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HomeMy WebLinkAboutDYNAELECTRIC L.AINSURANCE NOT ON FILE WORK MAY NOT PROCEED CLERKOFCOUNCIL DATE: N LICENSE AGREEMENT N-2021-224 This LICENSE AGREEMENT ("Agreement's is dated as of November 4, 2021, and entered into by and between the CITY OF SANTA ANA, a charter city and municipal corporation o z existing under the Constitution and laws of the State of California ("City"), ("Licensee"). and Dynalectric L.A. 610me-L) (3A)2 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 2034 S. Bristol St (APN 408-334- 01), as depicted on Exhibit A ("License Area")- B. Licensee desires to use the License Area for purposes of storing vehicles, materials, and other construction equipment and stockpile during the License period ("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. NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. License. The City hereby grants to Licensee a nonexclusive license for the right to enter and use the License Area beginning on November 5, 2021 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 License shall remain in effect until May 5, 2022, unless extended in writing by the Executive Director of the Public Works Agency, or his or her designee. The License may be terminated by City upon thirty (30) days written notice. This Agreement is intended and shall be construed 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. Licensee shall cause the License Area to be cleaned, with such work to be completed no later than the times specified in the License as stated in paragraph 1 above, and the License shall be extended to such time for the limited purpose of allowing the cleaning work to be completed. 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 compliance with all applicable federal, state, and local laws, ordinances, and regulations, and permits. Page 1 of 5 4. Licensee shall include, implement, and maintain but not be limited to the following Best Management Practices (BMPs) at the License Area: a) Waste management and Materials Pollution Control BMPs shall be implemented to prevent the contamination of stormwater by construction wastes and materials. b) Tracking control (TC) BMPs to control off site sediment tracking shall be implemented andmaintained. c) Sediment control (SE) BMPs shall be implemented at all locations along the site perimeter, at all operational storm drain inlets and at all non -active slopes, as appropriate. d) Pollution prevention practices shall be implemented. e) Nan-stormwater management measures to prevent illicit discharges and control stormwater pollution sources. f) Erosion Control BMPs shall be implemented, as appropriate. g) Wind erosion control BMPs (dust control) shall be :implemented; as appropriate. h) Non-stormwater BMPs shall be implemented to reduce or prevent the contamination of stormwater from construction activities, i) Pence with green screen For specific guidance reference, reference the Construction .Runoff Guidance Manual (Orange County Stonnwater Program, December 2012) [ht__pt sJdmedia ocgov oomfZov/pw/watersheds/docuinents/bW/consti-actiona tivities.aspj or the California Stormwater Quality Association (CASQA) Stormwater BMP Handbook for Construction. 5. Damage, In the event that Licensee damages any portion of the License Area or the improvements or equipment 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. 6. Licensee Parties. Licensee, together with its employees, subcontractors, agents, representatives, and all persons entering the License Area, by or through or at the direction 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. 