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Home My WebLink AboutNMC SANTA ANA, LLC 2N-2001-092 oG a CAD J+t LICENSE AND RIGHT OF ENTRY THIS LICENSE AND RIGHT OF ENTRY (this "License") dated as of April jA, 2001 is entered into by and between NMC SANTA ANA, LLC, a California limited liability company ("Licensor"), and THE CITY OF SANTA ANA, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City"). Recitals. 1.1 Licensor is the owner of certain improved real property situated in the City of Santa Ana, County of Orange, California, commonly known as Bristol Warner Village, as more particularly described on Exhibit "A" attached hereto (the "Property"). 1.2 Pursuant to that certain Corporation Deed recorded on December 2, 1975 in the Official Records of Orange County, State of California, as Instrument No. 14682, Licensor's predecessor -in -interest granted to City an easement for street purposes ("Street Easement") over certain portions of the Property (the "Right -of -Way Areas"). 1.3 City now desires to exercise its rights under the Street Easement. In connection with said exercise, City desires to construct certain street, sidewalk, drainage and other improvements related to City's Warner Avenue Rehabilitation Project (collectively, "City Improvements") within that portion of the Right -of -Way Areas as is shown on Exhibit 1 attached hereto (the "Subject Right -of -Way Area") and upon a portion of the Property immediately adjacent to the Subject Right - of -Way Area. 1.4 City has requested that Licensor grant to City a license to enter upon the Property to enable City to construct portions of the City Improvements which are immediately adjacent to the Subject Right -of -Way Area. Licensor is willing to grant such a license, upon the terms and conditions set forth below. 1.5 Accordingly, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Licensor and City hereby agree as follows: Grant of License. Licensor does hereby grant to City, and its officers, agents, employees or representatives, the right and license to enter portions of the Property immediately adjacent to the Subject Right -of -Way Area (excluding entry within any structures) as reasonably necessary to complete the following work as more particularly depicted on Exhibit 1 attached hereto and provided that all such work is limited to and completed in accordance with the plans and specifications (collectively, the "On -Site City Improvements"): (1) reconstruct portion of existing sidewalk to maintain wheelchair access to the site; (2) construct two (2) parkway culverts to connect to existing on -site drainage pipes; (3) construct 6" curb to join to existing curb; and (4) reconstruct one foot (1) \\LAW\SYS\DOCS\NE WMARK\SANTAANA\LICENSES.DOC CN e of asphalt pavement to join existing parking lot to proposed driveway and proposed six inch (6") curb. If City removes any existing improvements in connection with its construction of the On -Site City Improvements, City shall replace same using the same materials as the existing improvements. City shall provide Licensor with thirty (30) days advance notice of the commencement of the construction of the City Improvements adjacent to the Property. 2. Repair and Maintenance. City shall, at its sole cost and expense, be responsible for the repair and maintenance of all improvements which are within the Subject Right -of -Way Area. City shall also be responsible for any and all damage to Licensor's property and improvements contiguous to the Subject Right -of -Way Area by reason of City's construction of the City Improvements (including, without limitation, the On -Site City Improvements) or the operation, use or maintenance of any improvements within the Subject Right -of -Way Area. Promptly following any such damage, City shall, at its sole cost and expense, restore Licensor's property to the condition existing prior to such damage. 4. Indemnity. City shall indemnify, defend, protect and hold Licensor, its affiliates and successors and assigns, and their respective partners, members, shareholders, officers, directors, employees, agents, contractors, tenants, licensees and invitees, free and harmless from and against any and all claims, liabilities, damages, demands, costs, expenses (including, without limitation, attorneys' fees and costs) and causes of action of all kinds, including, without limitation, claims relating to the death or injury to any person or persons, and/or from damage to or destruction of any property (real or personal) (individually and collectively, "Claims"), arising from or due to: (i) the exercise of City's rights hereunder (including, without limitation, any Claims arising from or due to City's construction, repair or maintenance activities), or (ii) City's failure to perform any repairs or maintenance required to be performed by City hereunder. In the event the indemnity provided for herein is found in a final judgment entered by a court of competent jurisdiction. to exceed that permitted by applicable law, such indemnity shall be construed so as to preserve the maximum indemnity permitted thereby. 