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CLERK OF COUNCIL
DATE: NSE AGREEMENT FOR USE OF PROPERTY
JUN301012�'ICE
O W 0� OWNED BY THE CITY OF SANTA ANA
(WN 00"PA)TilThis LICENSE AGREEMENT ("Agreement") 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 K&C Logistics LLC, ("Licensee"), is made and
entered into on December 1, 2020 ("Effective Date"). Licensee and City are sometimes
individually referred to as "Party" and collectively as "Parties."
RECITALS
A. The City owns real property at the eastern terminus of Alton Avenue between
Daimler Street and the SR-55 Freeway in the City of Santa Ana, as particularly described in Exhibit
A, attached hereto and incorporated by reference ("Property"). The Property is approximately
31,390 square feet in size.
B. The Property is part of a planned road improvement project to be constructed by
the City where such construction is anticipated to begin within five years of the date of this
Agreement.
C. Licensee is a logistical and transportation services company that desires to use and
access the Property for parking of its vehicles. City desires to allow Licensee the exclusive use of
and access to the Property for this purpose alone ("Permitted Uses").
NOW, THEREFORE, in consideration of the above recitals and the mutual covenants
hereinafter contained and for good and valuable consideration, the receipt of which is hereby
acknowledged, the Parties agree as follows:
1. GRANT OF EXCLUSIVE LICENSE
1.1 Grant of Exclusive License. The City hereby grants to Licensee an exclusive
license for the right to enter and use the Property beginning on the Effective Date, for the Permitted
Uses, upon the terms and conditions set forth herein ("License"), subject to Licensee's
performance of all of its obligations under this Agreement.
1.2 License Agreement Only. This Agreement is intended and shall be construed only
as a revocable license to use the Property and not as a lease or grant of any possessory or other
interest.
1.3 Restrictions on Use of Property. Licensee shall not use, and shall prohibit its
Agents or Invitees from using, the Property other than for the Permitted Uses. The term "Agents"
shall mean Licensee's officers, directors, members, agents, employees, invitees, contractors,
subcontractors, and any employees of such parties. The term "Invitees" shall mean Licensee's
invitees, guests, customers, tenants, or business visitors.
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2. LICENSE FEE AND TERM
2.1 License Fee. As consideration for its use of the Property, Licensee agrees to pay to
City $4,400 per month for the term of this Agreement. License fees for any partial month shall be
pro -rated. Payment shall be made payable to the City of Santa Ana, in advance for each month,
no later than the 10a' of the prior month, at the following address: Public Works Agency, City of
Santa Ana M-21, Administrative Services Manager, 20 Civic Center Plaza, PO Box 1988, Santa
Ana, CA 92702. A late charge of ten percent (10%) shall be applied to any payment hereunder
due but unpaid after the 10a' of the month. The consideration for this License shall be subject to a
CPI adjustment annually utilizing the most recently published annual average, on the anniversary
of the Effective Date during the term hereof.
2.2 Term and Revocation of License. The term of this Agreement shall commence on
the Effective Date and will remain in effect for a tern of two (2) years, unless and until a sixty
(60) day written notice to vacate premises is provided by the City or Licensee. This Agreement
shall automatically renew each month thereafter for an additional three (3) years, unless and until
a sixty (60) day written notice to vacate premises is provided by the City or Licensee. hi no case
shall the maximum term of this Agreement exceed five years without the prior written consent of
the City. Notwithstanding anything to the contrary in this Agreement, City may revoke this
License at any time by providing sixty (60) days' written notice to Licensee.
3. WARRANTIES AND ASSIGNMENT
3.1 AS -IS Condition. City makes no representation or warranty of any kind as to the
condition of the Property or any other matter relating to Licensee's use of the Property. Licensee
hereby disclaims and waives any and all objections to the physical and other characteristics and
conditions of the Property. Licensee acknowledges and agrees that the use of the Property will be
on the basis of Licensee's own investigation of the condition of the Property. The license to use
the Property is 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 Property shall be subject to the Property being in
a usable and safe condition at the time of Licensee's use, and Licensee shall be solely responsible
for determining whether the Property is in such condition. In connection therewith, in the event
that the Property 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 Property usable or safe.
