HomeMy WebLinkAbout25G - AGMT - LICENSE AGMT AT ALTON YARDREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
OCTOBER 1, 2012
TITLE:
LICENSE AGREEMENT WITH ALL
CITY NURSERY FOR USE OF
FORMER ALTON YARD SITE AND
APPROPRIATION ADJUSTMENT
RECOGNIZING RENTAL INCOME
ICITY MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
? As Recommended
? As Amended
? Ordinance on 1' Reading
? Ordinance on 2nd Reading
? Implementing Resolution
? Set Public Hearing For_
CONTINUED TO
FILE NUMBER
Authorize the City Manager and Clerk of the Council to execute the attached license agreement
with All City Nursery for use of the former Alton Yard site, subject to nonsubstantive changes
approved by the City Manager and City Attorney.
DISCUSSION
In August, the City issued a Request for Proposals (RFP) seeking qualified firms wishing to enter
into an exclusive license agreement to utilize the City property located at the east end of Alton
Avenue between Standard Avenue and the SR-55 Freeway. This property has approximately
66,546 of usable square feet and was formerly known as the Alton Yard.
In partnership with the City of Irvine, the City has plans to construct a new overpass at the SR-55,
linking the cities of Santa Ana and Irvine at Alton Avenue. The subject property is included within
the overpass project area; however, construction is not expected to begin for another three to five
years. Thus, the property is expected to be available for uninterrupted use by the licensee until
construction commences. The agreement includes a 60-day cancellation notice to allow for
maximum scheduling flexibility.
The RFP for use of the site was advertised on the City's website and sent to 36 area nurseries
and equipment storage companies, compatible uses in that area. In addition, a notice was
published in the Register. One proposal was received and evaluated by personnel from the
Public Works Agency - from All City Nursery. The proposal is responsive to the RFP. Staff
recommends entering into a license agreement with All City Nursery.
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
25G-1
License Agreement with All City Nursery
For Use of the Former Alton Yard Site and AA
October 1, 2012
Page 2
FISCAL IMPACT
This agreement will result in additional revenue of $2500 per month ($22,500 for the remainder of
the current fiscal year) into the Gas Tax property rental account (accounting unit 05917002-
57960).
APPROVED AS TO FUNDS AND ACCOUNTS:
A Nrt=, ?? ??? ,
Rau Godinez II Francisco Gutierrez
Executive Director Executive Director
Public Works Agency Finance & Management Services Agency
RGlf LC
Exhibit: 1. Agreement
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EXCLUSIVE LICENSE AGREEMENT
THIS EXCLUSIVE LICENSE AGREEMENT is entered into on October 1, 2012, by and
between All City Nursery, a subsidiary of ICC Collision Center, Inc., a California corporation
("Licensee") and 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").
RECITALS:
A. The City is the owner of that certain real property located at the eastern terminus of Alton
Avenue between Standard Avenue and the SR-55 Freeway in the City of Santa Ana,
California, as described in Exhibit A, attached hereto and incorporated by reference
(hereinafter the "Property"). The City intends to construct a freeway overpass on the
Property in the future.
B. Licensee desires to enter onto said Property to utilize the Property to operate a plant nursery
as an interim use until the SR-55 Alton Overpass Project is commenced.
C. The City wishes to accommodate Licensee's desire to enter and utilize the Property, granting
exclusive right of entry and license to Licensee upon the terms and conditions contained
herein, and on a temporary basis.
D. Licensee understands that the City acquired and intends to use the Property for future street
purposes.
NOW, THEREFORE, for good and valuable consideration, Licensee and City agree as follows:
RIGHT OF ENTRY AND LICENSE
a. Provided that all of the terms and conditions of this Agreement are fully satisfied, as of
the Effective Date of this Agreement, City hereby grants to Licensee and its employees, agents,
contractors, and assigns a revocable license to enter upon and encroach upon said Property to
utilize the Property for the operation of a wholesale plant nursery, including improving the
Property by installing water pipes and sprinklers, and for no other purposes without the prior
written consent of the Executive Director of the Public Works Agency, for the term of thirty (30)
days from the date of execution and approval of required insurance documentation.
b. This Agreement shall automatically renew each month, unless and until a sixty (60) day
written notice to vacate premises is provided by City. However, the maximum term of this
License shall not exceed five years without the prior written consent of the City. It is expressly
understood that this Agreement does not in any way whatsoever grant or convey any rights of
possession, easement or other cognizable property interest in said Property, except those
expressly provided within this Agreement. Upon termination of this Agreement, any
improvements constructed by Licensee or its predecessor, shall be the property of the fee title
owner of said Property.
c. City will 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.
d. This License is made subject and subordinate to the prior and continuing right of City to
use the Property and the use of the public right-of-way.
