RIGHT OF ENTRY AND LICENSE AGREEMENT
by and between the
CITY OF ANAHEIM
(City)
and
JJTS, INC.
dba JR Wheels & Tires
(Licensee)
-2-
RIGHT OF ENTRY AND LICENSE AGREEMENT
(1687 W. LINCOLN AVENUE)
This RIGHT OF ENTRY AND LICENSE AGREEMENT (1687 W . Lincoln Ave nue) (“Agreement”) dated as of (“Date of Agreement”) , is entered into by and between the CITY OF ANAHEIM, a municipal corporation and charter city (“City”), and JJTS, INC., a California corporation, doing business as JR Wheels & Tires (“Licensee”).
RECITALS
A. The City owns approximately 0.47 acres of real property, commonly known as and located at 1687 W. Lincoln Avenue in the City of Anaheim, and depicted on the Map attached hereto as Exhibit B (the “Premises” or “License Area”).
B. As of the date of this Agreement, Licensee leases the adjacent property at 1695 W.
Lincoln Avenue from the real property owner, Lawrence Greco, to operate a wheel and tire sales and installation business.
C. Licensee desires to enter and use the Premises at all reasonable times for automobile wheels storage and sales (the “Permitted Uses”). The Permitted Uses may be expanded to include tire storage an d sales if Licensee complies with the requirements of section 1.2 herein.
D. City desires to accommodate the Licensee’s desire to commence such actions by granting a right of entry and license as provided herein.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES,
COVENANTS AND AGREEMENTS CONTAINED HEREIN, AND FOR GOOD AND
VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS
HEREBY ACKNOWLEDGED, THE CITY AND THE LICENSEE AGREE AS FOLLOWS:
ARTICLE 1.
RIGHT OF ENTRY AND LICENSE
1.1. Right of Entry. Provided that all of the terms and conditions of this Agreement are fully satisfied, the City hereby grants to the Licensee and its agents and contractors, the non - exclusive, non-possessory right to enter upon the License Area commencing on , for no longer than t hree (3) years from the Date of Agreement ; provided City may terminate this Agreement earlier, with or without cause, upon one (1) year prior written notice; also provided that if Licensee breaches any term of this Agreement, or if the City receives any challenge to the legality or sufficiency of this Agreement, then City may terminate this Agreement immediately upon written notice to Licensee. This Right of Entry is granted for conducting the Permitted Uses and for no other purposes without the prior written approval of the City. The City shall have no duty to inspect the License Area to which this Agreement applies and no duty to warn any per son of any latent or patent defect, condition or risk that might be encountered or incurred in entering the Pr emises or License Area. Licensee acknowledges that neither the City
-3-
nor any employee, agent or representative of the City have made representations or warranties concerning the condition of the License Area. All persons entering the Premises or License Area under this Agreement do so at their own risk.
1.2. Purpose of License. The purpose of this Agreement is to provide a revocable license for the continued operations of automobile wheels storage and sales on the Premises. Tire storage is not allowed on the Premises due to flammable nature, which would require a fire suppression system. If Licensee desires to add tire storage and sales as Permitted Uses on the Premises, Licensee must submit a request to the Director, which must be approved in Director’s sole and absolute discretion before Licensee may pursue the necessary approvals and permits for such expanded use. Licensee must obtain all necessary approvals and permits from the City and all applicable entities required for such use . As part of the permit a pproval process, Licensee would be required to install the necessary fire supp ression system in the Building and on the Premises, as well as complete any other required building improvements. All materials and work must be completed at Licensee’s sole cost and expense. All systems installed by Licensee for tire storage and sales use shall be considered part of the Building and the City’s property upon termination or expiration of the Agreement. If Licensee completes the requirements and obtains the necessary approvals and permits for tire storage and sales on the Premises, then the same shall become Permitted Uses as defined herein.
1.3. Recorded Encumbrances. This Agreement, the interests of City and Licensee hereunder, and the Premises, are in all respects subject to and bound by all of the covenants, conditions, restrictions, reservations, rights, rights-of-way and easements of record.
1.4. License Effective Date : The right of entry granted in this Article 1 shall be effective upon the satisfaction of the following conditions precedent:
a. Within ninety (90) days of the Date of Agreement, unless extended by the Director, Licensee shall resolve all code enforcement violations on Licensee’s existing property located at 1695 W. Lincoln Avenue, as well as the Premises, to the satisfaction of the City’s Code Enforcement Department.
b. Prior to commencing any activities under this Agreement, Licensee shall have obtained from the City of Anaheim, acting in its municipal capacity, any and all of the necessary licenses and permits for the Permitted Uses; and c. Prior to occupancy of the Premises by Licensee, City shall ensure all roll up doors are operational, ensure the roof is not leaking, replace the glass storefront, re -slurry the asphalt, paint the exterior of the Building (Licensee and City to agree upon a color scheme for both 1695 W. Lincoln Ave. and 1678 W. Lincoln Ave. ), enhance the front landscaping, improve the electrical as necessary, and install new fencing along the perimeter of the Premises, all to be chosen and completed by City in its sole discre tion and satisfaction , and it shall be the Licensee’s responsibility to maintain the fencing and the entire Premises in accordance with all applicable laws, including the Anaheim Municipal Code; and
d. Licensee shall access the Premises from the existing gates and shall not take or create any other access points; and
-4-
e. Licensee shall, at Licensee’s sole cost, repair and reconstruct the fire wall separating the property at 1695 W. Lincoln Ave. and 1678 W. Lincoln Ave.; and f. Licensee shall, at Licensee’s sole cost, remove any unpermitted rights of access between the buildings located at 1695 West Lincoln and 1687 West Lincoln, as well as re- establish all access points, that were covered by concrete masonry unit blocks, with code appropriate doors.
g. Stockpiling on the Premises by any person or entity of any external fill material such as topsoil, sand, gravel or any other material that may be considered a source of pollution is strictly prohibited;
h. Licensee shall not stockpile or store tires, new or used, on the site in any capacity, unless tire sales and storage become Permitted Uses after Licensee complies with the requirements of section 1.2 herein;
i. Licensee shall not have late evening activities occurring between the hours of 10:00 pm and 7:00 am, and Licensee shall at all times maintain a quiet and orderly Premises; j. Licensee shall hire four (4) new full -time employees for their expanded business operations.
The first day in which the preceding conditions have been satisfied , such that the license granted in this Article 1 is effective, is herein referred to as the “License Effective Date.” Notwithstanding the foregoing, in the event Licensee fails to satisfy the foregoing conditions within three (3) months of the Date of Agreement, this Agreement shall automatically terminate, unless such date is extended by the Director, by not more than one (1) month.
1.5. Premises Investigation Completed. Licensee and its agents have entered upon the Premises for the purpose of making physical inspections and other additional assessments, and Licensee has notified City that Licensee elects to go forward with the right of entry and license of the Premises.
