HomeMy WebLinkAboutGON-REY, LLC & SUPER A FOODS-2005
INSURANCE !WI ON FIL~
WORK MAY N.Ql PROCEED
CLERK OF COUNCIL
DATE: SEP 1 5 2005
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N-2005-104
LICENSE AGREEMENT
RIGHT OF WAY ENCROACHMENT
THIS LICENSE AGREEMENT (hereinafter" License Agreement") is made and entered
into this 2nd day of August, 2005 by and between the CITY OF SANTA ANA, a charter city and
municipal corporation of the State of Cali fomi a (hereinafter "City"), GON-REY, LLC,
(hereinafter "Licensee") and SUPER "A" FOODS, INC., a California corporation (hereinafter
"Landlord"), with respect to the following:
RECITALS
WHEREAS, Landlord owns the property located at 1010 S. Main Street in the City of Santa
Ana, County of Orange, California, as described in Exhibit "A", attached hereto and
incorporated by this reference (hereinafter "said Property"); and
WHEREAS, Licensee leases from Landlord said Property pursuant to a Lease with Option to
Buy; and
WHEREAS, City and Licensee desire to enter into a License Agreement to allow use of the
public right of way for building fayade encroachment, including roof overhang, wall veneer,
building lights and landscape planters, pursuant to the terms and conditions set forth herein; and
WHEREAS, Landlord agrees to the terms and conditions of this License Agreement as it relates
to said Property.
NOW THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
I. TERMS AND PURPOSE OF LICENSE
The City hereby grants to Licensee upon each of the covenants and conditions set forth
herein, or the period commencing on August 2nd, 2005 (hereinafter "Commence Date") and
automatically renewing every five years for an additional five-year term, subject to cancellation
as herein set forth, a license to maintain;
· A four-inch (4") wide, structural building fayade encroachment upon the sidewalk
public right of way located along the Main Street building frontage;
· An eighteen-inch (18") deep architectural building overhang encroachment with
signage and lighting as approved by City's Planning and Building Agency, over
fifteen feet (15') high above the sidewalk portion along the Main Street building
frontage;
· A maximwn twenty-four inch (24") wide curbing, planter and landscape
encroachment along the Sycamore Street frontage; and
· A fifteen inch (15") block wall encroachment along the Sycamore Street frontage.
'--.
All in the City of Santa Ana, County of Orange, State of California, as shown in Exhibit "
B" attached hereto, and incorporated herein by reference (hereinafter referred to as "Premises").
2. PREMISES AND USE
(a) The Premises described in this License Agreement shall be only such as are
described in Paragraph 1 and Exhibit "A" hereto. Licensee shall not use any premises or
property that is not specifically described in Exhibit A. Licensee shall at all times comply with
the City's Standards.
(b) Landlord and Licensee will not permit any dangerous condition or waste to be
created on the Property.
(c) All acts and things done by Licensee on the Premises will be done in a careful and
reasonable manner, in accordance with all federal, state and local laws.
(d) Licensee shall enter and use the Premises entirely at its own cost, risk and
expense.
(e) Neither Landlord nor Licensee shall have any interest in the Premises or be
entitled to any reimbursement or repayment for any work performed upon the Premises pursuant
to this License Agreement.
2. EOUIPMENT
Licensee shall, at its sole cost and expense, furnish all required physical barriers or other
design elements consistent with the City's Standards, around the Premises in such a manner to
insure that use of the Premises will not cause a safety hazard to pedestrians or vehicles at any
time.
3. ALTERATIONS AND REPAIRS
Landlord and Licensee accept the Premises in the condition they now are, and City shall
not be required to make any alterations, improvements or repairs therein or thereon. Landlord
and Licensee hereby waive any and all rights, if any it may have, to any expressed or implied
warranties concerning the condition of the Premises. Neither Landlord nor Licensee shall make
any changes or remove any portion of the Premises without first securing a permit from City.
All such permitted changes or removals shall be at the sole expense of Landlord or Licensee.
5. CONDUCT
Landlord and Licensee shall at all times operate its business in a quiet orderly manner to
the satisfaction of the City so that the operation shall not become or constitute a nuisance, either
public or private.
