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HomeMy WebLinkAboutDOWNTOWN, INCINSURANCE ON FILE N-2021-152 N WORK MAY PROCEED N UNTIL INSURANCE EXPIRES 10 . IL .. CLERK OF COUNCIL 'DATE- VEHICLE LICENSE AGREEMENT 0Aj �.Lj (p +o ""na r)C2,) 7,T THIS VEHICLE LICENSE AGREEMENT ("Agreement") is made and entered into as of July 1, 2021, by 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 ("Licensor"), and DOWNTOWN, INC. ("Licensee"), with respect to the following: RECITALS a. The Licensor is the owner of a 2002 Electric GEM Cart; Vehicle Identification Number (VIN) 5ASAK27492FO28166; California License Number El 162328 ("Vehicle"). b. Licensee desires to use the Vehicle owned by the Licensor for work related to the implementation of -the Downtown Clean and Safe Program, including, but not limited to, trash removal, street furniture deployment, and event setup. c. The Licensor wishes to accommodate Licensee's desire to use the Vehicle on a non- exclusive basis by granting a license to Licensee upon certain terms and conditions. NOW, THEREFORE, for good and valuable consideration, Licensee and Licensor do hereby agree as follows: 1. License Provided that all of the terms and conditions of this Agreement are fully satisfied, the Licensor hereby grants to Licensee, and its employees, agents and contractors, the non-exclusive, non - assignable, personal right and license to use the Vehicle owned by the Licensor for work related to the implementation of the Downtown Clean and Safe Program, including, but not limited to, trash removal, street furniture deployment, and event setup, and for no other purposes without the prior written approval of the Licensor. 2. Term This Agreement shall begin on the date first written above ("Effective Date"), for a two-year term that terminates on June 30, 2023. This Agreement shall also cover any and all use of the Vehicle by the Licensee since January 1, 2021, until the Effective Date. 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 Vehicle. Upon termination of this Agreement, any improvements by Licensee to the Vehicle shall be the property of the fee title owner of the Vehicle, unless the Licensor requires Licensee to remove. 4. Agreement By execution of this Agreement, Licensee agrees for itself and on the behalf of its employees, agents, consultants and contractors as follows: a. The Vehicle owned by the Licensor shall only be used for work related to the implementation of the Downtown Clean and Safe Program, including, but not limited to, trash removal, street furniture deployment, and event setup, and for no other purposes without the prior written approval of the Licensor; b. Licensor retains ownership and the right to use the Vehicle at its sole discretion. As a courtesy, Licensor will work with Licensee to provide notice of when Licensor will be using the Vehicle; c. There is no payment due to the Licensor or Licensee for use of the Vehicle; d. The Vehicle must be returned to the Licensor in the condition it was received, and the Licensor shall be responsible for all reasonable repairs and maintenance, including parts and labor, should malfunction or damage occur during the term of this Agreement; e, If the Vehicle is damaged or out of commission for repair or maintenance, Licensor shall not be liable to Licensee in any way, and Licensor shall not be responsible for making alternative arrangements for Licensee to complete its work; f. Licensee shall store and charge the Vehicle overnight at Licensor's downtown public parking garages located at Fifth Street/Main Street and Fifth Street/French Street, with no charge to Licensee; g. Drivers of the Vehicle must possess a valid driver's license; h. The Vehicle must be operated in a safe, controlled and courteous manner, in compliance with all applicable traffic laws and local, state, and federal regulations; i. Never transport unauthorized passengers or cargo in the Vehicle; j. Never allow an unauthorized person to drive the Vehicle; k. Never drive the Vehicle under the influence of any alcohol or drugs, including medications that may cause impairment; 1. Inspect the Vehicle prior to use for obvious safety concerns and significant damage that may exist to the Vehicle, and in no event should the driver attempt to operate the Vehicle with deficiencies that may make it unsafe to operate; in. Drivers are personally responsible for all traffic violations and subsequent fines that may occur while driving the Vehicle; and, n. Licensee shall use the Vehicle entirely at its own cost, risk and expense. 