17-0911_AMES CONSTRUCTION, INC._License Agreement LICENSE AGREEMENT
FOR TEMPORARY CONSTRUCTION STAGING AND MATERIAL STORAGE YARD
THIS LICENSE AGREEMENT("Agreement") is made and entered into as of September 11,
2017, by and between the City of San Juan Capistrano, a California municipal corporation
("Licensor"), and Ames Construction, Inc. ("Licensee"). The City and Licensee are sometimes
referred to together herein as the"Parties."
WITNESSETH
WHEREAS, Licensor is the owner of certain unimproved real property located between the
Orange County Transportation Authority railroad tracks and the Orange County flood control
channel and north of Stonehill Drive in the City of San Juan Capistrano, County of Orange, State of
California, commonly referred to as APN 121-240-39, 121-240-73; 121-253-13, and 121-253-15,
121-240-76(portion of)hereinafter, ("Lower Rosan Site"); and
WHEREAS, Licensee have a need for a temporary construction staging and material storage
yard for the County of Orange San Juan Creek Levee Protection Project; and
WHEREAS, Licensee desire to use portions of the Lower Rosan Site and more particularly
described in Exhibit"A" attached hereto and incorporated herein by reference ("Property"), for a
temporary construction yard including modular office buildings, parking, equipment storage and
material storage, as described in more detail in Section 1(d) below (referred to herein as the
"Permitted Activities");and
WHEREAS, Licensor desires to grant Licensee permission to engage in said Permitted
Activities upon the Property, subject to Licensee obtaining the Required Approvals described below;
and
NOW THEREFORE, in consideration of the mutual covenants and obligations of the parties
herein contained, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged,the parties agree as follows:
Section 1. Establishment of License Provisions.
(a) Grant of License. On the terms and subject to the conditions set forth in this
Agreement, Licensor hereby grants to Licensee and their representatives and agents a non-exclusive,
revocable license to enter upon the Property for the sole purpose of conducting the "Permitted
Activities" described in Section 1(d) below. This Agreement is intended to create a temporary
license and shall not be deemed to grant or convey an easement, irrevocable license, lease or fee
interest in the Licensor's Property.
(b) Planning and Land Use Entitlements; Governmental Approvals as Condition
Precedent. The use of the property by the Licensee for Permitted Activities pursuant to this
Agreement is subject to Licensee obtaining, and maintaining throughout the term of this License, a
Temporary Use Permit (TUP) and any other applicable land use permits required under the San Juan
Capistrano Municipal Code (collectively, "City Approvals"), including compliance with the
California Environmental Quality Act("CEQA"), and any other required approvals from federal and
state regulatory agencies (together with the City Approvals and CEQA compliance, the "Required
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Approvals"). Licensee shall be solely responsible for any costs associated with the obtaining of
required permits and the City's compliance with CEQA.
(c) Term of License Agreement. This Agreement shall take effect upon the date of
approval first above written and the term of this Agreement shall be conterminous with the TUP,
including any extension that may be granted by the City pursuant to San Juan Capistrano Municipal
Code 9-2.347,unless earlier terminated as provided in Sections 2(a)or 2(b)below.
(d) Permitted Activities. Licensee is authorized to prepare the land to receive temporary
office buildings, enclosed equipment storage area, material laydown area, vehicle parking and
miscellaneous construction staging support uses, subject to securing all Required Approvals as noted
above. Preparation of the site includes, but is not limited to, minor grading for access drive, creating
a level useable approximately 2 acre pad on the Property, and proper drainage. Temporary
improvements include, but are not limited to, gravel base for the staging area and access road,
security fencing and limited lighting, and minor directional signage for delivery personnel. The site
shall comply with all conditions of the TUP, including but not limited to screening of the entire
staging/storage yard, daily or more frequent dust control as required by the Building Division of the
City of San Juan Capistrano. On-going operational activities are limited to construction office,
employee and visitor parking, archaeological/Native American monitoring for any excavations in
excess of 18 inches, equipment storage and occasional material storage in support of the County of
Orange San Juan Creek Levee Improvement project. Construction activities are limited tp the time
period of 7:00 am to 6:00 pm Monday through Friday, 8:30 am to 4:30 pm Saturday. No activities
are permitted on Sundays and Federal Holidays(San Juan Capistrano Municipal Code 8-2.04).
