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HomeMy WebLinkAboutFIRST AMERICAN TITLE INSURANCE COMPANY-2013?3Ff N-2013-111 L MASTER LICENSE AGREEMENT This MASTER LICENSE AGREEMENT ("Agreement") is dated for reference purposes as of August 1, 2013, and entered into by and between FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation ("First American"), and the CITY OF SANTA ANA, a charter city and California municipal corporation ("Licensee"). RECITALS: A. First American Financial Corporation ("FAC"), First American's parent company, is the owner of that certain real property located at 114 E. 5`" St., Santa Ana, CA ("Property"). B. Licensee desires to use the courtyard parking lot on the Property ("License Area") as a command post for Licensee's police department's mounted patrol (i.e., horse patrol) for the Cinco de Mayo Festival held each year in the City of Santa Ana in the month of May and the Fiestas Patrias Festival held each year in the City of Santa Ana in the month of September (each, an "Event"). C. First American is willing to grant to Licensee from time to time a license to use the License Area for such purpose and for such Events, on the terms and conditions set forth herein. D. The parties desire to enter into this Agreement for purposes of creating a master agreement that will govern Licensee's use of the License Area for such Events. 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. Term; Termination. The term of this Agreement shall commence on September 1, 2013, and shall continue on a month to month basis until termination. Either party shall have the right to terminate this Agreement upon five (5) days' advance written notice to the other party. In addition, First American shall have the right to terminate this Agreement if Licensee does not comply with its obligations hereunder. No termination shall release either party from any default or terminate any obligation of either party which by its nature survives the termination. 2. Procedures for Requesting License. No later than twenty (20) days prior to the date that Licensee desires to use the License Area for an Event, Licensee shall submit to First American's Representative a Request for License in the form attached hereto as Exhibit "A" ("Request"). First American's Representative shall endeavor to respond to Licensee's Request within five (5) business days after receipt of the Request, which written response may be via email. Licensee acknowledges and understands that the granting or the denial of the Request shall be in First American's sole and absolute discretion and is without restriction or limitation of any kind, and Licensee shall have no expectation that a Request shall be granted as to any particular Event. First American's Representative shall be Ed Hoffman or such other person(s) that First American may designate from time to time upon written notice to Licensee. N-2013-111 MASTER LICENSE AGREEMENT This MASTER LICENSE AGREEMENT ("Agreement") is dated for reference purposes as of August 1, 2013, and entered into by and between FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation ("First American"), and the CITY OF SANTA ANA, a charter city and California municipal corporation ("Licensee"). RECITALS: A. First American Financial Corporation ("FAC"), First American's parent company, is the owner of that certain real property located at 114 E. 5n' St., Santa Ana, CA ("Property"). B. Licensee desires to use the courtyard parking lot on the Property ("License Area") as a command post for Licensee's police department's mounted patrol (i.e., horse patrol) for the Cinco de Mayo Festival held each year in the City of Santa Ana in the month of May and the Fiestas Patrias Festival held each year in the City of Santa Ana in the month of September (each, an "Event"). C. First American is willing to grant to Licensee from time to time a license to use the License Area for such purpose and for such Events, on the terms and conditions set forth herein. D. The parties desire to enter into this Agreement for purposes of creating a master agreement that will govern Licensee's use of the License Area for such Events. 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. Term; Termination. The term of this Agreement shall commence on September 1, 2013, and shall continue on a month to month basis until termination. Either party shall have the right to terminate this Agreement upon five (5) days' advance written notice to the other party. In addition, First American shall have the right to terminate this Agreement if Licensee does not comply with its obligations hereunder. No termination shall release either party from any default or terminate any obligation of either party which by its nature survives the termination. 2. Procedures for Requesting License. No later than twenty (20) days prior to the date that Licensee desires to use the License Area for an Event, Licensee shall submit to First American's Representative a Request for License in the form attached hereto as Exhibit "A" ("Bequest"). First American's Representative shall endeavor to respond to Licensee's Request within five (5) business days after receipt of the`- quest, which written response may be via email. Licensee acknowledges and understands that the granting or the denial of the Request shall be in First American's sole and absolute discretion and is without restriction or limitation of any kind, and Licensee shall have no expectation that a Request shall be granted as to any particular Event. First American's Representative shall be Ed Hoffman or such other person(s) that First American may designate from time to time upon written notice to Licensee. 1 3. Grant of License. As to each Request that First American approves, on behalf of FAC, First American hereby grants to Licensee a license to use the License Area as a command post for Licensee's police department's mounted patrol (i.e., horse patrol) in connection with the Event that is the subject of an approved Request (each, an "Approved Event") during the License Period for that Approved Event, on the terms and conditions set forth in this Agreement ("License"). This Agreement creates a temporary license to enter the License Area during the applicable License Period, and does not constitute a lease, an easement or any other interest in the Property or any portion thereof, and nothing herein shall be construed to give Licensee any greater or other right or interest. 4. License Period. As to each Approved Event, the License granted hereunder and the right to use the Licensed Area shall be only between the hours set forth in the Request and such hours shall be the "License Period" for that Approved Event. 