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HomeMy WebLinkAboutAMERICAN TITLE INSURANCE COMPANY-2017N-2017-247 O: CMO (/) LICENSE AGREEMENT Daniel Soto This LICENSE AGREEMENT ("Agreement") is dated for reference purposes as of ocipbe r 2-5 , 2017, and entered into by and between FIRST AMERICAN TITLE INSURANCE COMPANY, a Nebraska corporation ("First American"), and the CITY OF SANTA ANA, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("Licensee"). RECITALS: A. First American Financial Corporation ("FAFC"), First American's parent company, is the owner of that certain real property located at 114 E. 5th Street, Santa Ana, California ("Property"). The Property consists of an entire city block bordered by 5t' Street to the North, 4h Street to the South, Main Street to the West and Bush Street to the East. B. First American is currently under contract to sell the Property to a third party buyer ("Buyer"). C. Licensee desires to use a portion of the Property at the corner of 4th Street and Main Street as identified on attached Exhibit A ("License Area") to install and display a statute ("Permitted Use") known as "El Abrazo Monumental" and pictured on attached Exhibit B ("Statue") as part of the "Wings of the City" public outdoor exhibit to be held throughout the City of Santa Ana. D. First American is willing to grant to Licensee a license to use the License Area for the Permitted Use, on the terms and conditions set forth herein. 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. Grant of License. First American hereby grants to Licensee a license to use the License Area for the Permitted Use during the License Term (defined in Section 2 below), on the terms and conditions set forth in this Agreement ("License"). This Agreement creates as a temporary license to use the License Area during the License Tenn, and does not constitute a lease, an easement or any other interest in the Property or any portion thereof, and nothing herein shall be construed to give Licensee any greater or other right or interest. 2. Tenn, Termination. The tern of this Agreement shall commence on October 25, 2017, and shall end on October 31, 2018 ("License Term"). Notwithstanding the License Tenn, First American shall have the right to terminate this Agreement at any time and for any reason upon not less than thirty (30) days advance written notice to Licensee; provided, however, that if Buyer intends to close escrow on the acquisition of the Property prior to October 31, 2018, then only fifteen (15) days advance written notice to Licensee shall be required to terminate this Agreement. In addition, if License does not comply with its obligations hereunder, First American shall have the right to terminate this Agreement in accordance with the terms of 1 Section 10 below. No termination shall release either party from any default or terminate any obligation of either party which by its nature survives the termination. 3. License Fee. No fee shall be payable in connection with the License. 4. Use of License Area. 4.1 Purpose of License. The sole and exclusive purpose of the License is for use of the License Area for the Permitted Use. 4.2 Licensee Parties. Licensee, together with its agents, employees, and representatives entering the Property in connection with the License or otherwise on behalf of Licensee or at the direction of Licensee are collectively referred to herein as the "Licensee Parties" and each is a "Licensee Party". Licensee shall be responsible for the Licensee Parties and shall cause the Licensee Parties to comply with the terms of this Agreement, including without limitation, the following: (a) conduct the Permitted Use in a diligent and safe manner and not allow any dangerous or hazardous conditions to occur on the Property or permit any damage of the improvements and property within the Property by any Licensee Party; and (b) not enter any portion of the Property other than the License Area without the express written consent of First American, which consent may be given or withheld in First American's sole and absolute discretion. Licensee shall be solely responsible at all times for monitoring the conduct and ensuring the safety of the Licensee Parties. 4.3 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, regulations, permits and any other requirements applicable to the use of the License Area. 4.4 Statue. Licensee shall be solely responsible for the maintenance and care of the Statue, including but not limited to the installation, removal, maintenance and cleaning of the Statue. 4.5 No Security. Licensee acknowledges that First American has no obligation to provide security, security guards, or other surveillance of the License Area for the benefit of Licensee or any other party, and that any security that may be provided by First American is for First American's benefit only. 4.6 Clean Up. Licensee shall at all times keep the License Area in a neat and clean condition, free of trash and debris, to the reasonable satisfaction of First American. Upon the expiration of the License Tenn or earlier termination of the License, Licensee shall remove the Statue from the License Area, repair any damage to the License Area caused thereby and restore the License Area to the condition it was in prior to the start of the License Tenn. 4.7 Damage. In the event that Licensee or any Licensee Party damages any portion of the License Area or Property or the improvements, equipment or property therein, Licensee shall repair the damage as soon as reasonably possible after the occurrence of the damage. Licensee shall not be responsible for any damage to the Property existing as of the date 2 of this Agreement. First American shall provide notice to Licensee of the occurrence of any such damage of which First American becomes aware, but such notice shall not be a condition precedent to Licensee's obligation to repair. 5. Exhibit Marketing. In connection with any marketing, publication, announcement, advertisement or other statement, written or otherwise, relating to the Exhibit, neither Licensee nor any of its employees, agents, representatives, contractors, vendors or any other person or entity involved with the Exhibit shall use the First American or FAFC name or logo, or the name or logo of any of FAFC's affiliated companies, without the express written consent of First American, which consent shall be given or withheld in First American's sole and absolute discretion. 