(e) Consideration/Fee for License. The Licensee shall pay to Licensor a license fee
totaling three thousand dollars ($3,000.00) per month through the term of the Agreement. Payment
shall be made on the first day of each month. Licensee' failure to pay license fee by the 10th day of
the month will result in a late charge of 10% of the late payment amount. License fee and other
payments shall be paid by Licensee to Licensor at Licensor's notice address set forth herein.
Section 2. Termination,Default,&Restoration of Land to Original Condition.
(a) Termination Without Cause. This Agreement may be terminated by Licensor without
cause by giving forty five (45) days written notice to Licensee. Licensee may terminate its
participation in this Agreement without cause by giving ninety(90)days written notice to Licensor.
(b) Default and Cure Provisions; Termination For Cause. In addition to the rights
described in Section 2(a), Licensor shall have the right to terminate this Agreement immediately
upon Licensee' Default. "Default"means the failure of Licensee to perform or violation of any term,
condition, covenant or agreement of this Agreement, and the continuation of such failure or violation
for a period of ten (10) days after Licensor shall have given Licensee written notice specifying the
same, or in the case of a situation in which the default cannot reasonably be cured within ten (10)
days, if Licensee shall not promptly, within ten (10) days after receipt of such notice, commence to
remedy the situation by a means that can reasonably be expected to remedy the situation within a
reasonable period of time, not to exceed thirty (30) days from the notice of Default, and diligently
pursue the same to completion. In the event of any Default by Licensee, including expiration of any
applicable cure period, Licensor may terminate the Agreement and remove Licensee and their
property from the Property by any lawful means available in law or equity.
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(c) Restoration of Land to Original Condition Upon License Termination. Upon
termination of the Agreement, Licensee shall be responsible for removing all improvements the
Licensee placed upon the land, unless Licensor elects in writing to accept some or all of said
improvements. Any improvements accepted by Licensor will be at no cost to Licensor. Licensee
shall promptly initiate and exercise due diligence in removing said improvements until all
improvements have been removed, which shall be completed within not more than thirty (30) days
following termination of this Agreement.
(d) Effect of Termination. Termination of this Agreement shall in no way prejudice any
of the rights and remedies available to Licensor at law or in equity, and Licensee acknowledge and
agree that all of the obligations and responsibilities of Licensee under this Agreement shall continue
and survive such termination.
Section 3. Compliance with Laws.
Licensee' rights hereunder shall be conditioned upon, and Licensee shall, at their sole cost
and expense, comply with each and every federal, state and local law, regulation, standard, court
decision, ordinance, rule, code, order, decree, directive, guideline, permit and permit condition,
together with any declaration of covenants, conditions and restrictions that are recorded in any
official or public records with respect to the Property or any portion thereof, each as currently
existing and as amended, enacted, issued or adopted from time to time, that are applicable to the
construction and use of the temporary construction and material storage yard on the Property.
Nothing herein shall be construed to give Licensee any approvals normally required under the City's
ordinances or local regulations, including the City Approvals. Without limiting the generality of the
foregoing, any approvals normally required for any lighting, grading, drainage, or other issues shall
be processed by Licensee and City pursuant to City's normal procedures and the Municipal Code.
Section 4. No Duty to Warn.
Licensor has no duty to inspect the Property and no duty to warn Licensee or any person of
any other latent or patent defect, condition or risk that might be incurred in entering the Property.
Licensee has inspected or will inspect the Property and hereby accept the condition of the Property
"AS IS." Licensee acknowledges that neither Licensor nor any employee, agent or representative of
Licensor has made representations or warranties concerning the condition of the Property. All
persons entering the Property under this Agreement do so at their own risk.
Section 5. Permits and Approvals; Standard of Work.
