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HomeMy WebLinkAboutTHRIVE SANTA ANA, INC.INSURANCE NOT ON FILE WORK MAY NQ1 PROCEED N-2019-112 CLERK OF COUNCIL A� E, JUI4 1 9 2019 LIChNSE AGREEMENT tp��i7� ` This LICENSE AGREEMENT ("Agreement") is dated as of June 17, 2019, and entered into by � ��t'� and between the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the state of California ("City"), and THRIVE Santa Ana, Inc„ a California public benefit corporation ("Licensee"). RECITALS A. The City is the owner of that certain real property located in the City of Santa Ana, County of Orange, California, more specifically identified as 1901 W. Walnut Street (the "License Area"). B. Licensee desires to use the License Area for purposes of community outreach and movie night activities ("Permitted' Uses"). C. The City has agreed to grant Licensee a license to use the License Area, on the terms and conditions set forth in this Agreement. The Parties agree as follows: 1. License. The City hereby grants to Licensee a nonexclusive license for the right to enter and use the License Area on: June 21, 2019; Time 28, 2019; July 12, 2019; July 26, 2019, and August 9, 2019, each day from 4:00 p.m. until 9:00 p.m., for the Permitted Uses described in Recital B, upon the terms and conditions set forth herein ("License"), subject to Licensee's performance of all of its obligations under this Agreement. This Agreement is intended and shall be eonsimed only as a revocable license to use the License Area and not as a 'lease or grant of any possessory or other interest. 2. Restoration and Clean Up. At its sole cost, Licensee shall, after use of the License Area, restore the License Area to its original condition in which it existed immediately prior to the Agreement, leave the License Area in a neat and clean condition to the sole satisfaction of the City, free of trash and debris, and remove all property and materials of Licensee. 3. Compliance with Laws. Licensee shall cause all activities of Licensee under this Agreement and all activities on the License Area to be performed in conhpliance with all applicable federal, state, and local laws, ordinances, regulations, and permits, including as to the conduct of its employees, agents, clients, customers, guests, and others using the Facilities by reason of this Agreement. Failure to abide by such laws, rules, or regulations, or any condition of this Agreement, may result in the immediate termination of this Agreement in the sole discretion of the City. 4. Damage. In the event that Licensee damages any portion of the License Area or the improvements therein, Licensee shall immediately repair the damage at Licensee's sole cost. Alternatively, the City may, at its election, repair the damage in which case Licensee shall reimburse the City for its cost within fifteen (15) days of receipt of written demand from City. 5. Licensee Parties. Licensee, together with its employees, agents, representatives, and all persons entering the License Area, by, through, or at the direction or invitation of Licensee, are collectively referred to herein as die "Licensee Parties." Licensee shall be responsible for the Licensee Parties and shall cause the Licensee Parties to comply with the terms of this Agreement. 6. Fee. There shall be no fee for use of the License Area under this Agreement. Iof5 7. AS -IS Condition. City makes no representation or warranty of any kind as to the condition of the License Area or any other matter relating to Licensee's use of the License Area. Licensee hereby disclaims and waives any and all objections to the physical and other characteristics and conditions of the License Area. Licensee acknowledges and agrees that the use of the License Area will be on the basis of Licensee's own investigation of the condition of the License Area. The license to use the License Area shall be granted on an "AS -IS," "WITH ALL FAULTS" basis, without representation or warranty expressed or implied by City, or by operation of law. City expressly disclaims, which Licensee hereby acknowledges and accepts, any implied warranty of condition or fitness for a particular propose or use. Licensee's use of the License Area shall be subject to the License Area being in a usable and safe condition at the time of Licensee's use, and Licensee shall be responsible for determining whether the License Area is in such condition. In connection therewith, in the event that the License Area or access thereto is damaged or obstructed or the use by Licensee is otherwise impaired, prevented or limited, City shall have no obligation or duty to repair the damage or rectify the condition to make the License Area usable or safe. 8. Insurance. Licensee shall secure, prior to commencing any activities under this Agreement, and maintain or cause to be maintained during the term of this Agreement, insurance coverage as follows: a. Commercial General Liability Insurance. Licensee shall maintain commercial general liability insurance which shall include, but not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Licensee Parties' use of the license area, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total annount of $1,000,000 per occurrence and $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional hnsured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Comprehensive Automobile Liability Coverage, including as applicable owned, non - owned, and hired autos, in an amount of not less than $1,000,000 per occurrence, combined single limit, written in an occurrence form. C. Worker's Compensation Insurance as required by California law. d. The following requirements apply to the insurance to be provided by Licensee pursuant to this section: (i) Licensee shall maintain all insurance required above in full force and effect for the entire period, covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City. (iii) Certificates and. policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. 