6. EMPLOYEES AND MECHANICS' LIENS
Neither Landlord nor Licensee shall permit any mechanics', materialmen's or other liens
of any kind or nature ("Liens") to be filed or enforced against the Premises in connection with
2
this License Agreement. Landlord and 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 Premises, or any portion
thereof, or on the improvements on the Premises, 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 License Agreement, should Landlord and 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
Landlord and Licensee upon written demand.
7. INGRESS AND EGRESS
The City reserves the right to enter upon the Premises covered by this License Agreement
at any time during the term of this License Agreement.
8. INDEMNITY
Landlord and Licensee agree to defend, indemnify and hold harmless the City of Santa
Ana, members of its City Council, boards or commissions, officers, agents, volunteers and
employees (hereinafter, collectively "the City") from and against any and all loss, damage, cost,
expense, liability, claim, demand, suit, attorneys' fees and judgments arising from or in any
manner connected to Licensee's possession, occupancy or use of the Premises and/or arising
from or in any manner connected to the condition of the Premises and Licensee's business,
activities, operations, services or work conducted in, on or about the Premises.
Landlord and Licensee further agree to indemnify, defend and hold harmless the City,
from and against all loss, damage, cost, expense, liability, claim, demand, suit, attorneys' fees
and judgments arising from or in any manner connected to the furnishing or supplying any work,
services, materials, equipment or supplies by any person, firm or corporation or other entity in
connection with this License Agreement or Licensee's operations.
Without limiting the generality of the foregoing, Landlord and Licensee agree that City
shall not be liable for any injury to Landlord's or Licensee's businesses or loss of income
therefrom, or for damage to the goods, wares, merchandise, improvements or other property of
Landlord or Licensee, or their respective officers, agents, employees, contractors, invitees or
customers, or any other person in, on or about the Premises, or the personal injury or death of
Landlord or Licensee, or their officers, agents, employees, contractors, invitees or customers.
9. INSURANCE
Prior to commencing occupancy of the Premises or commencing construction of any
improvements on the Premises, and throughout the duration of this License Agreement, Licensee
shall procure and maintain the following insurance against claims for injuries to persons or
damages to property which may arise from or in connection with the condition of the Premises or
3
the possession, occupancy, operation and use ofthe Premises by Licensee, Licensee's agents,
representatives, employees or subcontractors.
(a). Minimum Limits ofInsurance.
Licensee shall maintain insurance coverage in the following minimum amounts:
i) Commercial General Liability Insurance: Licensee shall maintain commercial
general liability insurance naming the City of Santa Ana, its officers, employees, agents,
volunteers and representatives as additional insured(s) and 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 operations in the performance of this Agreement. 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$I,OOO,OOO.OO per occurrence. Such general liability policy shall
expressly include coverage for fire-legal liability. Licensee shall supply City with a fully
executed additional insured endorsement in substantially the form attached hereto as
Exhibit C upon execution of this Agreement and shall be approved in form by the City
Attorney.
ii) Workers Compensation and Employers' Liability: Workers Compensation limits
as required by the Labor Code of the State of California and Employers' Liability limits
of one million dollars ($1,000,000.00) per accident.
iii) Personal Property Insurance: Property insurance shall be provided for all
equipment, improvements or betterments made by Licensee to the Premises. Licensee
shall obtain and maintain in force during the term of this License Agreement a policy or
policies of insurance coverage loss or damage to such equipment, improvements or
betterments located in, on or upon the Premises, in the amount of at least one hundred
percent (100%) of the full replacement value thereof, as the same may exist from time to
time, against perils included within the classification of fire, coverage endorsement,
vandalism and malicious mischief endorsement. The City shall bear no responsibility for
any loss, damage or destruction of Licensee's equipment, improvements or betterments
even if Licensee fails to procure and maintain the personal property insurance required
hereunder.
(b). The following requirements apply to the insurance to be provided by Licensee pursuant
to this section:
. Insurance carriers providing coverage shall be "admitted carriers" as
determined by the State of California.
· City may increase the dollar amount of coverage required under any of the
policies described above, upon prior written notice to Licensee.
