HomeMy WebLinkAboutORANGE, COUNTY OF (14).,L ON FILE
1�otit !AY PROCEED N-2021-121
_ iNSURANCE EXPIRES
OF COUNCIL
RIGHT OF ENTRY AND LICENSE AGREEMENT
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This RIGHT OF ENTRY AND ICENSE AGREEMENT ("Agreement') is made and
entered into as of this )I day of , 2021, by and between the CITY OF
SANTA ANA, a charter city and munici al corporation organized and existing under the
Constitution and laws of the State of California ("Licensor" or "City"), and the COUNTY OF
ORANGE, a political subdivision of the State of California ("Licensee").
RECITALS
A. The Licensor is the owner of certain real property located at 1000 E. Santa Ana
Boulevard, in the City of Santa Ana, California, commonly referred to as the
Santa Ana Regional Transportation Center ("Property").
B. Licensee desires to enter onto the Property owned by the Licensor to use the
Property in consideration for and in an effort to facilitate vaccinations for
COVID-19 administered by employees of the County, State of California and/or
their vendors or service providers on the dates and times described as follows:
June 1-4 and June 24-25, 2021, from 1:00 p.m. to 5:00 p.m. each day ("Permitted
Uses").
C. The Licensor wishes to grant Licensee a right of entry and license to conduct the
Permitted Uses on the Property on a non-exclusive basis upon certain terms and
conditions.
NOW, THEREFORE, for good and valuable consideration, Licensee and Licensor do
hereby agree as follows:
1. Right of Entry and 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 nonexclusive, nonassignable,
personal right and license to enter upon the Property to temporarily use the Property to facilitate
vaccinations for COVID-19 administered by employees of the County, State of California and/or
their vendors or service providers, and for no other purposes without the prior written approval
of the Licensor. 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
Property. Upon termination of this Agreement, any improvements constructed by Licensee on
the Property shall be the property of the fee title owner of the Property.
2. Compensation. Licensor hereby grants to Licensee rent-free use of the Property
for the Permitted Uses.
3. Term. This Agreement Term shall begin on the date fast written above, and
terminate on June 30, 2021. Either party may terminate the Agreement upon fifteen (15) day
written notice. Additionally, the tern of the Agreement may be extended upon a writing
executed by the City Manager and City Attorney.
4. Licensee Responsibilities. By execution of this Agreement, Licensee agrees for
itself and on the behalf of all Licensee Parties as follows;
(a) Licensee, together with its employees, agents, and representatives, by,
through, or at the direction or invitation of Licensee, are collectively referred to herein as the
"Licensee Parties." Licensee shall be responsible for the Licensee Parties and shall cause the
Licensee Parties to comply with the terms of this Agreement.
(b) All acts and things done by Licensee on the Property will be done in a
careful and reasonable manner, in accordance with all federal, state and local laws, ordinances,
and regulations, and permits. Licensee agrees that any use it makes of the Property as specified
herein shall be affected with all reasonable diligence and precaution to avoid damage to the land,
property or personnel of City.
(c) That Licensee will not permit any dangerous condition or waste to be
created on the Property. Licensee shall at all times be in compliance with all federal, state, and
local statutory and regulatory requirements, including, but not limited to, the US EPA, Cal EPA,
State Water Resources Control Board, Department of Toxic Substances Control and South Coast
Air Quality Management District, as applicable.
(d) Licensee agrees and acknowledges that nothing herein is intended, nor
shall it be interpreted, as to bind the Licensor to issue or grant any permits or entitlements needed
to perform the work specified in section 1 of this Agreement.
(e) Licensee shall enter the Property entirely at its own cost, risk and expense.
