RIGHT OF ENTRY AND LICENSE AGREEMENT
This RIGHT OF ENTRY AND LICENSE AGREEMENT (this “Agreement”), dated for purposes of identification only as of _____________2025 (the “Date of Agreement”), is entered by and between the CITY OF ANAHEIM , a municipal corporation and charter city (“City”) and ACCESS CALIFORNIA SERVICES, a California non-profit corporation (the “Licensee”).
RECITALS:
A. The City owns real property generally located at 1116 Swan Street, in the City of Anaheim (the “Property” or “License Area(s)”), and depicted on the “Map of the Property” attached hereto as Exhibit A and incorporated herein by this reference.
B. The Licensee desires to use a portion of the Property for ingress and egress for employees, agents, guests, customers, patrons and invitees of Licensee and parking purposes, during the Term of this agreement (“Permitted Uses”).
C. The City recognizes the importance of providing community/cultural services to the community by providing Licensee with license to use that certain portion of the Property for parking purposes depicted as the License Area in Exhibit A, which is attached herein and incorporated herein by this reference.
D. The City and Licensee (each, a "Party" and, jointly, the "Parties") desire to enter into this Agreement in order to set forth the terms and conditions upon which City will provide Licensee with a license to enter and use the License Area
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:
Section 1. Right of Entry. Provided that all the terms and conditions of Section 2 of this Agreement are fully satisfied, the City hereby grants to the Licensee and its agents and contractors, the non-exclusive right to enter upon the License Area(s) for the Permitted Uses pursuant to the terms and conditions set forth in this Agreement.
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(s) to which this Agreement applies and no duty to warn any person of any latent or patent defect, condition or risk that might be encountered or incurred in entering the Property or License Area(s). Licensee acknowledges that neither the City nor any employee, agent or representative of the City have made representations or warranties concerning the condition of the License Area(s). All persons entering the Property or License Area(s) under this Agreement do so at their own risk.
Section 2. Conditions to Entry. Prior to Licensee entering the License Area(s), the following conditions must be satisfied (the “Conditions Precedent”):
2.1 Curfew. Licensee shall comply with the City of Anaheim’s Municipal Code and make every effort to respect the surrounding businesses and/or residential properties by maintaining a quiet and orderly License Area(s). Licensee agrees that no access to the License Area shall be permitted daily between 5:00 pm and 8:00 am. In addition, there shall be no overnight parking allowed in the License Area.
2.2 Access. Licensee shall have access to the License Area including ingress and egress for the employees, agents, guests, customers, patrons and invites of Licensee, during the term of this Agreement during business hours defined as 8:00 am to 5:00 pm Monday through Friday, excluding weekends and holidays. In addition, Licensee may r eserve License Area during non -business hours for special events upon submittal and approval of a facility use application to the City’s Facility Use Office.
Licensee shall install, at its sole cost and expense, a City-approved gate between their leased area located at 1116 Swan Street and the License Area and will secure the License Area at the close of each business day with a City- approved daisy chain lock for City’s access.
Use of the License Area shal l be non -exclusive and as such shall be open a nd accessible at all times to City and its employees, agents, invitees, and assigns, for use.
The City shall provide three (3) months advance written notice of any proposed construction project. During such time, License Area will not be accessible to Licensee. City shall provide Licensee with any project schedule and updates regarding any project delays.
2.3 Insurance. Licensee shall secure or cause its agent(s) or contractor(s) performing any entry onto the License Area(s) to secure, prior to commencing any activities under this Agreement, and maintain or cause to be maintained during the term of this Agreement, insurance coverage as follows:
a. Workers’ Compensation Insurance as required by California law and Employers Liability Insurance in an a mount not less than $1,000,000.
Licensee shall deliver an endorsement to the Workers' Compensation Insurance policy, in form acceptable to the City’s Risk Manager, containing a waiver of subrogation by the insurance carrier with respect to the City, its of ficials, agents, employees, representatives, and volunteers;
b. Commercial General Liability Insurance, including coverage for Premises and Operations, Contractual Liability, Personal Injury Liability, Products/Completed Operations Liability, and Independent Liability, in an amount not less than $2,000,000 per occurrence, $4,000,000 annual aggregate. Such insurance shall be written on a primary basis, but may include a deductible or self-insured retention, provided that such deductible or self-insured retention is disclosed to the CITY, in writing, for review and
acceptance, which shall not be unreasonably withheld, by its Risk Manager at the inception of this Agreement.
c. Commercial Automobile Liability Insurance, as required by California law, including - as applicable - owned, non-owned and hired autos, in an amount of not less than Two Million Dollars ($ 2,000,000.00) per occurrence, combined single limit.
d. Professional Liability Insurance coverage in an amount of not less than Two Million Dollars ($2,000,000.00). Licensee shall maintain such coverage for at least one (1) year after the termination of this Agreement.
