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HomeMy WebLinkAbout2020 E. FIRST, LLC.INSURANCE NOT REQUIRED WORK MAY PROCEED CLERK OF COUNCIL DATE: N-2022-156 ow (0) LICENSE AGREEMENT [90rA1 Ai cW fie THIS LICENSE AGREEMENT ("Agreement") is made this 6th day of June, 2022, by and between 2020 Pit ItA) E. FIRST, LLC ("Owner") and City of Santa Ana on behalf of the Santa Ana Police Department ("LICENSEE"). In consideration of the mutual promises and covenants contained herein, LICENSEE and Owner agree as follows: 1. Owner is the owner of the real property that has a commercial multi -floor office building with offices and common areas, including parking, located at 2020 East First Street, Santa Ana, CA ("Project"). The Project is currently vacant. Due to break-ins and vandalism at the Project, all access points were covered and boarded up, and utilities (including water service) have been shut off in order to deter unauthorized access and further damage to the Project. There are no restrooms available at the Project or other services available or provided at the Project to LICENSEE under this Agreement. 2. LICENSEE acknowledges that areas of the Project are in need of repair and are not in good condition. The Project is in the process of being redeveloped, and improvements will be removed and demolished under a development plan. LICENSEE acknowledges the foregoing and indicates that the building, in its current condition, is appropriate for LICENSEE to conduct training exercises due to its condition. LICENSEE has requested the Owner allow LICENSEE and its officers (including K-9 officers) access to certain portions of the Project for purposes of training exercises, and LICENSEE understands that everyone that enters the Project will be warned of the condition, and LICENSEE assumes all risk and acknowledges that Owner makes no representation or warranty concerning the condition of the Project and LICENSEE accepts and assumes all risks on behalf of itself and all others that enter the Project under this License. 3. LICENSEE is the party that has control over its employees and agents that it authorizes to enter the Project under this Agreement. LICENSEE is the party to determine all means, methods, legal requirements and safety requirements applicable to its use of the Project and related to all of its employees and agents and will comply with all laws and safety requirements (including all OSHA regulations) in order to protect its employees and agents and will not allow them to access any part of the Project that is in an unsafe condition and will install appropriate barriers to prevent access to any unauthorized or unsafe areas of the Project. Prior to allowing its employees and agents access to the Project, LICENSEE will have a senior member of the training team evaluate the site safety and determine safety areas to be utilized and implement methods, techniques, sequences and procedures to provide adequate job safety during its access to the Project. LICENSEE is fully and solely responsible for the jobsite safety thereof. LICENSEE is Gable to the Owner for acts and omissions of the LICENSEE employees and agents. 4. Based on the foregoing representations and agreements by LICENSEE, Owner grants LICENSEE the right to enter the Project and use a portion of the Project identified as floors 1 through 5 and stairwells ("Area") for the purpose of Licensee conducting training exercises for its employees that are officers (including K-9 officers) ("Approved Use") on June 8, 2022 during the hours of 7:30 a.m. until 4:00 p.m. (PDT) ("Term"). The parties agree that upon the expiration of the Term, LICENSEE shall no longer have any right to use the Project and shall leave the Area and Project in the same condition as received, LICENSEE represents that no modifications will be needed to the Project or the Area in order for LICENSEE to use the Project or the Area for the Approved Use. The Area and Project are accepted in "as -is" condition, with all faults, and without any utility services or other services. LICENSEE does not have the right to assign its rights under this Agreement. 5. LICENSEE shall pay a License Fee of $0.00, upon execution of this Agreement. LICENSEE shall also reimburse Owner, within ten (10) days of request, for any reasonable costs Owner incurs as a result of LICENSEE's use or access to the Project. 6. If Owner becomes aware of any suspected condition or conduct caused by LICENSEE in violation of any law or if LICENSEE fails to follow any request of Owner or Owner's manager, then Owner may, at its option, terminate this Agreement immediately and require LICENSEE to immediately leave the Project. Owner may deny LICENSEE access to the Area and/or the Project at any time. 7. LICENSEE shalt not place any signs upon the Area or the Project without first receiving the Owner's prior written consent. During the Term, LICENSEE hereby covenants and agrees: (a) to comply with all federal, state, and municipal laws, orders, rules and regulations; (b) to maintain insurance requested by the Owner, naming both the Owner and its manager, Tiarna Real Estate Services, Inc., as additional insured. 