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HomeMy WebLinkAboutPONCE, ENRIQUENSURANCE iNOT ON FILE N-2023-246 v WORK MAY NOT PROCEED 0V CITY CLERK DATE: LICENSE AGREEMENT This LICENSE AGREEMENT ("Agreement") is dated as of August q, 2023, 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 Enrique Ponce ("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 1725 N. Bristol Street (APN Nos. 399-085-22), as depicted on Exhibit A & B ("License Area"). B. Licensee desires to use the License Area for purposes of constructing a block wall and installing landscaping along Bristol Street ("Permitted Uses") as set forth in Exhibit C. C. The Parties have agreed that if Licensee completes the block wall and landscaping as provided herein, the City shall enter into a purchase and sale agreement with Licensee for the License Area. D. 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: I. License. The City hereby grants to Licensee a nonexclusive license for the right to enter and use the License Area beginning on September 1, 2023, for the Permitted Uses described in Recital B, upon the terms and conditions set forth herein, subject to Licensee's performance of all of its obligations under this Agreement. This License shall remain in effect for a 12 month period from September 1, 2023 ("License Term"), unless extended in writing by the Executive Director of the Public Works Agency, or his or her designee. The License may be terminated effective immediately by the City upon 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. If Licensee fails to complete the construction of the wall and installation of landscaping on the License Area before the expiration of the License Term, Licensee shall perform the following: a. Restore the License Area to its original condition in which it existed immediately prior to the Agreement, which includes the removal of any and all improvements and alterations to the License Area. b. 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. c. 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. If Licensee fails to perform its obligations under this Section, the City may, at its election and upon advance written notice to Licensee, restore and clean-up the License Area, Page 1 of 6 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. Best Management Practices and Clean Up. At its sole cost, Licensee shall clean up and install, implement, and maintain Best Management Practices (BMPs) at the License Area as outlined below. Within seven (7) days of occupying the License Area, the Licensee shall: (a) Remove old and/or damaged sediment control BMPs from the License Area and install new sediment control BMPs along the entire perimeter of the License Area. Appropriate sediment control BMPs include straw wattle, gravel bag berm, or silt fence. Licensee shall install sediment control BMPs per the SE-5, SE-6, or SE-1 details provided in the California Stormwater Quality Association (CASQA) Stormwater BMP Handbook for Construction. (b) Install tracking control BMPs at the vehicle access point to the License Area. Licensee shall install tracking control BMPs per the TC-1 detail provided in the California Stormwater Quality Association (CASQA) Stormwater BMP Handbook for Construction. (c) Install a fence, if required, and Green Screen. Throughout the duration of the License Agreement, the Licensee shall: a) Cover all stockpiles that are not actively being used or scheduled to be used within a seven (7) day period. Additionally, all stockpiles shall be covered prior to the onset of precipitation. Licensee shall ensure that stockpile coverings are installed securely to protect from wind and rain. Licensee shall only be allowed to stockpile construction materials or sediment that is directly related to their City of Santa Ana Capital Improvement Project. b) Maintain effective Tracking control BMPs to prevent off -site sediment tracking from the License Area. c) Maintain effective Sediment control BMPs along the entire perimeter of the License Area, at all adjacent storm drain inlets, and on all non -active slopes, as appropriate. d) Sweep the street, sidewalk, and parkway adjacent to the License Area at the end of the working day and prior to forecasted rain events. e) Use a dmnpster or appropriate waste receptacle to discard of all trash and debris. Dumpsters and waste receptacles shall be covered prior to the onset of precipitation. f) Implement Wind Erosion Control BMPs (dust control), as appropriate, per the WE-1 detail provided in the California Stormwater Quality Association (CASQA) Stormwater BMP Handbook for Construction. g) Remove graffiti on the fence or green screen within one (1) day of notification by the City. h) Repair vandalism to fence or green screen within one (1) day of notification by the City. i) Remove weeds or vegetation growing within License Area or around perimeter within seven (7) days of notification by the City. Within fourteen (14) days of vacating the License Area, the Licensee shall clean up the License Area as outlined below: a) Remove all trash, debris, sediment, stockpiles, and construction materials from the License Area. b) Remove old and/or damaged sediment control BMPs from the License Area and install new sediment control BMPs along the entire perimeter of the License Area. Page 2 of 6 Appropriate sediment control BMPs include straw wattle, gravel bag berm, or silt fence. Licensee shall install sediment control BMPs per the SE-5, SE-6, or SE-1 details provided in the California Stormwater Quality Association (CASQA) Stormwater BMP Handbook for Construction. c) Remove Tracking Control BMPs from the License Area. d) Cover the surface of the entire License Area with two (2) inches of three-quarter (3/4) inch diameter gravel. License Area clean up shall be completed to the sole satisfaction of the City 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 clean up to be completed. 