6. AS -IS Condition. First American 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 First American, or by operation of law. First American 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, First American shall have no obligation or duty to repair the damage or rectify the condition to make the License Area usable or safe and Licensee's sole remedy shall be to terminate this Agreement. 7. Waiver and Release. Licensee, on behalf of itself and each and every Licensee Parry, hereby fully and unconditionally releases, relinquishes, waives, and discharges First American, FAFC, and their respective affiliates, subsidiaries, officers, directors, employees, representatives, agents, attorneys and consultants and each of them (collectively, the "Covered Parties"), from and against any and all claims, causes of action, losses, costs, damages, expenses, penalties, assessments, injuries, liabilities and judgments (including, without limitation, attorney's fees and expert witness fees), whether known or unknown or existing or contingent or foreseeable or unforeseeable, arising out of or in connection with the License Area, the Property or the Statute, each of their condition or use under this Agreement, including without limitation any accident or death or injury to any person or damage or loss to any property, including any damage to the Statue, from any cause, except for the negligence or willful misconduct of First American. In connection therewith, all responsibility for damage or loss to any property, including the Statue, is assurned by Licensee and First American shall not be responsible for any such damage or loss by whatever cause, including theft or vandalism. Licensee, on behalf of itself and all persons claiming any interest in the claims released herein, expressly waives any and all rights under Section 1542 of the Civil Code of the State of California, and any other federal or state statutory rights or rules, or principles of common law or equity, or those of any 7 jurisdiction, government, or political subdivision thereof, similar to Section 1542. Licensee specifically aelmowledges that it is familiar with the provisions of California Civil Code Section 1542 which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." Licensee Initials: 8. Indemnitv. Licensee shall indemnify, defend, and hold harmless the 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 placement of the Statue on the License Area, including the installation and removal thereof, the entry by any Licensee Party on the License Area or any portion of the Property 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 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, shall defend the same at Licensee's expense with legal counsel reasonably acceptable to Covered. Payment shall not be a condition precedent to recovery under any indemnification in this Agreement, and a finding of liability or an obligation to indemnity shall not be a condition precedent to the duty to defend. The provisions of this Section 8 shall survive the termination or expiration of this Agreement. 9. Insurance. 9.1 Licensee, at Licensee's sole cost and expense, shall maintain in full force during the entire term of this Agreement, a commercial general liability insurance policy covering bodily injury, property damage, contractual liability, and personal injury, written on a per occurrence basis, in an amount not less than Three Million Dollars ($3,000,000). Such insurance (i) shall be primary insurance and any insurance maintained by First American shall be excess and non-contributing, (ii) shall name as additional insureds First American Title Insurance Company and First American Financial Corporation, and, upon request, any other affiliated entity, (iii) shall contain no special limitations on the scope of protection afforded to Licensee or any additional insured hereunder, and (iv) shall waive all rights of subrogation and contribution against First American or any of its affiliates, and their insurers. In no event shall the foregoing coverage limits affect or limit in any manner Licensee's contractual liabilities or obligations, including liability for indemnification. No later than seven (7) days after the date of this Agreement, and thereafter upon renewal or replacement of each required policy, Licensee shall provide to First American for review and approval written evidence of the insurance coverages required under this Agreement, which may include without limitation insurance certificates or binders. Licensee hereby releases and relieves First American, and waives any right to recover 4 any dainages against First American, on account of any loss or damage occasioned to Licensee and arising from any liability, loss, damage or injury to the extent covered by insurance carried or required to be carried pursuant to this Agreement, or any other insurance maintained by Licensee. The effect of such release and waiver is not limited by any deductibles applicable hereto. 9.2 Notwithstanding Section 9. 1, Licensee may self -insure, in whole or in part, the insurance requirements described in Section 9.1 above provided that Licensee continues to be investment grade as determined by reputable and accepted financial rating agencies. Licensee will, to the fullest extent allowable under the applicable laws, indemnify, protect, defend (with counsel reasonably acceptable to First American) and hold harmless First American from and against any and all claims that would have been covered by the insurance replaced by the self- insurance. Such self-insurance will not affect any waivers, releases or limitations of liability of First American set forth in this Agreement. If Licensee elects to self -insure, Licensee will deliver written notice to First American (a) detailing the coverages being self-insured; (b) setting forth the amount, limits, and scope of the self-insurance for each such coverage (which will not be less than those required herein); (c) demonstrating Licensee's investment grade; and (d) describing Licensee's self-insurance program (including, without limitations, its funding, claim defense policies, coverage provisions, and any other relevant information reasonably requested by First American). Upon First American's request, Licensee will provide a certificate reasonably satisfactory to First American setting forth the self-insured coverages and naming (as applicable) such party as an additional insured and/or loss payee, as its interests may appear. 