· Licensee shall maintain all insurance required above in full force and effect
for the entire period covered by this Agreement.
4
. Certificates of insurance shall be furnished to the City upon execution of this
License Agreement and shall be approved in form by the City Attorney. The
certificates are to be signed by a person authorized by that insurer to bind
coverage on its behalf. Evidence of insurance shall provide for coverage of
the Premises.
· Certificates and policies shall state that the policies shall not be canceled or
reduced in coverage or changed in any other material aspect without thirty
(30) days prior written notice to the City.
(c). If Licensee fails or refuses to produce or maintain the insurance required by this
section or fails or refuses to furnish the City with required proof that insurance has been procured
and is in force and paid for, the City shall have the right, at its election, to forthwith terminate
this License Agreement.
10. COMPLIANCE WITH LAWS AND ORDINANCES
Licensee shall, throughout the term of this License Agreement, maintain all necessary
licenses, permits, approvals and exemptions required by the laws and regulations of the United
States, the State of California, the City of Santa Ana and all other governmental agencies.
Licensee shall notify the City, immediately and in writing of its inability to obtain or maintain
such permits, licenses, approvals, waivers and exemptions. Said inability shall be cause for
termination of this License Agreement.
11. PROHIBITION AGAINST TRANSFER
Licensee shall not assign, sublease, hypothecate or transfer this License Agreement or
any interest therein directly or indirectly, by operation of laws or otherwise. Any attempt to do
so shall be null and void, and any assignee, hypothecate or transferee shall acquire no right or
interest by reason of such attempted assignment, hypothecation or transfer.
12. SUCCESSORS
This License Agreement is and shall be binding upon and shall inure to the benefit of
each of the parties and each of their respective heirs, successors and assigns and shall run with
the land.
13. TERMINATION
In the event Licensee hereto fails to, or refuses to perform any of the provisions hereof at the
time and in the manner required hereunder, Licensee shall be deemed in default in the
performance if its obligations under this License Agreement. If such default is not cured within
ten (10) days after written notice of default from City to Licensee, specifying the nature of such
default and the steps necessary to cure such default, either party may suspend, terminate or
revoke this License Agreement forthwith by giving notice thereof.
The City shall have the option at any time, without cause, of terminating this License Agreement
on thirty (30) days written notice.
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Licensee shall have the option of terminating this License Agreement on thirty (30) days written
notice, provided that at the end of said notice period, all encroachments are removed from the
public right of way.
14. NOTICES
All notices, demands, requests, or approvals to be given under this License Agreement
shall be given in writing and shall be deemed served when delivered personally, or seventy-two
(72) hours after the deposit thereof in the United States Mail, postage prepaid, registered or
certified, addressed as follows:
To City:
Executive Director
Public Works Agency
P.O. Box 1988 (M-2l)
20 Civic Center Plaza
Santa Ana, CA 92702
To Licensee: GON-REY, LLC
To Landlord: Super "A" Foods, Inc.
Mr. Louis A. Amen, President
7200 Dominion Circle
Commerce, CA 90040
Either party may from time to time by written notice served as aforesaid, designate a
different mailing address or person to whom all such notices or demands are thereafter to be
addressed.
15. MISCELLANEOUS
a. A waiver by the City of any breach of any term, covenant or condition herein
shall not be deemed to be a waiver of any subsequent breach of the same or any other term,
covenant or conditions contained herein, whether ofthe same or different character.
b. Any holding over by Licensee after the expiration or any termination of this
License Agreement or by any extension or renewal thereof shall not constitute a renewal or
extension of the term hereof.
c. Licensee recognizes and understands that should this License Agreement be deemed
by the County of Orange to create a possessory interest subject to property taxation, that Licensee
shall be subject to the payment of property taxes levied on such interest, and that it shall defend,
indemnifY and hold the City of Santa Ana, its officers, officials, members, employees, agents and
representatives, harmless from and against any and all such claims.
d. It is understood and agreed that Licensee, in the performance of this License
Agreement, will be acting in a wholly independent capacity and not as an agent, employ, partner,
joint venture of the City. This License Agreement does not create a tenancy of any nature
whatsoever between the City and Licensee.
e. The validity of this Agreement and any of its terms or provisions, as well as the
rights and duties of the parties, shall be governed by, and construed in accordance with, the laws
of the State of California.