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 $0. Licensee shall pay this amount upon full execution of this Agreement. Licensee shall pay the monthly fee of $0, or a pro -rated portion thereof, for any extension of the Agreement pursuant to Section 1. As consideration for this Agreement, Licensee hereby represents and guarantees that it will complete construction of a concrete block wall and installation of landscaping along Bristol Street per the attached design specifications (Exhibit C) within the License Term. These timeframes shall be tolled by any delays directly attributable to the actions or inactions of the City, by any natural causes outside the control of either party ("Force Majeure"), or by mutual agreement of the parties. If Licensee does not comply with these guarantees within the timeframes provided, the City shall have the right to terminate the Agreement, and develop the property as desired. 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. Page 3 of 6 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 wider this Agreement, and maintain or cause to be maintained during the term of this Agreement, insurance coverage as follows: MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2. Workers' Compensation insurance as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease. (This applies to Licensees with employees, not required if no employees). 2. Property insurance against all risks of loss to any tenant improvements or betterments, at full replacement cost with no coinsurance penalty provision. If the Licensee maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Licensee. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. Other Insurance Provisions: The insurance policies are to contain, or be endorsed to contain, the following provisions: Additional Insured Status The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Licensee including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Licensee's insurance (at least as broad as ISO Form CG 20 10). Primary Coverage For any claims related to this contract, the Licensee's insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Licensee's insurance and shall not contribute with it. Legal Liability Coverage The property insurance is to be endorsed to include Legal Liability Coverage (ISO Form CP 00 40 04 02 or equivalent) with a limit equal to the replacement cost of the leased property 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 Page 4 of 6 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. ll. 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 Severabilitv. 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 party shall be entitled to recover reasonable attorneys' fees, expert witness fees, costs of investigation, and costs of suit from the losing party. I L6 Author i . 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: Enrique Ponce If to City: Clerk of the City Council 1240 W. 18`h Street City of Santa Ana Santa Ana, CA 92701 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 927024988 Page 5 of 6 N-2023-246 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 0 "l Jose Montoya Assistant City Attorney RECOMMENDED FOR APPROVAL �� 13k W-' , ahF Nabil Saba Executive Director Public Works Agency LICENSEE By. Its: Page 6 of 6 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY All right, title and interest of Seller in and to that certain real property located in the City of Santa Ana, Orange County, California, described in the following exhibit A & B: [attached behind this page] EXHIBIT "A" LEGAL DESCRIPTION 1N THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA THAT PORTION OF LOT 25 TRACT MAP NO. 1672 AS PER THE MAP FILED IN BOOK 46, PAGE 16 OF MISCELLANEOUS MAPS, OFFICIAL RECORDS OF SAID COUNTY, EXCEPTING THEREFROM THAT PORTION OF LOT 25 GRANTED IN FEE FOR PUBLIC STREET PURPOSES RECORDED AS INSTRUMENT NUMBER o Icj nncn 24 4I 9 ,736 ny __ , OFFICIAL RECORDS OF SAID COUNTY. CONTAINING AN APPROXIMATE AREA OF 4,521 SQUARE FEET. SUBJECT TO EASEMENTS, RESERVATIONS, RESTRICTIONS, AND ANY OTHER RIGHTS OF RECORD, EXHIBIT "B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. THIS DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION: 11/0;4ll 9 L.S, 9216 PAGE 1 OF 1 EXHIBIT B SKETCH TO ACCOMPANY LEGAL DESCRIPTION I EIGHTEENTH STREET w � r (N 89°49'50" E)Lo a N L1 L2 " z I I (40) w I w 1-(), r 2Aico of I I N —PARALLEL I ._.I O ro rn v f�1 •- .. r cn V (40 ) I o � Ci•� I I I I I 1 I--- L4 PARCEL LIMITS PUBLIC STREET R/W PER I NST. NO.2019 QDQ h �ZS 3 6 3 ( ) = TRACT MAP 1572, M.M. 48/16. L1 = N 450 16' 56" E, 16,00' L2 = N 890 49' 50" E, 26.75' L3 = N 000 30' 10" E. 120,02' 14 = S 89° 51' 40" W, 38.42' RIGHT OF WAY IS BASED ON CITY OF SANTA ANA BRISTOL STREET IMPROVEMENT PLANS 06-1500. PAGE i OF 1 EXHIBIT C EXISTING PROPERTY LINE WALL LOCATION LANDSCAPE AREA PARCEL R1 IMPROVEMENTS SEE NEXT PAGE FOR WALL DETAILS PAGE 1 OF 2 I!".AUNIAIASA0E,. IPEENLu BEINEEx AIN A.0 AESELUF PROPERTY WALL TYPICAL BECWN l p.l MANE L`pFEEFV`ET.I TvENT 54FEET. AM ANY ANGE POINT. 1jj' 60. 16 6A16E VIBE STEEL TELLIS. PBOP9TIY WALL WNH BI TFO-W STRL CTUNE ELEVATION SCALE: NFIC .EXIT ITIP CSTYLE' EAT! OM TO WTLN SPLIT EASE [W BECTION A -A PARCEL R1 WALL AND LANDSCAPE DETAILS PAGE 2OF2