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HomeMy WebLinkAboutDOWNTOWN INC. AND SANTA ANA BUSINESS COUNCILIJ4,; 'OCEF,) N-2021-063 V01 outi ,.L CDP V-) ( ; � \ fA_ STREET FURNITURE LICENSE AGREEMENT THIS STREET FURNITURE LICENSE AGREEMENT ("Agreement") is made and entered into as of April 1, 2021, by and between 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 ("Licensor"), DOWNTOWN, INC., a California non-profit corporation ("DTI"), and the SANTA ANA BUSINESS COUNCIL, a California non-profit corporation ("SABC"). DTI and SABC shall herein be individually known as a "Licensee" and together known as the "Licensees." RECITALS a. Licensor is the owner of certain moveable chairs (44 total), tables (17 total), and umbrellas (4 total) ("Street Furniture") that are subject of this Agreement. b. Licensees desire to use the Street Furniture owned by Licensor for special events in the Downtown area, as pre -approved by Licensor. c. Licensor wishes to accommodate Licensees' desire to use the Street Furniture on a non- exclusive basis by granting a license to Licensees upon certain terms and conditions. NOW, THEREFORE, for good and valuable consideration, Licensees and Licensor do hereby agree as follows: License Provided that all of the terms and conditions of this Agreement are fully satisfied, as of the Effective Date of this Agreement, the Licensor hereby grants to Licensee, and its employees, agents and contractors, the non-exclusive, non -assignable, personal right and license to use to certain moveable chairs (44 total), tables (17 total), and umbrellas (4 total) ("Street Furniture") owned by the Licensor for special events pre -approved by Licensor as detailed in the schedule attached herewith as Exhibit A and incorporated herein by reference, and for no other purposes without the prior written approval of the Licensor. Parties agree that the scheduled events for Exhibit A are subject to change and not yet set for events beginning in 2022. Revisions, additions, and deletions to the schedule may be accepted administratively in writing by the Parties to efficiently meet the needs for this Agreement. 2. Term This Agreement shall begin on the date first written above ("Effective Date"), and terminate on March 31, 2023. The term of this Agreement may be extended upon a writing executed by the City Manager and the City Attorney. 3. Ownership It is expressly understood that this Agreement does not in any way whatsoever grant or convey any rights of possession, easement or other cognizable property interest in the Street Furniture. Upon termination of this Agreement, any improvements by Licensees to the Street Furniture shall be the property of the fee title owner of the Street Furniture, unless Licensor requires a Licensee or Licensees to remove the same. 4. Agreement By execution of this Agreement, each Licensee agrees for itself and on the behalf of its employees, agents, consultants and contractors as follows: a. The Street Furniture owned by Licensor shall only be used for special events pre - approved by Licensor, and for no other purposes without the prior written approval of the Licensor; b. Licensor shall be responsible for obtaining any and all required permits, if any, for use of the Street Furniture; c. Licensor retains ownership and the right to use the Street Furniture at its sole discretion. As a courtesy, Licensor will work with Licensees to provide notice of when Licensor will be using the Street Furniture; d. There is no payment due to Licensor or Licensees for use of the Street Furniture; e. The Street Furniture must be returned to Licensor in the condition it was received, other than normal wear and tear; f. If the Street Furniture is damaged or not available for any reason, Licensor shall not be liable to Licensees in any way, and Licensor shall not be responsible for malting alternative arrangements for Licensees; g. DTI shall be the responsible organization for deploying and placing the Street Furniture for each Licensee's approved special events, and for removing and returning the Street Furniture to the storage location designated by Licensor at the conclusion of each Licensee's approved special events; It. The Street Furniture must be used as intended and not placed or maintained in an unsafe position or condition; i. Inspect the Street Furniture prior to use for obvious safety concerns and significant damage that may exist to the Street Furniture, and in no event should the Street Furniture be used with deficiencies that may make it unsafe; and, j. Each Licensee shall use the Street Furniture entirely at its own cost, risk and expense. Licensor makes no representation or warranty of any hind as to the condition of the Street Furniture or any other matter relating to Licensees' use of the Street Furniture. Each Licensee hereby disclaims and waives any and all objections to the physical and other characteristics and conditions of the Street Furniture. Each Licensee acknowledges and agrees that the use of the Street Furniture will be on the basis of each Licensee's own investigation of the condition of the Street Furniture. The license to use the Street Furniture shall be granted on an "AS -IS", "WITH ALL FAULTS" basis, without representation or warranty expressed or implied by Licensor, or by operation of law. Licensor expressly disclaims, which each Licensee hereby acknowledges and accepts, any implied warranty of condition or fitness for a particular purpose or use. Each 5 Licensee's use of the Street Furniture shall be subject to the Street Furniture being in a usable and safe condition at the time of each Licensee's use, and each Licensee shall be responsible for determining whether the Street Furniture is in such condition. In connection therewith, in the event that the Street Furniture is damaged or the use by a Licensee is otherwise impaired, prevented or limited, Licensor shall have no obligation or duty to repair the damage or rectify the condition to make the Street Furniture usable or safe. 5. 