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HomeMy WebLinkAboutK&C LOGISTICS, LLC INSURANCE NOT ON FILE A-2024-134 WORK MAY NOT PROCEED CITY CLERK DATE: NOV 1 4 2024 0.. ?WA(.t) LICENSE AGREEMENT (' .Y1e4 Gt e -)4"ff This LICENSE AGREEMENT("Agreement")is dated as of August 20,2024("Effective Date"), 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 K&C Logistics, LLC ("Licensee"). RECITALS A. The City owns real property at the western and eastern terminus of Alton Avenue between Standard Avenue and the SR-55 Freeway in the City of Santa Ana,as particularly described in Exhibit A, attached hereto and incorporated by reference(collectively,the"License Area"). B. The License Area is part of a planned road improvement project to be constructed by the City where such construction is anticipated to begin within three to five years of the date of this Agreement. C. Licensee is a logistical and transportation services company that desires to use and access the License Area for parking of its vehicles. City desires to allow Licensee the exclusive use of and access to the Property for this purpose alone("Permitted Uses"). D. 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 an exclusive license for the right to enter and use the License Area on the date first written above, for the Permitted Uses described in Recital C, 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 for a three(3)year term from the Effective Date. Upon the expiration of the three (3)year term,this Agreement shall continue on a month- to-month basis. The License may be terminated by the City or Licensee at any time upon sixty(60) days written notice. In no case shall the maximum term of this Agreement exceed five years without the prior written consent of the City. 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. 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)to reduce stormwater pollution from 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 Page 1 of 6 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. (d) Post and install appropriate signage in strict accordance with Santa Ana Municipal Code Section 10-96 and CA Penal Code Section 602,to the satisfaction of the Santa Ana Police Department. 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. Stockpiles shall not be taller than the property's fence height. b) Maintain effective Tracking control BMPs to prevent sediment tracking off-site 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 as-needed so the public right-of-way remains clean and free of dirt. 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. The Licensee shall maintain the licensed area and its perimeter free of weeds and/or vegetation. Should the City provide notice to remove any weeds and/ or vegetation, the Licensee shall complete this work to the City's satisfaction within 72 hours of notification. 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-1 details provided in the California Stormwater Quality Association(CASQA) Stormwater BMP Handbook for Construction. c) Remove Tracking Control BMPs from the License Area. d) Cover the surface of the entire License Area with two(2) inches of three-quarter (3/4) inch diameter gravel. Page 2 of 6 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. Fee. As consideration for this Agreement, Licensee shall pay City a monthly license fee of$24,967.03. License fees for any partial month shall be pro-rated.Payment shall be made payable to the City of Santa Ana, in advance for each month, no later than the 10s'of the prior month, at the following address:Public Works Agency,City of Santa Ana M-21,Administrative Services Manager,20 Civic Center Plaza, PO Box 1988, Santa Ana, CA 92702. A late charge of ten percent (10%) shall be applied to any payment hereunder due but unpaid after the 10d'of the month. The consideration for this License shall be subject to a CPI adjustment annually utilizing the most recently published annual average, on the anniversary of the Effective Date during the term hereof. 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. 8.1 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's use of the Property, including,without limitation,acts involving vehicles. 8.2 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$2,000,000 per occurrence and$5,000,000 in the aggregate. Such insurance shall (a)name the City, its City Council, 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. Page 3 of 6 8.3 Licensee shall maintain business automobile liability insurance, or equivalent form,with a combined single limit of not less than$5,000,000 per occurrence. Such insurance shall include coverage for owned,hired and non-owned automobiles. 8.4 Pursuant to state law, Licensee is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of services under this Agreement,Licensee agrees to obtain and maintain any employer's liability insurance with limits not less than$1,000,000 per accident. 8.5 Certificates of Insurance: Additional Insured Endorsements.Prior to execution of this Agreement,Licensee shall furnish to City certificates of insurance and,if applicable,additional insured endorsements to each of Licensee's insurance policies, evidencing the foregoing insurance coverages as required by this Agreement. These certificates shall: a. provide the name and policy number of each carrier and policy; b. shall state that the policy is currently in force;and c. shall promise to provide that such policies will not be canceled, suspended, voided, reduced in coverage or in limits, or modified without thirty(30)days prior written notice of City. Licensee shall maintain the foregoing insurance coverages in force throughout the term of this Agreement. City or its representatives shall at all times have the right to demand the original or a copy of all these policies of insurance,which Licensee shall provide within five(5)days of City's request. 9. Indemnity. Licensee shall indemnify, defend, and hold harmless City, and its respective 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 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. Page 4 of 6 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 this Agreement on behalf of such party, and by so executing this Agreement,said party is formally 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: K&C Logistics,LLC If to City: Clerk of the City Council Attn:Kadir Koc-President City of Santa Ana 1700 E.Garry Avenue, Suite 214 20 Civic Center Plaza(M-30) Santa Ana,CA 92705 P.O.Box 1988 Santa Ana,CA 92702-1988 11. 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. [Signatures on the following page] Page 5 of 6 IN WITNESS WHEREOF,City and Licensee have entered into this Agreement as of the day and year first written above. CITY OF SANTA ANA ATTEST f nnr oft Alvaro Nunez Hennifer L. City Manager C. APPROVED AS TO FORM LICENSEE Sonia R.Carvalho City Attorney -Jonathan T.Martinez Kadir Koc Assistant City Attorney President RECOMMENDED FOR APPROVAL ',N)q 6;2?abil Saba I?xccutive Director Public Works Agency Page 6 of 6