3.2 No Assignment or Sublicense. The permission, rights and privileges granted under
this Agreement are nonexclusive and nontransferable. Licensee shall not, either voluntarily or by
operation of law, assign, transfer, mortgage or encumber this License or any obligation, right, title
or interest assumed by Licensee herein, without the prior written consent of the City, which may
be withheld at the sole discretion of the City. Licensee shall not sublicense, or permit, or suffer
the Property or any part thereof to be used or occupied by others. If Licensee attempts an
assignment or transfer of this License or any obligation, right, title or interest herein, City may at
its option, immediately terminate the License and shall thereupon be relieved from any and all
obligations to Licensee or to its attempted assignee or transferee.
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4. INDEMNITY AND INSURANCE
4.1 Indemnification. Licensee shall indemnify, defend, and hold harmless City, and its
respective agents, officers, 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, arising out of or
related to Licensee's use of the Property, the entry by any Licensee Party on any portion of the
Property or surrounding property or Facilities, or Licensee's breach or default in the performance
of any of its obligations under this Agreement. 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 sole 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 ofthis Section 4.1 shall survive
the termination or expiration of this Agreement.
4.2 Insurance Requirements.
4.2.1 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's use of the Property, 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 $2,000,000 per occurrence and $5,000,000 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.
4.2.2 Licensee shall maintain business automobile liability insurance, or
equivalent form, with a combined single limit of not less than $5,000,000 per occurrence. Such
insurance shall include coverage for owned, hired and non -owned automobiles.
4.2.3 Pursuant to state law, Licensee is required to be insured against liability for
worker's compensation or to undertake self-insurance. Prior to commencing the performance of
services under this Agreement, Licensee agrees to obtain and maintain any employer's liability
insurance with limits not less than $1,000,000 per accident.
4.3. Certificates of hnsurance: Additional Insured Endorsements. Prior to execution of
this Agreement, Licensee shall furnish to City certificates of insurance and, if applicable,
additional insured endorsements to each of Licensee's insurance policies, evidencing the foregoing
insurance coverages as required by this Agreement. These certificates shall:
a. provide the name and policy number of each carrier and policy;
b. shall state that the policy is currently in force; and
C. shall promise to provide that such policies will not be canceled, suspended, voided,
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reduced in coverage or in limits, or modified without thirty (30) days prior written
notice of City.
Licensee shall maintain the foregoing insurance coverages in force throughout the term of
this Agreement. City or its representatives shall at all times have the right to demand the original
or a copy of all these policies of insurance, which Licensee shall provide within five (5) days of
City's request.
5. OBLIGATIONS OF LICENSEE
5.1 Agreement to Protect and Maintain Property. Licensee, on behalf of its Agents and
Invitees, agrees to take all prudent action to protect the Property from any damage or injury caused
by the exercise of this License. Licensee shall immediately notify City of any damage or injury to
the Property caused by its use of the Property. Within sixty (60) days of the Effective Date,
Licensee shall install chain link or better grade fencing with a height of at least six feet around the
perimeter of the Property.
5.2 City's Right of Suspension. Termination for Noncompliance. City reserves the
right to suspend all activities or terminate this Agreement upon Licensee' non-compliance with
any of the terms or conditions ofthis Agreement. Such suspension or termination shall be effective
immediately.
5.3 Compliance with Laws-, Regulatory Approvals. Licensee shall, at its sole expense,
conduct and cause to be conducted all activities on the Property in compliance with all laws,
regulations, codes, ordinances and orders of any governmental or other regulatory entity, and
whether or not in the contemplation of the parties.
5.4 Approvals and Permits. Licensee shall be responsible for obtaining all approvals,
licenses, permits and permissions of Federal, State and local authorities, which may be necessary
to implement Licensee's activities on the Properly. Licensee agrees and acknowledges that
nothing herein is intended, nor shall it be interpreted, to bind the City to issue or grant any permits
or entitlements needed to perform any work or improvements specified in this Agreement.
5.5 Environmental Compliance. Licensee shall not permit any dangerous condition or
waste to be created on the Property. Licensee shall at all times be in compliance with all federal,
state and local statutory and regulatory requirements, including but not limited to the US EPA, Cal
EPA, State Water Resources Control Board, Department of Toxic Substances Control and South
Coast Air Quality Management District, as applicable.