At its sole cost and expense, Licensee shall obtain all Required Approvals required in order
to engage in the Permitted Activities. Licensee shall comply, and shall cause their agents and
representatives to comply, with all laws, codes, rules, regulations and permits applicable to the
Permitted Activities. All Permitted Activities shall be performed in accordance with the highest
standards and practices in the industry.
Section 6. Indemnification.
Except for Licensor's negligence or willful misconduct, Licensee shall indemnify, defend,
protect and hold the City of San Juan Capistrano and its elected and appointed officials and
employees, and any of their agents harmless from and against all claims, causes of action, damages,
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losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' and
consultants' fees and costs) caused by or arising in connection with the Permitted Activities and the
entry onto the Property by Licensee and/or their guests, invitees, agents, and representatives.
Licensee' indemnification and defense obligations pursuant to the foregoing shall apply to, without
limitation: (i)personal injury,property damage and nuisance; (ii)any liens, claims, demands, actions
or suits arising from the Permitted Activities; and (iii)any costs of enforcement of any provision of
this Agreement.
Section 7. Liability for Damage.
With respect to Licensee' rights under this Agreement, Licensee shall be responsible for any
damage done to any person, or to the Property or any other property, caused by Licensee, their
officers, directors, employees, agents, independent contractors, insurers, lenders, representatives,
successors or permitted assigns of Licensee, and the other users.
Section 8. Insurance Coverage Required.
Each Licensee shall maintain in effect during the entire term of this Agreement each of the
following:
A. Comprehensive General Liability Insurance which affords coverage including
completed operations and contractual liability, with limits of liability of not less than $2,000,000 per
occurrence and $4,000,000 annual aggregate for liability arising out of Licensee performance of this
Agreement. The limits shall be provided by either a single primary policy or combination of
policies. If limits are provided with excess and/or umbrella coverage the limits combined with the
primary will equal the minimum limits set forth above. If written with an aggregate, the aggregate
shall be double the each occurrence limit. Such insurance shall be endorsed to:
(1) Name the City of San Juan Capistrano and its employees,
representatives, officers and agents (collectively hereinafter"City and City Personnel") as additional
insured for claims arising out of Licensee' performance of this Agreement.
(2) Provide that the insurance is primary and non-contributing with any
other valid and collectible insurance or self-insurance available to City.
A statement on an insurance certificate will not be accepted in lieu of the actual endorsement.
B. Automobile Liability Insurance with a limit of liability of not less than
$1,000,000 each occurrence and $2,000,000 annual aggregate. The limits shall be provided by either
a single primary policy or combination of policies. If limits are provided with excess and/or
umbrella coverage the limits combined with the primary will equal the minimum limits set above.
Such insurance shall include coverage for all "owned," "hired" and "non-owned" vehicles, or
coverage for"any auto." Such insurance shall be endorsed to:
(1) Name the City and City Personnel as additional insured for claims
arising out of Licensee performance of this Agreement.
(2) Provide that the insurance is primary and non-contributing with any
other valid and collectible insurance or self-insurance available to City.
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A statement on an insurance certificate will not be accepted in lieu of the actual endorsement.
C. Workers' Compensation Insurance in accordance with the Labor Code of
California and covering all employees of the Licensee providing any service in the performance of
this agreement. Such insurance shall be endorsed to: Waive the insurer's right of Subrogation
against the City and City Personnel.
A statement on an insurance certificate will not be accepted in lieu of the actual endorsement.
D. Evidence of Insurance: Licensee shall provide to City a Certificate(s) of
Insurance evidencing such coverage together with copies of the required policy endorsements at least
fifteen (15) business days prior to the expiration of any policy. Coverage shall not be suspended,
voided, cancelled, reduced in coverage or in limits, non-renewed, or materially changed for any
reason, without thirty(30)days prior written notice thereof given by the insurer to City by U.S. mail,
or by personal delivery, except for nonpayment of premiums, in which case ten(10)days prior notice
shall be provided.