1.6. Right of Entry. City hereby grants to Licensee and its agents and contractors, the non-exclusive right to enter upon the Premises commencing on the Date of Agreement and continuing through the License Effective Date, subject to the City Termination provisions in section 3.3 and other termination provisions in this Agreement; provided that if Licensee breaches any term of this Agreement during the applicable Right of Entry period before the License Effective Date, then City may terminate the Agreement within six (6) months upon written notice to Licensee. This Right of Entry is granted for completing the conditions precedent and for no other purposes without the prior written approval of the City.
-5-
ARTICLE 2.
DEFINITIONS
The following terms shall have the following meanings in this Agreement:
“Agreement” means this Right of Entry and License Agreement (1687 W. Lincoln Avenue).
“Building” means the structure located on the Land and comprising approximately 6,000 square feet, as depicted on the Map attached hereto as Exhibit B. “City” means the City of Anaheim, a California municipal corporation and charter city. “Director” means the Director of the City’s Economic Development Department, or designee.
“Event of Default” has the meaning set forth in Article 18. “Governmental Requirements” means all laws, ordinances, statutes, codes, rules, regulations, orders, and decrees of the United States, the State of California, the County, the City, or any other political subdivision in which the Premises is located, and of any other political subdivision, agency, or instrumentality exercising jurisdiction over Licensee or the Premises, as may be amended from time to time.
“Hazardous Material ” or “Hazardous Materials ” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 USC § 9601 et seq.), the Hazardous Materials Transportation Act, as amended (49 USC § 1801 et seq.), the Resource Conservation and Recovery Act of 1976, as amended (42 USC § 6901 et seq.), the Toxic Substances Control Act (15 USC § 2601 et seq.), the Insecticide, Fungicide, Rodenticide Act (7 USC § 136 et seq.), the Superfund Amendments and Reauthorization Act (42 USC § 6901 et seq.), the Clean Air Act (42 USC § 7401 et seq.), the Safe Drinking Water Act (42 USC § 300f et seq.), the Solid Waste Disposal Act (42 USC 6901 et seq.), the Surface Mining Control and Reclamation Act (30 USC § 1201 et seq.), the Emergen cy Planning and Community Right to Know Act (42 USC §§ 11001 et seq.), the Occupational Safety and Health Act (29 USC § 655 and 657), the California Underground Storage of Hazardous Substances Act (Health and Safety Code § 25280 et seq.), the California Hazardous Substances Account Act (Health & Safety Code § 25300 et seq.), the Porter -Cologne Water Quality Act (Water Code § 13000 et seq.), together with any amendments of or regulations promulgated thereunder and any other federal, state, and local laws, statutes, ordinances, or regulations now in effect that pertain to occupational health or industrial hygiene. Notwithstanding the foregoing, “Hazardous Materials” shall not include such products in quantities as are customarily used in the operation of comme rcial automobile service, repair and restoration, or typically used in such activities in a manner typical of other comparable commercial operations, including flammable material such as tires and combustible fluids. “Indemnitees” has the meaning set forth in Article 12.
“Land” means the real property comprising approximately 21,000 square feet owned by City and as legally described in the Legal Description attached hereto as Exhibit A.
-6-
“Legal Description” means the legal description of the Land attached hereto as Exhibit A and incorporated herein.
“Liabilities” have the meaning set forth in Section 15.3. “License Effective Date” has the meaning set forth in Section 1.4. “Licensee” means JJTS, Inc., a California corporation, doing business as JR Wheels & Tires, and its permitted successors and assigns, as Licensee under this Agreement. “Maintenance Standards” means those standards set forth in Section 10.1. “Monthly License Fee” or “License Fee” means the fee payable pursuant to Article 4. “Official Records” means the Official Records of the County Recorder of Orange County, California.
“Premises” means the Land, the Building, and all improvements over the approximately
0.47 acres of real property owned by the City, commonly known as and located at 1687 W. Lincoln Avenue in the City of Anaheim, as depicted on the Map attached hereto as Exhibit B. “Shortfall” has the meaning set forth in Section 13.1.
“Term” has the meaning set forth in Article 3.
“Tire” means a thick rubber ring, often filled with air, that is fitted around the outer edge of the wheel of a vehicle, allowing the vehicle to stick to the road surface and to travel over the ground more easily.
ARTICLE 3.
TERM
3.1. Term. City shall provide a right of entry to the Premises to Licensee beginning on the Agreement Effective Date and thereafter for a period of three (3) years (the “Term”), unless sooner terminated as provided for herein. City shall provide a license to the Premises to Licensee for the Permitted Uses upon the License Effective Date set forth in section 1.4, which shall expire at the end of the Term, unless sooner terminated as provided for herein.
3.2. Holding Over. Licensee shall not be allowed to continue to hold possession of the Premises beyond the maximum Term set for in Section 3.1, pursuant to Section 19.9.
3.3. City Termination. City shall have the right to terminate the Agreement at any time during the Term of the Agreement for any reason or no reason whatsoever upon City providing one (1) year written notification to Licensee prior to the effective date of the termination .
However, the City may terminate the Agreement immediately upon written notice to Licensee if Licensee breaches any term of this Agreement, and fails to correct such breach within seven (7) days of notice of breach, or if the City receives any challenge to the legality or sufficiency of this Agreement.
-7-
ARTICLE 4.
LICENSE FEE
4.1. Monthly License Fee. From and after the Date of Agreement, in consideration for the City’s grant of this right of entry and license, Licensee shall pay to the City the sum of Five - Thousand, Five-Hundred dollars ($5,500.00) per month (the “Monthly License Fee” or “License Fee”). If the Agreement is terminated prior to the end of a month, any prepaid License Fee shall be prorated on a daily basis for the actual number of days in such month that the Licensee had use of the License Area. Any and all costs related to the maintenanc e or repair of the Building or Premises shall be separate from the License Fee and the sole responsibility of Licensee.
4.2. Payment of License Fees. All License Fees to be paid by Licensee to City shall be paid in advance of the first day of each calendar month in lawful money of the United States of America and shall be made payable to and delivered to City at the address listed in Section 19.1 or such other place as City may from time to time designate by written notice to Licensee without notice or demand, and without setoff, counterclaim, abatement, except as provided in Section 13.3, deferment, suspension or deduction.
4.3. Utilities. Licensee shall be responsible for the payment of all water, gas, electricity, refuse collection and disposal, and all other utilities used by Licensee on the Premises, including all sprinkler systems and protective services at any time rendered to or in connection with the Premises or the improvements, or any part thereof, and shall comply with all contracts existing on the date hereof or subsequently executed by Licensee relating to any such services, and will do all other things required for the maintenance and continuance of all such services.
4.4. Overdue Interest. Any amount due to City, if not paid when due and on or before expiration of the period for cure as set forth herein, after City’s delivery of notice thereof to Licensee, shall bear interest from the date due until paid at the lower of: (a) the reference or prime rate of Bank of America, N.A., in effect from time to time plus three percent (3%); or (b) the highest rate of interest allowed under applicable usury law.
ARTICLE 5.