5.6 NPDES Requirements. Licensee shall comply with the requirements of Santa
Ana's National Pollutant Discharge Elimination System ("NPDES") permit, and shall utilize the
Property in such a manner as to prohibit pollutants from entering the storm drain. Licensee shall
not construct, maintain, operate and/or utilize any illicit connection on the Property, nor shall
Licensee cause or allow any prohibited discharge from the Property.
5.7 Improvements. Licensee shall not install or make any improvements to the
Property, except as provided herein, without the written approval of the City. At no time shall the
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Licensee install or make permanent improvements of any kind. The Licensee agrees that prior to
commencing any approved improvements, it will obtain plan approval from the City's Planning
and Building Agency, and that it will obtain all required permits and inspections. Licensee shall
be solely responsible for all costs of the installation, operation, maintenance, repair and removal
of any approved improvements on the Property.
5.8 Maintenance. Licensee shall maintain the Property in a neat, clean, sanitary and
safe condition, to the satisfaction of the City, at the sole cost and expense of the Licensee. The
Property shall be maintained in a manner consistent with community standards which will uphold
the value of the Property, in accordance with this Agreement, the Santa Ana Municipal Code and
all other applicable local, state and federal rules, regulations and standards.
5.9 No Liens. Licensee 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. Licensee shall indemnify, defend and hold harmless City 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 reserves the right, at its 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
against liability. In addition to, and not as a limitation of City's other rights and remedies under
this Agreement, should Licensee fail, within ten (10) days of written request from City, either to
discharge any Lien or to bond for any Lien, or to defend, indemnify and hold harmless City from
and against any loss, damage, injury, liability or claim arising out of a Lien, then City, 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, as
applicable, by Licensee upon written demand.
5.10 No Reimbursement or Repayment. licensee shall not have any interest in the
Property other than those granted herein or be entitled to any reimbursement or repayment for any
work performed upon the Property pursuant to this Agreement. City shall not be held responsible
for loss of or damage to, any personal property left on the Property, or improvements made by
Licensee on the Property.
5.11 Utilities. Licensee shall be solely responsible for the payment of all charges in
connection with utility services provided to the Property. "Utility services" shall include without
limitation natural gas, water, electricity and sewer.
5.12 No Recordine. Licensee shall not record or attempt to record this Agreement. Any
attempt by Licensee to record this Agreement shall automatically terminate this License
Agreement and render this License void and invalid for all purposes.
5.13 Restoration and Clean Un. At its sole cost, Licensee shall, at the expiration or
earlier termination of this Agreement, restore the Property to its original condition in which it
existed immediately prior to the Agreement, leave the Property in a neat and clean condition to the
sole satisfaction of City, free of trash and debris, and remove all property and materials of
Licensee.
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5.14 Possessory Interest. Licensee hereby recognizes and understands that this License
Agreement may create a possessory interest subject to property taxation and that Licensee may be
subject to the payment of property taxes levied on such interest. Any such imposition of a
possessory interest tax shall be a tax liability of Licensee solely, and shall be paid for by the
Licensee; and any such tax payment shall not reduce any payments due City hereunder. In
addition, Licensee shall pay any personal property taxes that may become due for equipment
fixtures, inventory, or other personal property installed, maintained or present on the Property.
6. MISCELLANEOUS TERMS
6.1 Notices, Demands and Communications between the Parties.
6.1.1 Any notice, tender, demand, delivery, or other communication pursuant to
this Agreement shall be in writing and shall be deemed to be properly given if delivered in person
or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic
communication in the manner provided in this Section, to the following persons:
TO LICENSEE:
K&C Logistics LLC
1700 E. Gary Ave, Suite 214
Santa Ana, CA 92705
Attn: Kadir Kee
TO CITY:
Public Works Agency
City of Santa Ana
Administrative Services Manager
20 Civic Center Plaza (M-21)
Santa Ana, California 92701
E
City of Santa Ana
Clerk of Council
20 Civic Center Plaza
Santa Ana, California 92701
6.1.2 A party may change its address by giving notice in writing to the other party.
Thereafter, any communication shall be addressed and transmitted to the new address. If sent by
mail, 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 fax, 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 shall be excluded.
6.2 Amendment. This Agreement may be amended only by the mutual consent of the
Parties by an instrument in writing signed by both Parties.
