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HomeMy WebLinkAboutGreen Age Development - Temporary License Agreement for Willey House (2020)TEMPORARY LICENSE AGREEMEl'rT This Temporary License Agreement ("Agreement") is dated for reference purposes only as of February :}_, 2020 ("Effective Date"), by THE CITY OF GILROY, a California municipal corporation ("City"), whose address is 7351 Rosanna Street, Gilroy, California 95020, and GREEN AGE DEVELOPMENT LLC, a California limited liability company ("Licensee"), whose address is 17300 Monterey Road, Suite 200, Morgan Hill, California 95037. City and Licensee are sometimes collectively referred to in this Agreement as the "Parties" or individually as a "Party". RECITALS A. City is the owner of certain improved real property ("Property") located at 140 5th Street, Gilroy, California. The building which is situated on the Property is commonly lmown as the "Willey House." B. Licensee has requested that City grant a temporary license to Licensee to store office materials and furniture ("Licensee Property") in a portion of the Property described as the Licensed Area in Section 1 below, and City is willing to grant a temporary license for such use, on the terms and conditions set forth in this Agreement. NOW, THEREFORE, the Parties agree as follows: 1. Grant of License. City grants to Licensee a temporary revocable license over the Licensed Area for the sole purpose of storing the Licensee Property (the rights granted to Licensee pursuant to this Agreement being the "License"), during the License Term described in Section 2 below, and subject to all of the terms and conditions set forth in this Agreement. As used in this Agreement, "Licensed Area" means totally enclosed within the buildings on the Property. The Licensed Area shall be accepted by Licensee in its "AS IS", and "WITH ALL FAULT" condition existing as of the Effective Date, without representation or warranty of any kind, express or implied, and without any obligation of City to perform any work with respect to the Licensed Area, and subject to Section 13 below. Licensee shall not cause any waste or nuisance upon the Licensed Area, shall not do or permit anything to be done in or about the Licensed Area which will increase the rate of any insurance upon any portion of the Property, or cause a cancellation of any insurance policy covering any portion of the Property. In no event shall City have any obligation to provide any security personnel, patrols or other security services for the benefit of Licensee or any other person or entity, or to ensure the safety of Licensee or any other person or entity or their property. If City elects to provide any security personnel, patrols or other security services in connection with the Property, Licensee aclmowledges that such services shall be solely for City's benefit and Licensee shall not have to right to rely thereon. During the License Term, Licensee shall be solely responsible, at Licensee's sole cost, for taking all safety and security measures needed to ensure the safety and security of Licensee any other person or entity coming onto the License Area and for the protection of their property. 2. License Term; Effective Date. The term of the License granted by this Agreement (the "License Term") shall commence on the Effective Date, and shall terminate on the earlier of (A) the date that is thirty (30) days after the Effective Date or (B) the date on which City and Li~ensee have entered into a lease for the Property; provided, however, that if Licensee defaults with respect to any of its obligations under this Agreement (including without limitation Licensee's failure to timely delivery evidence of the insurance required by this Agreement), City shall have the right to terminate this Agreement, and the License granted in this Agreement, immediately upon the delivery to Licensee.of written notice of City's election to terminate. Notwithstanding the License Term set forth above, Licensee shall only be permitted to access the Licensed Area (A) during ordinary business hours (i.e., 9:00 a.m. to 5:00 p.m.), Monday through Friday (and not on 4822-6205-3555v2 SSCORDELIS\04706216 1 '"-< weekends or holidays), and (B) after delivering at least forty-eight (48) hours' prior written notice to City (prior to each and every instance of access). For purposes of the preceding sentence, Licensee must deliver written notice to City in accordance with the terms of Section 11 below, together with concurrent e-mail notice sent to Gabe Gonzalez at gabe .gonzalez@cityofgilroy.com. In no event shall the License ripen into a permanent right, notwithstanding any improvement made to the Licensed Area or action taken or expense incurred by Licensee pursuant to this Agreement, it being agreed that this License is temporary and terminable in accordance with the terms and conditions of this Agreement. This Agreement shall become effective when it has been signed by City and Licensee (the date of full execution being the "Effective Date"). 