaced by the following; 4. Other Insurance a. Primary Insurance This insurance is primary if you have agreed in a written contract or written agreement: (1) That this Insurance be primary. If other insurance is also primary, we will share with all that other insurance as described in c, below; or (2) The coverage afforded by this insurance is primary and non -contributor{ with the additional insured(s)'owninsurance. Paragraphs (1) and (2) do not apply to other insurance to which the additional insured($) has been added as an additional Insured or to other insurance described in paragraph b. below. b. Excess Insurance This insurance is excess over: 1, Any of the other insurance, whether primary, excess, contingent or on any other basis; (a) That Is Fire, Extended Coverage, Builder's Risk, Installation Risk or similar coverage for "your work"; (b) That Is fire, lightning, or explosion insurance for premises rented to you or temporarily occupied by you with permission of the owner; (c) That is insurance purchased by you to cover your liability as a tenant for'property damage" to premises temporarily occupied by you with permission of the owner; or (d) If the loss arises out of the maintenance or use of aircraft, "autos" or watercraft to the extent not subject to Exclusion g, of SECTION I — COVERAGE A— BODILY INJURY AND PROPERTY DAMAGE. (e) Any other Insurance available to an additional Insured(s) under this Endorsement covering liability for damages which are subject to this endorsement and for which the additional insured(s) has been added as an additional insured by that other insurance. (1) When this insurance is excess, we will have no duty under Coverages A or B to defend the additional insured(s) against any "suit" If any other insurer has a duty to defend the additional insured(s) against that "suit", If no other Insurer defends, we will undertake to do so, but we will be entitled to the addition@: insured(s)' rights against all those other insurers. (2) When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (a) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (b) The total of all deductible and self-insured amounts under all that other insurance. (3) We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Methods of Sharing If all of the other insurance available to the additional insured(s) permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first, If any other the other insurance available to the additional insured(s) does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. NIAC-E61 11 17 Page 2 of 2