8. In no event shall the Owner be liable to LICENSEE or any of LICENSEE'S employees and agents for any actual, incidental, punitive, or consequential damages of any nature whatsoever, regardless of the foreseeability thereof and whether LICENSEE notifies OWNER of the possibility thereof. LICENSEE hereby assume all risk of damage to property and injury to persons in, on or about the Project in any way related to or arising out of or related to LICENSEE's use of the Area and/or access to the Project, including, but not limited to anything related to: (a) the negligent or willful act or omission of LICENSEE or their agents, servants, employees, invitees contractors or, representatives, (b) LICENSEE's failure to comply with any laws, rules or regulations, or (c) from any cause, other than the direct active gross negligence or intentional misconduct of Owner and its managers and agents. Without limiting the generality of the foregoing, the Owner shall not be liable for injury or damage which may be sustained by persons, goods, wares, merchandise or property of LICENSEE or their employees, invitees or any other person in or about the Project caused by or resulting from theft, criminal conduct, from tire, steam, electricity, gas, water or rain, which may leak or flow from or into any part of the Area or Project, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers; wires, appliances, plumbing, heating, air conditioning or lighting fixtures of the same, whether the damage or injury results from conditions arising upon the Project, or from other sources, or from the negligent or willful misconduct of any person or party, except that the foregoing waiver and release of Owner shall not apply to any claim arising from the direct active gross negligence or intentional misconduct of Owner. Furthermore, the Owner shall not be liable for any damages arising from any act or omission of any trespasser or other person that enters the Project. LICENSEE and their successors and assigns shall indemnify, defend (with counsel reasonably satisfactory to Owner) and hold Owner and Tiarna Real Estate Services, Inc. and their owners, officers, partners, agents, managers, vendors and employees of any of them and anyone else acting for or on Owner's behalf ("Owner's Related Parties") harnnless from and against any and all toss, costs; debts, obligations, lawsuits; causes of action, damage, attorneys' fees and expense or other liabilities arising after execution of this Agreement, based on or in any way related to or arising out of (a) the negligent or willful act or omission of LICENSEE or their agents, servants, employees, contractors, invitees, or representatives, (b) any access to the Project and/or related to the Approved Use, (c) LICENSEE's failure to comply with any laws, rules or regulations, or (d) anything occurring while LICENSEE is at the Project, but excluding claims based on the Owner's direct active grossly negligent acts or omissions or willful misconduct. The foregoing indemnity will survive the termination, cancellation or expiration of this Agreement, To the fullest extent permitted by law, LICENSEE 'further agrees to indemnify and defend Owner and Tiarna Real Estate Services, Inc. and their Owner's Related Parties in any actions brought against Owner, Tiarna Real Estate Services, Inc. and/or any of the Owner's Related Parties by LICENSEE's employees or agents seeking compensation of injuries while on the job or while accessing the Project, including all actions seeking compensation for injuries beyond the payments due from workers' compensation insurance. In claims, against any person or entity indemnified under this paragraph, by an employee of the LICENSEE or anyone directly or indirectly employed by them or anyone whose acts they may be liable, the indemnification obligations under this paragraph shall not be limited by a limitation on account or type of damages, compensation or benefits payable by or for under worker's or workmen's compensation acts, disability benefits acts or other employee benefit acts. 9. LICENSEE shall maintain commercial general liability insurance and property damage insurance with a minimum limit of TEN MILLION DOLLARS ($10,000,000) combined single limits, pertaining to and protecting against liability arising from the activities conducted at the Project by LICENSEE, LICENSEE shall also provide and maintain in force all workers' compensation and other fonns of insurance that may be required by law. LICENSEE shall cause Owner and Tiama Real Estate Services, Inc., its management company, to be 2 named as additional insureds on such insurance. Certificates of insurance shall be provided to Owner prior to the commencement of the Term. LICENSEE will not be allowed access to the Project until a proper certificate of insurance has been provided to Owner. LICENSEE hereby waives any and all rights to recover against the Owner, Tiarna Real Estate Services and/or against the Owner Related Parties for damage sustained by LICENSEE or loss of LICENSEE's property or the property of others under its control arising from any cause insured or required to be insured under this Agreement. LICENSEE agrees to have its insurance policies required tinder this Lease to have an endorsement with a clause providing that Owner, Tiarna Real Estate Services, Inc., and the Owner Related Parties are released from liability and LICENSEE, and LICENSEE on behalf of its insurance carriers waive all claims