RESERVED
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES
6.1. City’s Representations. City represents and warrants to Licensee it owns the Premises in fee simple and has the power and authority to enter into this Agreement and perform all obligations and agreements incidental or pertinent to this Agreement. City makes no representation or warranty with respect to the condition of the Premises or its fitness or availability for any particular use, and City shall not be liable for any latent or patent defects therein.
6.2. Licensee’s Representations. Licensee represents and warrants to City, as of the Date of Agreement, as follows:
-8-
a. Licensee is a California corporation and in good standing under the laws of the States of California, and that it has the power and authority to execute the Agreement and carry on business on the Premises as is now being conducted.
b. Licensee has full power and authority to execute and deliver this Agreement and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, and to perform and observe the terms and provisions of all of the above.
c. This Agreement and all other documents or instruments which have been executed and delivered pursuant to or in connection with this Agreement constitute or, if not yet executed or delivered, will when so executed and delivered constitute, legal, valid and binding obligations of Licensee enforceable against it in accordance with their respective terms, subject to application of laws relating to bankruptcy, insolvency, or other laws affecting the enforcement generally of creditors’ rights and remedies.
d. Licensee is not in default under any law or regulation or under any order of any federal, state, or local court, board, commission or agency whatsoever, and there are no claims, actions, suits or proceedings pending or, to the knowledge of Licensee, threatened against or affecting Licensee or the Premises, at law or in equity, before or by any federal, state, or local court, board, commission or agency whatsoever which might, if determined adversely to Licensee, materially affect Licensee’s ability to perform its obligations hereunder. e. Licensee has examined the Premises and acknowledges that it hereby accepts possession of the Premises in its “AS IS” condition, with all faults and defects, including, without limitation, any physical condition or environmental condition of the Premises. f. All documents, materials and information provided by Licensee to City relating to Licensee’s qualifications, financial strength, and ability to perform its obligations hereunder are true, correct and complete in all material respects as of their respective dates and no material adverse change has occurred or is reasonably likely to occur that would make any such documents, materials or information incorrect, incomplete, or misleading in any material respect.
ARTICLE 7.
LICENSEE’S MAINTENANCE AND CONSTRUCTION ON THE PREMISES
7.1. Licensee’s Maintenance and Construction . Any maintenance or construction work completed by Licensee on the Premises shall be constructed in a good and workmanlike manner using materials of good quality, and shall comply with all applicable governmental permits, state and federal regulations and laws, and the Anaheim Municipal Code.
7.2. Maintenance and Construction Cost. Licensee shall bear the entire and sole cost of any maintenance or construction work completed by Licensee, including all mitigation measures and fees paid to governmental agencies for obtaining permits, licenses or other governmental approvals.
7.3. Diligent Prosecution to Completion. Once any work begins, Licensee shall, with reasonable diligence, prosecute all improvements to completion.
-9-
7.4. City’s Right to Discharge Lien. If Licensee elects to not record a lien release bond pursuant to California Civil Code Section 8424, or otherwise protect the Premises under any alternative or successor statute, and a final judgment has been entered against Licensee by a court of competent jurisdiction for the foreclosure of a mechanic’s, materialmen’s, contractor’s, or subcontractor’s lien claim, and if Licensee fails to stay the execution of the judgment by lawful means or to pay the judgment, City shall have the right, but not the duty, to pay or otherwise discharge, stay, or prevent the execution of any such judgment or lien or both. Licensee shall reimburse City for all sums paid by City under this Section, together with all City’s reasonable attorneys’ fees and costs, plus interest on those sums, fees, and costs from the date of payment until the date of reimbursement at the rate set forth in Section 4.7.
7.5. Prevailing Wage.
a. Licensee and all subcontractors under Licensee shall pay all workers on applicable work performed on the Premises not less than the general prevailing rate of per diem wages and the general prevailing rate for holiday and overtime work as determined by the Director of the Department of Industrial Relations, State of California, for the type of work performed and the locality in which the work is to be performed, pursuant to sections 1770 et seq. of the California Labor Code. Copies of the general prevailing rates of per diem wages for each craft, classification, or type of worker needed to execute the Contract, as determined by Director of the State of California Department of Industrial Relations, are on file at the Judicial Council’s principal office.
Prevailing wage rates are also available from the Court or on the internet at (http://www. dir.ca.gov).
b. Any applicable work is subject to compliance monitoring and enforcement by the Department of Industrial Relations. Licensee shall post job site notices, as prescribed by regulation. Licensee shall comply with all requirements of Labor Code section 1771.4, except the requirements that are exempted by the Labor Commissioner for the Project. c. Licensee shall comply with the registration and compliance monitoring provisions of Labor Code section 1771.4, including furnishing its certified payroll records (“CPR(s)”) to the Labor Commissioner of California and complying with any applicable enforcement by th e Department of Industrial Relations (“DIR”). Labor Code section 1771.1(a) states the following: “A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Publi c Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.”
ARTICLE 8.
USE OF THE PREMISES
8.1. Permitted Uses. Licensee covenants and agrees for itself, its successors, assigns, and every successor in interest to Licensee’s interest in the Premises or any part thereof, that
-10-
Licensee shall devote the Premises to the Permitted Uses specified in this Agreement until the expiration or earlier termination of the Term hereof. All uses conducted on the Premises, including, without limitation, all activities undertaken by Licensee pursuant to this Agreement, shall conform to all applicable provisions of the Anaheim Municipal Code.
8.2. Environmental Contamination . City has notified Licensee and Licensee acknowledges that the Premises has subsurface environmental contamination. City will routinely monitor the Building and Premises to ensure environmental contaminants have not become volatile. In the event contamination permeates into the Building, City has the authority to terminate the Agreement immediately. Licensee hereby assumes any and all risks related to the environmental contamination on the Premises, and fully and completely discharges any and all liability against City related to said environmental contamination.
Licensee’s initials
8.3. Non-Discrimination. Licensee agrees by and for itself, its successors and assigns, and all persons claiming under or through them that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Sectio n 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the use, occupancy, tenure, or enjoyment of the Premises, nor shall the Licensee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of vendees in the Premises. All contracts relating to the Premises shall contain or be subject to substantially the following nondiscrimination or nonsegregation clause:
“There shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the use, occupancy, tenure, or enjoyment of the premises which are the subject of this Agreement, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of vendees in the premises.”
ARTICLE 9.
INSURANCE
9.1. Without limiting City’s right to indemnification, it is agreed that Licensee shall secure, prior to commencing any activities under this Agreement, and maintain, during the Term of this Agreement, insurance coverage as follows:
-11-
a. Workers’ Compensation Insurance as required by California law and Employers Liability Insurance in an amount not less than $1,000,000 per occurrence/accident/illness/injury.
b. Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, as well as Independent Licensee’s Liability where appropriate, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate, written on an occurrence form.
