HomeMy WebLinkAboutPLATNIUM EQUITY PARTNERS 1 - 2006
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,,! ,.(_13-C((> RIGHT OF ENTRY AND LICENSE AGREEMENT
N-2006-0Il
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THIS RIGHT OF ENTRY AND LICENSE AGREEMENT ("Agreement") is made
and entered into as of .3D/:b.day of January, 2006 by and between THE CITY OF SANTA
ANA, a charter city and municipal corporation duly organized and existing under the
Constitution and laws of the State of California, (hereinafter referred to as the "City"), and
PLATINUM EQUITY PARTNERS, a California corporation (herein referred to as "Licensee"),
with respect to the following:
RECITALS
A, The City is the owner of an easement for future right of way purposes located on -
at the eastern terminus of Alton Avenue between Standard Avenue and the SR-55 Freeway in the
City of Santa Ana, California depicted on Exhibit A attached hereto and made a part hereof by
this reference (the "Property"). The City intends to construct a portion of a freeway overpass on
the Property in the future.
B. Licensee desires to enter onto the Property owned by the City in order to
undertake certain site investigation work in anticipation of licensing the Property from the City
as an interim use until the freeway overpass project is funded.
C, The City wishes to accommodate Licensee's desire to conduct testing on the
Property on a non-exclusive basis by granting a right of entry and license to Licensee upon
certain terms and conditions.
NOW, THEREFORE, for good and valuable consideration, Licensee and City 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 date set forth above (the "Effective Date"), the City
hereby grants to Licensee and its employees, agents and contractors the nonexclusive,
nonassignable, personal right and license to enter upon the Property to (a) undertake site
investigatory work, including but not limited to geotechnical testing, and for no other purposes
without the prior written approval of the Executive Director of the Public Works Agency (the
Executive Director"). No improvements shall be constructed or installed on the Property. This
Agreement shall automatically terminate and expire thirty (30) days after the Effective Date. The
term may be extended in thirty (30) day increments by the Executive Director. 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.
2. AgreementlTerms. By execution of this Agreement, Licensee agrees for itself
and on the behalf of its employees, agents, consultants and contractors as follows:
(a) No Waste. That Licensee will not permit any dangerous condition or
waste to be created on the Property.
(b) Compliance with Law. 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. Licensee agrees and acknowledges that nothing herein is intended, nor shall it be
interpreted, as to bind the City to issue or grant and permits or entitlements needed to perform
the work specified in paragraph 1 of this Agreement.
(c) Licensee at Risk.
cost, risk and expense.
Licensee shall enter the Property entirely at its own
(d) Insurance Coverage. Prior to undertaking performance of work under
this Agreement, Licensee shall maintain commercial general liability insurance naming the City
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$I,OOO,OOO.OO per occurrence. Licensee
shall supply City with a fully executed additional insured endorsement in substantially the form
attached hereto as Exhibit B upon execution of this Agreement and shall be approved in form by
the City Attorney.
(e) Insurance Terms. The following requirements apply to the insurance
to be provided by Licensee:
1. Licensee shall maintain all insurance required above in full force and effect
for the entire period covered by this Agreement.
11. Certificates of insurance shall be furnished to the City upon execution ofthis
Agreement and shall be approved in form by the City Attorney.
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 City.
(f) Lack of Insurance/Remedies. If Licensee fails or refuses to produce or
maintain the insurance required by this section or fails or refuses to furnish the City with
required proof that insurance has been procured and is in force and paid for, the City shall have
the right, at its election, to forthwith terminate this Agreement.
(g) No Liens. 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 indemnity, defend and hold harmless City from
all liability for any and all liens, claims and demands, together with costs of defense and
reasonable attorneys' fees, arising from any Liens. City 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 City against liability. In addition to, and not as a limitation of
City's other rights and remedies under this Agreement, should Licensee fail, within ten (10) days
of written request from City, either to discharge any Lien or to bond for any Lien, or to defend,
indemnify, and hold harmless City from and against any loss, damage, injury, liability or claim
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arising out of a Lien, then City, 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 City, as applicable, by Licensee upon written demand.
