HomeMy WebLinkAboutLATINO HEALTH ACCESS & COMMUNITY REDEVELOPMENT 3AGREEMENT TERMINATION
Please complete this form when the attached agreement is no longer in effect.
Return form to the Sr. Deputy Clerk of the Council (M-30). Call 647-5238 if you have any
questions.
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Date: moorj
City of Santa Aria
Revised 8-7-03 Clerk of the Council
N-2004-1.58
RIGHT OF ENTRY AND LICENSE AGREEMENT
THIS RIGHT OF ENTRY AND LICENSE AGREEMENT ("Agreement") is made
and entered into as of 1_!:_ day of va4" 6e', 2004 by and between the CITY OF SANTA
ANA, a charter city duly organized under the Constitution and laws of the State of California
(the "City"), the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF
SANTA ANA, a redevelopment agency pursuant to Health & Safety Code § 33000 et seq, and a
public body corporate and politic (the "=Agency"), and LATINO HEALTH ACCESS, INC., a
California non-profit public benefit corporation ("Latino Health Access"), with respect to the
following:
RECITALS
A. The City is the owner of that certain real property located on Third Street in the
City of Santa Ana, California, described as 601 East Third Street (APN 398-481-21).
B. The Agency is the owner of that certain real property described as 526 East
Fourth Street (APN 398-481-04), and 523 East Third Street (APN 398-481-29). All three (3)
parcels collectively are hereinafter referred to as "the Property."
C. F The City and Agency are desirous of undertaking an interim development project
on the PropSrty with Latino Health Access, while other, more long-term development projects
for the Property are being considered.
D.Latino Health Access is a non-profit health care provider and facilitator. Among
its goals is to help build healthy families and neighborhoods.
E. Latino Health Access desires to enter onto the Property owned by the City and
Agency in order to undertake certain improvements to operate private youth recreation activities
on the Property until the City and Agency need the property for said future development.
F. , The City and Agency wish to accommodate Latino Health Access's desire to
improve and utilize the Property on a non-exclusive basis by granting a right of entry and license
to Latina Health Access upon certain terms and conditions.
NOW, THEREFORE, for good and valuable consideration, the City, the Agency and
Latino Health Access do hereby agree as follows:
1. Right of Entry and License.
a. Provided that all of the terms and conditions of this Agreement are fully satisfied,
the City and Agency, respectively, hereby grant to Latino Health Access and its employees,
agents and contractors license to enter upon the Property to (a) construct and maintain certain
improvements, as described in more detail hereto in Exhibit A consisting of four (4) pages, and
Exhibit C, both of which are incorporated herein by this reference, and (b) to operate a private
youth recreation on the Property, and for no other purposes without the prior written approval of
the Executive Director of the Community Development Agency. Upon termination of this
Agreement, all improvements constructed by Latino Health Access on the Property shall be the
property of the City and Agency, respectively as to each party's own property.
b. LATINO HEALTH ACCESS EXPRESSLY AGREES AND
ACKNOWLEDGES THAT THIS LICENSE IS (i) PERSONAL, (ii)
NONEXCLUSIVE, AND (iii) NONASSIGNABLE, AND 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.
Latino Health Access Initials
2. Term. This License granted pursuant to this Agreement shall commence on the
later of (i) the date the City and Agency approve the insurance required pursuant to section 3(d)
of this Agreement, below, or (ii) the date the improvements to the Property required by Exhibit
A-1 are in place. Provided that the terms and conditions of this Agreement are fully
implemented, the Agreement shall terminate upon the following:
(a) In the event that Latino Health Access effects only those improvements set
forth in Exhibit A-1 hereto, then this Agreement shall terminate and expire thirty (30) days after
written notice of expiration is provided by City and Agency, or in one (1) year from the date of
this Agreement, whichever occurs first.
(b) In the event that Latino Health Access effects those improvements set
forth in Exhibit A-2 hereto, then this Agreement shall terminate and expire two (2) years from
the date of this Agreement.
(c) In the event that Latino Health Access effects those improvements set
forth in Exhibit A-3 hereto in addition to those set forth in Exhibit A-2 hereto, then this
Agreement shall terminate and expire three (3) years from the date of this Agreement.
(d) In the event that Latino Health Access submits to the City and Agency
plans for the improvements set forth in Exhibit A-4 to this Agreement, in addition to effecting
the improvements set forth in Exhibits A-2 and Exhibit A-3 hereto then the City and Agency, by
and through the City Manager and Executive Director, respectively shall determine, in the
exercise of their sole and absolute discretion, whether to recommended that the City Council and
Agency Board of Directors enter into a long term lease or sale of the Property to Latino Health
Access. If the City Manager and Executive Director recommend such lease or sale, then the term
of this Agreement shall be extended until action on a proposed lease or sale is taken by the City
Council and Agency's Board of Directors.
