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HomeMy WebLinkAboutItem 17 - License Agreement Template Public Works Agency https://www.santa-ana.org/pw Item # 17 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report May 18, 2021 TOPIC: License Agreement Template AGENDA TITLE Approve a Template Agreement for the Licensing of City-owned Real Property and Authorize the City Manager to Enter into Such Agreements RECOMMENDED ACTION Approve a template license agreement for the licensing of City-owned real property and authorize the City Manager to execute such agreements, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION The Public Works Agency provides administration for several types of assets, including managing the licensing of unused parcels of land to contractors and other interested parties. The parcels of land are unused due to, among other things, their shape, size, accessibility, or because the project for which the land is intended has yet to be constructed. The Public Works Agency requests the current market lease rate or in-kind services as compensation for licensing such vacant parcels. Recently, construction contractors and other entities have expressed interest in temporarily licensing various unused parcels of land. Staff seeks approval of a template licensing agreement (Exhibit 1) in order to standardize language, structure, and requirements, and to expedite the processing of these agreements by authorizing the City Manager to execute them. The timely licensing of these parcels can offset some of the negative consequences of these assets remaining vacant, including illegal dumping and other illicit activities. Expedient processing also allows staff to respond quickly to contractor requests to license unused parcels following the award of construction contracts. Construction activities require a safe, off-street location for storage of construction materials. Approval of the template license agreement allows staff to work quickly with contractors to determine which assets are best suited for construction activities, which minimizes impacts to Santa Ana residents and businesses. Approve License Agreement Template May 18, 2021 Page 2 1 7 2 4 ENVIRONMENTAL IMPACT There is no environmental impact associated with the action. FISCAL IMPACT There is no fiscal impact associated with this action. EXHIBIT(S) 1. License Agreement Template Submitted By: Nabil Saba, P.E., Executive Director – Public Works Agency Approved By: Kristine Ridge, City Manager Page 1 of 4 LICENSE AGREEMENT This LICENSE AGREEMENT (“Agreement”) is dated as of [insert date], and entered into by and between the CITY OF SANTA ANA, a charter city and municipal corporation existing under the Constitution and laws of the State of California (“City”), and [insert entity/company name] (“Licensee”). RECITALS A.The City is the owner of that certain real property located in the City of Santa Ana, County of Orange, California, more specifically identified as [insert location] (APN [insert APN #]), as depicted on Exhibit A (“License Area”). B.Licensee desires to use the License Area for purposes of [insert purpose – i.e. “storing vehicles, materials, and other construction equipment and stockpile”] during the License period (“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. 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.License. The City hereby grants to Licensee a nonexclusive license for the right to enter and use the License Area beginning on [insert date] 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. This License shall remain in effect until [insert date], unless extended in writing by the Executive Director of the Public Works Agency, or his or her designee. The License may be terminated by City upon thirty (30) days written notice. This Agreement is intended and shall be construed only as a revocable license to use the License Area and not as a lease or grant of any possessory or other interest. 2.Restoration and Clean Up. 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, leave the License Area in a neat and clean condition to the sole satisfaction of the City, free of trash and debris, and remove all property and materials of Licensee. Licensee shall cause the License Area to be cleaned, with such work to be completed no later than the times specified in the License as stated in paragraph 1 above, and the License shall be extended to such time for the limited purpose of allowing the cleaning work to be completed. 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. 4.Licensee shall include, implement, and maintain but not be limited to the following Best Management Practices (BMPs) at the License Area: a)Waste management and Materials Pollution Control BMPs shall be implemented to prevent the contamination of stormwater by construction wastes and materials. b)Tracking control (TC) BMPs to control off-site sediment tracking shall be implemented and maintained. EXHIBIT 1 Page 2 of 4 c) Sediment control (SE) BMPs shall be implemented at all locations along the site perimeter, at all operational storm drain inlets and at all non-active slopes, as appropriate. d) Pollution prevention practices shall be implemented. e) Non-stormwater management measures to prevent illicit discharges and control stormwater pollution sources. f) Erosion Control BMPs shall be implemented, as appropriate. g) Wind erosion control BMPs (dust control) shall be implemented, as appropriate. h) Non-stormwater BMPs shall be implemented to reduce or prevent the contamination of stormwater from construction activities. For specific guidance reference, reference the Construction Runoff Guidance Manual (Orange County Stormwater Program, December 2012) [https://media.ocgov.com/gov/pw/watersheds/documents/bmp/constructionactivities.asp] or the California Stormwater Quality Association (CASQA) Stormwater BMP Handbook for Construction. 5. Damage. In the event that Licensee damages any portion of the License Area or the improvements or equipment therein, Licensee shall immediately repair the damage at Licensee’s sole cost. Alternatively, the City may, at its election, 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. 6. Licensee Parties. Licensee, together with its employees, subcontractors, agents, representatives, and all persons 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. 7. Fee. As consideration for this Agreement, Licensee shall pay City a total license fee of $[insert amount]. Licensee shall pay this amount upon full execution of this Agreement. Licensee shall pay the monthly fee of $[insert amount] for any extension of the Agreement pursuant to Section 1. 8. 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. 9. Insurance. Licensee shall secure or cause its agents or contractors performing any entry onto the License Area to 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 Page 3 of 4 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. 10. 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, arising out of or related to Licensee’s use of the License Area, the entry by any Licensee Party on the License Area 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 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 10 shall survive the termination or expiration of this Agreement. 11. Miscellaneous. 11.1 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. 11.2 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 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. 11.3 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 City, which consent may be withheld in City’s sole and absolute discretion. 11.4 Applicable Law. This Agreement shall be construed and enforced in accordance with the internal laws of the State of California. 11.5 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 Page 4 of 4 party shall be entitled to recover reasonable attorneys’ fees, expert witness fees, costs of investigation, and costs of suit from the losing party. 11.6 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 formally bound to the provisions of this Agreement. 11.7 Notices. Any notices, requests, or approvals given under this Agreement from one party to another shall be in writing and shall be personally delivered 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 three (3) days after the deposit for mailing. Notices shall be sent to: If to Licensor: [Insert Entity/Company name] Attn: [insert name] [Insert Street Address] [City, State Zip Code] 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 11.8 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. IN WITNESS WHEREOF, City and Licensee have entered into this Agreement as of the day and year first written above. CITY OF SANTA ANA _________________________ Kristine Ridge City Manager APPROVED AS TO FORM Sonia R. Carvalho City Attorney __________________________ Assistant City Attorney RECOMMENDED FOR APPROVAL __________________________ Nabil Saba Executive Director Public Works Agency ATTEST __________________________ Daisy Gomez Clerk of the Council LICENSEE By: ________________________ Its: _________________________