7, Fee. As consideration for this Agreement, City shall be credited $15,000 for hem #1 of Change Order #F2 for project 17-9001 South Main Corridor Improvements between the City and C.S. Legacy as described in a modified Change Order #2 to be acknowledged in writing by both parties. The City shall be afforded this credit upon full execution of this Agreement. Lleoasee shall pay the monthly fee of $2,500 for any extension of the Agreement pursuant to Scotian 1. S. 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 Page 2 of 5 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 purpose 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 reetifythe condition to make the License Area usable or safe. 9. Insurance: Licensee shall secure or cause its agents or contractors performing any entry onto the License Area to 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 amount of $1,006>000 per occurrence and $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured($); (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. Worker's Compensation Insurance as required by California law. c, 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. 10, Indemnity: Licensee shall indemnify, defend, and hold harmless City, and its respective agents, representatives, employees, subsidiaries and affiliates ("Covered Parties") fi-om 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 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 Page 3 of 5 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 10 shall survive the termination or expiration of this Agreement. 11. Miscellaneous, 11.1 Lnit 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. 11.2 Seyerabilitu 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 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. 11.3 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. 11A Applicable Law, This Agreement $ball be construed and enforced in accordance with the internal laws of the State of California. 11.5 Ligation hx_penaes If either party to this Agreement commences an action against the other party 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, coats of investigation, and costs of suit tiom the losing party. 11.6 Authori . The persons executing this Agreement on behalf of the parties hereto represent and warrant to the other party that they are duly authorized to oxecutc 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. 11.7 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: Page 4 of 5 If to Licensee: Dynalectric L.A. Attn: Mike Aguirre 4462 Corporate Center Dr, Los Alamitos, CA 90720 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 11.8 Execution in CounterpartThis 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. IN WITNESS WHEREOF, City and Licensee have entered into this Agreement as of the day and year first written above. CITY OF SANTA ANA Kristine Ridge City Manager APPROVED AS TO FORM Sonia R. Carvalho City Attorney ATTEST of the Council LICENSEE (SUB CONTRACTOR) By: i C,f-.U, Its: Jose Montoya Deputy City Attorney pj� RECOMMENDED FOR APPROVAL By: 1 Its: t-I. a � Nabn Saba Executive Director Public Works Agency Page 5 of 5 L.A. t oIrlirt AD o CERTIFICATE OF LIABILITY INSURANCE F ATE D11101112021 Dnvvvl 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 have ADDITIONAL INSURED provisions or 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 '""MARSH USA INC 1166 AVENUE OF THE AMERICAS CONTACT NAME: isExtI FAX He: EMAIL ADDRESS, NEW YORK, NY 10036 Phone: 886-966-4664 Emcor.Cedrequesl@mamh.com l Fax: 203�229-6787 INSURERS AFFORDING COVERAGE NAIL# INSURER A: Continental Casualty Company 20443 CN102796740-JWP-KIR-21-22 321019 INSURED KDC INC INSURER B: American Casualty Company of Reading. PA 20427 INSURER C : Trans oilation Insurance Cc 20494 DIBIA DYNALECTRI0 L A. 4462 CORPORATE CENTER DRIVE LOS ALAMITOS, CA 90720 INSURER D: NIA NIA INSURER E; INSURER F; COVERAGES - CERTIFICATE NUMBER: NYC-009464145-11 REVISION NUMBER: 