3. License Fee. Prior to exercising any rights under this License, Licensee shall pay to City a Licensee Fee of Six Thousand Dollars ($6,000), representing first and last months' rent under the proposed lease of the Property. If the Parties do not enter into such a lease, then upon removal by Licensee of all Licensee Property, City shall refund the License Fee to licensee, after deducting City's costs for Staff time to inspect and repair the Property and the costs of such repairs due to Licensee's use, if any. 4. Personal Nature of License. The License is personal to Licensee, and may not be assigned, transferred or encumbered by Licensee voluntarily, by operation of law or otherwise. Any assignment, transfer or encumbrance by Licensee shall be void. The use of the Licensed Area by Licensee and other users expressly permitted by this Agreement in accordance with the terms and conditions of this Agreement is expressly acknowledged to be, and shall remain, with the permission of City. 5. General Requirements. The License is subject to the following requirements and conditions, all of which shall be complied with by Licensee at Licensee's sole cost and expense: (a) Licensee's use of the Licensed Area (which for the purpose of this Agreement includes use by anyone claiming by, through or at the direction of Licensee or in connection with any activities of Licensee pursuant to this Agreement, including without limitation Licensee's agents, employees, contractors, laborers andmaterial suppliers ( collectively, the "Licensee Related Parties")) shall be conducted in compliance with all applicable laws. All permits and other governmental authorizations required in connection with Licensee's use of the Property shall be obtained by Licensee prior to any use of the Licensed Area or entry onto the Property. (b) Licensee shall maintain the Licensed Area in good, clean and safe condition throughout the License Term. Before the expiration or sooner termination of this Agreement, Licensee shall remove all of its property and the property of the Licensee Related Parties from the Licensed Area, repair all damage to the Property caused by the activities, negligence or willful misconduct of Licensee or any of the Licensee Related Parties, and shall surrender the Licensed Area to City at the end of the License Term clean and free of rubbish, and otherwise in at least as good a condition as it was in before the Effective Date. Licensee's obligations pursuant to this subsection (b) shall survive expiration or sooner termination of this Agreement. ( c) In no event shall Licensee or any of the Licensee Related Parties generate, release, store or otherwise use on or about the Property any substance, material or waste which is regulated as a hazardous or toxic substance, material or waste under any applicable law. ( d) In no event shall Licensee or any of the Licensee Related Parties have the right to improve or modify the Property. ( e) Licensee shall keep the Property free and clear of all liens resulting from the activities of Licensee and the Licensee Related Parties upon the Property. 4822-6205-3555v2 SSCORDELIS\04706216 2 6. Events of Default. Any failure by Licensee or any of the Licensee Related Parties to comply with any other term, provision or covenant of this Agreement shall constitute a default under this Agreement. In the event of a default by Licensee hereunder, City, in addition to having the right to immediately revoke this Agreement and the License granted hereunder by written notice to Licensee, shall have the right to remove any persons claiming rights under this Agreement and Licensee's property from the Licensed Area, and to bar Licensee and all persons claiming rights under this Agreement from access to the Licensed Area, in accordance with applicable laws. In addition, City shall have all other remedies available to City at law or in equity. All rights and remedies of City are cumulative. Licensee shall reimburse City immediately upon demand for the expenses and costs, including, without limitation, reasonable attorneys' fees, which City may incur in effecting compliance with this Agreement on behalf of Licensee. To the fullest extent allowed by law, Licensee further agrees that City shall not be liable for any damages resulting to Licensee from such action, whether caused by the negligence of City or otherwise. Any amounts due from Licensee to City under this Agreement which is not paid to City when due, shall bear interest from the date it becomes due until paid in full at the rate of ten percent (10%) per annum. 7 . Insurance. Licensee shall maintain in full force throughout the License Term the following insurance, all written by insurance companies and on forms acceptable to the City: (a) Commercial general liability insurance (at least as broad as the most commonly available ISO Commercial General Liability policy form CG 00 01 ), or such successor comparable form of coverage in the broadest form then available, for the mutual benefit of City and the Policy Holder, against any and all claims and liabilities arising out of the activities of the insured pursuant to this Agreement, providing coverage on an occurrence form basis with limits of not less than One Million Dollars ($1,000,000) each occurrence for bodily injury and property damage combined, and Five Million Dollars ($5,000,000) annual general aggregate. (b) Automobile Liability. Business automobile liability insurance having a combined single limit of not less than One Million Dollars ($1,000,000) per occurrence, insuring the Policy Holder and City against liability for claims for bodily injury, death, or property damage, arising out of ownership, maintenance, or use of any owned, hired or non-owned automobiles. (c) Worker's compensation insurance in compliance with statutory requirements, and Employer's Liability with a limit of not less than One Million Dollars ($1,000,000). 