Such insurance shall be written on a primary basis but may include a deductible or self -insured retention of mo re than $10,000 per occurrence, provided tha t such deductible or self -insured retention is disclosed to City, in writing, at the inception of this Agreement. c. Commercial Automobile Liability Coverage including —as applicable — owned, non -owned, and hired autos, in an amount not less than $2,000,000 per occurrence, combined single limit, as required by California law.
d. Professional Liability Insurance (Garage Keepers) in an amount not less than $2,000,000 per occurrence or per claim. Such insurance shall be written on a primary basis but may include a deductible or self-insured retention of more than $10,000 per occurrence, provided that such deductible or self -insured retention is disclosed to City, in writing, at the inception of this Agreement.
9.2. Any required coverage written with primary and excess layers to satisfy the minimum requirements of this Agreement must be submitted for approval by City’s Risk Manager prior to the inception of the final Agreement.
9.3. Licensee agrees that this insurance shall not be voluntarily cancelled by Licensee or limited in scope or coverage by Licensee until after thirty (30) days prior written notice has been given to the City Clerk, City of Anaheim, 200 S. Anaheim Blvd., Anaheim, CA 92805.
This does not apply to cancellation for non-payment of premium, which requires notice of not less than ten (10) days.
9.4. Each insurance policy required by this Agreement, except policies for Professional Liability and Workers’ Compensation, shall contain the following clause s or shall otherwise provide for the following conditions:
a. “It is agreed that any insurance maintained by Licensee pursuant to this Agreement shall be primary to, and not contribute with, any insurance or self - insurance maintained by the City of Anaheim.”
b. “The City of Anaheim, its officers, agents, employees, representatives and City-designated volunteers are added as additional insured as respects the acts, omissions, operations and activities of, or on behalf of, the named insured, in regard to products supplied to, or work or services performed for, or related to, the City of Anaheim.”
9.5. Prior to commencing any work under this Agreement, Licensee shall deliver to City insurance certificates confirming the existence of the insurance required under this Agreement, and including the applicable clauses referenced above. Also, within thirty (30) days of the
-12-
execution date of this Agreement, Licensee shall provide City: (i) endorsements to the insurance policies that add to these policies the applicable clauses referenced above, or (ii) in lieu of said endorsements, documentation acceptable to City evidencing that the coverage, terms, and conditions set forth in the above -referenced clauses are otherwise included in said insurance policies. Insurance required hereunder shall be placed with insurers: (i) admitted to write insurance in California, (ii) possessing an A. M. Best’s rating of A VII or higher, or (iii) otherwise acceptable to City, with prior written permission from City. In the event that a claim or other legal action is filed against City, and if City, in its good faith opinion, believes it may have coverage under any of the insurance required herein, then City has the right to demand, and to receive within a reasonable time period, copies of the insurance policies related to such required insurance; provided, however, that this provision shall not apply if the parties agree that Licensee shall fully defend, hold harmless, and indemnify City against any such claim or other legal action.
9.6. In addition to other remedies City may have if Licensee fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option:
a. Order Licensee to stop work under this Agreement and/or withhold any payment(s) that become due to Licensee hereunder until Licensee demonstrates compliance with the requirements hereof;
b. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies City may have and is not the exclusive remedy for Licensee’s failure to maintain insurance or secure appropriate endorsements.
9.7. Nothing herein contained shall be construed in any way as limiting the extent that Licensee may be held responsible for payments of damages to persons or property resulting from Licensee’s (or Licensee’s agent or sub-agent, if any) performance of the work covered under this Agreement.
9.8. In the event Licensee hires other persons or firms to perform some of the work related to this Agreement, Licensee shall ensure: (i) that the acts or omissions of such persons or firms are covered under the above -referenced liability insurance, or (ii) that such firms maintain insurance equal to or better than, and subject to the same limits, terms and conditions as, the insurance required of Licensee under this Agreement (except for firms that are not performing professional services—such firms shall not be required to carry the above-referenced professional liability insurance); and in either instance, Licensee shall provide, or cause to be provided, evidence of such insurance coverage, reasonably acceptable to City.
9.9. City’s Risk Manager is hereby authorized to amend the requirements set forth herein if such reduction is in City’s best interest.
-13-
ARTICLE 10.
MAINTENANCE; REPAIRS; ALTERATIONS; RECONSTRUCTION
10.1. General Maintenance. Licensee shall maintain the Premises and all improvements thereon, including lighting and signage, in good condition, free of debris, waste and graffiti, and in compliance with all applicable provisions of the City of Anaheim Municipal Code. Licensee shall maintain in accordance with the Maintenance Standards (as hereinafter defined) the improvements and landscaping on the Premises. Such Maintenance Standards shall apply to all structures, signage, common amenities, lighting, fencing, landscaping, irrigation of landscaping, architectural elem ents identifying the Premises and any and all other improvements on the Premises. To accomplish the maintenance, Licensee shall either staff or contract with and hire licensed and qualified personnel to perform the maintenance work, including the provision of labor, equipment, materials, support facilities, and any and all other items necessary to comply with the requirement s of this Agreement. Licensee and its maintenance staff, contractors or subcontractors shall comply with the following standards as to the Pr emises (collectively, “Maintenance Standards”):
a. The Premises shall be maintained in conformance and in compliance with the approved final as -built plans, and reasonable maintenance standards which comply with the industry standard for comparable projects in the County, including but not limited to painting and cleaning of all exterior surfaces and other exterior facades comprising all private improvements and public improvements to the curb line.
b. Landscape maintenance shall include, but not be limited to:
watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning; trimming and shaping of trees and shrubs to maintain a healthy, natural appearance and safe road conditions and visibility, and irrigation coverage; replacement, as needed, of all plant materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and staking for support of trees.
c. Clean-up maintenance shall include, but not be limited to: maintenance of all sidewalks, paths and other paved areas in clean and weed -free condition; maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or unsightly; removal of all trash, litter and other debris from improvements and landscaping prior to mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris are properly disposed of by maintenance workers.
City agrees to notify Licensee in writing if the condition of the Premises does not meet with the Maintenance Standards and to specify the deficiencies and the actions required to be taken by Licensee to cure the deficiencies. Upon notification of any maintenance deficiency, Licensee shall have thirty (30) days within which to correct, remedy or cure the deficiency. If the written notification states the problem is urgent relating to the public health and safety, then Licensee shall have forty-eight (48) ho urs to rectify the problem. In the event Licensee does not maintain the Premises in the manner set forth herein and in accordance with the Maintenance Standards, City shall have, in addition to any other rights and remedies hereunder, the right to maintain the
-14-
Premises, or to contract for the correction of such deficiencies, after written notice to Licensee, and Licensee shall be responsible for the payment of all such costs incurred by City.
ARTICLE 11.