5. Insurance Prior to undertaking use of the Vehicle under this Agreement, Licensee shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Licensee shall maintain commercial general liability insurance naming the Licensor and its officers, employees, agents, volunteers and representatives as additional insured(s) and 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's operations in the performance of this Agreement, 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 amount of $1,000,000.00 per occurrence, and $2,000,000 in the aggregate. Licensee shall supply Licensor with a fully executed additional insured endorsement upon execution of this Agreement. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. c. The following requirements apply to the insurance to be provided by Licensee pursuant to this section: Licensee shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement; ii. Certificates of insurance and additional insured endorsements shall be furnished to the Licensor upon execution of this Agreement and shall be approved in form by the Licensor Legal Counsel; and, 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 Licensor. d. If Licensee fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the Licensor with required proof that insurance has been procured and is in force and paid for, the Licensor shall have the right, at its election, to forthwith terminate this Agreement. 6. Indemnification Licensee agrees to and shall indemnify and hold harmless the Licensor, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the direct or indirect operations of the Licensee or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the use of the Vehicle; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Licensee further agrees to indemnify, hold harmless, and pay all costs for the defense of the Licensor, including fees and costs for special counsel to be selected by the Licensor, regarding any action by a third party challenging the validity of this Agreement, or 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. Licensor may make all reasonable decisions with respect to its representation in any legal proceeding. 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. 8. Remedies Either party shall, in addition to all other rights provided herein or as may be provided by taw, 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. 9. 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. 10. Non -Liability of Public 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 terns of this Agreement. 11. Termination This Agreement may be terminated by either party upon thirty (30) days written notice of termination. 12. 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA DAISY GOMEZ KR �. ISTINE RIDGE Clerk of the Council City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: i - I Ryan 0. Rodge Assistant City Attorney RECOMMENDED FOR APPROVAL: DOWNTOWN, INC STEVEN A. MENDOZA Ryan Chase Executive Director President Community Development Agency Tax ID#: 26-4051161 Francine R. Digitally a19oed by Frandne N. vtlareal Villareal Date: 2021.06.29 07:40:4"1'( ACCIR a CERTIFICATE OF LIABILITY INSURANCE D06/28/DDIYY 2021Yv) 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 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 Santa Ana, CA 92701 IN415 N. Broadway Santa NAMTACT Eddie QUIIIareS PHC ON DID. ac No:714.6177 58 ADDRESS: eddie@eddleginsurance.com INSURERS AFFORDING COVERAGE NAICp INSURER A: State Farm General Insurance Company 25151 INSURED DOWNTOWN INC 201 E 4TH ST SANTA ANA CA 92701-4668 INSURER B: State Farm Fire and Casualty Com an 25143 INSURER C : Stale Farm Mutual Automobile Insurance Company 2 178 INSURER D: INSURER E : 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. INSR LTR TYPE OF INSURANCEJUR AODL SUER WVDPOLICY NUMBER POLICY EFF MM/DDIYYYY POLICY EXP (MMIDDYYYYL LIMITS A GENERAL LIABILITY E a 92-CE-Q933.0 06/05/2021 06/05/2022 EACH OCCURRENCE $ 1,000,000 X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE X OCCUR DAM IS ELATED PREMISES JEs occurrence $ 300,000 MED EXP (Any one person) $ 5,000 PERSONAL &ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEE'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ 2,000,000 POLICY PR(I LOG $ C AUTOMOBILE LIABILITY ❑ 621 5237F28-75 D6/28/2021 12/28/2021 EBdNDSINGLIMIT I $1 BODILY INJURY (Per person) $ 1,000,000 ANY AUTO ALL OWNED SCHEDULED AUTOS x AUTOS BODILY INJURY (Per accident) $ 1,000,000 NON -OWNED HIRED AUTOS AUTOS PROPERTY DAMAGE Peraccident $ 1,000,000 Deductible $ 250 A j( UMBRELLA LIAR x OCCUR Y Y 92-CE-Q781-7 06/05/2021 06/05/2022-EACH $ 1,000,000 -OCCURRENCE AGGREGATE $ 2,000,000 EXCESS LIAR CLAIMS -MADE DEO I x I RETENTION$ 10,060 $ B WORKERS COMPENSATION ANDEMPLOYERTLIABILITY YIN ANY PROPRIETORIPARTNERIEXECUTIVE