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HomeMy WebLinkAboutHABITAT FOR HUMANITY OF ORANGE COUNTY 4-2010 APR 2 4 2A6q N-2010-074 _ C_0A (2') V ~ C~K(V RIGHT OF ENTRY AND LICENSE AGREEMENT THIS RIGHT OF ENTRY AND LI ENSE AGREEMENT ("Agreement") is made and entered into as of day of 201 O by and between THE CITY OF SANTA ANA, a charter city and municipal corp gation organized under the Constitution and laws of the State of California (hereinafter referred to as the "City"), and Habitat for Humanity of Orange County, a non-profit corporation (herein referred to as "Licensee"), with respect to the following: RECITALS A. The City is the owner of that certain real property located in the City of Santa Ana, California described as follows: SEE EXHIBIT A, ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF (Commonly known as 1 121 S. Cypress, Santa Ana, California and referred to hereinafter as the "Property") B. Licensee desires to enter onto the Property owned by the City in order to undertake certain site investigation work. D. 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 Effective Date of this Agreement 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 soils testing, survey work and due diligence investigation for future development and for no other purposes without the prior written approval of the Deputy City Manager for Development Services. This Agreement shall automatically terminate and expire ninety (90) days after the date set forth above unless extended in writing by the City's Deputy City Manager for Development Services. 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. Upon termination of this Agreement, any improvements constructed by Licensee on the Property shall be the property of the fee title owner of the Property. 2. Agreement. By execution of this Agreement, Licensee agrees for itself and on the behalf of its employees, agents, consultants and contractors as follows: (a) That Licensee will not permit any dangerous condition or waste to be created on the Property. (b) 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 any permits or entitlements needed to perform the work specified in paragraph 1 of this Agreement. (c) Licensee shall enter the Property entirely at its own cost, risk and expense. (d) Prior to undertaking performance of work under this Agreement, Licensee shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: i. Commercial General Liability Insurance. Licensee shall maintain commercial general liability insurance naming the the City of Santa Ana (City) 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. Licensee shall supply City with a fully executed additional insured endorsement which shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. ii. 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. • Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. • 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. iii. 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. (f) 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 indemnify, 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 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. (g) 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. (h) 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. a. 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 its officers, officials, members, employees, agents and representatives, harmless from and against any and all such claims. b. This indemnity includes, without limitation, any claims arising from abatement of lead-based paint or asbestos on the Property. In undertaking such abatement, Licensee agrees to utilize a certified asbestos contractor, comply with all federal, state and local laws, and be responsible, notwithstanding any other agreement with the City, for any costs caused by negative response of any state or federal agency of its abatement. 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 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. (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. (f) 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. CITY OF SANTA ANA HABITAT FOR HUMANITY By: 0 By: DAVID N. REAM (NAME) City Manager (Title) l~dQj o ATTEST: By: Maria D. Huizar Clerk of the Coucil APPROVED AS TO FORM: ~oI Joseph W. Fletcher City Attorney RECOMMENDED FOR APPROVAL: Cyn is J. Nelso Deputy City Manager for Development Services EXHIBIT A LEGAL DESCRIPTION Real property in the City of Santa Ana, County of Orange, State of California, described as follows: Those portions of Lots 4, 5, 6 of Block B and Cypress Avenue in the City of Santa Ana, County of Orange, State of California, as shown upon a Map of Realty Subdivision of Lot 1, of the McFadden Wilson Tract as per map thereof recorded in Book 3, Page 35 of Miscellaneous Maps in the Office of the Recorder of said Orange County, lying Southwesterly of the Southwesterly line of McFadden Avenue and Easterly, and Northeasterly of the Easterly and Northeasterly line of Cypress Avenue, as they are now shown on a Record of Survey 2006-1 156 recorded in Book 224, Pages 27 through 31 of Record of Surveys in the Office of said County Recorder. , APN: 011-062-40 and 011-062-41 and 011-062-42 Address: 1121 South Cypress I