SURRENDER; OWNERSHIP OF IMPROVEMEMTS AND ALTERATIONS
11.1. Surrender of Premises.
a. Expiration or Termination. Licensee agrees that on the expiration or earlier termination of the Term, which in the case of an early termination due to the occurrence of an Event of Default is not timely cured by Licensee in accordance with the provisions of this Agreement, the right of entry and license hereby granted to Licensee shall be terminated and forfeited and shall revert to City, its successors and assigns, and all improvements on the Premises shall become the property of City, its successors and a ssigns, free and clear from any liens or claims whatsoever (other than non-monetary liens previously approved or otherwise accepted in writing by City), in good condition, reasonable wear and tear and damage from casualty or condemnation excepted without further compensation therefor from City to Licensee. b. Condition. On expiration or earlier termination of the Term, Licensee shall peaceably and quietly leave and surrender the Premises to City in good order, condition and repair, reasonable wear and tear , obsolescence and damage from casualty or condemnation excepted.
Licensee shall leave in place and in good order, condition and repair, all fixtures and machinery; except (if Licensee is not then in default under this Agreement or the Transaction Documents) Licensee shall have the right to remove only Licensee-owned appliances, other unattached equipment, moveable furniture and merchandise that Licensee shall have installed, and any damage to the Premises caused by such removal shall be repaired by Licensee. City shall have the right to have the Premises inspected at Licensee’s cost to determine whether the Premises has been properly maintained, repaired and restored in accordance with the terms of this Agreement. c. Delivery of Documents. Contemporaneously with the expiration or earlier termination of the Term, Licensee shall immediately deliver to City: all construction plans, surveys, permits, existing contracts for services, maintenance, operation, and any other documents relating to use, operation, management, and maintenance of the improvements as may be in effect and/or in the possession of Licensee at the time and from time to time thereafter. All documents and instruments required to be delivered by Licensee to City pursuant to this Section shall be complete, legible, originals or true copies, and shall otherwise be in a form reasonably satisfactory to City.
11.2. Ownership of Improvements at Expiration or Termination. a. Except as provided in Section 11. 2(b), all improvements which constitute or are a part of the Premises shall become (without the payment of any compensation whatsoever to Licensee or to others) the property of City free and clear of all liens, claims and encumbrances on such Improvements by Licensee, and anyone claiming under or through Licensee. Licensee shall then quitclaim to City any and all rights, interests and claims to the Improvements. Licensee agrees to and shall defend, indemnify and hold City harmless from and against all liability and loss which may arise from the assertion of any such liens, claims and any encumbrances on such
-15-
Improvements (except claims arising due to City’s actions) and except for such title exceptions permitted or required during the Term.
b. Removal by Licensee. Licensee shall not be required or permitted to remove any Premises i mprovements at the expiration or earlier termination of the Term; provided, however, that, subject to the provisions of Section 11.1(b) hereof, within thirty (30) days following the expiration or earlier termination of the Term, Licensee may remove all personal property, furniture, and equipment.
c. Unremoved Property. Any personal property, furnishings or equipment not removed by Licensee pursuant to Section 11.1(b) hereof, shall, without compensation to Licensee, become City’s property, free and clear of all claims to or against them by Licensee or any third person, firm or entity arising by, through or under Licensee. d. Maintenance and Repair of Improvements. Subject to the provisions of this Agreement concerning condemnation, alterations and damage and destruction, Licensee agrees to assume full responsibility for the operation and maintenance of the Premises throughout the Term hereof without expense to City, and to perform all repairs and replacements necessary to maintain and preserve the Premises in a decent, safe and sanitary condition consistent with good practices and in compliance with all applicable laws. Licensee agrees that City shall not be required to perform any maintenance, repairs or services, or to assume any expense not specifically assumed herein in connection with the Premises unless specifically required under the terms of this Agreement.
Except as otherwise provided in this Section 11.2 and in Section 11.1, the condition of the Premises i mprovements required to be maintained hereunder upon completion of the work of maintenance or repair shall be equal in value, quality and use to the condition of such Improvements before the event giving rise to the work.
11.3. Alterations. Except as provided in Article 7, Licensee shall not make or permit to be made any material, exterior alteration of, addition to or change in, the Improvements which would affect the exterior elevations (including materials selection and color) or the size, bulk and scale of the Premises, other than routine maintenance and repairs, nor demolish all or any part of the Premise’s improvements, without the prior written consent of City, which consent shall not be unreasonably withheld, conditioned or delayed . Nothing herein shall prohibit interior alte rations or decorations, or the removal and replacement of interior improvements consistent with the specified use of the Premises. In requesting consent for such exterior improvements as required by the foregoing, Licensee shall submit to City detailed plans and specifications of the proposed work and an explanation of the need and reasons thereof. Licensee may make such other improvements, alterations, additions or changes to the Improvements which do not affect the exterior elevations (including materials selection and color) or the size, bulk and scale thereof without City’s prior written consent.
-16-
ARTICLE 12.
INDEMNIFICATION
Licensee shall defend, indemnify, pay for, assume all responsibility for, and hold the City and its respective elected and appointed officials, officers, employees, attorneys, representatives, volunteers, contractors and agents (collectively, “ Indemnitees”) harmless from all claims, demands, damages, defense costs or liability of any kind or nature relating to the subject matter of this Agreement or the validity, applicability, interpretation or implementation hereof and for any damages to property or injur ies to persons, including accidental death (including attorneys’ fees and costs), which may be caused by any acts or omissions of Licensee under this Agreement, whether such activities or performance thereof be by Licensee or by anyone directly or indirectly employed or contracted with or by Licensee and whether such damage shall accrue or be discovered before or after termination of this Agreement and arising prior to the later of : (i) the expiration or earlier termination of the Term of this Agreement; or, (ii) the date Licensee vacates the Premises. Licensee shall not be liable for property damage or bodily injury to the extent occasioned by the sole negligence or willful misconduct of City or their agents or employees.
Licensee shall have the obligation to defend any such action; provided, however, that this obligation to defend shall not be effective if and to the extent that Licensee determines in its reasonable discretion that such action is meritorious or that the interests of the parties justify a compromise or a settlement of such action, in which case Licensee shall compromise or settle such action in a way that fully protects Indemnitees from any liability or obligation. In this regard, Licensee’s obligation and right to defend shall include the right to hire (subject to written reasonable approval by City) attorneys and experts necessary to defend, the right to process and settle reasonable claims, the right to enter into reasonable settlement agreements and pay amounts as required by the terms of such settlement, and the right to pay any judgments assessed against Indemnitees. If Licensee defends any such action, as set forth above: (i) Licensee shall indemnify and hold harmless Indemnitees from and against any claims, losses, liabilities, or damages assessed or awarded against either of them by way of judgment, settlement, or stipulation ; and, (ii) City shall be entitled to settle any such claim only with the written consent of Licensee and any settlement without Licensee’s consent shall release Licensee’s obligations under this Article 1 2 with respect to such settled claim. This Article notwithstanding, indemnification with re spect to Hazardous Materials shall be governed by Section 15.3.
ARTICLE 13.
DAMAGE OR DESTRUCTION OF PREMISES
13.1. Damage or Destruction. If the Premises is destroyed or damaged or rendered wholly or partially uninhabitable by fire or other casualty or any other peril that is fully covered by the insurance Licensee is required to carry under the terms of this Agreement, Licensee shall promptly, but in no event later than ninety (90) days from the receipt of insurance proceeds relating to such destruction, begin the repair of the Premises, in accordance with plans and specifications as are approved by City in writing, and shall diligently prosecute the same to completion.
