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HomeMy WebLinkAboutALL CITY NURSERY-2012 !I'JUKI'I~CE ON FILE \:vORK MAY PROCEED UNTIL INSURANCE EXPIRES lo-J~/3 'CLERK OF COUNCIL DA:E: A(2) OCT 25 2012 o. ~~Clret THIS EXCLUSIVE LICENSE AGREEMENT is entered into on October 1,2012, by and fI.\errer between All City Nursery, a subsidiary ofICC 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"). A-2012-210 DO NOT RECORD EXCLUSIVE LICENSE AGREEMENT RECIT ALS: 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: 1. 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 ofthis 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 ofthe 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 ofthe 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. 92412 DO NOT RECORD 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. 92412 DO NOT RECORD 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 ofthe 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. 3. 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 151 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 often percent (10%) shall be applied five (5) days after any payment is due but unpaid. In addition, one and one-half percent (1 Y2 %) 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 ofthe 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 92412 DO NOT RECORD 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 ofthis License Agreement, Licensee shal1 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 92412 DO NOT RECORD 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. REVOCA TION. City may revoke this License at will, upon sixty (60) day written notice to the Licensee. 8. 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 ofthe City, which consent shall not be unreasonably withheld. 92412 DO NOT RECORD 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 anyone 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 ofthis Agreement. f. 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: CITY OF SANTA ANA ~1~~ City Manager ~ ,D 1k:J(i}/ MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO :~~ La a Sheedy Assistant City Attorney ALL CITY NURSERY " :;f ~D~;;{ President ~ 92412 92412 DO NOT RECORD 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. Exhibit A-I 92412 l lh ~ q) <<> co . <C ~ <( ;,,- .=-801"Ur ~'"~~ ..r-.NN r-N~CJ'I -.-1")- II tr It;j "lIO::,oJ~ ~~ .. 0 ~;"I' \:\in ;:l DO NOT RECORD -'- &;. - , - ~'llt!O~1t> - -.~ 3'{8:9-,_ -.S';8'.6.+ ' ,t..9t"l ......._... '1'L"II I I , I I , r J I ! gii <(I z' g! oJl <C, ...)1 Uj I 'i" ,," I~ .N I;" j!!1 I I J r ~o. p ~~~~ ::~~~ -IT ElII'R II -<t"CC.......- _h_'-~I~l 3.tI:,Q:.lliil- -- -- i I j - ~ i~! I , I .- ~; ~'" U::o "-"- B Q.. ".~S.St.105 .90'r I ,-----.-.-------- ! .~VawaNVlS-i6----- r r , \....._---- -.--- '-- Exhibit 2 Page 3 RFP No. 12-053 Alton Yard Property License Agreement ~ Policy Number: Date Entered: 10/4/2012 ACORD@ CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DDIYVVY) ~ 10/4/2012 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT MARYAM REZVANI INSURANCE AGENCY NAME: ~gN~nFYt\. (949)348-9794 (L~"No\: ~9) 716-9292 27281 LAS RAMBLAS # 100 E-MAIL !"-.. .....,\ c= Mission Viejo, CA 92691 ADDRESS: """-.) INSURERISI AFFORDING COVERAGE: "::;) NAlC # INSURER A: Farmers Insurance '. ~ INSURED All City Nursery INSURER B : rv INSURER C: W 3131 S Standard Ave., INSURER 0: ". :::::',;> "" Santa Ana, CA 92705 ... "" ,.." INSU RER E : .,J' INSU RER F : ~'::.