2of5 e. If Licensee fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to terminate this Agreement without penalty or further notice to Licensee. 9. Indemnity. Licensee shall indemnify, defend, and hold harmless City, and its respective agents, representatives, employees, subsidiaries and affiliates ("Covered Parties") from and against any and all actions, suits, claims, demands, judgments, losses, expenses, or liabilities, injuries and damages to persons and property, including death, arising out of or related to Licensee's use of the License Area, the entry by any Licensee Party on the License Area or any portion of the surrounding property, or Licensee's breach or default in the performance of any of its obligations under this Agreement; provided, however, that Licensee will not be obligated to indemnify the Covered Parties from any claims arising solely from the gross negligence or willful misconduct of a Covered Party. If any action or proceeding is brought against any Covered Party by reason of any such claim, Licensee, upon receipt of written notice from Covered Party, shall defend the same at Licensee's expense with legal counsel reasonably acceptable to Covered Party. Payment shall not be a condition precedent to recovery under any indemnification in this Agreement, and a finding of liability or an obligation to indemnify shall not be a condition precedent to the duty to defend. The provisions of this Section 9 shall survive the termination or expiration of this Agreement. 10. Miscellaneous, 10.1 Entire Agreement, Waiver and Amendments. This Agreement incorporates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous agreements between the parties with respect to the subject matter of this Agreement. All waivers of the provisions of this Agreement: must be in writing and signed by the appropriate authorities of the party to be charged. Any amendment or modification to this Agreement must be in writing and executed by the appropriate authorities of the City and Licensee. 10.2 Severability. If any tenor, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of the Agreement shall continue in full force and effect, unless and to the extent the rights and obligations of one or both parties has been materially altered or abridged by such holding. 10.3 No Assignment. Licensee shall not assign or transfer or otherwise convey any interest in this Agreement to any party without the express prior written consent of City, which consent may be withheld in City's sole and absolute discretion. 10.4 Conflict of Interest Clause. Licensee covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 10.5 Force Majeure. In the event that the Facilities are rendered imavailable due to destruction, partial or total, acts of nature, work stoppages or other labor disturbances, civil commotion, war, or any other action by governmental agencies, or for any reason beyond the control of City, City shall have the right to terminate this Agreement without penalty. 10.6 Nondiscrimination. Licensee shall not discriminate in the course of its activities in or about the Facilities on the basis of race, color, disability, religion, sex, marital status, sexual orientation, age, national origin, ancestry, disability, or any other basis prohibited by law. Licensee 3of5 affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 10.7 Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. 10.8 Litigation Expenses. If either party to this Agreement commences an action against the other parry to this Agreement arising out of or in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees, expert witness fees, costs of investigation, and costs of suit from the losing party. 10.9 Authority. The persons executing this Agreement on behalf of the parties hereto represent and warrant to the other party that they are duly authorized to execute and deliver this Agreement on behalf of such party, and by so executing this Agreement, said party is formally bound to the provisions of this Agreement. 