Notwithstanding the foregoing, if the repair or replacement of the Premises is not fully covered by the insurance Licensee is required to carry under this Agreement, then Licensee shall notify City in writing of the amount by which the estimated cost of repairs exceed s such proceeds (the “Shortfall”), and Licensee shall have the right, within ninety (90) days after providing such notice to City, to elect to provide the Shortfall and proceed with such repairs, in which case this
-17-
Agreement shall continue in full force and effect. If Licensee elects not to provide the Shortfall, then City shall have the option either to: (A) provide the Shortfall at City’s sole expense and direct Licensee to repair or restore such damage (using the insurance proceed and such additional funds as City may provide to pay the Shortfall), with this Agreement continuing in full force and effect; or, (B) give notice to Licensee terminating this Agreement as of the date specified in such notice, which date shall be no less than thirty (30) and no more than sixty (60) days after the giving of such notice of termination. In the event of giving such notice of termination, this Agreement shall expire, and all interest of Licensee to enter and use the Premises shall terminate on the date so specified in such notice. If the Premises is damaged or destroyed by fire or other casualty within the last two (2) years of the Term, then Licensee shall have the right to terminate this Agreement by giving Notice to City within sixty (60) days after the date of destruction. If Licensee does not terminate the Agreement within thirty (30) days from the expiration of such sixty (60) day period, Licensee shall begin the repair and replacement of the Premises pursuant to this Section 13.1.
13.2. Application of Insurance Proceeds. Unless Licensee terminates this Agreement in accordance with Section 13.1, all insurance proceeds (other than proceeds for License Fees loss) recovered by Licensee on account of damage or destruction less the cost of such recovery, shall be applied to the payment of the cost of repairing and replacing the Premises. If the completion of any required repair, reconstruction or restoration of the Premises does not utili ze all insurance proceeds, then Licensee may retain such u nused proceeds. If Licensee elects not to repair, reconstruct or restore the Premises and either Licensee or City elect to terminate this Agreement pursuant to Section 13 .1, the insurance proceeds for the Premises and i mprovements (but not personal property or License Fee loss) shall belong to City. Upon termination of this Agreement pursuant to Section 13 .1, the Premises shall be redelivered to City after removal, at Licensee’s expense, of debris and all removable fixtures, furniture and equipment, if requested by City, provided that such expenses, to the extent the damage is covered by insurance, may be reimbursed to Licensee from the insurance proceeds to be paid to City.
13.3. Abatement of License Fees. In the event that the Premises is destroyed or damaged or rendered wholly uninhabitable by fire or other casualty for a period exceeding thirty (30) days from the date of casualty, there shall be an abatement of License Fees until such times as the repairs are completed, and the Premises is again habitable.
ARTICLE 14.
EMINENT DOMAIN AND RELOCATION
14.1. Eminent Domain. In the event a condemnation or a transfer in lieu thereof results in a taking of any portion of the Premises, City may, or in the event a condemnation or a transfer in lieu thereof results in a taking of TWENTY PERCENT (20%) or more of the Premises, Licensee may, upon written notice given within thirty (30) days after such taking or transfer in lieu thereof, terminate this Agreement effective as of the date Licensee is required to vacate a portion of the Premises. Licensee shall not be entitled to share in any portion of the award and Licensee hereby expressly waives any right or claim to any part thereof.
14.2. Relocation Not Applicable. Licensee hereby acknowledges that this is a License, so Licensee has no property rights or interests to the Premises, and as such would have no right to
-18-
relocation benefits or related assistance at any time, including upon the expiration or early termination of the Agreement.
ARTICLE 15.
ENVIRONMENTAL
15.1. No Use of Hazardous Materials on the Premises. Licensee agrees that it shall not permit any user of the Premises to treat, use, store, dispose, release, handle or otherwise manage Hazardous Materials on the Premises, except in connection with any construction, operation, maintenance or repair of the improvements, or in the ordinary course of its business, and that such conduct shall be done in compliance with all applicable federal, state and local laws, including all Environmental Laws. Licensee’s violation of the foregoing prohibition shall constitute a breach hereunder and Licensee shall indemnify, hold harmless and defend City for such violation as provided below. Except for Hazardous Materials first brought onto the Premises by Licensee after the Date of Agreement in violation of Environmental Laws, neither th e presence of Hazardous Materials on or under the Premises as of the Date of Agreement, nor the presence of Hazardous Materials on or under the Premises after the Date of Agreement , shall constitute a breach by Licensee of any representation, warranty and covenant contained herein , and to the extent the presence of such Hazardous Materials requires remediation, the costs of such remediation shall be borne by City, rather than Licensee, pursuant to the provisions of Section 15.3 below.
15.2. Notice and Remediation by Licensee. Licensee shall promptly give City, and City shall give Licensee, written notice of any notices, demands, claims or orders received from any governmental agency pertaining to Hazardous Materials that may affect the Premises.
15.3. Environmental Indemnity. Licensee shall save, protect, pay for, defend (with counsel acceptable to City as applicable), indemnify and hold harmless Indemnitees from and against any and all Environmental Claims and any and all liabilities, suits, actions, claims, demands, penalties, damages (including, without limitation, penalties, fines and monetary sanctions), losses, costs or expenses (including, without limitation, consultants’ fees, investigation and laboratory fees, attorneys’ fees and remedial and re sponse costs and third -party claims or costs) (the foregoing are hereinafter collectively referred to as “Liabilities”) that may now or in the future be incurred or suffered by Indemnitees by reason of, resulting from, in connection with or arising in any manner whatsoever as a direct or indirect result of: (i) the presence, use, release, escape, seepage, leakage, spillage, emission, generation, discharge, storage, or disposal of any Hazardous Materials in, on, under, or about, or the transportation of any such Hazardous Materials to or from, the Premises by Licensee; (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment, or license relating to the use, generation, release, leakage, spillage, emission, escape, discharge, storage, disposal, or transportation of Hazardous Materials in, on, under, or about, or to or from, the Premises by Licensee; (iii) the physical and environmental condition of the Premises caused by Licensee; (iv) any Liabilities relating to any Environmental Laws and other Governmental Requirements relating to Hazardous Materials and/or the environmental and/or physical condition of the Premises caused by Licensee; and, (v) any Environmental Claims relating to the Premises caused by Licensee; provided, however, that the foregoing indemnity shall not apply to any Liabilities arising or occurring : (a) prior to the commencement of this Agreement; (b) after the expiration or earlier termination of the Term of this Agreement or the date Licensee vacates the property, whichever occurs later; or, (c)
-19-
as a result of the negligent or wrongful acts or omissions of City. The foregoing indemnification shall continue in full force and effect regardless of whether such condition, liability, loss, damage, cost, penalty, fine, and/or expense shall accrue or be discovered before or after the termination of this Agreement. This indemnification supplements and in no way limits the scope of the indemnification set forth in Article 12.