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6.3 Further Actions and Instruments. Each of the Parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the performance
of all obligations under this Agreement and the satisfaction of the conditions of this Agreement.
6.4 Counterparts. This Agreement may be signed in counterparts, each of which shall
constitute an original.
6.5 Time of the Essence. For each provision of this Agreement which states a specific
amount of time within which the requirements thereof are to be satisfied, time shall be deemed of
the essence.
6.6 Governing Law and Venue. This Agreement shall be governed by the laws of the
State of California without regard to conflicts of laws principles. Any litigation or other legal
proceedings which arise under or in connection with this Agreement shall be conducted in a federal
or state court located within Orange County, California. The Parties consent to the personal
jurisdiction and venue in federal or state court located within the County of Orange, California and
hereby waive any defenses or objections thereto, including defenses based onthe doctrine of forum
non conveniens.
6.7 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.
6.8 References, Captions. Any term referencing time, days or period for performance
shall be deemed calendar days and not business days, except as otherwise specified in this
Agreement. All references to City include all officials, officers, employees, personnel, and agents
of City, except as otherwise specified in this Agreement. All references to Licensee include its
officials, officers, employees, personnel, agents, volunteers, contractors and subcontractors, except
as otherwise specified in this Agreement. The captions of the various articles and paragraphs in
this Agreement are for convenience and ease of reference only, and do not define, limit, augment,
or describe the scope, content, or intent of this Agreement.
6.9 Waiver. No delay or omission in the exercise of any right or remedy of a non -
defaulting Party on any default shall impair such right or remedy or be construed as a waiver.
Either Parties' consent or approval of any act by the other Party requiring its consent or approval
shall not be deemed to waive or render unnecessary its consent to or approval of any subsequent
act of the other Party. Any waiver by either Party of any default must be in writing and shall not
be a waiver of any other default concerning the same or any other provision of this Agreement.
6.10 Rights and Remedies are Cumulative. Except with respect to rights and remedies
expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are
cumulative and the exercise by either Party of one or more of such rights or remedies shall not
preclude the exercise by it, at the same or different times, of any other rights or remedies for the
same default or any other default by the other Party. All warranties and promises to indemnify
shall survive the termination, abandonment, or completion of this Agreement.
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6.11 Severabilitv. In the event that any one or more of the phrases, sentences, clauses,
paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by
a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability
shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this
Agreement which are hereby declared as severable and shall be interpreted to carry out the intent
of the parties hereunder.
6.12 Authorized Representatives. The person or persons executing this Agreement on
behalf Licensee and City warrants and represents that he/she has the authority to execute this
Agreement on behalf of that Party and that he/she has the authority to bind that Party to the
performance of its obligations hereunder.
6.13 Entire Agreement. This Agreement constitutes the entire and integrated agreement
of Licensee and City with respect to the subject matter hereof and supersedes any and all prior and
contemporaneous oral or written negotiations, representations or agreements.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by and through their authorized officers the day, month and year fast written above.
ATTEST:
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494aDAISY GOM Z
Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
'ity Attorney
CITY OF SANTA ANA
�� NL -�r
KRISTINE RIDGE
City Manager
K&C LOGISTICS LLC
By:
JOHIVM. FUNK N : KADIR KOC
Sr. Assistant City Attorney TULE: President
RECOMMENDED FOR APPROVAL:
NABIL SABA PE
Executive Director
Public Works Agency
AV-0i b
Exhibit A
LEGAL DESCRIPTION
In the City of Santa Ana, County of Orange, State of California, being that portion of land,
described in a Deed to the City of Santa Ana, recorded October 14, 1968 in Book 8751, pages 88
and 89 of Deeds, filed in the Office of the County Recorder of said County;
Lying Northwesterly of that certain course described as, "North 40' 37' 30" East, 49.76 feet", as
said course is shown on a Parcel Map recorded in Book 56, page 36 of Parcel Maps in the Office
of the County Recorder of said County.
Containing 31390.57 square feet
Subject to all Covenants, Conditions, Reservations, Restrictions, Rights of Way and Easements
of record, if any.
All as shown on Exhibit B, attached hereto and by this reference made a part hereof.
Prepared by me, or under my direction on 1 ` ( 40 2'.20.
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John M. Gonzales, PLS 9065
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