Licensor makes no representation or warranty of any kind as to the condition of the Property or
any other matter relating to Licensee's use of the Property. Licensee hereby disclaims and
waives any and all objections to the physical and other characteristics and conditions of the
Property. Licensee acknowledges and agrees that the use of the Property will be on the basis of
Licensee's own investigation of the condition of the Property. The license to use the Property
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 Licensee hereby acknowledges and accepts, any implied warranty of condition
or fitness for a particular put -pose or use. Licensee's use of the Property shall be subject to the
Property being in a usable and safe condition at the time of Licensee's use, and Licensee shall be
responsible for determining whether the Property is in such condition. In connection therewith,
in the event that the Property or access thereto is damaged or obstructed or the use by 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 Property usable or safe.
(f) Licensee shall not permit any mechanics', materialmen's or other liens of
any kind or nature ("Liens") to be filed or enforced against the Property in connection with this
Agreement. Licensee shall indemnify, defend and hold harmless Licensor from all liability for
any and all liens, claims and demands, together with costs of defense and reasonable attorneys'
fees, arising from any Liens. Licensor reserves the right, at its sole cost and expense, at any time
and from time to time, to post and maintain on the Property, or any portion thereof, or on the
improvements on the Property, any notices of non -responsibility or other notice as may be
desirable to protect Licensor against liability. In addition to, and not as a limitation of Licensor's
other rights and remedies under this Agreement, should Licensee fail, within ten (10) days of
written request from Licensor, either to discharge any Lien or to bond for any Lien, or to defend,
indemnify, and hold harmless Licensor from and against any loss, damage, injury, liability or
claim arising out of a Lien, then Licensor, at its option, may elect to pay such Lien, or settle or
discharge such Lien and any action or judgment related thereto and all costs, expenses and
attorneys' fees incurred in doing so shall be paid to Licensor, as applicable, by Licensee upon
written demand.
(g) Licensee shall not have any interest in the Property or be entitled to any
reimbursement or repayment for any work performed upon the Property pursuant to this
Agreement, or be entitled to any relocation benefits if the Agreement is terminated or at the end
of the Agreement Term.
(h) Licensee shall take all necessary precautions to prevent the import and/or
release into the environment of any hazardous materials, which are imported to, in, on or under
the Property during this right of entry. If hazardous materials are imported onto the Property as a
result of Licensee's use, Licensee shall be solely responsible for removing such imported
hazardous materials in conformance with all governmental requirements. Licensee shall report
to the Licensor, as soon as possible after each incident, any unusual or potentially important
incidents with respect to the environmental condition of the Property.
(i) Licensee shall comply with the requirements of Santa Ana's National
Pollutant Discharge Elimination System (` NPDES") permit, and shall utilize the Property is such
a manner as to prohibit pollutants from entering the storm drain. Licensee shall not construct,
maintain, operate and/or utilize any illicit connection on the Property, nor shall Licensee cause or
allow any prohibited discharge from the Property.
0) Licensee shall pay all costs of the installation, operation, maintenance,
repair and removal of any approved improvements on the Property. At the conclusion of the
Agreement Term, Licensee shall return the Property to its original condition at the
commencement of the Agreement Term, unless otherwise explicitly agreed to in writing by
Licensor.
(k) Licensee will maintain the Property in a neat, clean, sanitary, and safe
condition, to the satisfaction of the City, at the sole cost and expense of the Licensee. The
Property shall be maintained in a manner consistent with community standards, which will
uphold the value of the Property, in accordance with this Agreement, the Santa Ana Municipal
Code, and all other applicable local, state and federal rules, regulations and standards.
(1) Licensee shall not record or attempt to record this personal License. Any
attempt by Licensee to record this License shall automatically terminate this Agreement and
render this License void and invalid for all purposes.
(m) Licensee agrees to conform to any reasonable requirement set forth by the
City related to the use of the 'Property during the term of this License.