~~-j :,';;,. ':-I COVERAGES CERTIFICATE NUMBER: REVISION Ne:M~R: ~ THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABO~FOR TAt: POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADuL I~; (&~~g~~\ (&3Mg~~\ LIMITS LTR IN"'R POLICY NUMBER GENERAL LIABILITY EACH OCCURRENCE $1,000,000 A [Z jMMERCIAL GENERAL LIABILITY X 605139202 0/03/2012 0/03/2013 ~~~~~~J'i'E~~~~~~ence' $150,000 ~ CLAIMS-MADE [Z] OCCUR MED EXP (Anyone person) $5,000 ~ PERSONAL & ADV INJURY $1,000,000 GENERAL AGGREGATE $2,000,000 I-- GEN'L AGGREn LIMIT APPLIES PER: PRODUCTS - COMPIOP AGG $1,000,000 n POLICY p,rg. n LOC $ AUTOMOBILE LIABILITY fE~~~~~~~t~INGLE LIMIT l: I-- ANY AUTO BODILY INJURY (Per person) $ I-- ALL OWNED - SCHEDULED BODILY INJURY (Per accident) $ I-- AUTOS - AUTOS lOR i\ NON-OWNED .\PPRUVi:..U ^ " rf"} ip~7~c?c~d~gAMAGE $ HIRED AUTOS AUTOS Fl.~ I-- - ----, J $ UMBRELLA LIAB H OCCUR "...__~~_ro ~-~~t-~ .~/2. EACH OCCURRENCE $ I-- EXCESS L1AB CLAIMS-MADE AGGREGATE $ OED I I RETENTION $ L.lUra SLtt S-':Cl $ WORKERS COMPENSATION t" '::-'-,lSldl L '"-_ J I T~8~T ~Ys I IOl~- AND EMPLOYERS' LIABILITY Y/N ANY PROPRIETOR/PARTNER/EXECUTIVE D N/A E.L. EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? (Mandatory In NH) E.L. DISEASE - EA EMPLOYEE $ ~~~~~rp"ir~~ ~~gPERATIONS below E.L. DISEASE. POLICY LIMIT $ DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, il more space Is required) City of Santa Ana, its officers, employees, agents, volunteers and representatives are also named as additonal insured. CERTIFICATE HOLDER CANCELLATION City of Santa Ana SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Clerk of the City Council ACCORDANCE WITH THE POLICY PROVISIONS. 20 Civic Center Plaza (M-30) POBox 1988 AUTHORIZED REPRESENTATIVE -Mr; Santa Ana, CA 92702-1988 F~ I ACORD 25 (2010/05) @ 1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD Produced using Forms Boss Plus software. www.FormsBoss.com; Impressive Publishing 800-208-1977 '. . I ADDITIONAL INSURED ENDORSEMEN1l FOR COMMERCIAL GENERAL'UABILITY POILICY lSvtWCb I , I This endorsement modj,fies such insurance as is afforded by' the provisjohs of Policy # 6l)!5J3t1~D~'tothefollowing; , Insurance Company h,l(JJ16/(S , . Belldlf/BE:- . . 1. The City of Santa Ana, 20 Civic Center Plaza, Santa AnaJ California 92701; its , o-ffi~ employees, agentst volunteers a,nd representatives are n~ed asladditional ~eds . ("additionalinsuredslt) with regard to liability!1Jid defense OfSQits'" :fro:m the operations and uses perfo~ed by or on behalf of the naIJ+ed jnsured.. . ' ?_ With respect to clalltis arising out of the operations and uses perfonned by or on behalf of the named insttted, such iIJsurance as is. afforded by this POlicyi primary and is not additional to or con1n"buting with any other insurance carried hy or for benefit of the ~~~~~. . . . 3. This insurance applies. separately to each insured against rom claim i$ 'made or .suit is braught except with respect to the company's limits ~f liability. ,f ne incltmon of any p~n or orWlni7mi.on ~ ~ ~ shall not affect any right wbjeh 1 ~~ or organ;~on would bav~ as a cla1inant if n~ so mcluded. " ' 4~ 'With respect to the additional instireds~ this insurance:.:tot be canoellee4 or materially reduced in coverage or limits except after thirty (30) dayS . , notice has been given: to th~ City o-f Santa Ana,. 20 Civic Center Plaza, Santa ~ Califo . a 92701. (Completion ofllie following, inclUding countersignature, is required-to'" e this endorsement effective.) . ~ Effective . If) /3 J ~(')/:;)- . this endorsement fl as a part of Policy # ~05 J2~Og. Issued to //. ,,\ '1'~~d - I Countersigned by , ....."). ".