(h) No Reimbursement. 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.
(i) No Hazardous Materials. 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 the surveying and geotechnical soil testing, Licensee
shall be solely responsible for removing such imported hazardous materials in conformance with
all governmental requirements. Licensee shall report to the City, as soon as possible after each
incident, any unusual or potentially important incidents with respect to the environmental
condition of the Property.
3. Indemnity. Licensee hereby agrees to defend, indemnifY and hold the City and
its officers, officials, members, employees, agents and representatives, harmless from and against
any and all loss, damage, 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 or
contractors upon the Property pursuant to this Agreement. All use of and entry upon the
Property shall be at the sole cost, risk and expense of Licensee. Licensee recognizes and
understands that should this Agreement be deemed by the County of Orange to create a possessory
interest subject to property 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 City and the City of Santa
Ana and their respective officers, officials, members, employees, agents and representatives,
harmless from and against any and all such claims.
4. License Payment. Licensee shall pay a license fee of $1.00 to the City, receipt of
which by the City is hereby acknowledged.
S. Miscellaneous.
(a) Choice of Law. This Agreement is to be governed by, and construed in
accordance with, the laws of the State of California.
(b) Remedies. Either party 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 anyone 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.
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(c) 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.
(d) Non-Liability of Public Officials. No officer, employee, member, agent
or representative of the City shall be personally liable to Licensee, or any successor in interest, in
the event of any default or breach by the City, 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.
(e) Effective Date. This Agreement shall become effective on the date of
City execution of this Agreement.
(I) Termination of Prior Agreements. Upon its execution, this Agreement
terminates, rescinds, repeals and makes null and void and of no further effect, any prior license
or right of entry between the parties relating to any portion of the Property.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the
date first set forth above.
PLATINUM EQUITY PARTNERS
By: -JlL iJtliJI'--)
THECITYO~
By: Wo--
David N. Ream
City Manager
Name: 1"1f1KUAI-IAI (J,qR7i9
,
Title: !/-sr) 12f1he~ll.u!.
ATTEST:
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BY:
Patricia E. Healy
Clerk of the Council
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EXHIBIT B
ADDITIONAL INSURED ENDORSEMENT
FOR COMMERCIAL GENERAL LIABILITY POLICY
Insurance Company
This endorsement modifies such insurance as 1S afforded by the provisions of Policy
# 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 the 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 named insured, such insurance as is afforded by this policy is primary and is not
additional to or contributing with any other insurance carried by or for the benefit ofthe
additional insureds.
3. This insurance applies separately to each insured against whom claim is made or
suit is brought except with respect to the company's limits of liability. The inclusion of any
person or organization as an insured shall not affect any right which such person or organization
would have as a claimant if not so included.
4. With respect to the additional insureds, this insurance shall not be cancelled, or
materially reduced in coverage or limits except after thirty (30) days written notice has been
given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 9270 I.
(Completion of the following, including countersignature, is required to make this
endorsement effective.)
Effective
Policy #
Issued to
, this endorsement form as a part of
Named Insured
Countersigned by
Authorized Representative
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CERTIFICATE OF INSURANCE
UNIVERSAL UNDERWRITERS INSURANCE COMPANY
7045 College Boulevard, Overlaud Park, KS 66211
hereby certifies that the following policies have been issued on behalf of:
Account #0118042-00
Territory #B66
Name and Address
oflnsured:
PLATINUM EQUITY PARTNERS, INC. DBA
INSURANCE COLLISION CENTERS
3131 S. STANDARD AVE.
SANTA ANA, CA 92705
TYPE OF INSURANCE POLICY NUMBER POLICY PERIOD LIMITS
Commercial General Liability 268114 1I26106 - 211/07 $300,000 CSL
Each Occurrence
Commercial Umbrella (Inclusive, No Aggregate) " " " " $2,000,000
Each Occurrence
LOCATION COVERED:
Alton A venue, east of Standard Avenue, to the I-55, formerly
Alton Yard
This Certificate of Insurance neither affirmatively nor negatively amends, extends or alters the coverage afforded by the policies listed above
which have been issued by this company.