3. Agreement. By execution of this Agreement, Latino Health Access agrees for
itself and on the behalf of its employees, agents, consultants and contractors as follows:
(a) That Latino Health Access will not permit any dangerous condition or
waste to be created on the Property.
(b) All acts and things done by Latino Health Access on the Property will be
done in a careful and reasonable manner, in accordance with all federal, state and local laws.
(c) Latino Health Access shall enter the Property entirely at its own cost, risk
and expense.
(d) Prior to undertaking performance of work under this Agreement, Latino
Health Access shall maintain and shall require its contractors, if any, to obtain and maintain
insurance as described below:
(i) Commercial General Liability Insurance. Latino Health Access
shall maintain commercial general liability insurance naming the City and Agency and their
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 Latino Health Access's operations in the performance of this Agreement. 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. Latino Health Access shall supply City and Agency
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
and Agency General Counsel.
(ii) The following requirements apply to the insurance to be provided
by Latino Health Access pursuant to this section:
Latino Health Access 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 and Agency
upon execution of this Agreement and shall be approved in form by
the City Attorney and Agency General Counsel.
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 and
Agency.
(iii) If Latino Health Access fails or refuses to produce or maintain the
insurance required by this section or fails or refuses to furnish the City and Agency with required
proof that insurance has been procured and is in force and paid for, the City and Agency shall
have the right, at its election, to forthwith terminate this Agreement.
(e) That Latino Health Access shall not place any playground equipment on
the Property without the prior written approval of the Executive Director of the Community
Development Agency, which shall be granted only after Latino Health Access provides the City
and Agency with proof of additional insurance coverage in an amount to be set by the City
Attorney and Agency General Counsel.
(f) Latino Health Access 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. Latino Health Access shall indemnify, defend and hold
harmless City and Agency 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 and Agency
reserve the right, at their 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 or Agency
against liability. In addition to, and not as a limitation of City's or Agency's other rights and
remedies under this Agreement, should Latino Health Access fail, within ten (10) days of written
request from City or Agency, either to discharge any Lien or to bond for any Lien, or to defend,
indemnify, and hold harmless City or Agency from and against any loss, damage, injury, liability
or claim arising out of a Lien, then City or Agency, 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 or Agency, as applicable, by Latino
Health Access upon written demand.
(g) Latino Health Access 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) Latino Health Access 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, Latino Health Access shall be
solely responsible for removing such imported hazardous materials in conformance with all
governmental requirements. Latino Health Access shall report to the City and Agency, as soon
as possible after each incident, any unusual or potentially important incidents with respect to the
environmental condition of the Property.
(i) No discretionary permits or any other entitlements are being considered or
granted as part of this Agreement. This Agreement shall not obligate either the City, the Agency
or Latino Health Access to enter into a lease or purchase and sale agreement. By execution of
this Agreement, neither the City nor the Agency is committing or agreeing to undertake
acquisition or disposition of any property. Execution of this Agreement by the City and Agency
reserves for subsequent City Council and Agency Board or Directors action all future
proceedings and decisions in connection therewith. Any further agreement resulting from
negotiations pursuant to this Agreement shall become effective only if and after such agreement
has been negotiated, considered and approved by the City Council and/or Agency Board of
Directors, subject to the exercise of their sound discretion and following compliance with all
legally required procedures, including but not limited to the Agency's compliance with Health &
Safety Code § 33433.
6) The parties hereto expressly agree and acknowledge that this Agreement is
not intended to create any agreement or obligation by any party to negotiate a definitive lease or
purchase and sale agreement regarding the Property, and imposes no duty whatsoever on any
party to commence or continue negotiations, including without limitation, any duty to negotiate
in good faith. Prior to agreement on any lease or purchase and sale agreement, any party may
(i) negotiate with other parties, and/or (ii) unilaterally terminate any and all negotiations with
another party hereto.
4. Indemnity. Latino Health Access hereby agrees to defend, indemnify and hold
the City and the Agency, and their respective 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 Latino Health Access 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
Latino Health Access. Latino Health Access recognizes and understands that should this
Agreement be deemed by the County of Orange to create a possessory interest subject to property
taxation, that Latino Health Access shall be subject to the payment of property taxes levied on such
interest, and that it shall defend, indemnify and hold the City, the Agency, and their respective
officers, officials, members, employees, agents and representatives, harmless from and against
any and all such claims.
5. 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. All parties 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 parry 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 or Agency shall be personally liable to Latino Health Access, or any
successor in interest, in the event of any default or breach by the City or Agency, or for any
amount which may become due to Latino Health Access or its successor, or for any breach of
any obligation of the terms of this Agreement.
(e) Notices. Formal notices, demands and communications between the parties
shall be sufficiently given if dispatched by registered or certified mail, postage prepaid, return
receipt requested, to the principal offices of the Agency and the Developer as designated below.