5. License Fee. As to each Approved Event, prior to the Event, Licensee shall pay to First American the sum of Twenty Dollars ($20.00) as a license fee for the License granted hereunder for the Approved Event. The License Fee may be changed by First American at any time upon written notice to Licensee. 6. Use of License Area. 6.1 Clean Up. Licensee shall, each day after use of the License Area, leave the License Area in a neat and clean condition to the reasonable satisfaction of First American, free of trash and debris and manure, and Licensee shall remove all property and materials of Licensee. Prior to the expiration of the License Period for each Approved Event, Licensee shall cause the License Area to be steam cleaned and pressure washed to remove all urine and urine stains. 6.2 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. 6.3 Damage. In the event that Licensee damages any portion of the License Area or Property or the improvements, equipment or property therein, Licensee shall immediately repair the damage. Alternatively, First American may, at First American's election, repair the damage in which case Licensee shall reimburse First American for First American's cost within fifteen (15) days of receipt of written demand from First American. 6.4 Licensee Parties. Licensee, together with its employees, agents, representatives, and all persons entering the License Area and any other portion of the Property, 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. AS-IS Condition. First American 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 2 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 First American, or by operation of law. First American 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, First American shall have no obligation or duty to repair the damage or rectify the condition to make the License Area usable or safe and Licensee's sole remedy shall be the return of the License Fee paid to First American. 8. hndemnity. Licensee shall indemnify, defend, and hold harmless First American, FAC, and their 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 any portion of the Property 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, shall defend the same at Licensee's expense with legal counsel reasonably acceptable to Covered. Payment shall not be a condition precedent to recovery under any indemnification in this Agreement, and a finding of liability or an obligation to indemnity shall not be a condition precedent to the duty to defend. The provisions of this Section 8 shall survive the termination or expiration of this Agreement. 9. Insurance. Licensee, at Licensee's sole cost and expense, shall maintain in full force during the entire term of this Agreement, a commercial general liability insurance policy covering bodily injury, property damage, contractual liability, and personal injury, written on a per occurrence basis, in an amount not less than Two Million Dollars ($2,000,000). Such insurance (i) shall be primary insurance and any insurance maintained by First American shall be excess and non-contributing, (ii) shall name as additional insureds First American Title Insurance Company and First American Financial Corporation, and, upon request, any other affiliated entity, (iii) shall contain no special limitations on the scope of protection afforded to Licensee or any additional insured hereunder, (iv) shall waive all rights of subrogation and contribution against First American or any of its affiliates, and their insurers. In no event shall the foregoing coverage limits affect or limit in any manner Licensee's contractual liabilities or obligations, including liability for indemnification. No later than seven (7) days after the date of this Agreement or such earlier date that Licensee desires to obtain a License, and thereafter upon renewal or replacement of each required policy, Licensee shall provide to First American for review and approval written evidence of the insurance coverages required under this Agreement, which may include without limitation insurance certificates or binders. Licensee hereby releases 3 and relieves First American, and waives any right to recover any damages against First American, on account of any loss or damage occasioned to Licensee and arising from any liability, loss, damage or injury to the extent covered by insurance carried or required to be carried pursuant to this Agreement, or any other insurance maintained by Licensee. The effect of such release and waiver is not limited by any deductibles applicable hereto. 10. Miscellaneous. 10.1 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 First American and Licensee. 10.2 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. 10.3 No Assi ng ment. Licensee shall not assign or transfer or otherwise convey any interest in this Agreement to any party without the express prior written consent of First American, which consent may be withheld in First American's sole and absolute discretion. 10.4 Applicable Law. This Agreement shall be construed and enforced in accordance with the internal laws of the State of California. 10.5 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. 10.6 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. 10.7 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. [end - signatures on next page] 4 IN WITNESS WHEREOF, First American and Licensee have entered into this Agreement as of the day and year first written above. ATTEST: H(oy? Maria Huizar, City Cl APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: t c- " ? Its: Asir- re-r-) 4n02AJ<-`? FIRST AMERICAN: FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation By: Its: By: Its: Vice President, Direetor Corporate Real Estate LICENSEE: CITY OF SA a charter city and California m i ipal c oration By: Kevin O'Rourke Its: Interim City Manager 5 EXHIBIT "A" REQUEST FOR LICENSE Submit to: Ed Hoffman First American Title Insurance Company 1 First American Way Santa Ana, California 92707 1. Date Submitted: 2. Times Requested for Use of Parking Area (Start and Finish - Include dates and times): 3. Name of Event (Circle Applicable Event): Cinco de Mayo Festival Fiestas Patrias Festival 4. Name, email and phone number of person to whom should be contacted with approval or denial of this request: 5. Name and telephone number of City contact at time of event: The City of Santa Ana requests the temporary use of the License Area as specified above and agrees that any and all use is governed by the terms of the "Master License Agreement" between the City of Santa Ana and First American Title Insurance Company dated August 1, 2013. Submitted by: Signature Print name and Title