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HomeMy WebLinkAboutCHARLES KING COMPANY (2)INSURANCE NOT ON FILE WORK MAY NOT PROCEED CLERK OF COUP'CIL DATE: LICENSE AGREEMENT N-2023-048 -PwA( k� VW) This LICENSE AGREEMENT ("Agreement") is dated as of December 16, 2022 and entered into by and between the CITY OF SANTA ANA, a charter city and municipal corporation existing •under the Constitution and laws of the State of California ("City"), and Charles King Company ("Licensee"). 5 RECITALS oA. The City is the owner of that certain real property located in the City of Santa Ana, �A County of Orange, California, more specifically identified as 124 E Warner Avenue (APN 016-031-37) and 128 E Warner Avenue (APN 016-031-32) as depicted on Exhibit A and Exhibit B ("License Area"). LU 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: License. a. The City hereby grants to Licensee a nonexclusive license for the right to enter and use the License Area beginning on December 1, 2022, 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 February 28, 2023 unless extended in writing by the Executive Director of the Public Works Agency, or his or hen designee. City reserves the right to immediately suspend all activities or terminate; this Agreement upon Licensee' non-compliance with any of the terms or conditions of this Agreement. 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. b. Hours of Operation: All work performed at the License Area shall be performed between the hours of 7:00 AM and 5:00 PM, Monday through Friday, unless otherwise provided in writing by City, such consent not to be unreasonably withheld. 2. 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. 3. Best Management Practices and Clean Up. At its sole cost, Licensee shall clean up and install, implement, and maintain Best Management Practices (BMPs) at the License Area as outlined below. Within seven (7) days of occupying the License Area, the Licensee shall: (a) Remove old and/or damaged sediment control BMPs from the License Area and install new sediment control BMPs along the entire perimeter of the License Area. Appropriate sediment control BMPs include straw wattle, gravel bag berm, or silt fence, Licensee shall install sediment control BMPs per the SE-5, SE-6, or SE-1 details provided in the California Stormwater Quality Association (CASQA) Stormwater BMP Handbook for Construction. (b) Install tracking_ control BMPs at the vehicle access point to the, License Area. Licensee shall install tracking control BMPs per the TC-1 detail provided in the California Stormwater Quality Association (CASQA) Stormwater BMP Handbook for Construction. (c) Install a fence, if required, and Green Screen. Throughout the duration of the License Agreement, the Licensee shall: a) Cover all stockpiles that are not actively being used or scheduled to be used within a seven (7) day period. Additionally, all stockpiles shall be covered prior to the onset of precipitation. Licensee shall ensure that stockpile coverings are installed securely to protect from wind and rain, Licensee shall only be allowed to stockpile construction materials or sediment that is directly related to their City of Santa Ana Capital Improvement Project. b) Maintain effective Tracking control BMPs to prevent off -site sediment tracking from the License Area. c) Maintain effective Sediment control BMPs along the entire perimeter of the License Area, at all adjacent storm drain inlets, and on all non -active slopes, as appropriate. d) Sweep the street, sidewalk, and parkway adjacent to the License Area at the end of the! working day and prior to forecasted rain events. e) Use a dumpster or appropriate waste receptacle to discard of all trash and debris. Dumpsters and waste receptacles shall be covered prior to the . onset of precipitation. f) Implement Wind Erosion Control BMPs (dust control), as appropriate, per the WE-1 detail provided in the California Stormwater Quality Association (CASQA) Stormwater BMP Handbook for Construction, g) Remove graffiti on the fence or green screen within one (1) day of notification by the City. h) Repair vandalism to fence or green screen within one (1) day of notification by the City. Remove weeds or vegetation growing within License Area or around perimeter within seven (7) days of notification by the City. Within fourteen (14) days of vacating the License Area, the Licensee shall clean up the License Area as outlined below; a) Remove all trash, debris, sediment, stockpiles, and construction materials from the License Area. b) Remove old and/or damaged sediment control BMPs from the License Area and install new sediment control BMPs along the entire perimeter of the License Area. Appropriate sediment control BMPs include straw wattle, gravel bag berm, or silt fence, Licensee shall install sediment control BMPs per the SE-5, SE-6, or SE -I details provided in the California Stormwater Quality Association (CASQA) Stormwater BMP Handbook for Construction. c) Remove Tracking Control BMPs from the License Area, d) se Area with two (2) i Cover the surface of the entire License of three- _.._ ._ -- ----- quarter (3/4) inch diameter gravel. License Area clean up shall be completed to the sole satisfaction of the City 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 clean up to be completed. 4. 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. 5. 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. , , 6. Pee. , As consideration for this Agreement, Licensee shall pay City a monthly license fee of $6,000 beginning January 1, 2023. Licensee shall continue to pay the monthly fee of $6,000 for any extension of the Agreement pursuant to Section 1, The Licensee agrees to compensate City for its occupancy of the License Area from July 2022 — December 2022 in an amount of $36,000 on or before January 1, 2023. The outstanding invoices are attached hereto as Exhibit C and incorporated herein by this reference. 7. 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 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 rectify the condition to make the License Area usable or safe, 8. 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 $1,000,000 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(s); (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. 9. � Indemnitv. Licensee shall indemnify, defend, and hold harmless City, and its respective I agents, representatives, employees, subsidiaries and affiliates ("Covered Parties") from 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 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 0 defend. The provisions of this Section 10 shall survive the termination or expiration of this Agreement, 10. Miscellaneous. 10.1 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 City and Licensee. 10.2 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 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. 10.3 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. 10.4 Applicable Law. This Agreement shall be construed and enforced in accordance with the internal laws of the State of California, 10.5 Litigation Expenses. 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, costs of investigation, and costs of suit from the losing party, 10.6 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 i this Agreement on behalf of such party, and by so executing this Agreement, said party is formally i bound to the provisions of this Agreement. 10.7 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: If to Licensor: Charles King Company If to City: Clerk of the City Council Attn: Debra King City of Santa Ana 2841 Gardena Avenue 20 Civic Center Plaza (M-30) Signal Hill, CA 90755 P.O. Box 1988 Santa Ana, CA 92702-1988 10.8 Execution in Counterpart. This 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. M WITNESS WHEREOF, City and Licensee have entered into this Agreement as of the day and ear frcst_ written above.- ---- - Y -- ----- —.- - CITY OF SANTA ANA C�A7 lCris1ine Ridge City Manager APPROVED AS TO FORM Sonia R. Carvalho City Attorney M Jose Montoya Assistant City Attorney FOR APPROVAL }.. 'S 4' Nabil Saba Executive Director Public Works Agency 3 � T � LICENSEE By: Its: �% • P