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f. Remedies. Either party shall, in addition to all other rights provided herein or as
may be provided by law, be entitled to the remedies of specific performance and injunction to
enforce its rights hereunder, except to the extent expressly provided to the contrary in this
Agreement. All rights and remedies under this Agreement are cumulative and no one of them
shall be exclusive of any other, and each party shall have the right to pursue anyone or all of
such rights and remedies or any other remedy which may be provided by law, whether or not
stated in this Agreement, except to the extent expressly provided to the contrary in this
Agreement.
IN WITNESS WHEREOF, the parties hereto have entered into this License Agreement as of
the date first set forth above.
ATTEST:
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PATRICIA E. HEAL
Clerk of the Council
CITY OF SANTA ANA
fLd;12
DAVIDN. REAM
City Manager
,
APPROVED AS TO FORM
LICENSEE
JOSEPH W. FLETCHER
City Attorney
GON-REY, LLC
By:
Laur eedy
Assistant City Attorney
C!JM--t~ l.lL
CARL MIDDLETON
Vice President Real Estate
LANDLORD
7
STATE OF CALIFORNIA
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COUNTY OF ORANGE
On p.....~~..-r 'Z.. ,2005, before me, c::>s."-I.. ~_ c"....~\lNftl'l. a Notary Public
in and for said State, personally appeared C lIoN I... '""-'dG "-...\, .~ personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his authorized capacity, and that
by his signature on the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
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SIgnature 0 otary
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STATE OF CALIFORNIA
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COUNTY OF ORANGE
On A\JQU~+- \5 ,2005,beforeme~\a\{,Q..'\!:,\JnOY'\l~r a Notary Public
in and fo'Y said State, personally appeared \-.6 U ( <;;fl.:.. ~el\ personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his authorized capacity, and that
by his signature on the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
13~
Si~ture of Notary
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EXHIBIT "A"
PARCEL 1:
LOTS 1 TO 8 INCLUSIVE OF BLOCK 11 OF THE SOUTH SIDE ADDmON TO THE CITY OF SANTA
ANA, AS PER MAP .RECORDED IN BOOK 3 PAGE 44 OF MISCELlANEOUS MAPS, IN THE OFFICE
OF THE COUN1Y RECORDER OF SAID COUN1Y.
PARCEL 2:
LOT 10 IN BLOCK 11 OF THE SOUTH SIDE ADDmON TO THE CITY OF SANTA ANA, IN THE
CITY OF SANTA ANA, COUN1Y OF ORANGE, STATE OF CAUFORNIA, AS PER MAP RECORDED IN
BOOK 3 PAGE 44 OF MISCEllANEOUS MAPS, IN THE OFFICE OF THE COUN1Y RECORDER OF
SAID COUN1Y.
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EXHIBIT C
ADDITIONAL INSURED ENDORSEMENT
FOR COMMERCIAL GENERAL LIABILTIY POLICY
Insurance. Company
This endorsement modifies such insurance as is afforded by the provlSlons of Policy
# relating to the following:
1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its
officers, employees, agents, volunteers and representatives are named as additional insureds
("additional insureds") with regard to liability and defense of suits arising from the operations
and uses performed by or on behalf of the named insured.
2. With respect to claims arising out of the operations and uses performed by or on
behalf of the named insured, such insurance as is afforded by this policy is primary and is not
additional to or contributing with any other insurance carried by or for the benefit of the
additional insureds.
3. This insurance applies separately to each insured against whom claim is made or
suit is brought except with respect to the company's limits ofliability. The inclusion of any
person or organization as an insured shall not affect any right which such person or organization
would have as a claimant ifnot so included.
4. With respect to the additional insureds, this insurance shall not be cancelled, or
materially reduced in coverage or limits except after thirty (30) days written notice has been
given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701.
(Completion of the following, including countersignature, is required to make this
endorsement effective.)
Effective
Policy #
Issued to
this endorsement form as a part of
Named Insured
Countersigned by
Authorized Representative