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 Licensor and Licensees. 6. Severability If any term, 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 frill force and effect, unless and to the extent the rights and obligations of one or more parties has been materially altered or abridged by such holding. No Assignment Licensees shall not assign or transfer or otherwise convey any interest in this Agreement to any party without the express prior written consent of Licensor, which consent may be withheld in Licensor's sole and absolute discretion. 8. Choice of Law This agreement is to be governed by, and construed in accordance with, the laws of the State of California. Venue shall be in Orange County. 9. Remedies Any party shall, in addition to all other rights provided herein or as may be provided by law, be entitled to the remedies of specific performance and injunction to enforce its rights hereunder, except to the extent expressly provided to the contrary in this Agreement. All rights and remedies under this Agreement are cumulative and no one of them shall be exclusive of any other, and each party shall have the right to pursue any one or all of such rights and remedies or any other remedy which may be provided by law, whether or not stated in this Agreement, except to the extent expressly provided to the contrary in this Agreement. 10. Counterparts This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 11. Non -Liability of Public Officials No officer, employee, member, agent or representative of Licensor shall be personally liable to Licensees, or any successor in interest, in the event of any default or breach by Licensor, or for any amount which may become due to Licensees or any successor, or for any breach of any obligation of the terms of this Agreement. 12. Termination This Agreement may be terminated by any party upon thirty (30) days written notice of termination. 13. Signature Authority Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify Licensor fully, including reasonable costs and attorney's fees, for any injuries or damages to Licensor in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. (Signatures on following page) 5 N-2021-063 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: DAISY GOMEZ f lerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Ryan O. dg Assistant ity Attorney RECOMMENDED FOR APPROVAL: STEVEN A. MENDOZA Executive Director Community Development Agency CITY OF SANTA ANA KRISTINE City Manager DOWNTOWN, INC. Ryan Chase President SANTA ANA BUSINESS COUNCIL Exhibit A Downtown Outdoor Furniture Schedule Monthly Event Artwalk (1st Saturday each month) Responsible Party (Parties) DTI/SABC March 2021 Boca de Oro Literature & Arts Festival (Virtual) DTI/SABC Monthly Patches & Pins DTI/SABC May 2021 Cinco de Mayo Celebration - tentative DTI/SABC June 2021 East End Block Party DTI/SABC October 2021 Pozolada (Pozole Festival) DTI/SABC October 2021 Savor Santa Ana DTI/SABC November 2021 Plaza Navidena (Tree Lighting Ceremony) DTI/SABC December 2021 Tamale Festival DTI/SABC 12/31 /2021 New Year's Eve Celebration - tentative DTI/SABC Francine R. Ulge111111 ed by Finadmc R. ith ai Villareal Dale:3a31D1.nq 1&A4A6 AC" Ra CERTIFICATE OF LIABILITY INSURANCE °12123122o 0Y' 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(ies) must 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 endorsement(s). PRODUCER Eddie QUIIIares Jr. State Farm Agency N. Broadway � Santa Ana, CA 92701 IN Santa CONTACT NAME: Eddie QUIllare5 PAM. No.HONE 71 .7150. ac No:71a 17.7158 aDDRESs: addle@eddleginsurance.com INSURERS AFFORDING COVERAGE NAIC# INSURERA: State Farm General Insurance Company 25151 INSURED ROmo Enterprises Inc. DBA Orange County Maintenance Services 1191 La Limonar Rd Santa Ana, CA 92705 INSURER B: State Farm Fire and Casualty Company 25143 INSURER C: INSURER D: INSURERS: INSURER F : COVERAGES CERTIFICATE NUMBER: 75-0450 REVISION NUMBER: 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. INBR LTR TYPE OF INSURANCE ADOL SUER POLICY NUMBER POLICY EFF MMIDDIYYYY POLICY EXP MMIDDIYYYY LIMITS A GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY CLAIMS -MADE 1XI OCCUR X Loss of Income Y Y 92-GJ-X588-2 01/02/2021 01/0212022 EACHOCCURRENCE $ 11000,000 RA -MAX PREMISES ca occurrence) PREMISES Ea occurrence $ 300,000 MED EXP(Any one person) $ 5,000 PERSONAL & ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LI MIT APPLIES PER: POLICY PRO 7LOC PRODUCTS - COMPIOPAGG $ 2,000,000 $ A AUTOMOBILE X 1$ LIABILITY ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS HIRED AUTOS X NONAWNED AUTOS ❑ ❑ 606 0191-F20.75 1212012D20 06/20/2021 EOMae�I INEe01SINGLE LIMIT $ 1,000,000 BODILY INJURY (Par person) $ BODILY INJURY (Per accident) $ PROPERTY -DAMAGE Pereccidenl UMBRELLA LIAB EXCESS LIAB OR OCCUR ❑ ❑ EACH OCCURRENCE $ AGGREGATE $ DED RETENTION$ $ B WORKERS COMPENSATION AND EMPLOYERS'LIABILITY YIN ANYPROPRIBER EXCLUDED? In NH EXCLUDED9 Y� (Mantlabry In NH) (MandaOFFICEtory under If yes, DESCRIPTION N/A � 92-GF-L870.7 0110112021 01101/2022 I WC STATU- X OTH- TORYLIMITS 1,000,000 EL EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYE $ 1,0001000 EL DISEASE -POLICY LIMIT $ 1,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach AC ORD 101, Additional Remarks Schedule, if more space is required) Pressure washing Services of the 2nd Street Promenade in Downtown Santa Ana. City of Santa Ana its officers, agents, employees and volunteers are named as additional insured. Additional Insured endorsement issued for certificate holder with Wavier of Subrogation and non-contributory Certificate of Insurance shall provide thirty (30) day prior written notice of cancellation CITY OF SANTA ANA RISK MANAGEMENT DIVISION 20 CIVIC CENTER PLAZA 4TH FLR SANTA ANA, CA 92702 CANCELLA SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ACORD 25 (2010ti The ACORD name and logo are registered marks of ACORD RlekMmygementDivision REVIEV/ED&APPROVBJBY: ``�� �datMrt+hl R. V:k�uetC 00 t Risk Management Analyst