8. Attorneys Fees . If either Party hereto brings any legal action or proceeding to enforce, protect, interpret, or establish any term, condition, or covenant of this Agreement or right or remedy of either Party hereunder, the prevailing Party shall be entitled to recover, as a part of such action or proceeding, reasonable attorneys' fees and court costs, including reasonable attorneys' fees and costs for appeal. 9. LIMITATION ON LIABILITY. TO THE FULLEST EXTENT ALLOWED BY LAW, CITY SHALL HA VE NO LIABILITY TO LICENSEE OR ANY OTHER PERSON OR ENTITY WHATSOEVER FOR LOSS OR DAMAGE TO ANY PROPERTY OF LICENSEE OR ANY LICENSEE RELATED PARTIES OR FOR ANY INJURIES OR DEATH TO ANY PERSON IN OR ABOUT THE LICENSED AREA OR PROPERTY. TO THE FULLEST EXTENT ALLOWED BY LAW, THE LIABILITY OF CITY TO LICENSEE, ANY LICENSEE RELATED PARTIES OR ANYONE ELSE SHALL BE LIMITED TO THE INTEREST OF CITY IN THE LICENSED AREA OVER WHICH THE LICENSE HAS BEEN GRANTED, AND LICENSEE, THE LICENSEE RELATED PARTIES AND OTHERS SHALL LOOK SOLELY TO CITY'S INTEREST IN THE LICENSED AREA FOR THE RECOVERY OF ANY JUDGMENT OR AW ARD AGAINST CITY. LICENSEE COVENANTS THAT, PRIOR TO THE FILING OF ANY SUIT FOR AN ALLEGED BREACH BY CITY, LICENSEE SHALL GIVE CITY NOTICE AND REASONABLE TIME TO CURE THE ALLEGED BREACH BY CITY. 4822-6205-3555v2 SSCORDELIS\04 706216 3 10. RELEASE, INDEMNITY. CITY SHALL NOT BE OBLIGATED TO PROTECT, KEEP SAFE, SECURE OR PROVIDE ANY PROPERTY OF LICENSEE OR ANYONE COMING ONTO THE PROPERTY PURSUANT TO THIS AGREEMENT. LICENSEE, ON BEHALF OF ITSELF AND ALL LICENSEE RELATED PARTIES, AS A MATERIAL PART OF THE CONSIDERATION TO BE RENDERED TO CITY UNDER THIS AGREEMENT AND TO THE FULLEST EXTENT ALLOWED BY LAW, WAIVES AND RELEASES ALL CLAIMS AGAINST CITY FOR DAMAGES TO ALL PERSONAL PROPERTY IN, ON, OR ABOUT THE PROPERTY, AND FOR INJURIES OR DEATH TO PERSONS IN OR ABOUT THE PROPERTY, FROM ANY CAUSE (INCLUDING WITHOUT LIMITATION THE ACTS OR OMISSIONS OF CITY) ARISING AT ANY TIME. FURTHER, TO THE FULLEST EXTENT ALLOWED BY LAW, LICENSEE AGREES TO INDEMNIFY, DEFEND AND HOLD CITY HARMLESS FOR, FROM AND ON ACCOUNT OF ALL CLAIMS, DAMAGES, LOSSES, EXPENSES, LIABILITIES, SUITS, LEGAL PROCEEDINGS OR JUDGMENTS (INCLUDING WITHOUT LIMITATION THOSE RELATING TO PERSON INJURY, DEATH OR PROPERTY DAMAGE), ARISING FROM OR RELATED TO THE USE OF THE PROPERTY BY OR ON BEHALF OF LICENSEE OR ANY OF THE LICENSEE RELATED PARTIES, INCLUDING ANY CLAIMS ASSERTING CITY'S ACTIVE NEGLIGENCE, BUT EXCLUDING LOSS OR DAMAGE ARISING DIRECTLY FROM CITY'S SOLE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT TO THE . EXTENT NOT COVERED BY INSURANCE MAINTAINED BY LICENSEE OR REQUIRED TO BE INSURED AGAINST UNDER THIS AGREEMENT BY LICENSEE. TO THE FULLEST EXTENT ALLOWED BY LAW, CITY SHALL NOT BE LIABLE TO LICENSEE FOR ANY DAMAGE BY OR FROM ANY ACT OR NEGLIGENCE OF ANY OTHER USER OF THE PROPERTY OR ANY CITY, TENANT, OCCUPANT OR USER OF ADJOINING OR CONTIGUOUS PROPERTY. LICENSEE AGREES TO PAY FOR ALL DAMAGES TO THE PROPERTY CAUSED BY THE MISUSE OF THE PROPERTY BY LICENSEE OR ANY OF THE LICENSEE RELATED PARTIES OR OTHERS CLAIMING THROUGH LICENSEE. THE PROVISIONS OF THIS SECTION 10 SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. 11. Notices. All notices given with respect to this Agreement shall be in writing, and shall be either personally delivered to the Party to whom it is to be sent, or shall be sent by overnight courier service (such as Federal Express) or by U.S. certified or registered mail, return receipt requested, postage prepaid to the respective addresses of the Parties set forth in the introductory paragraph of this Agreement above, or to such other place as a Party may from time to time designate for itself by written notice to the other Party in accordance with this Section 11; provided that in no event may a Party designate as its address for notices any P.O . Box or other location to which personal delivery or delivery by overnight courier service cannot be effectuated. Any notice given by one Party to the other shall be deemed given and effective upon receipt thereof by the Party to whom it is sent, provided, however, that any notice not received because of the intended recipient's failure to provide a correct address or refusal to accept delivery shall be deemed given upon attempted delivery to the address provided by the intended recipient. 