10.10 Notices. Any notices, requests, or approvals given under this Agreement from one party to another shall be in writing and shall be personally delivered or deposited with the United States Postal Service for mailing, postage prepaid, by certified mail, return receipt requested, to the addresses of die other party as stated in this section, and shall be deemed to have been received at the time of personal delivery or three (3) days after the deposit for mailing. Notices shall be sent to: If to Licensee: THRIVE Santa Ana, Inc. Cesar Covamibias, Treasurer P.O. Box 1935 Santa Ana, CA 92702 Phone: (714) 491-9600 cesarc@kenmedycommission. org THRIVE Santa Ana, Inc. Carrie Hempel 401 East Peltason Drive, Law 3500-F Irvine, CA 92697 Phone: (949) 824-3575 chempel@law.uci.edu If to City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 10.11 Execution in Counterpart. This Agreement may be executed in several counterparts, and all so executed shall constitute one agreement binding on both of the parties hereto, notwithstanding that both parties are not signatories to the original or the same counterpart. (Signatures on following page) 4of5 IN WITNESS WHEREOF, City and Licensee have entered into this Agreement as of the day and year first written above. CITY OF SANTA ANA: les I�WSTINE RIDGE City Manager ATTEST NORMA MITRE Acting Cleric of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City tAt=�orney Ryan City RECOMMENDED FOR APPROVAL: STEVEN A.MENDOZA Executive Director — CDA 1� � .2 50� ' iwF ), O, Secretary _ ' r 5of5 ACOR®e CERTIFICATE OF LIABILITY INSURANCE D01/08120 9 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 pollcy(les) must have ADDITIONAL INSURED provisions or be Endorsed. If SUBROGATION IS WAIVED, subject to the terms and condI lone 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 auch endorsement a . PRODUCER Baker, Romero & Associates Insurance Brokers, Inc. 750 Terrado Plaza #238 Covina, CA 91723 License #: OG22790 NA n Emma L Bacerra PHONE FAX . 826 332.22Arc No: 628 339-9921 &MAIL DD emma bakee o.com PFORDIKd COVERAGE NSUofitsIns NAICp INSURERA: sAlliance INSURED INSURERS: INs RERC: Thrive Santa Ana, Inc. IN ERO: 401 East Peltason Dr., Suite 1000 NSURfiRfi: Santa Ana, CA 92702 INSURHRP: COVERAGES CERTIFICATE NUMBER: OCOOCOOO.35719 REVISION NUMBER: 3 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 Im TYPE OP INSURANCE=45. UBRI POLICY UMBER POLICY up LICYHXP LIMITS A COMMERCIAL GENERAL LIABILITY CLAIMS -MADE ®OCCUR 2018-57335 101271201E 10127/2019 EACHOCCURRENCE $ 1000000 Myra $ SOO OOO MED EXP n arts arson $ 20,000 PERSONAL&ADVINJURY S 1.000.000 GENL AGGREGATE LIMIT APPLIES PER; X POLICY ❑ JECT 1-1 LOC OTHER: GENERAL AGGREGATE S 1000000 PRODUCTS-COMP/OP ADD $ 1000 000 S AUTOMOBILELIABILTIY ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS AIrtOS ONLY AUTOS ONLY CEBe IUaD SINGLE LIMIT S BODILY INJURY IPerperspn) $ BODILY INJURY (Per accident) $ PR aaro'Cen1�MAGE S E UMBRELLA WAS EXCESS LIAB HOCCUR CWMSMADE EACH OCCURRENCE $ AGGREGATE $ DED I I RETENTIONS $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN ANY PROPRIETOWPARTNERIEXECUTIVE OPFICERIMEMBER EXCLUDED? ❑ (Mandalaryln NH) Iryaa deaMbe under DESCRIPTION OF OPERATIONS below, NIA PTA OTRH• E.L. EACH ACCIDENT $ E.L. DISEASE• EA EMPLOYE $ E.L. DISEASE • POLICY LIMIT S A Directors Sr Officers 2018-57335-DO 101271201E 1012MO19 $1M Each Act $1M Aggregate DESCRIPTION OF OPERATONS ILOCATONSIVEHICLES IACORD 11H. Addiflenal RemaMs Sahadule, may be aaaahed 9 mereapaee Is required) Certificate holder named as Additional Insured - Landlord, client working to acquire land for landtrust. CERTIFICATE HOLDER CANCELLATION 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-26 Santa Ana, CA 92701 AUTHONgD REPRESENTATIVE ELB 01988-2015 ACORD CORPORATION' All rights reserved. ACORD 26 (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 CG 20 26 04 13 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 Organizatlon(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 II — 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. With 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 0413 0 Insurance Services Office, Inc., 2012 Page 1 of 1 NONPROFITS POLICY NUMBER: 2018-57335 FORM: NIAC-E61 11 17 INSURANCE NSURNCE NAMED INSURED: Thrive Santa Ana Inc. N.LtANCE bE CALIFORNIA A Head for Insurance. A Heartfor NonprofWP THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURE! PRIMARY a,rA • ANDNON-CONTRIBUTORY 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 II —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 for "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 Intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for p( a principal as a part of the same project. 1 C, The following is added to SECTION III — LIMITS OF INSURANCE: The limits of insurance applicable to the additional Insured(s) are those specified In the written contract between/✓ you and the additional insured(s), or the limits available under this policy, whichever are less. These limits are J part of and not in addition to the limits of insurance under this policy. NIAC-E61 11 17 Page 1 of 2 NONPROFITS _ POLICY NUMBER: 2018-57335 FORM: NIAC-E61 11 17 INSURANCE NAMED INSURED. Thrive Santa Ana Inc, MIRMN AU MCH OF CALIFORNIA A Head far insurance. A Heart far Nonprofits, 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-contributory with the additional insured(s)' own insurance. Paragraphs (1) and (2) do not apply to other insurance to which the additional Insured(s) 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. (a) 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 additional Insured(s)' rights against all those other Insurers. (2) When this insurance Is excess over other insurance, we will pay only our shard 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