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Home My WebLink AboutNET DEVELOPMENT CO. 1A - 2018iNSURA V- iy0_f ON FILE WORK MA, A-0 PROCEED CLERK Or COUNCIL DATE; tt�r 29 pts CDA (0) LICENSE AGREEMENT N-2018-087 This License Agreement ("License") is entered as of the 1!57 day of Aqgq 2018, by and between the CITY OF SANTA ANA, a California charter city in the County of Orange of the State of California ("City") and NET DEVELOPMENT CO., INC., a California corporation ("Developer"). RECITALS: 1.1 The property contemplated is located at 2129 North Main Street, Santa Ana, CA, APN's 003-113-80 & 003-113-81, and more particularly described in the legal description attached hereto as Exhibit "A" and incorporated by reference herein ("Property"). Developer proposes to develop a hotel on the Property ("Project"). 1.2 Pursuant to a Sale Agreement and Escrow Instructions, City Agreement No. A- 2017-118, City will be selling the Property to Developer for the Project. 1.3 The Developer wishes to install temporary fencing along the west and south property lines in order to prohibit traffic on the Property ("Work"). AGREEMENT 2.1 In consideration of the mutual promises and covenants contained herein, the City does hereby grant to Developer, its employees, contractors, agents, representatives and assigns ("Licensees"), the right to enter upon the Property for the purpose of completing the Work. 2.2 The Licensee, in return for City granting permission to enter the Property, agrees: 2.2.1 To retain a qualified contractor ("Contractor") to perform the Work and to determine, in Developer's sole and absolute discretion and without any liability resulting to the City, and their officials, officers, employees, agents and attorneys from such determination, whether or not further Work must be done. 2.2.2 To require the Contractor to not unreasonably interfere with any operation, or other work or activities conducted on-site by the City. 2.2.3 To require the Contractor to perform the Work in a safe and workmanlike manner, and in accordance with all applicable laws, ordinances, permits and regulations. 2.2.4 Licensees shall have the right, at their sole cost, expense and liability, to commence the Work at the Property. Any Work shall be undertaken only after securing any necessary permits, at Licensees' sole cost and expense, from the appropriate governmental agencies. Licensees shall use care and consideration in connection with any of the Work and City shall have the right to be present during any Work performed at the Property. 2.2.5 Developer shall protect, indemnify, defend (with counsel reasonably acceptable to City) and hold the Property, City and their officials, officers, employees, agents and attorneys free and harmless from and against any and all claims, damages, liens, stop notices, liabilities, losses, costs and expenses, including reasonable attorneys' fees and court costs and expenses (all of the foregoing, collectively "Liabilities"), resulting from the Work authorized by this License, including, without limitation, repairing any and all damages to any portion of the Property, arising out of or related (directly or indirectly) to Licensees' conducting inspections, surveys, tests, and studies, except as to those Liabilities attributable to the negligence or willful misconduct of the City and their officials, officers, employees, agents, contractors and attorneys or the mere discovery of pre-existing conditions. Developer's indemnification obligations set forth herein shall survive the close of escrow for the Property, shall not be merged with any grant deed in connection therewith and shall survive the termination of this License. The indemnity provided in this paragraph shall not extend to any injury, death or property damage to the extent caused by or arising from any condition existing on the Property prior to the commencement of the Work, including, but not limited to, any preexisting environmental condition on or about the Property. 2.2.6 Prior to any entry upon the Property by any Licensee, Developer shall deliver to City an original endorsement to Developer's commercialgeneral liability insurance policy evidencing that Developer is carrying a commercial general liability insurance policy with a financially responsible insurance company acceptable to City, covering: (1) the activities of Licensees on or upon the Property and (2) Developer's indemnity obligation contained in section 2.2.5, above. Such endorsement to such insurance policy shall evidence that such insurance policy shall have a per occurrence limit of at least One Million Dollars ($1,000,000) and an aggregate limit of at least One Million Dollars ($1,000,000), shall name City and their officials, officers, employees, and agents as additional insureds, shall be primary and non-contributing with any other insurance available to City and shall contain a full waiver of subrogation clause. 2.2.7 To give the City two (2) business days' notice prior to entry upon the Property as provided in section 3.5 hereof. 