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15-0818_COURTESY AUTO OF ORANGE COUNTY_License AgreementLICENSE AGREEMENT FOR TEMPORARY VEHICLE STORAGE _ , j. THIS LICENSE AGREEMENT ("Agreement") is made and entered into as of August /T; , 2015, by and between the City of San Juan Capistrano, a California municipal corporation ("Eicensor"), and Courtesy Auto of Orange County, 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 121-240-73; 121-253-13, and 121-253-15, hereinafter, ("Lower Rosan Site"); and WHEREAS, Licensee have a need for a temporary storage yard for vehicle inventory; 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 the temporary storage of inventory for the automobile dealerships operated by Licensee, 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 reeeipt 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 a Temporary Use Permit 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 Approvals"). Licensee shall be solely responsible for any costs associated with the obtaining of required permits and the City's compliance with CEQA. 1 (c) Tenn of License Agreement. This Agreement shall take effect upon the date of approval first above written and shall terminate two (2) years thereafter, unless earlier terminated as provided hi Sections 2(a) or 2(b) below. (d) Permitted Activities. Licensee is authorized to prepare the land to receive and store new vehicle inventory subject to securiug all Required Approvals as noted above. Preparation of the site includes, but is not limited to, minor grading for earthen access ramp, creating a level useable 2 acre pad, and proper drainage. Temporary improvements include, but are not limited to, gravel base for inventory parking area and access ramp, security fencing and limited lighting, and minor directional signage for delivery personnel. On-going operational activities are limited to the transport, drop-off and pick-up of new vehicle inventories from 8:00 am to 8:00 pm Monday through Sundays and Federal Holidays. Large transport vehicle drop-off activity on-site shall be limited to the hours between 8:00 am to 5:30 pm Monday through Saturday only. No transport deliveries shall occur on Sundays or Holidays. Dealership preparation, wash down and/or detailing is not a permitted activity. The use is exclusively limited to the storage of new vehicle inventory; no other use, including storage of used vehicle inventory or storage of vehicles being held for repair or service, is permitted. a) 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 ninety (90) 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, mcluding expiration of any applicable cure period. Licensor may terminate the Agreement and remove Licensee and their property from the Property by any lawfiil means available in law or equity. (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 2 improvements. Any improvements accepted by Licensor will be at no cost to Licensor. Licensee shall promptly initiate and exercise due diligence hi removing said improvements imtil 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 hereimder 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 parking lot 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. Indertmification. 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, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' and consultants' fees and costs) caused by or arising in cormection with the Permitted Activities and the entry onto the Property by Licensee and/or their guests, invitees, agents, and representatives. Licensee' indenmification and defense obligations pursuant to 3 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 properly, 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 maiataia 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 niinimum 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 (coUeetively hereinafter "City and City Persoimel") 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 armual aggregate. The limits shall be provided by either a single primary policy or combination of policies. If limits are provided with excess and/or vunbrella 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-insiuance available to City. 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 4 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, caneelled, 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 mmoiTis@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 ratiog 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' construction activities on or use of the Property or to bond for any lien or claim to the reasonable satisfaction of Licensor, or to indenmify, 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 5 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 often 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: 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 volimtarily or by operation of law. 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. To LICENSOR: To LICENSEE: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Manager Courtesy Auto of Orange Coimty, Inc. 32881 Camino Capistrano San Juan Capistrano, CA 92675 Attn: Rolland Schreiber, General Manager [Signatures on next page] 6 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date above first written. U f'ulv./ ^[aria Morris, City ( rierk^ ' ' Approved as to Form: -1^ lefffiallinger. City Attorney LICENSOR: City of San Juan Capistrano, Derek Reeve, Mayor LICENSEE: Courte^sy Auto of Orange County, Inc. 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 [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