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2. LICENSEE RESPONSIBILITIES. By execution of this Agreement, Licensee agrees for
itself and on behalf of its employees, agents, consultants, contractors and assignees as follows:
a. 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 Project on the Property. 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.
b. Licensee will 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.
c. All acts and things done by Licensee on the Property will be done in a careful and
reasonable manner, in accordance with all federal, state and local laws. Licensee agrees that any
use it makes of the Property as specified herein shall be affected with all reasonable diligence and
precaution to avoid damage to the land, property or personnel of City.
d. Licensee shall enter the Property entirely at its own cost, risk and expense.
e. Licensee agrees to conform to any reasonable requirement set forth by the City related to
the use of the Property during the term of this License.
f. 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.
g. Licensee shall not have any interest in the Property or be entitled to any reimbursement
or repayment for any work performed upon the Property pursuant to this Agreement.
h. Licensee shall take all necessary precautions to prevent the import and/or release into the
environment of any hazardous materials which are imported to, in, on or under the Property
during this License. If hazardous materials are imported onto the Property, Licensee shall be
solely responsible for removing such imported hazardous materials in conformance with all
governmental requirements. Licensee shall report to the City, as soon as possible after each
incident, any unusual or potentially important incidents with respect to the environmental
condition of the Property.
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i. 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.
j. Licensee shall not install or make any improvements to the Property, except as provided
herein, without the written approval of the City. 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 pay all costs
of the installation, operation, maintenance, repair and removal of any approved improvements on
the Property.
k. Licensee will 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.
1. Licensee shall be responsible for the payment of all charges in connection with utility
services provided to the Property. "Utility services" shall include natural gas, water, electricity
and sewer.
m. Licensee shall not record or attempt to record this personal License. Any attempt by
Licensee to record this License shall automatically terminate this License Agreement and render
this License void and invalid for all purposes.
LICENSE PAYMENT.
a. Licensee shall pay to City a monthly license fee of $2,500.00, for an annual total of
$30,000.00. Payment shall be due on or before the 1" day of each month, payable to
"The City of Santa Ana" and remitted to the following address:
Santa Ana Public Works Agency
Administrative Services Manager
City of Santa Ana
P.O. Box 1988 (M-21)
Santa Ana, CA 92702
A copy of said payment shall be sent to the address listed herein below in Section 9 -
"Notices". All payments requiring proration shall be prorated on the basis of a 30-day
month. A late charge of ten percent (10%) shall be applied five (5) days after any
payment is due but unpaid. In addition, one and one-half percent (1 '/2 %) interest per
month shall be added for each month that payment hereunder is due but unpaid.
b. Upon execution of this Agreement Licensee shall pay to Licensor a security deposit in the
amount of one month license fee, to secure Licensee's performance of the terms and
conditions of this Agreement. If Licensee fails to fully perform its obligations under this
Agreement, Licensor may, in addition to other rights of Licensor set forth in this
Agreement, retain from the security deposit, those amounts as are reasonably necessary to
1) remedy Licensee's default in payment of the license fee, 2) repair damages to the
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Property caused by Licensee, and 3) return the Property to the condition it is in at the
commencement of this License Agreement.
4. INSURANCE. During the term of this License Agreement, Licensee shall maintain, and
shall require its subcontractors, if any, to obtain and maintain insurance as described below:
a. Commercial General Liability Insurance which shall include 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, including without limitation, acts involving vehicles.
The amounts of insurance shall be not less that single limit coverage in the total amount
of $1,000,000.00 per occurrence. Such insurance shall include an additional insured
endorsement which 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. The following requirements shall apply to insurance to be provided by Licensee pursuant
to this Agreement:
(i) Licensee shall maintain all insurance required above in full force and effect for
the entire period covered by this License Agreement.
(ii) Certificates of insurance shall be provided to City upon execution of this
Agreement and shall be approved in form by the City Attorney.