12 . Assignment. Licensee's rights under this Agreement and the License granted hereunder are personal to Licensee, and Licensee shall not assign, transfer or encumber this Agreement or the License or any interest therein or grant any license, concession or other right of occupancy of the Licensed Area or any portion thereof or otherwise permit the use of the Licensed Area or any portion thereof by anyone other than Licensee and the Licensee Related Parties (any of which events is hereinafter called a "Transfer"). Any attempted Transfer in violation of this Section shall be void. No legal title, easement or leasehold interest in the Property is created or vested in Licensee by the grant of the License. Subject to this Section 12 above, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns, and subsequent owners of the Property. 13. Signs and Advertising. Licensee shall not place orpennit to be placed anywhere on or in or about the Property, any sign, decoration, lettering, advertising matter or descriptive material without City's 4822-6205-3555v2 SSCORDELIS\04706216 4 prior written approval, which approval maybe withheld in City's sole and absolute discretion. Subject to the foregoing, Licensee shall submit to City reasonably detailed drawings of its proposed signs for review and approval by City prior to utilizing same. 14. Miscellaneous. If any term or provision of this Agreement or the application thereof to any persons or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement and the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected, and each term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. Use of words of a specific gender shall include other genders, as appropriate. Licensee shall not record this Agreement or any memorandum of this Agreement. This Agreement and the rights and obligations of the Parties shall be interpreted, construed, and enforced in accordance with the laws of the State of California, without regard to choice of law principles. Time is of the essence for all acts required of Licensee under this Agreement. Notwithstanding anything to1 the contrary contained in this Agreement, the termination or revocation of the License Term, whether by lapse of time or otherwise, shall not relieve Licensee from Licensee's obligations accruing prior to the termination or revocation of the License Term, and such obligations shall survive any such termination or revocation of the License Term. The headings and titles to the paragraphs of this Agreement are for convenience of reference only and shall have no effect upon the construction or interpretation of any part of this Agreement. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which, together, shall constitute one and the same instrument. Signatures and initials to this Agreement created by the signer by electronic means and/or transmitted by telecopy or other electronic transmission shall be valid and effective to bind the Party so signing. Each Party agrees to promptly deliver an execution original to this Agreement with its manually created (as opposed to electronically created) signature and initials to the other Party, but a failure to do so shall not affect the enforceability of this Agreement, it being expressly agreed that each party to this Agreement shall be bound by its own electronically created and/or telecopied or electronically transmitted signature and initials and shall accept the electronically created and/or telecopied or electronically transmitted signature and initials of the other Party to this Agreement. There shall be no presumption against a Party by reason of any rule or conclusion that a document should be construed more strictly against the Party who itself or through its agent prepared the same, it being agreed that all Parties have participated in the negotiation of this Agreement and that legal counsel was consulted by each Party (or each Party was given the opportunity for such legal consultation) before signing this Agreement. This Agreement may be modified only in writing by City and Licensee. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT CITY HAS NOT MADE AND IS NOT MAKING, AND LICENSEE, IN EXECUTING AND DELIVERING THIS AGREEMENT, IS NOT RELYING UPON, ANY WARRANTIES, REPRESENTATIONS, PROMISES OR STATEMENTS, EXCEPTTOTHEEXTENTTHATTHESAMEAREEXPRESSLYSETFORTHINTHISAGREEMENT. ALL UNDERSTAND IN GS AND AGREEMENTS MADE BETWEEN THE PARTIES WITH RESPECT TO THE LICENSED AREA ARE MERGED IN THIS AGREEMENT WHICH ALONE FULLY AND COMPLETELY EXPRESSES THE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, NEITHER PARTY RELYING UPON ANY STATEMENT OR REPRESENTATION NOT EMBODIED IN THIS AGREEMENT. CITY AND LICENSEE EXPRESSLY AGREE THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANT ABILITY, HABITABILITY, SUITABILITY OR FITNESS ARISING OUT OF THIS AGREEMENT, ALL OF WHICH ARE WAIVED BY LICENSEE, AND THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT. [ signatures on following page] 4822-6205-3555v2 SSCORDELIS\04706216 5 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates set forth below their signatures . 4822-6205-3555v2 SSCORDELIS\04706216 CITY: By: Name: Title: LICENSEE: Green Age Development, LLC, a Cali£ mpany By :__,6,,L---'"'--'=--+,---+r-----b<--------- Its: -----r------~-~~~------ By : _____________ _ Its : ______________ _