The City’s Risk Manager is hereby authorized to amend or accept Licencee generated exception requests to the requirements set for th above in the event that such reduction is in the City’s best interest.
Any required coverage written with primary and excess layers to satisfy the minimum requirements of this Agreement must be submitted for approval, which shall not be unreasonably withheld, by City’s Risk Manager prior to the inception of the final Agreement.
Licensee agrees that this insurance shall not be voluntarily cancelled 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.
Each insurance policy required by this Agreement, except policies for Professional Liability and Workers’ Compensation, shall contain the following clauses or shall otherwise provide for the following conditions:
“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.”
“The City of Anaheim, its officers, agents, employees, representatives and ANAHEIM- 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.”
As one of the Conditions Precedent under this Agreement, Licensee shall deliver to the City (i) insurance certificates confirming the existence of the insurance required by this Agreement, and including the applicable clauses referenced above and (ii) endorsements to the above -required policies , which add to these policies the applicable clauses referenced above. Such endorsements shall be signed by an
authorized representative of the insurance company and shall include the signator’s company affiliation and title. Should it be deemed necessary by the City, it shall be Licensee’s responsibility to see that the City receives documentation, acceptable to the City, which sustains that the individual signing such endorsements is indeed authorized to do so by the insurance company. In addition, the City has the right to demand, and to receive within a reasonable time, copies of any insurance policies required under this Agreement.
In addition to any other remedies the City may have if Licensee or its agent(s) or contractor(s), as applicable, fails t o provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, the City may, at its sole option terminate this Agreement. Termination of this Agreement is an alternative to other remedies the City may have and is not the exclusive remedy for Licensee’s failure to maintain or cause to be maintained the required insurance or secure or cause to be secured appropriate endorsements.
Nothing herein contained shall be construed as limiting in any way the ex tent to which Licensee ma y be held responsible for payment of damages to persons or property resulting from Licensee’s or its subcontractor's performance under this Agreement.
2.4 Permits. Prior to the installation of the gate and daisy lock and commencing any activities under this Agreement, Licensee shall secure all permits needed to carry out the actions to be performed on the License Area(s) and provide a site plan to the City for approval showing the location of entry/exit and access areas, pursuant to this Agreement.
2.5 Security. Licensee acknowledges that City makes no representation or warranty, express or implied, regarding the security of the License Area. Licensee further acknowledges that City has no obligation whatsoever to provide guard service or other security measures. Licensee expressly assumes all responsibility for the protection and security of Licensee, its employees and invitees from any and all acts of any third party.
Section 3. Term of Agreement. The term of this Agreement shall commence on_____ 2025, and shall terminate five (5) years thereafter, unless sooner terminated as provided herein ("Initial Term"). The Director of Community Services is hereby authorized to renew this Agreement upon the same terms and conditions for no more than two (2) additional five-year terms following the expiration of the Initial Term ("Renewal Term"). The phrase "Initial Term" and "Renewal Term" shall be collectively referred to as the "Term".
Section 4. Terms of License. The City hereby grants Licensee a non-exclusive license to use the License Area for the purposes stated herein pursuant the following terms:
4.1 "As-Is" Condition. Licensees acknowledges that the License Area is being provided to Licensee on an "as-is" basis, and Licensee takes and occupies the Licensee Area without reliance
upon any representation by City, or any of its officers, employees, agents or representatives, or any other person, concerning the License Area or its fitness for Licensee's intended use or any other particular purpose of use, or any other promise, representation or inducement. All persons entering the License Area do so at their own risk.
4.2 Licensee's Obligations. Licensee's Responsibilities. Licensee's rights under this Agreement are and shall be subject to, and Licensee shall comply with and cause its employees, agents, subcontractors and anyone entering under this Agreement ("Licensee's Representatives") to comply with, the following:
a. Personal Supervision. Each person entering the Li cense Area(s) shall be considered at all times to be acting as an agent of Licensee.
b. Damage to Property. Licensee shall be liable for and shall pay to the City the cost of any damage of any kind whatsoever to any property of the City , including los s of use thereof, arising from or in any way related to: (i) the acts or omissions of Licensee or Licensee's Representatives, or (ii) any breach by Licensee of any of its obligations under this Agreement, except for the portion, if any, of any of the foreg oing which are held by a court of competent jurisdiction to have been caused solely by the gross negligence or willful misconduct of the City.
