HomeMy WebLinkAboutIN N OUT;ASURANCE NOT ON FILE
I N I%�� N-2021-052
WORK MAY IVQ PROCEED
CLERK OF COUNCIL
DATE: LICENSE AGREEMENT
Pup U1(P/Ykeso^)For
This LICENSE AGREEMENT ("Agreement") is dated as of Nlvwut Z5 , 2021, and entered
into by and between the City of Santa Ana, a charter city and municipal corporation organized and existing
under the Constitution and laws of the state of California ("City"), and In-N-Out Burgers, a California
corporation ("Licensee").
RECITALS
A. The City is the owner of that certain real property located in the City of Santa Ana, County
of Orange, State of California, more specifically identified as 917 and 921 North Bristol Street, a presently
unused, undeveloped, vacant lot, as shown on Exhibit A (the "License Area").
B. Licensee desires to use the License Area for purposes of parking by its employees,
contractors, vendors, and agents in connection with the adjacent re -opening of its restaurant at 815 North
Bristol Street, Santa Ana California 92703 ("Permitted Uses").
C. The City has agreed to grant Licensee a license to use the License Area, on the terms and
conditions set forth in this Agreement.
The parties therefore agree:
1. License. The City hereby grants to Licensee and its employees, contractors, vendors and
agents a non-exclusive license for the right to enter and use the License Area for the Permitted Uses
described in Recital B, upon the terms and conditions set forth herein ("License"), subject to Licensee's
performance of all of its obligations under this Agreement. The term of the License shall commence on
1/'1a&?, 72021 ("Commencement Date") and expire on;T 1y31 J 2021, and shall thereafter continue on
a month -to -month basis upon consent by the City but that in no circumstances shall extend beyond October
15, 2021. The License maybe terminated at any time, with or without cause, upon thirty (30) days written
notice from either party, but in no event before NJk 2021. Except as provided herein, this
Agreement is intended and shall be construed only as a fevocable license to use the License Area and not
as a lease or grant of any possessory or other interest.
2. Improvements, Operation, and Clean -Up. Licensee shall be permitted to install a gravel
base and two temporary lighting standards in the License Area during the term of the License or prior to
the Commencement Date provided Licensee delivers written notice to the City and the City has, in its
reasonable discretion, approved the location and time of use for the temporary lighting. Temporary lighting
shall not shine at neighboring residential properties. Licensee shall use commercially reasonable efforts to
perform daily clean-up of trash, debris, dirt, rocks, spills, and the like in the License Area. At its sole cost,
Licensee shall, after use of the License Area, restore the License Area to its original condition in which it
existed immediately prior to the Agreement, wear and tear excepted and leave the License Area in a neat
and clean condition to the reasonable satisfaction of the City, free of trash and debris, and remove all
property and materials of Licensee. Notwithstanding anything to the contrary in this Agreement, the gravel
base is allowed to remain on the License Area after expiration of this Agreement. Licensee's use of the
License Area shall be in compliance with National Pollutant Discharge Elimination System (NPDES)
requirements and appropriate Best Management Practices (BMPs) to prevent the discharge of pollutants
from the License Area.
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, and regulations, and permits.
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4. Damage. In the event that Licensee substantially damages any portion of the License Area
or the improvements therein, Licensee shall immediately repair the damage at Licensee's sole cost.
Alternatively, the City may, at its election and after Licensee fails to make such repairs after five (5) days
written notice to Licensee, repair the damage in which case Licensee shall reimburse the City for its cost
within fifteen (15) days of receipt of written demand from City.
5. Licensee Parties. Licensee and its employees, contractors, vendors and agents entering the
License Area by or through or at the direction of Licensee, are collectively referred to herein as the
"Licensee Parties." Licensee shall be responsible for the Licensee Parties and shall cause the Licensee
Parties to comply with the terms of this Agreement.
6. Fee. As consideration for this Agreement, Licensee shall pay the amount of $0.00 per
month for the term ending on;T%431, 2021, and has performed a grind -and -overlay as shown on Exhibit
B, prior to this Agreement and which the City has accepted and approved. For any period beyondzk�1,3112.021
2021, Licensee shall pay the monthly amount of $4,620.00, as pro -rated, due and payable on the first day
of each month.
7. AS -IS Condition. City 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 City, or by operation of law. City 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, City shall have no
obligation or duty to repair the damage or rectify the condition to make the License Area usable or safe.
8. Insurance. Licensee shall secure, prior to commencing any activities under this Agreement,
and maintain or cause to be maintained during the term of this Agreement, insurance coverage as follows:
a. Commercial General Liability Insurance. Licensee shall maintain commercial general
liability insurance which 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 Parties' use of the license area, 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 per occurrence and $2,000,000 in the aggregate. Such insurance shall (a) name
the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be
primary and not contributory with respect to insurance or self-insurance programs maintained by the City;
and (c) contain standard separation of insureds provisions.
b. Worker's Compensation Insurance as required by California law.
C. Comprehensive Automobile Liability Coverage, including as applicable owned, non -
owned, and hired autos, in an amount of not less than $1,000,000 per occurrence, combined single
limit, written in an occurrence form.
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9. Indemnity. Licensee shall indemnify, defend, and hold harmless City, and its respective
agents, representatives, employees, subsidiaries and affiliates ("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, caused by Licensee's use of the License Area, the entry by any
Licensee Patty on the License Area, 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 gross 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 Party, shall defend the same at Licensee's
expense with legal counsel reasonably acceptable to Covered Party. Payment shall not be a condition
precedent to recovery under any indemnification in this Agreement, and a finding of liability or an
obligation to indemnify shall not be a condition precedent to the duty to defend. The provisions of this
Section 9 shall survive the termination or expiration of this Agreement.
10. Miscellaneous.
10.1 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. Any amendment or modification to this Agreement must be in writing and executed by the
appropriate authorities of the City and Licensee.
10.2 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 fall 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.
10.3 No Assi ng menu. Licensee shall not assign or transfer or otherwise convey any
interest in this Agreement to any party without the express prior written consent of City, which consent
may be withheld in City's sole and absolute discretion.
10.4 Applicable Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of California.
10.5 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.
10.6 Authori . 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 formally bound to the provisions
of this Agreement.
10.7 Notices. Any notices, requests, or approvals given under this Agreement from one
party to another shall be in writing and shall be personally delivered, sent by overnight courier or deposited
with the United States Postal Service for mailing, postage prepaid, by certified mail, return receipt
requested, to the addresses of the other party as stated in this section, and shall be deemed to have been
received at the time of personal delivery or overnight courier, or three (3) days after the deposit for mailing
with the United States Postal Services. Notices shall be sent to:
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If to Licensee: In-N-Out Burgers
13502 Hamburger Lane
Baldwin Park, CA 91706
Attention: Real Estate Department and Jennifer Shen
If to City: Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
10.8 Execution in Counterpart. 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.
[SIGNATURE PAGE FOLLOWS]
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N-2021-052
IN WITNESS WHEREOF, City and Licensee have entered into this Agreement as of the day and
year first written above.
CITY OF SANTA ANA:
y J _
Kristrhe Ridge
City Manager
ATTEST \
DAISY GOMEZ
Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
7
John Vrunk
Sr. Assistant City Attorney
FOR APPROVAL:
Nabil Saba
Executive Director
Public Works Agency
LICENSEE:
IN-N-OUT BURGERS,
a Calif,n' orporation
By: Carl Arena
Its: Vice President of Real Estate
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