Such written notices, demands and communications may be sent in the same manner to such other
addresses as either party may from time to time designate by mail as provided in this section.
City: City of Santa Ana
Planning and Building Agency
20 Civic Center Plaza, M-20
Santa Ana, CA 92702
Attn: Steve Harding, Executive Director
Phone: (714) 667-2700
Fax: (714)973-1461
with Copy to: City Attorney
20 Civic Center Plaza, M-29
Santa Ana, California 92702
Agency: Community Development Agency
City of Santa Ana
20 Civic Center Plaza, M-25
Santa Ana, CA 92702
Attn: Patricia C. Whitaker, Executive Director
Phone: (714) 647-5360
Fax: (714) 647-6549
with Copy to: Agency General Counsel
Community Redevelopment Agency of the
City of Santa Ana
20 Civic Center Plaza, M-29
Santa Ana, California 92702
Latino Health Access: Latino Health Access
1717 North Broadway
Santa Ana, California 92706-2605
Attention: America Bracho, President and CEO
Phone: (714) 542-7792
Fax: (714)542-4853
A party may change its address by giving notice in writing to the other parties. Thereafter, any
notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the
new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be
effective or deemed to have been given three (3) days after it has been deposited in the United States
mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by
facsimile, any notice, tender, demand, delivery, or other communication shall be effective or
deemed to have been given twenty-four (24) hours after the time set forth on the transmission report
issued by the transmitting facsimile machine, addressed as set forth above. For purposes of
calculating these time frames, weekends, federal, state, County or City holidays hall be excluded.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the
date first set forth above.
ATTEST:
Patricia E. Healy
Clerk of the Council
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
City Attorney
APPROVED AS TO FORM:
Joseph W. Fletcher, Agency General Counsel
CITY OF SANTA ANA
David N. Ream
City Manager
COMITY REDEVELOPMENT AGENCY
OF THE ICITY OF SANTA ANA:
F(Wicia C. Whitake
Executive Director
(signatures continued on next page)
(signatures continued from prior page)
LATINO HEALTH ACCESS
By:
America Bracho
President and CEO
EXHIBIT A-1
Improvements
1. Maintain a fence around the entirety of the Property as follows:
a. Either (i) accept assignment of City's lease, or (ii) replace chain link fence in
area specified as "S&S Fence Company" on Exhibit C hereto.
b. Along east and west property line either enter into agreement with property
owners to maintain existing wrought iron/chain link fence or replace with new
fence.
C. Fence must be established around Property, unless Latino Health Access
obtains permission from owner of 602 East Fourth Street to include this parcel as
part of the project, in which case fence must incorporate this property as well.
2. Remove rocks and debris from Property.
3. Maintain Property in safe and clean condition at all times.
EXHIBIT A-2
Improvements
1. Perimeter wrought Iron, gated and locked Fence a minimum of six feet (61) tall
located on the Property line, including parcel located at 602 East Fourth Street if
Latino Health Access has possession of this parcel.
2. An accessory structure not to exceed 500 square feet in size and fifteen feet (151) in
height, which may be a modular building to the extent permitted by law.
Plans for all Improvements shall be submitted to the Executive Director of the City of
Santa Ana Community Development Agency for review and approval prior to Latino
Health Access's submittal to the City of Santa Ana of an application for issuance of a
necessary permits pursuant to the California Codes (e.g., building permit, plumbing permit
and electrical permit).
10
EXHIBIT A-3
Improvements
1. Irrigation System covering the entire Property, including parcel located at 602 East
Fourth Street if Latino Health Access has possession of this parcel.
2. Sodded Turf covering entire Property, including parcel located at 602 East Fourth
Street if Latino Health Access has possession of this parcel.
Plans for all Improvements shall be submitted to the Executive Director of the City of
Santa Ana Community Development Agency for review and approval prior to Latino
Health Access's submittal to the City of Santa Ana of an application for issuance of a
necessary permits pursuant to the California Codes (e.g., building permit, plumbing permit
and electrical permit).
11
EXHIBIT A-4
Minimum Proposed Design of Improvements
1. A recreation building, with no office, but including restroom(s), which design
complies with all City Codes.
2. Play and exercise area.
3. Financing plan to construct proposed improvements, including the costs of final
design, engineering, permitting and construction of the proposed improvements.
12
EXHIBIT B
ADDITIONAL INSURED ENDORSEMENT
FOR COMMERCIAL GENERAL LIABILITY POLICY
Insurance Company
This endorsement modifies such insurance as is afforded by the provisions of Policy
relating to the following:
1. The City of Santa Ana and the Community Redevelopment Agency of the City of
Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; their 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 of the
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 and the Community Redevelopment Agency of the City of Santa
Ana, 20 Civic Center Plaza, Santa Ana, California 92701.
(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
13
Authorized Representative
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