5 THIS 15 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 INSURANCE ADDL SUBR POLICY NUMBER MMIDDYIYYYY MMIDDI YXYY LIMITS A GENERAL LIABILITY GL 7015289851 10/01/2021 1010112022 EACH OCCURRENCE $ 2,000,000 4COMMERCIAL CLAIMS -MADE O OCCUR PREMISES IFe occurrence $ 1,000,000 VIED EXP (Any one person) $ 25,000 PERSONAL &ADV INJURY $ 2,000,000 GERL AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 6,000,000 POLICY [X] PE' LOG PRODUCTS - COMPIOP AGG $ 14,000,000 $ OTHER: A AUTOMOBILE LIABILITY BUA 7015289682 1010112021 106112022 COMBINED SINGLE LIMIT Ea accident $ 2,000,000 BODILY INJURY(Per person) $ ANY AUTO I OWNED SCHEDULEDAUTOS ONLY AUTOSBODILV INJURY (Paraxiden0 $ HIRED X NON -OWNED AUTOS ONLY AUTOS ONLY PROPERTY DAMAGE Per-acddent $ Auto Physical Damage $ Included UMBRELLALIAB OCCUR EACH OCCURRENCE $ AGGREGATE $ EXCESS LIAR CLAIMS -MADE OED RETENTION$ $ B B G WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANYPROPRIETOMPARTNEWEXECUTIVE YIN OFFICERIMEMBEREXCLUDED9 (Mandatory in NH) NIA WC 7015294418 (AGE) WC 7015294385 (CA) WC 7015302405 (AZ, OR, WI) 1010172021 10101R021 1010112022 1010112022 1010112022 X PER OTH- STATUTE ER E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEEI $ 1,000,000 If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ 1,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) RE: 321019 - 2034 BRISTOL ST (APN 408-334-01), SANTA ANA, CA 92704 ADDITIONAL INSURED UNDER ALL POLICIES (EXCEPT WORKERS COMPENSATION & EMPLOYERS LIABILITY) WHERE REQUIRED BY CONTRACT: THE CITY OF SANTA ANA, IT'S OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES WHERE REQUIRED BY CONTRACT, COVERAGE PROVIDED TO THE ADDITIONAL INSUREDS IS PRIMARY & NON-CONTRIBUTORY, CERTIFICATE HOLDER CANCELLATION CITY OF SANTA ANA SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE RISK MANAGEMENT DIVISION THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 20 CIVIC CENTER PLAZA ACCORDANCE WITH THE POLICY PROVISIONS. SANTA ANA, CA 92702 AUTHORIZED REPRESENTATIVE of Marsh USA Inc. -.i�r:.0.1.aPp ti .��ftna.tG 1 y1..�-rl ©1988.2016 ACORD CORPORATION. All rights reserved. ACORD 25 (2016103) The ACORD name and logo are registered marks of ACORD ACORO® AGENCY CUSTOMER ID: CN102796740 LOCO: Norwalk ADDITIONAL REMARKS SCHEDULE Page 2 of 2 AGENCY NAMED INSURED *'*MARSH USA INC KDC INC DIBIA DYNALECTRIC L.A. 4462 CORPORATE CENTER DRIVE POLICY NUMBER LOS ALAMITOS, CA 90720 CARRIER NAIC CODE EFFECTIVE DATE: THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: Certificate of Liability Insurance AUTO PHYSICAL DAMAGE COMP COLL DEDUCTIBLE $500 IN THE EVENT OF CANCELLATION OR MATERIAL CHANGE THAT REDUCES OR RESTRICTS THE INSURANCE AFFORDED BY THIS COVERAGE PART (OTHER THAN THE REDUCTION OF AGGREGATE LIMITS THROUGH PAYMENT OF CLAIMS AS APPLICABLE), INSURER AGREES TO MAIL PRIOR WRITTEN NOTICE OF CANCELLATION OR MATERIAL CHANGE TO: CERTIFICATE HOLDER SCHEDULE 1. NUMBER OF DAYS ADVANCE NOTICE: FOR ANY STATUTORILY PERMITTED REASON OTHER THAN NON-PAYMENT OF PREMIUM, THE NUMBER OF DAYS REQUIRED FOR NOTICE OF CANCELLATION AS PROVIDED IN PARAGRAPH 2 OF EITHER THE CANCELLATION COMMON POLICY CONDITIONS OR AS AMENDED BY THE APPLICABLE STATE CANCELLATION ENDORSEMENT IS INCREASED TO THE LESSER OF SO DAYS OR THE NUMBER OF DAYS REQUIRED IN A WRITTEN CONTRACT, FOR NON-PAYMENT OF PREMIUM, THE GREATER OF (1) THE NUMBER OF DAYS REQUIRED BY STATE LAW OR (2) THE NUMBER OF DAYS REQUIRED BY WRITTEN CONTRACT, 2. NAME: NOTICE WILL BE MAILED TO: CERTIFICATE HOLDER ACORD 101 (2008/01) ©2008 ACORD CORPORATION. All The ACORD name and logo are registered marks of ACORD G-300703-A (Ed. 05/09) POLICY NUMBER: GL 701528®861 NAMED INSURED: EMCOR OROUP, INC. POLICYTERM: 10/01/2021 to 10/01/2022 THIS ENDORSEMENT CHANCES THE POLICY. PLEASE READ IT CAREFULLY. AMENDMENT -OTHER