Neither Licensee nor any of Licensee's Representatives shall remove any property of any type from the Property or License Area(s) without the express prior written consent of the City.
c. Third Party Property Damage or Personal Injury. The City and the other "Indemnitees" (described below) shall not be liable for any damage of any kind whatsoever to any property belonging to or used by Licensee or any persons entering upon the License Area(s) or the Property under this Agreement, including loss of use of any such property, or for any injury of any kind whatsoever to any person entering upon the License Area(s) or the Property under this Agreement, arising from any cause whatsoever, and Licensee hereby waives all claims and demands relating thereto.
d. Indemnification. Licensee shall, to the fullest extent permitted by law, indemnify, defend and hold the City an d its employees, officers, directors, agents and representatives and its successors and assigns (collectively, the "Indemnitees") harmless from and against any and all claims, losses, liabilities, costs and expenses, including attorneys' fees (collectively, the "Claims") whether incurred by or made against any Indemnitee, for damage to real, personal, tangible or intangible property, including loss of use of any such property, and all Claims for bodily injury, sickness, disease or death of any person, arising from or in any way related to: (i) any act, omission or entry upon the License Area(s) or the Property or other activity under this Agreement by Licensee or Licensee's Representatives (including but not limited to any Claim by any insurance company which has paid a claim and is subrogated to the rights of the claimant); and/or (ii) any breach by Licensee of its obligations under this Agreement; provided, however, that no Indemnitee shall be entitled to indemnification hereunder for the portion, if any, of any Claim which is determined by a court of competent jurisdiction to have been caused solely by the gross negligence or willful misconduct of such Indemnitee. Payment shall not be a condition precedent to recovery under such indemnification, and a finding of liability or an obligation to indemnify shall not be a condition precedent to the duty to defend.
4.3 Alterations. Licensee shall not alter the License Area or perform any work that requires issuance of a building permit without first obtaining written approval from the City. City shall have sole authority to approve all alterations, modifications, renovations, or construction to the License Area.
Section 5. Payment of 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 one dollar ($1.00) annually, in advance. Any and all costs related to the maintenance or repair of the Property shall be separate from the License Fee and the sole responsibility of Licensee.
5.1. 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 year 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 14 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 herein, deferment, suspension or deduction.
Section 6. Representative of City . The City's Director of Community Services , or such person's designee, (the "Director") shall represent the City in all matters pertaining to this Agreement. Whenever a reference is made herein to an action or approval to be undertaken by the City, the Director is authorized to act unless this Agreement specifically provides otherwise or the context should otherwise require.
Section 7. Termination. Except as otherwise provided herein, this License may be terminated upon thirty (30) days written notice to the other party as follows: (i) by either party upon a default of any covenant or term hereof by the other party, which default is not cured within thirty (30) days of receipt of written notice of default to the other party (without, however, limiting any other rights of the parties pursuant to any other provisions hereof); or (ii) by City, without cause, upon 30 days’ prior written notice to Licensee.
7.1 Notice of Termination . The parties shall give No tice of Termination in writing. Such Notice shall be effective upon receipt at the address stated in Section 14, or such later date as stated in the Notice.
Section 8. Certain Definitions. For the purposes of this Agreement, the following terms shall have the meanings herein specified:
"Environmental Law" means (i) Sections 25115, 25117, 25122.7 or 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law)), (ii) Section 25316 of the California Health and Safety Code, Division 20, Chapter
6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory) , (iv) Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) Article 9 or Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (vi) Section 311 of
the Clean Water Act (33 U.S.C. §1317), (vii) Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq. (42 U.S.C. §6903) or (viii) Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §6901 et seq.
"Hazardous Materials" means any substance, material or waste which is or becomes, prior to the Closing, regulated by any local governmental authority, the State of California or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law)), (ii) defined as a "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter Presley-Tanner Hazardous Substance Account Act). (iii) define d as a "hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous subst ance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated byphenyls, (viii) listed under Article 9 or defined as "hazardous" or ''extremely hazardous" pursuant to Article I l of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as ''hazardous substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. §1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq. (42 U.S.C. §6903) or (xi) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §6901 et seq.
Section 9. Compliance with Laws/Permits. The Licensee shall, in all activities undertaken pursuant to this Agreement, comply and cause its contractors, agents and employees to comply with all federal, state and local laws, statutes, orders, ordinances, rules, regulations, plans, policies and decrees, including, but not limited to, all Environmental Laws. Without limiting the generality of the foregoing, the Licensee, at its sole cost and expense, shall obtain any and all permits, licenses and approvals that may be required for any activities the Licensee desires to conduct or have conducted pursuant to this Agreement. Licensees shall not deposit or permit others to deposit and Hazardous Materials on the site. In the event the Licensee or its agents or employees discover any substance on the License Area which they suspect might be Hazardous Materials, Licensee shall immediately notify or cause notice to be given to City, and the Licensee and its agents and employees shall immediately stop all access onto License Area until notified by City that access may be resumed.
Section 10. Maintenance and Restoration. Licensee shall maintain the License Area in a clean, orderly, well -maintained condition a nd perform all routine maintenance, minor repairs, trash removal, and cleaning. Upon termination of the License, Licensee will restore the site to its original condition (except the gate or any other alterations approved by the City) and remove any debris, the daisy lock, trash and any vehicles at the conclusion of the license term.
Section 11. Risk of Loss/Interference/Maintenance Responsibilities. Licensee acknowledges and agrees that Licensee bears all risk of loss or damage to the License Area. Licensee shall immediately notify City if any portion of the License Area (i) is not in a state of good repair; (ii) is
unsightly; (iii) has been damaged, destroyed or defaced; or (iv) is otherwise injured and in need of repair.
Section 12. No Real Property Interest. It is expressly understood that this Agreement does not in any way whatsoever grant or convey any permanent easement, lease, fee or other interest in the License Area to Licensee.
Section 13. Good Faith . The Parties agree that each is operating in good faith and in consideration of their mutual and respective goals and objectives. The Parties agree to cooperate with each other to complete the tasks contemplated by this Agreement.
Section 14. Notices. Any notices, requests or approvals given under this Agreement from one party to another shall be in writing and shall be personally delivered or deposited with the United States Postal Service for mailing to the addresses of the other party as stated in this Section, and shall be deemed to have been received at the time of personal delivery or three (3) days after the date of deposit for mailing. Notices shall be sent to:
If to City:
With a Copy to:
City of Anaheim
200 S. Anaheim Blvd, 4th Floor
Anaheim, California 92805
Attn: Community Services Director
City Clerk
City of Anaheim
200 S. Anaheim, 2nd Floor
Anaheim, California 92805
If to Licensee: AccessCal
Access California Services
300 W. Carl Karcher Way
Anaheim, CA 92801
Attn: Executive Director
Section 15. Governing Law. This Agreement shall be governed by the laws of the State of California. Any legal action brought under this Agreement must be instituted in the Superior Court of Orange County, State of California, in an appropriate court in that county, or in the Federal District Court in the Central District of California.
Section 16. Interpretation. This Agreement shall be interpreted as a whole and in accordance with its fair meaning and as if each party participated in its drafting. Captions arc for reference only and are not to be used i n construing meaning.
Section 17. Amendment of Agreement. No modification, rescission, waiver, release or amendment of any provision of this Agreement shall be made except by a written agreement executed by City and the Licensee.
Section 18. Attorneys' Fees. In the event of a dispute between the pa1ties with re spect to the terms or conditions of this Agreement, the prevailing party shall be entitled to collect from the other its reasonable attorneys' fees as established by the judge or arbitrator presiding over such dispute.
Section 19. City Representations, Indemnities and Covenants. City makes no representations and warranties with respect to the License Area.
Section 20. Effective Date of this Agreement. This Agreement shall take effect immediately upon execution by the City (the ''Effective Date").
[Remainder of page intentionally left blank; signatures on next page]
IN WITNESS WHEREOF, THE CITY AND THE LICENSEE HAVE EXECUTED THIS AGREEMENT ON THE RESPECTIVE DATES SET FORTH BELOW.
Dated:
"CITY"
CITY OF ANAHEIM,
a municipal corporation and charter city
By:
ATTEST:
THERESA BASS, CITY CLERK
By:
APPROVED AS TO FORM:
CITY ATTORNEY
By:
Bryn M. Morley
Deputy City Attorney
154625
“LICENSEE”
ACCESS CALIFORNIA SERVICES, a
California non-profit corporation
Dated: By:
ACKNOWLEDGEMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
)
County of )
On ________________, before me,
date here insert name and title of the officer
personally appeared
here insert name(s) of signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity/ies, and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
Witness my hand and official seal.
(Signature) (Seal)
EXHIBIT A
MAP OF THE SITE
EXHIBIT A
MAP OF PROPERTY
1116 Swan Street, Anaheim, CA 92801
Legend:
Proposed License Area
Ingress/Egress Area
*The proposed license area includes approximately 33,750 ft² and 78 parking spaces adjacent to the Licensee’s property