In the event of any material change in, or cancellation of, said policies, the undersigned company will endeavor to give Thirty (30) days
written notice (except for non-payment of premium which is ten (10) days) to the party to whom this certificate is issued, but failure to do
such shall impose no obligation nor liability upon the company.
THE CITY OF SANTA ANA, 20 CIVIC CENTER PLAZA, SANTA ANA, CA 92701; ITS OFFICERS, EMPLOYEES, AGENTS,
VOLUNTEERS AND REPRESENT A TIVES ARE NAMED AS ADDITIONAL INSUREDS WITH REGARD TO LIABILITY AND
DEFENSE OF SUITS ARISING FROM THE OPERATIONS AND USES PERFORMED BY OR ON BEHALF OF THE NAMED
INSURED.
Certificate of Insurance Pre ared for:
ADDITIONAL INSURED
CITY OF SANTA ANA
20 CIVIC CENTER PLAZA
SANTA ANA, CA 92701
This certificate is not valid unless countersigned by an authorized representative of the company.
REASON FOR CERTIFICATE
LANDLORD
Date: January 27, 2006
Countersigned by:
~t~
Authorized Representative
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EXHlBIT Ii
...nDlTlO~A'. INSURED ENDORSEMENT
rOll COMM~)l;ClAL G.J5NERAL LIABILITY POLICY
l"su~eCompany ffllivp."t&81 ttnri.rW'l"'iYAT"~ lr'~ rQ
This endo!$Cment modi1\es such in.uniI1(;e as is .ffordell by the provisions of Policy
11 26fl11.t rellll'lng t'D Ihe followinjl:
L The City o{SantaAna, 20 Civic Ccnto; Plaxa, S&nJaAna, Califomla92701; iu
officers, employees, Ilienu, vQlunteers lIIld ~eentativllll ere named es additional insvredi
("ad<litionll inlnxled:i") withregsrd t'D liabilitY and ddol:lsc of suits arising from the operations
ind = F,,"onned by or on behalf of the ll8IIIeO insU1ed. .
2. With TeSpect to claims Illialllg OUI oftlw operation. and IJaC$ performed by Of on
behalf of c:be named Puree!, such insuzance as il a.fl'orded by this pu&y is primary and is not
l!dditlon4l1o or conaibuting with any other inS'~ll.'1U lltItlied by Qr for tbe benefit of the
addition~. insureds.
3. This insurance applies .epanrely to c;ach insured againgt whom claim is madlJ or
suitl. brc'ught e;l(Qllpt with respect to the o;>>rnpany's limits of liability, The melll.ion of any
person or otprli..".;ou IS an insured rhAlloot af5:a !mY right which mch p~n or oriamuricn
woll!d /uve lIS a claimant it' not SO illcluded-
4. Witb reapect to rhe a4ditiOJ:lAllDsuIeds. this insuranee shall not be oanodled,. or
materially reduced in covorage or linurs oltCcpt after thirty (30) <l&YI written nodoc has been
given to the City of Santa AJIa, 20 Civic Center PIU&, Santa Ana.. California 9270 I.
(:::ompletion of the followilJi, includin,s countenlgnarore. is required to make this
mdorserncnt effective.)
Effectiv:
Policy 11
IsslIed l-)
01/26/06
268114
Ins~rance Collision Center
Named Insured
COUlltc~gnedbyS-\& ~~~
Authoriz R.oprcsentativI;
, this endorsement ioon as 8 part of
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