INSURANCE PRIMARY AND NON-CONTRIBUTORY This endorsement modifies Insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART Paragraph a. Primary Insurance of 4. Other Insurance of Section IV- Commercial General Uabllity Conditions Is deleted and replaced with the following: a. Primary insurance This insurance is primary except when Paragraph U. below applies. If this Insurance Is primary, our obligations are not affected unless any of the other Insurance is also primary. Then, we will share with all that other Insurance by the method described In Paragraph c. below. However, coverage afforded to an additional Insured under the terms of an endorsement attached to this policy is primary Insurance and we will not seek contribution from any such additional Insured's primary Insurance If: (1) You have agreed In writing in a contract or agreement that this Insurance will be primary and non-contributory; and (2) The written contract or written agreement was executed prior to: (a) The °bodily injury" or "property damage'; or (b) The offense that caused the "personal and advertising Injury" for which the additional Insured seeks coverage under this Coverage Part. G-300703-A Includes copyrighted material of Insurance Senrlcee Of too, Inc., with Its permlaelon.. Page 1 of 1 (Ed. 05109) POLICY NUMBER: GL 7015289861 NAMED INSURED: EMCOR Group, Inc. POLICY TERM: 10-01-2021 to 10-01-2022 CO 20 10 10 98 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS (FORM B) This endorsement modifies Insurance provided under the folkrvdng: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Pennon or Organization: ALL PERSONS OR ORGANIZATIONS FOR WHOM YOU ARE REQUIRED BY CONTRACT TO ADD AS AN ADDITIONAL INSURED BUT ONLY IF THE PERSON OR ORGANIZATION DOES NOT QUALIFY AS AN ADDITIONAL INSURED WITH RESPECT TO WORK PERFORMED BY OR FOR YOU PURSUANT TO THAT CONTRACT OR ANOTHER ADDITIONAL INSURED ENDORSEMENT ATTACHED TO AND FORMING A PART OF THIS POLICY. (If no entry appears alcove, IrNcnnation required to complete this endorsement will be shown in the Declarations as ap- plicable to this endorsement) WHO IS AN INSURED (Section II) is amended to include as an Insured the person or organization shown in the Sched- ule, but only with respect to liability arising out of your ongoing operations performed for that insured. Had Fame& SWm r4wily NY. %V37 CO 20 10 10 93 Copyright, Insurance Services Office, Inc.,1092 Page 1 of 1 POLICY NUMBER: GL 7016289851 NAMED INSURED: hmur.)K uroup, Inc. POLICY TERM: 10.01-2021 to 10.01-2022 COMMERCIAL GENERAL LIABILITY CG 20 37 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - COMPLETED OPERATIONS This endorsement modifies Insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person($) Or O aniz*Uon s - Location And Descriplion Of Completed O eretions PERSONS OR ORGANIZATIONS FOR WHOM AS PER THE WRITTEN CONTRACT OR YOU ARE REQUIRED BY CONTRACT TO ADD AS WRITTEN AGREEMENT, PROVIDED THE AN ADDITIONAL INSURED FOR COMPLETED LOCATION IS WITHIN THE "COVERAGE OPERATIONS COVERAGE BUT ONLY IF THE TERRITORY" OF THIS COVERAGE PART. PERSON OR ORGANIZATION DOES NOT QUALIFY AS AN ADDTIONAL INSURED FOR COMPLETED OPERATIONS ON ANOTHER ADDITIONAL INSURED ENDORSEMENT ATTACHED TO AND FORMING A PART OF THIS POLICY. Information required to complete this Schedule if not shown above, will be shown In the Declarations. Section II — Who la An Insure include as an additional Insured organizallon(s) shown in the Soh respect to liability for "bodily injury' age" caused, In whole or In park, the location designated and doscri uis of this endorsement performed insured and Included in the "pi operations hazardw. d Is amended to the person(s) or eduio, but only with or'pmpartydam- by "your work" at bad In the sched- CG 20 37 07 04 0180 Properties, Inc., 2004 Page I of 1 I]