for recovery from any cause insured or required to be insured under the Agreement, including a waiver of subrogation on liability and worker's compensation claims. Notwithstanding the foregoing or anything contained in this Agreement to the contrary, any release or any waiver of claims shall not be operative, and the foregoing endorsements shall not be required, in any case where the effect of such release or waiver is to invalidate insurance coverage or invalidate the right of the insured to recover thereunder or increase the cost. 10. The obligations of Owner under this Agreement do not constitute a personal obligation of the individual partners, trustees; directors, officers or shareholders of Owner, and LICENSEE shall not seek recourse against the individual partners, trustees, directors, officers or shareholders of Owner or any of their personal assets for satisfaction of any liability in respect to this Agreement. 11. LICENSEE shall not use, test or ignite any firearms or other explosive devices on the Project. All flammable products must be stored and maintained in compliance with all laws. No smoking shall be allowed by any employees, agents, volunteers, invitees or agents of LICENSEE in any part of the Project. LICENSEE shall not leave or dispose of, on or about the Project, any flammable explosives, radioactive materials, hazardous wastes, toxic substances, or any related materials or substances, including, without Limitation, any substance defined as or included in the definition of "hazardous substances" under any applicable federal, state or local law, regulation or ordinance (collectively, "Hazardous Materials"). LICENSEE and their successor and assigns shall indemnify, defend (with counsel reasonably satisfactory to Owner) and hold Owner, Tiarna Real 'Estate Services, Inc. and the Owner's Related Parties harmless from and against any and all loss, costs, debts, obligations, lawsuits, causes of action, damage, attorneys' fees and expense or other liabilities based on or in any way related to or arising out any Hazardous Material brought to, used or disposed of at the Project by LICENSEE or their agents, servants, employees, volunteers, invitees; contractors or, representatives. All indemnity provisions will survive the termination, cancellation or expiration of this Agreement. 12. If any action is instituted by either party hereto for the enforcement or interpretation of any of its rights or remedies under this Agreement, the prevailing party shall be entitled to recover from the losing party all costs incurred by the prevailing party !it said action and any appeal therefrom including reasonable attorneys' fees to be fixed by the court therein. Said costs and attorneys' fees shall be included as part of the judgment in any such action. Further, should Owner be made a party to any litigation between LICENSEE and any third party for which LICENSEE is responsible for holding Owner harmless pursuant to thus Agreement or related to any dispute - between LICENSEE, then LICENSEE shall pay all costs and attorneys' fees incurred by or imposed upon Owner in connection with such litigation. B. This Agreement shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by, the laws of the state in which the Project is located. In the event that one or more of the provisions of this Agreement shall for any reason be held to be invalid or unenforceable, the remaining provisions of thus Agreement shall be unimpaired, and shall remain in effect and be binding upon the parties. No subsequent agreement between LICENSEE and Owner shall be effective or binding unless it is made in writing and signed by both of the parties hereto. Submission of this instrument for examination or signature by LICENSEE does not constitute a reservation of or option for Agreement, and it is not effective as an agreement or otherwise until execution by and delivery by both Owner and Licensee. Any provision of this Agreement which shall prove to be invalid, void or illegal in no way affects, impairs or invalidates any other provision hereof, and such other provisions shall remain in full force and effect. The benefits and obligations of this Agreement shall N-2022-156 inure to the benefit of, and be binding upon, the permitted successors, assignees, heirs and personal representatives of the Owner and LICENSEE. This Agreement is subject to cancellation by the Owner in the event of either the sale of the Project, or if construction on the Project needs to begin. 14. This Agreement contains all of the agreements of the parties hereto with respect to any matter covered or mentioned in this Agreement, and no prior agreement or understanding pertaining to any such matter shall be effective for any purpose. No provision of this Agreement may be amended or added to except by an agreement in writing signed by the parties hereto or their respective successors -in -interest. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives on the day and year fast above written. 2020 E. FIRST, LLC _ City of Santa Ana By:_ By: Name: Joon Choi Name: Kristine Ridge City Manager Title: Authorized Signatory &2'.- DaisyGomez RECOMMENDED FOR APPROVAL: cro (U1LP VA David I lentin Chief o olice APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By 0 Tamara Bogosian Senior Assistant City Attorney