10. Licensee Default. The occurrence of any one or more of the following events, upon the expiration of any applicable time period, shall constitute a default hereunder by Licensee ("Default"): (a) Licensee fails to observe, keep or perform any of the terms, covenants, agreements or conditions under this Agreement that is not capable of being cured; (b) Licensee fails to observe, keep or perform any of the terms, covenants, agreements or conditions under this Agreement, and such failure gives rise to an issue related to the safety of the Statue, the Property or any improvements thereon, or any person in, or in the vicinity of, the License Area, for a period of five (5) days after notice to Licensee; or (c) Licensee fails to observe, keep or perforin any of the terns, covenants, agreements or conditions under this Agreement, other than those described in subparagraphs (a) or (b) above, for a period of fifteen (15) days after notice to Licensee, provided however, that if the nature of Licensee's default is such that more than fifteen (15) days are reasonably required for its cure, then Tenant shall not be deemed to be in default under the Lease if Tenant shall commence the cure of such default so specified within said fifteen (15) day period and diligently prosecutes the same to completion, which completion shall occur not later than sixty (60) days from the date of such notice from First American, unless the City is diligently working to cure said default and an extension of time is reasonably necessary to complete any such work. Notwithstanding the foregoing, if two (2) or more of the same Defaults occur in any 6 -month period, no notice shall be required for the third or any subsequent of the same Default. First American shall have the right to suspend or terminate the License upon any Default of Licensee trader this Agreement. No termination shall release either party from any default or terminate any obligation of either party which by its nature survives the termination. In addition to its other remedies available under this Agreement, at law or in equity, if City does not timely cure any default after notification from First American as required herein, First American may refuse to permit anyone who violates this Agreement to enter the License Area 5 and First American may, at First American's election, cure any Default, in which case Licensee shall reimburse First American for First American's costs in curing such Default within thirty (30) days of receipt of written demand from First American. 11. Miscellaneous. 11.1 Notices. Except as otherwise expressly set forth in this Agreement, any notice, communication, report or demand required or desired to be given under this Agreement shall be in writing and shall be deemed to have been received for all purposes if it is delivered (i) personally, (ii) by reputable overnight delivery service such as Federal Express prepaid by the sender, or (iii) by registered or certified mail, return receipt requested, postage prepaid, to the parties at the addresses shown below or at such other address as the respective parties may from time to time designate by like notice. Each such notice shall be effective upon being so delivered. Such addresses shall be the following: If to Owner: First American Title Insurance Company 1 First American Way Santa Ana, CA 92707 Attention: Ed Hoffinan Telephone: (714) 250-3679 If to Licensee: City of Santa Ana City Manager's Office 20 Civic Center Plaza Santa Ana, California 92702 Attention: Jorge Garcia Telephone: (714) 647-5200 or to such other addresses as the parties may designate from time to time by written notice to the other. 11.2 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. A waiver of the breach of the covenants, conditions or obligations under this Agreement by either party shall not be construed as a waiver of any succeeding breach of the same or other covenants, conditions or obligations of this Agreement. Any amendment or modification to this Agreement must be in writing and executed by the appropriate authorities of First American and Licensee. 11.3 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. 6 11.4 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 First American, which consent may be withheld in First American's sole and absolute discretion. 11.5 Successors and Assigns. Without limiting the provisions of Section 10.3 above, this Agreement and the terms, rights, conditions, restrictions and limitations contained herein shall inure to the benefit of and bind First American and Licensee, and their respective successors and assigns. 11.6 Applicable Law. This Agreement shall be construed and enforced in accordance with the internal laws of the State of California and its provisions shall be construed in accordance with their fair meaning and shall not be strictly construed against either party. 11.7 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. 11.7 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 fonnally bound to the provisions of this Agreement. 11.8 Counterparts; Signatures. 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. The parties agree that signatures may be delivered by facsimile transmission or by e-mail delivery in ".pdf' format or other electronic means and such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature were an original thereof. [Signatures on next page] IN WITNESS WHEREOF, First American and Licensee have entered into this Agreement as of the day and year first written above. ATTEST: �4 Maria Huizar, City Clerk APPROVED AS TO FORM: SO Cit By Its: FIRST AMERICAN: FIRST AMERICAN TITLE URANCE COMPANY, a No rd ka rp r ion B„ 0 - I k4e, EIVe J. Luckham Its: ice �resl�ent' D, r____ r 1. ORGIO Corporate Real Estate CITY OF SANTA ANA, a California municipal corporation By: _fIr"�_1 Its: RAULGODINEZII\i City Manager EXHIBIT A LICENSE AREA The License Area is identified by the green star and green square below. � \�� . � �� � � �� & :� � \ � d� . © m