(iii) Certificates and policies shall state that the policies shall not be cancelled or
reduced in coverage or changed in any material aspect without thirty (30) days
prior written notice to the City.
c. If Licensee fails or refuses to produce or maintain the required insurance, or fails to
provide City with required proof that insurance has been procured and is in full force and
paid for, City shall have the right, at its election, to terminate this Agreement.
5. INDEMNITY. All use of and entry upon the Property shall be at the sole cost, risk and
expense of Licensee. Licensee agrees to defend, indemnify and hold the City and its officers,
employees, agents, representatives and volunteers, harmless from and against any and all loss,
damage, injury, liability, claim, cost or expense (including, without limitation, reasonable
attorneys' fees, expert witness fees, court costs and expenses) arising from or attributable to the
activities of Licensee or any of its employees, agents, consultants, contractors, or assignees upon
the Property pursuant to this Agreement. Licensee shall defend, indemnify and hold the City of
Santa Ana and its officers, employees, agents and representatives harmless from and against any
and all such claims, and pay all costs for the defense of the City, including fees and costs for
special counsel to be selected by the City, regarding any action by a third party asserting that
personal injury, damages, just compensation, restitution, judicial or equitable relief due to
personal or property rights arises by reason of the terms of, or effects arising from this
Agreement. City may make all reasonable decisions with respect to its representation in any legal
proceeding.
6. 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
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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.
7. REVOCATION. City may revoke this License at will, upon sixty (60) day written notice
to the Licensee.
TEMINATION OF OCCUPANCY
a. Occupancy may be terminated by either party upon sixty (60) days written notice to the
other party.
b. Licensee accepts the Property in an "as is" condition and upon termination or revocation
of this License, Licensee shall, at its own cost and expense, remove any improvements installed
by Licensee or its predecessor, and surrender possession of the Property to the Licensor in good
order and repair and as nearly practicable to the state and condition in which it existed prior to the
grant of this License, to the satisfaction of City.
c. In the event Licensee fails, neglects or refuses to remove said improvements and restore
the Property, such removal and restoration may be performed by City at Licensee's expense,
which Licensee agrees to pay to City upon demand.
9. NOTICES. Any notice or other communication pursuant to this Agreement shall be in
writing and shall be deemed properly served if delivered in person, or sent by registered or
certified mail, return receipt requested, to the following persons:
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
Fax 714- 647-6956
With courtesy copies to:
Public Works Agency
City of Santa Ana
P.O. Box 1988 (M-21)
Santa Ana, CA 92702
Fax 714-647-5069
Attn: Raul Godinez
To Licensee: All City Nursery
3131 S. Standard Avenue
Santa Ana, CA 92705
Fax 714-619-4039
10. ASSIGNMENT. Licensee shall not make any assignment of this Agreement without the
prior written consent of the City, which consent shall not be unreasonably withheld.
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11. MISCELLANEOUS.
a. Choice of Law. This Agreement shall be governed by and construed in accordance with,
the laws of the State of California.
b. Non-Recording. Neither party shall record this lease.
c. Remedies. Either party shall 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 any one or all 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.
d. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one and the
same instrument.
e. Non-Liability of Public Officials. No officer, employee, member, agent or representative
of the City shall be personally liable to Licensee, or any successor in interest, in the event
of any default or breach by the City, or for any amount which may become due to
Licensee or its successor, or for any breach of any obligation of the terms of this
Agreement.
Effective Date. This Agreement shall become effective on the date or City execution of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Exclusive License Agreement on
the date and year first written above.
ATTEST:
MARIA D. HUIZAR
Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By:
Laura Sheedy
Assistant City Attorney
RECOMMENDED FOR APPROVAL:
RAUL GODINEZ II
Executive Director - PWA
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CITY OF SANTA ANA
PAUL M. WALTERS
City Manager
ALL CITY NURSERY
HAMID HOJATI
President
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EXHIBIT A
Property Description
The subject property consists of a portion of dedicated unimproved Alton Avenue
which extends from Standard Avenue to the Newport Costa Mesa (State Route
55) Freeway right-of-way, within the City of Santa Ana. The site has a relatively
long and narrow land configuration with 86,626 square feet of land area. The net
useable land area, exclusive of that portion which lies within an unimproved flood
channel, is estimated at 66,546 square feet. While the site is not located within a
specific zone district, properties immediately surrounding the site are zoned for
industrial use.
A site map of the property is included in the attached hereto as Exhibit A-1.
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Exhibit A-1
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Exhibit 2
RFP No. 12-053 Alton Yard Property License Agreement Page 3
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