FFICEIMEMSER EXCLUDED? Y❑ N I A 92-GO-0512-6 06/0512021 06/05/2022 WC STATU- OTH- IMITS %� ER 1,000,000 E.L. EACH ACCIDENT $ 11000,000 E.L. DISEASE - EA EMPLOYE $ 11000,000 (Mandatory In NU If yes, describe under E.L. DISEASE -POLICY LIMIT $ 1,000,000 DESCRIPTION F OPERATIONS bid, A FIDELTY BOND ❑❑ 92-WV-6044-5 10/03/2020 10/0312021 BOND -AMOUNT $ 500,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 1 St, Additional Remarks Schedule, it more apace is required) Scheduled Auto: 2002 GEM 825 PICKUP VIN: 5ASAK27492FO28166 Description of Operations: Downtown Santa Ana Art Walk/ COSA Agreement A-2020-254 City of Santa Ana its officers, agents, employees and volunteers are named as additionally 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 FL SANTA ANA, CA 92702 ACORD 25 (2010/05) 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 Ci The ACORD name and logo are registered marks of ACORD ,/�.,,� Risk Manngti7nntt DiWelon r,REVIEWED &IAPPROVED BY: 1 Risk Management Analyst FE-6609 SECTION II ADDITIONAL INSURED ENDORSEMENT Policy No.: 92-CE-0933-0 Named Insured: DOWNTOWN INC Additional Insured (include address): CITY OF SANTA ANA 20 CIVIC CENTER PLAZA SANTA ANA, CA 92702 WHO IS AN INSURED, under SECTION II DESIGNATION OF INSURED, is amended to include as an insured the Additional Insured shown above, but only to the extent that liability is imposed on that Additional Insured solely because of your work performed for that Additional Insured shown above. Any insurance provided to the Additional Insured shall only apply with respect to a claim made or a suit brought for damages for which you are provided coverage. ® The Primary Insurance coverage below applies only when there is an "X" in the box. Primary Insurance. The insurance provided to the Additional Insured shown above shall be primary insurance. Any insurance carried by the Additional Insured shall be noncontributory with respect to coverage provided to you. All other policy provisions apply. s isk ENED & APPROVE le[on (fREVIEWED &{yAPPR,O}V�EO BYe: �� Risk Management Analyst 0 FE-6609 WORKERS COMPENSATION POLICY NUMBER: 92-GO-0512-6 WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHER TO US Policy Number: 92-GO-0512-6 Named Insured: Downtown Inc SCHEDULE NAME OF PERSON OR ORGANIZATION: CITY OF SANTA ANA 20 CIVIC CENTER PLAZA SANTA ANA, CA 92702 Information required to complete this Schedule, if not show above, will be shown in the Declarations. The following is added to Paragraph 10.b. of SECTION 1 AND SECTION II — COMMON CONDITIONS: We waive any right of recovery we may have against the person or organization shown in the Schedule above because of payments we make for any injury arising out of: a. Your ongoing operations; or b. Your work done under contract with that person or organization and included in the products -completed operations hazard. This waiver applies only to the person or organization shown in the Schedule above. All other policy provisions apply. FE-6671 ©, Copyright, State Farm Mutual Automobile Insurance Company, 2008 Includes copyrighted material of Insurance Services Office, Inc., with its permission RI AMmtagm 0tvisien Wj',°� REVIEWED&APPR(YVEDBY.' i ` F sw o.e R, V ktr�acL Ruk Nianagement Analyst 01 Exhibit B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company: State Farm Insurance This endorsement modifies such insurance as is afforded by the provisions of Policy Number: 92-CE-Q933-0 relating to the following: 1) The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from operations and uses performed by or on behalf of the named insured. 2) With respect to claims arising out of the operations and uses performed by or on behalf of the names insured, such insurance as is afforded by this policy is primary and is not additional to or to contributing with any other insurance carried by or for the benefit of the additional insured. 3) This insurance applies separately to each insured against whom claim is or suit is brought except with respect to the company's limit of liability. This inclusion of any person or organization as an insured shall not affect any right which is such person or organization would have as claimant if not so included. 4) With respect to the additional insured, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) written notice has been given to City of Santa Ana, 20 Civic Center Plaza, Santa Ana, CA 92701. Effective June 16, 2021 this endorsement form as a part of Policy Number: 92-CE-Q933-0. Issued to Downtown Inc. v� ��� Countersigned by /l Authorized Representative 1tlekMsnagm tDlvMs1m �py Remo&APPRovlDnv: JII ; � FU4044 R. V;" Risk Management Analyst ol 4WD