2.2.8 To require the Contractor to remove and dispose of any waste materials generated in the course of performing the Worlc. Such removal and disposal shall be done in accordance with applicable federal, state, and local law. 2.3 The term of this License shall extend from the full execution of this License until the earlier of the following to occur: (1) the close of escrow pursuant to the Sale Agreement and Escrow Instructions; (2) the termination as set forth in Section 3.2 hereof. MISCELANEOUS 3.1 The Licensee agrees that permission to enter is not a waiver of the right to receive compensation for the acquisition of the Property or any remedy authorized by law to secure payment therefore. Nothing in this License shall be interpreted as, or otherwise be deemed to be, a transfer or conveyance of any interest in real property whatsoever between City and the Licensees (or any of them), except as otherwise specifically provided in writing. The parties acknowledge -2- and agree that nothing in this License shall be interpreted as an agreement for the lease or other use of the Property by the Licensees (or any of them). Any agreement for the use of the Property for any purpose(s) other than those set forth in this License or for the conveyance of an interest in real property must be the subject of a separate written agreement between the parties. 3.2 This License may be terminated by either party, with or without cause, by providing two (2) days' written notice to the other party at the address set forth in section 3.5 hereof. 3.3 In the event of the bringing of any action or suit by a party against another party under this License to enforce this License, the prevailing party shall, in addition to any other relief to which that party may be entitled, be entitled to have and recover from the other attorney's fees and costs, as determined by a court of competent jurisdiction. 3.4 Neither party shall be liable for any delay in the performance of any of their respective obligations hereunder, or for any damages suffered by City or the indemnitees listed herein by reason of such delay, if such delay is, directly or indirectly, caused by, or in any manner arises from, fires, floods, accidents, civil unrest, acts of God, war, governmental interference or embargoes, strikes, labor difficulties, shortage of labor, fael, power, materials, or supplies, transportation delays, or any other cause or causes whether or not similar in nature to any of these hereinbefore specified beyond the City's control. Any such delay shall automatically extend the term of this License one whole day for each day or portion thereof during which such delay shall exist. 3.5 All notices or other communication provided for under this License shall be in writing, and shall be delivered personally, sent by reputable overnight mail equivalent carrier, or sent by registered or certified mail, return receipt requested, postage prepaid, addressed to the person to receive such notice or communication at the following address and shall be effective upon the earlier of actual receipt (including by facsimile) or refusal to accept delivery: If to the City: The City of Santa Ana Executive Director Community Development Agency 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, CA 92702 With a copy to: City Attorney 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, CA 92702 -3- If to the Developer: Net Development Company, Inc. Attention: Kevin Coleman 3130 Airway Avenue Costa Mesa, CA 92626 Telephone (714) 754-4454 Facsimile (714) 754-0198 With a copy to: Kim D. Thompson, Esq. Rutan & Tucker, LLP 611 Anton Blvd., Suite 1400 Costa Mesa, CA 92626 Telephone (714) 641-3449 Facsimile (714) 546-9035 lcthompson@rutan.com Notice of change of address shall be given by written notice in the manner set forth in this subsection. 3.6 This License shall be binding upon and shall inure to the benefit of the parties and their respective heirs, executors, administrators, successors and assigns. 3.7 The parties agree to execute all instruments and documents and to take all actions as may be required in order to consummate the transactions contemplated by this License. 3.8 This License contains the entire agreement between the parties concerning the subject matter of this License and supersedes any prior agreements, understandings or negotiations (whether oral or written). No addition or modification of any term or provision hereof shall be effective unless set forth in writing and signed by the parties. 3.9 This License may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. 3.10 Developer and City agree that no party is intended to be or shall be construed as a partner, joint venturer, alter ego, manager, controlling person or other business associate or participant of any kind of any other party and no party intends ever to assinne such status. 3.11 Except as specifically set forth herein, this License shall not be deemed to confer any rights upon any individual or entity that is not a party hereto, and the Parties hereto expressly disclaim any such third -party benefit. 0 N-2018-087 IN WITNESS WHEREOF, the Parties have executed this License Agreement on the dates indicated next to each of the signatures of their authorized representatives, as appear below. ATTEST: e� fid. a MARIA D. HUIZAR et Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City By: Rya Assi RECOMMENDED FOR APPROVAL: STEVEN A: MENDOZA Executive Director Community Development Agency -5- CITY OF SANTA ANA RAIL GODINZ II City Manager By: Vice -President Dated: