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HomeMy WebLinkAboutCalavera Hills II LLC; 2006-03-06;LICENSE AGREEMENT THIS LICENSE AGREEMENT (this "Agreement") is effective as of March 6, 2006 (the "Effective Date") by and between CALAVERA HILLS II, LLC, a Delaware limited liability company ("Licensor"), and the CITY OF CARLSBAD, a municipal corporation ("Licensee"). RECITALS A. Licensor is the owner of certain real property in the City of Carlsbad, County of San Diego, State of California, described on Exhibit "A" attached to this Agreement (the "Property"). B. Licensee desires to use the Property as a temporary storage area for dredged materials from a public project in the vicinity of the Property. Licensor desires to grant to Licensee a license to enter upon the Property for those purposes, on the terms and conditions of this Agreement. TERMS AND CONDITIONS NOW THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. License to Use Property for Construction Staging Area. Subject to the terms and conditions set forth herein, Licensor hereby grants to Licensee, its contractors, subcontractors, consultants, agents and employees a nonexclusive license and permission to enter upon the Property (the "License") for the purpose of using the Property as a temporary storage area for dredged materials from a public project in the vicinity of the Property, including, but not necessarily limited to, the storage of tools, equipment, vehicles and other construction-related materials. Prior to entry onto the Property, Licensee shall comply with the terms of Section 6 below and shall notify Licensor and otherwise coordinate same with any reasonable requirements of Licensor such as the use of temporary power. 2. Term. The term of the License will commence on the Effective Date, and will terminate on May 15, 2006. 3. Laws. Licensee shall comply with all governmental rules, regulations, ordinances, statutes and laws pertaining to the activities of Licensee in connection with the Property. Licensee shall at no time keep, store or maintain on the Property any product, substance, or waste whose presence, use, manufacture, disposal, spill, effect, quantity/intensity of existence, transportation, or release, either by itself or in combination with other materials expected to be on the Premises, is either: (i) potentially injurious to the public health, safety or welfare, the environment or the Premises, (ii) regulated or monitored by any governmental authority, or (iii) a basis for potential liability of Lessor to any governmental agency or third party under any applicable statute or common law theory. Hazardous Substances shall include, -1- but not be limited to, hydrocarbons, petroleum, gasoline, and crude oil and any products, by- products and fractions thereof. 4. Liens. Licensee shall not suffer or permit to be enforced against the Property, or any part thereof, any mechanics', materialmen's, contractors' or subcontractors' liens or any claim for damage arising from any work performed by Licensee or its representatives, contractors, subcontractors, agents or employees, but Licensee shall pay or cause to be paid all of said liens, claims or demands before any action is brought to enforce the same against the Property. Notwithstanding anything to the contrary set forth above, if Licensee shall in good faith contest the validity of any such lien, claim or demand, then Licensee shall, at its expense, defend itself and Licensor against the same and shall pay and satisfy any adverse judgment that may be rendered thereon before the enforcement thereof against Licensor or the Property, but only upon the condition that if Licensor shall require, Licensee shall procure and record or furnish to Licensor a surety bond or other acceptable security satisfactory to Licensor in an amount sufficient to indemnify Licensor against liability for the same, and to hold the Property free from the effect of any lien or claim. Licensor reserves the right at any time and from time to time to post and maintain on the Property or any portion thereof or improvement thereon such notices of non-responsibility or otherwise as may be necessary to protect Licensor against liability for any such liens and claims. 5. Indemnity. Licensee shall protect, indemnify, defend (with counsel reasonably acceptable to Licensor) and hold Licensor and Licensor's officers, directors, shareholders, participants, partners, affiliates, employees, representatives, invitees, agents and contractors free and harmless from and against any and all claims, damages, liens, stop notices, liabilities, losses, costs and expenses, including attorneys' fees and court costs, resulting from Licensee's entry onto the Property, including, without limitation, repairing any and all damages to any portion of the Property, arising out of or related (directly or indirectly) to Licensee's conducting any inspections and tests and any other activities of Licensee or its contractors, subcontractors, agents or employees upon the Property. Licensee's indemnification obligations set forth herein shall survive any termination of the License and/or this Agreement. 6. Insurance. Prior to any entry by Licensee onto the Property, Licensee shall have delivered to Licensor an original endorsement to Licensee's commercial general liability insurance policy which evidences that Licensee has obtained a commercial general liability insurance policy with a financially responsible insurance company reasonable acceptable to Licensor covering (i) the activities of Licensee, and Licensee's agents, contractors, subcontractors and employees on or upon the Property during the term of this Agreement, and (ii) Licensee's indemnity obligation set forth in paragraph 5 above. Such endorsement to such insurance policy shall evidence that such insurance policy shall have a per occurrence limit of at least One Million Dollars ($1,000,000) and an aggregate limit of at least Two Million Dollars ($2,000,000), shall name Licensor as an additional insured, shall be primary and noncontributing with any other insurance available to Licensor, and shall contain a full waiver of subrogation clause. 