15.4. Voluntary Clean Up Agreement. Licensee Acknowledges and agrees that the Premises is under a Voluntary Clean Up Agreement with the California Department of Toxic Substance Control, and City is required to conduct Premises assessment activities that may require access to certain portions of the Pr emises that could require temporary relocation of Licensee’s business items. City will provide Licensee with 48-hour notice of areas on the Premises that will need to be cleared for associated work. Licensee acknowledges and agrees that there will be no additional compensation, reimbursement, or reduction in License Fees for loss of use of any area or relocation of business items.
ARTICLE 16.
ASSIGNMENT AND SUBLICENSING
Licensee shall not sublicense the Premises, or any part thereof, or any right or privilege appurtenant thereto, without first obtaining the prior written consent of City, which consent may be withheld at the sole and absolute discretion of City. Licensee shall not assign this Agreement, or any interest therein, without the prior written consent of City, which consent may be withheld at the sole and absolute discretion of City.
City shall have the right to sell the Premises during the Term of the Agreement, and to assign the Agreement, as necessary. If the Premises is sold and the Agreement assigned to a new party, the Agreement shall continue and Licensee shall be subject to the same terms and conditions.
ARTICLE 17.
LIENS AND ENCUMBRANCES
The Licensee shall not and cannot encumber the Premises with any deed of trust, mortgages, regulatory agreements, and /or memoranda of option because this is a license and Licensee has no property rights or interests to the Premises.
ARTICLE 18.
EVENTS OF DEFAULT; REMEDIES
18.1. Events of Default. Any one or all of the following events shall constitute an “Event of Default” hereunder:
a. If Licensee shall default in the payment of any Monthly License Fee when and as the same becomes due and payable and such default shall continue for more than ten (10) days after City shall have given written notice thereof to Licensee; or b. If Licensee shall default in the remittance of any other fee or payment when and as the same becomes due and payable and such default shall continue for more than ten (10) days after City shall have given written notice thereof to Licensee; or
-20-
c. The abandonment or vacation of the Premises by Licensee for a period of thirty (30) days or more; or
d. The entry of any decree or order for relief by any court with respect to Licensee, or any assignee or transferee of Licensee (hereinafter “Assignee”), in any involuntary case under the Federal Bankruptcy Code or any other applicable federal or state law; or the appointment of or taking possession by any receiver, liquidator, assignee, trustee, sequestrator or other similar offi cial of Licensee or any Assignee, or of any substantial part of the property of Licensee or such Assignee, or the ordering or winding up or liquidating of the affairs of Licensee or any Assignee and the continuance of such decree or order unstayed and in effect for a period of ninety (90) days or more (whether or not consecutive); or the commencement by Licensee or any such Assignee of a voluntary proceeding under the Federal Bankruptcy Code or any other applicable state or federal law or consent by Licensee or any such Assignee to the entry of any order for relief in an involuntary case under any such law, or consent by Licensee or any such Assignee to the appointment of or taking of possession by a receiver, liquidator, assignee, trustee, sequestrator or other similar official of Licensee or any such Assignee, or of any substantial property of any of the foregoing, or the making by Licensee or any such Assignee of any general assignment for the benefit of creditors; or Licensee or any such Assignee takes any other voluntary action related to the business of Licensee or any such Assignee or the winding up of the affairs of any of the foregoing.
e. If Licensee does not comply with any notices or orders from the City or the Code Enforcement Department, or if Licensee creates or allows any code enforcement violations on the Premises.
f. If Licensee shall default in the performance of or compliance with any other term, covenant or condition of this Agreement (other than as set forth in Sections 18.1(a) and
18.1(b)) and such default shall continue for more than thirty (30) days after City shall have given written notice thereof to Licensee, provided, however, if cure of such default reasonably requires more than thirty (30) days, then, provided that Licensee commences to cure within such thirty (30) day period and thereafter diligently and continuously prosecutes the cure to completion (within no more than one hundred eighty (180) days following City’s written notice to Licensee), Licensee shall not be in default during the cure period.
18.2. Remedies.
a. If an Event of Default shall occur and continue as aforesaid, then in addition to any other remedies available to City at law or in equity, City shall have the immediate option to terminate this Agreement and bring suit against Licensee and recover as an award in such suit the following:
(i) the worth at the time of award of the unpaid License Fees and all other sums due hereunder which had been earned at the time of termination; (ii) the worth at the time of award of the amount by which the unpaid License Fees and all other sums due hereunder which would have been earned after termination
-21-
until the time of award exceeds the amount of such License Fee loss that Licensee proves could have been reasonably avoided;
(iii) the worth at the time of award of the amount by which the unpaid License Fees and all other sums due hereunder for the balance of the Term after the time of award exceeds the amount of such License Fees loss that Licensee proves could be reasonably avoided; (iv) any other amount necessary to compensate City for all the detriment proximately caused by Licensee’s failure to perform its obligations under this Agreement or which in the ordinary course of things could be likely to result therefrom; and (v) such amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable California law. b. The “worth at the time of the award” of the amounts referred to in Sections
18.2(a)(i) and 18.2(a)(ii) above shall be computed by allowing interest at the rate provided in Section 4.7 as of the date of the award. The “worth at the time of award” of the amount referred to in Section 18.2(a)(iii) above shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). c. If an Event of Default occurs, City shall also have the right, with or without terminating this Agreement, to reenter the Premises and remove all persons and property from the Premises; such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Licensee.
d. No reentry or taking possession of the Premises by City pursuant to Sections
18.2(c) or 18.2(d) shall be construed as an election to terminate this Agreement unless a written notice of such intention is given to Licensee or unless the termination thereof is decreed by a court of competent jurisdiction.
18.3. Receipt of License Fees, No Waiver of Default. The receipt by City of the License Fees or any other charges due to City, with knowledge of any breach of this Agreement by Licensee or of any default on the part of Licensee in the observance or performance of any of the conditions or covenants of this Agreement, shall not be deemed to be a waiver of any provisions of this Agreement. No acceptance by City of a lesser sum than the License Fees or any other charges then due shall be deemed to be other than on ac count of the earliest installment of the License Fees or other charges due, nor shall any endorsement or statement on any check or any letter accompanying any check or payment of License Fees or charges due be deemed an accord and satisfaction, and City may accept such check or payment without prejudice to City’s right to recover the balance of such installment or pursue any other remedy provided in this Agreement. The receipt by City of any License Fees or any other sum of money or any other consideration paid by Licensee after the termination of this Agreement, or after giving by City of any notice hereunder to effect such termination, shall not, except as otherwise expressly set forth in this Agreement, reinstate, continue, or extend the term of this Agreement, or destroy, or in any manner impair the efficacy of any such notice of termination as may have been given hereunder by City to Licensee prior to the receipt of any such sum of money or other consideration, unless so agreed to in writing and signed by City. Neither acceptance of the keys nor any other act or thing done by City or by its
-22-
agents or employees during the Term shall be deemed to be an acceptance of a surrender of the Premises, excepting only an agreement in writing signed by City accepting or agreeing to accept such a surrender.