5. Insurance.
Prior to undertalcing performance of work under this Agreement, Licensee shall maintain
and shall require all Licensee Parties to obtain and maintain insurance as described below:
3
(a) County shall maintain a program of self-insurance at its own expense for
its liability exposures including Commercial General Liability with a minimum limit of
$1,000,000 per occurrence and a $2,000,000 aggregate, Auto liability with a minimum limit of
$1,000,000 per occurrence, Professional Liability with a minimum limit of $1,000,000 per
occurrence and a $3,0000,000 aggregate, Workers Compensation with statutory limit and
Employers' Liability insurance with a $1,000,000 limit. Evidence of the County's self-insurance
shall be provided upon request, with the Licensor, its officers, agents, volunteers, representatives
and employees, named as Indemnified Parties on the Coimty's program of self-insurance.
6. Indemnity.
All use of and entry upon the Property shall be at the sole cost, risk and expense of
Licensee. Licensee hereby agrees to defend, indemnify and hold the Licensor and its officers,
officials, members, employees, agents, representatives, and volunteers, harmless from and
against any and all loss, dainage, injury, liability, claim, cost or expense (including, without
limitation, reasonable attorneys' fees, expert witness fees, court costs, and expenses) arising from
or attributable to the activities of Licensee or any of its employees, agents, consultants
contractors, or assignees upon the Property pursuant to this Agreement. Licensee shall defend,
indemnify and hold the City of Santa Ana and its officers, employees, agents and representatives
harmless from and against any and all such claims, and pay all costs for the defense of the City,
including fees and costs for special counsel to be selected by the City and approved by County,
regarding any action by a third party asserting that personal injury, damages, just compensation,
restitution, judicial or equitable relief due to personal or property rights arises by reason of the
terms of, or effects arising from this Agreement. City may make all reasonable decisions with
respect to its representation in any legal proceeding with the approval of County.
Possessory Interest.
Licensee recognizes and understands that should this Agreement be deemed by the County
of Orange to create a possessory interest subject to properly taxation, that Licensee shall be subject
to the payment of property taxes levied on such interest, and that it shall defend, indemnify and
hold the Licensor and its respective officers, officials, members, employees, agents and
representatives, harmless from and against any and all such claims. Any such tax payment shall
not reduce any payments due to Licensor hereunder. In addition, Licensee shall pay any
personal property taxes that may become due for equipment fixtures, inventory, or other personal
property installed, maintained or present on the Property.
8. Revocation.
Licensor may revoke this License at will upon fifteen (15) days written notice to the
Licensee.
9. Miscellaneous.
(a) Fntire 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
Licensee.
(b) Severabilily. If any tern, 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.
(c) 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 Licensor, which
consent may be withheld in Licensor's sole and absolute discretion.
(d) 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 the County of Orange.
(e) Remedies. Either parry 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.
(f) 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.
(g) Non -Liability ofFublic Officials. No officer, employee, member, agent or
representative of the Licensor shall be personally liable to Licensee, or any successor in interest,
in the event of any default or breach by the Licensor, or for any amount which may become due
to Licensee or its successor, or for any breach of any obligation of the terms of this Agreement.
(h) Effective Date. This Agreement shall become effective on the date of
Licensor's execution of this Agreement.
(i) 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 the 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: County of Orange
Health Care Agency
405 West Fifth Street, Suite 203
Santa Ana, CA 92701
With a copy to:
County Executive Office Real Estate
333 West Santa Ana Boulevard, Third Floor
Santa Ana, CA 92701
Attention: Chief Real Estate Officer
If to Licensor: Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
0) 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.
{Signatures on next page)
N-2021-121
IN WITNESS WHEREOF, the parties have executed this Right of Entry and License
Agreement as of the day and year written above.
ATTEST:
7
�. leik of the Counci]
APPROVED AS TO FORM:
Sonia R. Carvalho
City Attorney
By:
Rya*Cityv
Assey
APPROVED AS TO FORM:
OFFICE OF COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
By: Vj'��
eputy
CITY OF SANTA ANA
Kristine Ridge
City Manager
COUNTY:
COUNTY OF ORANGE ll,.
By: �' �►� �. *
Thomas A. Miller, Chief Real Estate Officer
County Executive Office
Resolution No. 20-016 dated March 10, 2020 of the
Board of Supervisors