5. Existing Sign. To accommodate City's improvement of the Subject Right -of -Way Area, City --f will move Licensor's existing sign within the Subject Right -of -Way Area (the current location of which is shown on Exhibit 1 attached hereto) to another location on the Property that is outside of the Subject Right -of -Way Area which Licensor designates. Subject to the relocation of the existing sign as provided above, Licensor shall continue to have the right to maintain the sign on the Property in compliance with all requirements of the Santa Ana Municipal Code, including the issuance of a permit if necessary. In no event, however, shall Licensor lose any non -conforming rights (if any) as a result of any such relocation or the construction or maintenance of any improvements within the Right -of -Way Areas, and Licensor shall have the right, at Licensor's expense, to relocate or restore any non -conforming improvements (including buildings and signs) which are damaged, removed, relocated or otherwise affected as a result of City's exercise of its rights under the Street Easement or its construction or maintenance of any improvements within the Right -of -Way Areas. \\LAW\SYS\DOCS\NEWMARK\SANTAANA\LICENSE8.DOC 2 S C," 6 6. [Reserved] 7. No Interference With Other Driveways. During City's construction of the City Improvements (including, without limitation, the On -Site City Improvements), City shall: (i) not block at any time more than one entrance providing vehicular ingress and egress to and from the Property off Warner Avenue, and (ii) not block any of the entrances providing vehicular ingress and egress to and from the Property off Bristol Street. 8. License is Personal. The rights granted to the City under this License are personal to the City, and the City shall not assign, transfer, lease, pledge or otherwise dispose of its rights under this License without Licensor's prior expressed written approval. 9. Expiration of Rieht of Entry. The City's right of entry under this License shall expire upon completion of the On -Site City Improvements, and in any event no later than January 1, 2002, unless extended by written agreement between Licensor and City. Notwithstanding anything to the contrary contained in the foregoing, once City commences construction of the City Improvements, City shall thereafter diligently pursue the completion of said work so that said work is completed no later than one hundred twenty (120) days following the commencement of said work. 10. Miscellaneous. Subject to Paragraph 8 above, this License shall inure to the benefit of and shall bind the parties hereto and their respective representatives, heirs, executors, administrators, successors, assigns, partners, employers, employees, officers, directors, shareholders, agents and attorneys. All paragraph headings are inserted for convenience only and shall not be used in any way to modify, limit, construe or otherwise affect this License. In the event of a dispute between the parties hereto or their representatives or assigns relating to this License, the prevailing party shall be \\LA W�SYS\DOCS\NEWMARK\SANTAANA\LICENSES.DOC entitled to recover reasonable attorneys- fees and costs, including, but not limited to, those incurred in connection with any and all reference proceedings, trials and all appeals therefrom. IN WITNESS WHEREOF, Licensor and City have executed this License as of the date first written above. NMC SANTA ANA, LLC, a California limited liability company By: NewMark Merrill Companies, LLC, a California limited liability company, Manager By: The Merrill Companies, LLC, a California limited liability company, Member By: David M. Frank, Manager By: Sigal Investments, LLC, a California limite liabi company, Mpintyel Sandy'Sigal, Manager F:\DOCS\NEWMARK\SANTAANA\LICENSE8.DOC THE CITY OF SANTA ANA, a charter city and mimicipal corporation duly organized and existing under the Constitution and laws of the State of California By - Name: David N. Ream Its: City Manager JTESTa (, "T !A qHY 9/ TAW OF THE COUNrIt APPROVED AS TOO FORM: C l ,` Christopher G. Norman Assistant City Attorney 4 5 CA( 0 L