Signed insurance certificates,endorsements and the general liability declaration page must be
sent via email from Licensee's insurance broker/agent to the City at mmorris@sanjuancapistrano.org.
Certificate Holder:
City of San Juan Capistrano,California
32400 Paseo Adelanto
San Juan Capistrano,CA 92675
E. Endorsements: A statement on an insurance certificate will not be accepted
in lieu of the actual endorsement. Insurance policies shall not be in compliance if they include any
limiting provision or endorsement that has not been submitted to the City for approval.
Additional Insured Endorsements shall not:
1. Be limited to"Ongoing Operations"
2. Exclude"Contractual Liability"
3. Restrict coverage to the"Sole" liability of Licensee
4. Contain any other exclusion contrary to the Agreement.
F. Acceptability of Insurers. Each policy shall be from a company with current
A.M. Best's rating of A VII or higher and authorized to do business in the State of California or
approved in writing by the City.
Section 9. Liens.
Licensee shall not permit to be placed against the Property, or any part thereof, any design
professionals', mechanics', materialmen's, contractors' or subcontractors' liens due to Licensee's
construction activities thereon or use thereof. Licensee shall indemnify, defend and hold Licensor
harmless from all liability for any and all liens, claims and demands, together with the costs of
defense and reasonable attorneys' fees,related to same.
In addition to and not in limitation of Licensor's other rights and remedies under this
Agreement, should Licensee fail either to discharge any lien or claim related to Licensee'
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construction activities on or use of the Property or to bond for any lien or claim to the reasonable
satisfaction of Licensor, or to indemnify, hold harmless and defend Licensor from and against any
loss, damage, injury, liability or claim arising out of Licensee use of the Property, then Licensor, at
its option, may elect to pay any lien, claim, loss, demand, injury, liability or damages, or settle or
discharge any action or satisfy any judgment and all costs, expenses and attorneys' fees incurred in
doing so shall be paid to Licensor by Licensee upon written demand,together with interest thereon at
the rate of ten percent(10%)per annum from the date incurred or paid through and including the date
of payment by Licensee.
Section 10. Notices.
Any notices required to be given under this License Agreement shall be sent to the following
parties by either fax transmission or first class mail postage prepaid as follows:
To LICENSOR: To LICENSEE:
City of San Juan Capistrano Ames Construction
32400 Paseo Adelanto 391 N Main Street, Suite 302
San Juan Capistrano,CA 92675 Corona, CA 92880
Attn: City Manager Attn: Rob Manning, Project Manager
Section 11. Entire Agreement.
This Agreement sets forth the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior discussions, negotiations, understandings or agreements
relating thereto.
Section 12. No Oral Modification.
No alteration or variation of this Agreement shall be valid or binding unless made in writing
and signed by the parties hereto.
Section 13. Assignment.
Licensee may not assign any of their rights under this Agreement, either voluntarily or by
operation of law. Licensor may, in its sole and absolute discretion, assign this Agreement to any
successor in interest to the Lower Rosan Site.
Section 14. Governing Law.
This Agreement shall be construed in accordance with and governed by the laws of the State
of California.
Section 15. Authority.
Each signatory hereto warrants to the other party its authority to sign on behalf of the party
for whom its purports to sign.
[Signatures on next page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date above
first written.
MaLotris, City lerk
Approved as to Form:
/ / / /y2aAe
i
Je` :allinger,City Att ey
LICENSOR:
City of San Juan Capistrano,
a California municipal c.'.oration
Be '. in S ity Manager
LICENSEE:
Ames Con tru ion, Inc.
A /
Gerard F. Miller, Sr. Vice President
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Gerard F. Miller, Senior Vice President
Exhibit"A"
DESCRIPTION OF PROPERTY UNDER LICENSE
Portions of APN 121-240-73; 121-253-13 and 121-253-15 consisting of approximately 2.0 acres as
identified on the attached site plan.
A-1
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[Site Plan Pending final approval of a Temporary Use Permit and any other applicable
land use permits required under the San Juan Capistrano Municipal Code]
A-2
61147.00310\30129654.2