ARTICLE 19.
GENERAL PROVISIONS
19.1. Notices. Any approval, disapproval, demand, document or other notice (“Notice”) which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery or (iii) mailing in the United States mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below, or at any other address as that party may later designate by Notice. Service shall be deemed conclusively made at the time of service if personally served; the next business day if sent by overnight courier and receipt is confirmed by the signature of an agent or employee of the party served; the next business day after deposit in the United States mail, properly addressed and postage prepaid, return receipt requested, if served by express mail; and three (3) days after deposit thereof in the United States mail, properly addressed and postage prepaid, return receipt requested, if served by certified mail. a. Any notice to City shall be given to:
City of Anaheim
C/o Economic Development Department
200 South Anaheim Boulevard, 7th Floor
Anaheim, California 92805
TEL No. 714-765-4338
b. Any notice to Licensee shall be given to:
JJTS, Inc.
dba JR Wheels & Tires
Attn: Juan J. Torres
1695 W. Lincoln Avenue
Anaheim, California 92801
TEL No. 714-774-1060
[email protected]
Any party may, by virtue of written Notice in compliance with this Section 19.1, alter or change the address or the identity of the person to whom any notice, or copy thereof, is to be sent.
19.2. Administration. This Agreement shall be administered and executed by the Director, following approval of this Agreement by the City Council. City shall maintain authority of this Agreement through the Director. The Director shall have the authority but not the obligation to issue interpretations, waive provisions, extend time limits, grant design approvals, and/or enter into amendments of this Agreement on behalf of the City so long as such actions do not substantially change the uses or development permitted on the Premises, or add to the costs to the
-23-
City as specified herein as agreed to by the City Council, and such amendments may include extensions of time; provided, the Director shall have the authority to agree to modification of the concept plans so as to permit development consistent with then current general plan and zoning ordinance. All other waivers or amendments shall require the written consent of the City Council.
19.3. Quiet Enjoyment Subject to Lice nses and Future ROW Improvements .
Licensee, upon paying the Monthly License Fee, and other charges herein provided for and upon performing and complying with all covenants, agreements, terms and conditions of this Agreement to be performed or complied with by it, shall lawfully occupy and enjoy the Premises during the term of this Agreement, but without further hindrance or molestation by City.
19.4. No Claims Against City. Nothing contained in this Agreement shall constitute any consent or request by City, express or implied, for the performance of any labor or services or the furnishing of any materials or other property with respect to the Premises or any part thereof, nor as giving Licensee any right, power or authority to contract for or permit the performance of any labor or services or the furnishing of any materials or other property in such fashion as would permit the making of any claim against City or its interest in the Premises in respect thereof.
19.5. Inspection. City and its authorized representatives may enter the Premises or any part thereof at all reasonable times , but upon no less than forty -eight (48) hours’ prior written notice, for the purpose of inspecting, servicing or posting notices, protecting the Premises, or for any other lawful purposes.
19.6. No Waiver by City. To the extent permitted by applicable law, no failure by City to insist upon the strict performance of any term hereof or to exercise any right, power or remedy consequent upon a default under this Agreement, and no acceptance of License Fees during the continuance of any such default, shall constitute a waiver of any such default or of any such term.
No waiver of any default shall affect or alter this Agreement, which shall continue in full force and effect, or the rights of City with respect to any other then existing or subsequent default.
19.7. Holding Over. Licensee shall not be allowed to hold over or remain on the Premises without the written consent of City after the expiration of the Term.
19.8. No Partnership. Anything contained herein to the contrary notwithstanding, City does not in any way or for any purpose become a partner of Licensee in the conduct of its business, or otherwise, or a joint venturer or member of a joint enterprise with Licensee hereunder.
19.9. Remedies Cumulative. The various rights, options, elections and remedies of City and Licensee, respectively, contained in this Agreement shall be cumulative and no one of them shall be construed as exclusive of any other, or of any right, priority or remedy allowed or provided for by law and not expressly waived in this Agreement.
19.10. Restoration. Upon the expiration or termination of the Term of the Agreement, Licensee will restore the Premises to its original condition and remove any debris and trash.
19.11. Time Is of the Essence. Time is of the essence of this Agreement and all of the terms, provisions, and conditions hereof.
-24-
19.12. Force Majeure. If by reason of Force Majeure, either party hereto shall be rendered unable wholly or in part to carry out its obligations under this Agreement through no fault of its own then such party shall give notice and full particulars of Force Majeure in writing to the other party within a reasonable time after occurrence of the event or cause relied upon. Upon delivering such notice, the obligation of the affected party, so far as it is affected by such Force Majeure as described, shall be suspended during the continuance of the inability then claimed but for no longer period, and such party shall endeavor to remove or overcome such inability with all reasonable dispatch.
19.13. Survival of Representations and Warranties. The respective representations and warranties contained herein shall survive the License Effective Date and continue throughout the Term.
19.14. Construction of Agreement. This Agreement shall be construed in accordance with the substantive laws of the State of California, without regard to the choice of law rules thereof. The rule of construction that a document be construed strictly against its drafter shall have no application to this Agreement.
19.15. Severability. If one or more of the provisions of this Agreement shall be held to be illegal or otherwise void or invalid, the remainder of this Agreement shall not be affected thereby and shall remain in full force and effect to the maximum extent permitted under applicable laws and regulations.
19.16. Entire Agreement; Modification. This Agreement contains the entire agreement of the parties with respect to the matters discussed herein. This Agreement may be amended only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification, extension or discharge is sought.
19.17. Binding Effect and Benefits. This Agreement shall inure to the benefit of and be binding on the parties hereto and their respective successors and assigns. Except as otherwise set forth herein, nothing in this Agreement, expressed or implied, is intended to confer on any person other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement.
19.18. Further Assurances. Each party hereto will promptly execute and deliver without further consideration such additional agreement, assignments, endorsements and other documents as the other party hereto may reasonably request to carry out the purposes of this Agreement.
19.19. Counterparts. This Agreement may be executed simultaneously in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.
19.20. Number and Gender. Whenever the singular number is used in this Agreement and required by the context, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders.
19.21. Incorporation by Reference. Every Exhibit attached to this Agreement and referred to herein is hereby incorporated by reference.
-25-
[Signatures to Agreement appear on following page.]
-26-
“CITY”
CITY OF ANAHEIM, a municipal corporation
and charter city
By: _________________________________
Sergio M. Ramirez, Director
Economic Development Department
Dated: _______________________________
ATTEST:
THERESA BASS, CITY CLERK
By: _________________________________
APPROVED AS TO FORM:
CITY ATTORNEY
By: _________________________________
Ryan O. Hodge
Deputy City Attorney
“LICENSEE”
JJTS, INC., a California corporation
By: _________________________________
Juan J. Torres
Dated: ______________________________