7. Security. Licensee is fully responsible for securing the Property and Licensee's property located on the Property during the term of this License. Licensor shall have no II* responsibility for security and shall have no responsibility for any items of stolen or damaged property stored or located on the Property. 8. Repair and Restoration. Any damage, destruction or alteration of the Property or any improvements to the Property or any adjacent streets, curbs, gutters or other public improvements caused by Licensee's use of the Property or the License shall be restored or repaired by Licensee at its sole cost and expense. In the event this Agreement is terminated for any reason, and such repair and restoration has not then occurred, the License shall be extended for an additional ten (10) day period solely for the purpose of permitting Licensee a means to perform such repair and/or restoration. The grade level of the Property will need to be re- certified upon the termination of Licensee's use of the Property and restored to the satisfaction of the Licensor. Licensee shall be responsible for any cost associated with such re-certification. 9. Inspection. Licensor and any authorized representative, employee, agent or independent contractor shall be entitled to enter and inspect the Property or any portion thereof or work of Licensee thereon at any time and from time to time. 10. Cost of Enforcement. In the event of any breach, violation or failure to perform or satisfy any of the terms or provisions hereof, the non-defaulting party shall have all rights and remedies provided at law or in equity, all of which shall be cumulative and non-exclusive. In the event either party employs an attorney or other person or commences an action to enforce any of the provisions of this Agreement, the prevailing party shall be entitled to recover from the other party all costs of enforcement in connection therewith, including but not limited to court costs and attorneys' fees. 11. Miscellaneous. This Agreement shall constitute the entire agreement between the parties hereto pertaining to the subject matter hereof and all prior and contemporaneous agreements, representations and understandings of the parties hereto, oral or written, are hereby superseded and merged herein. No supplement, modification or amendment of this Agreement shall be binding unless in writing and executed by the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions, whether or not similar, nor shall any waiver be a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. The liabilities of the parties hereunder shall survive the termination of this Agreement. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of California. The headings of this Agreement are for purposes of reference only and shall not limit or define the meaning of the provisions hereof. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute one and the same instrument. The parties acknowledge that each party and its counsel have reviewed and approved this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. 12. Existing Bond. Calavera Hills II, LLC currently has a bond posted for the stockpile area for City of Carlsbad DWG 390-9E. City agrees to release said bond (No. 58608929) in the amount of One Million Two Hundred Sixty Thousand Dollars ($1,260,000.) along with the cash deposit in the amount of One Hundred Forty Thousand Dollars ($140,000.) -3-h concurrently with the posting of a new bond for City of Carlsbad DWG 433-6A (Robertson Ranch Mass Grading). The amount of said new bond shall be determined by using a unit price of $0.35 per square foot for clearing and grubbing and a unit price of $3.20 per cubic yard for grading consistent with the "City of San Diego Cost Estimate Unit Price List, March 2000". 13. Adjacent Property Owners. The City of Carlsbad shall notify the adjacent property owners (Rancho Carlsbad Mobile Home Park) that the work being done on the Robertson Ranch is by the City of Carlsbad and not Calavera Hills II, LLC. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. "LICENSOR" CALAVERA HILLS II, LLC, a California limited liability company By: McMillin Companies, LLC a Delaware limited liability company Its: Manager By: Name: Its: By:_ Name:_ Its: "LICENSEE" CJIYOF CARfeSM^T^municipal (tormration -4- concurrently with the posting of a new bond for City of Carlsbad DWG 43 3-6A (Robertson Ranch Mass Grading). The amount of said new bond shall be determined by using a unit price of $0.35 per square foot for clearing and grubbing and a unit price of $3.20 per cubic yard for grading consistent with the "City of San Diego Cost Estimate Unit Price List, March 2000". 13. Adjacent Property Owners. The City of Carlsbad shall notify the adjacent property owners (Rancho Carlsbad Mobile Home Park) that the work being done on the Robertson Ranch is by the City of Carlsbad and not Calavera Hills II, LLC. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. "LICENSOR"CALAVERA HILLS II, LLC, a California limited liability company By: McMillin Companies, LLC a Delaware limited liability company Its: Manager By:_ Name: Its: "LICENSEE" Name: CLAUDE A. LEWIS Its: Mavor -4- EXHIBIT "A" LEGAL DECRIPTION OF THE PROPERTY THE LAND REFERRED TO HEREIN IS SITUATRED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: PARCEL 1 ON CERTIFICATE OF COMPLIANCE RECORDED NOVEMBER 28, 2001 AS FILE NO. 2001-0865064 OF OFFICIAL RECORDS. AND THE REMAINDER PARCEL SOUTH OF CANNON ROAD OF CARLSBAD MINOR SUBDIVISION 02-10, ROBERTSON RANCH, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARCEL MAP THEREOF NO. 19804, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 3, 2005. C:\Documents and Settings\dmitchell\Local SettingsYTemporary Internet Files\OLK2\Carlsbad License Agreement ver /~\{~\ l(03.02.06).doc CA