Loading...
HomeMy WebLinkAbout2009 CON CDC Frank Motors / NCSDI No. 1 - Entry License & Indemnity Old RCP SiteENTRY LICENSE AND INDEMNITY AGREEMENT THIS ENTRY LICENSE AND INDEMNITY AGREEMENT (the "Agreement") is made and entered into effective as of the ) day of T, 2009, by and between the COMMUNITY DEVELOPMENT COMMISSION OF NArTIONAL CITY ("CDC") and NCSDI NO.1, LLC ("LICENSEE"), and FRANK MOTORS ("TENANT"). RECITALS A. CDC is the owner of that certain real property located in the City of National City, County of San Diego, State of California, APN 562-321-08, commonly known as the former RCP Site (the "Property"). B. TENANT is currently leasing the Property from CDC. C. LICENSEE intends to perform due diligence activities on the property after obtaining TENANT'S and CDC'S permission to do so, and desires to enter the Property in order to perform due diligence for a planned shopping center. D. CDC and TENANT are willing to grant a license to LICENSEE to enter upon the Property for such purposes. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: AGREEMENT 1. Grant of License. CDC and TENANT hereby grant to LICENSEE (and LICENSEE'S agents, employees, contractors and subcontractors) a revocable license to enter upon the Property for the purpose of performing due diligence; provided (i) LICENSEE provides CDC and TENANT Fifteen (15) Calendar Days or more prior notice before entering upon the Property, (ii) that in conducting all such activities, LICENSEE complies with all applicable laws and regulations and obtains and maintains the insurance coverage set forth in Section 2 below, and (iii) prior to entering the Property, LICENSEE shall disclose to CDC'S Executive Director and Frank Motors' designated representative the extent and specific location of LICENSEE'S activities, and obtain the written consent of the Executive Director and Frank Motors' representative to engage in such activities. Executive Director and Frank Motors' representative shall promptly respond to LICENSEE'S request for access to the Property and shall not unduly or unreasonably deny access to LICENSEE, its contractors, consultants, and/or agents. 2. Insurance. Prior to any act or entry upon the Property and at all times while LICENSEE is performing due diligence, LICENSEE and/or the contractor(s) performing the work shall obtain at its/their own expense and maintain in full force and effect and shall provide satisfactory evidence to CDC and Frank Motors of the following: a. Automotive insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). b. Commercial general liability insurance, with minimum limits of $1,000,000 per occurrence/$2,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Agreement. c. Workers' compensation insurance in an amount sufficient to meet statutory requirements covering all of LICENSEE'S employees, and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided prior to commencement of work under this Agreement. d. The aforesaid policies shall constitute primary insurance as to CDC and TENANT, its officers, employees, and volunteers, so that any other policies held by CDC and TENANT shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the City of cancellation or material change. e. Said policies, except for the officials workers' compensation policy, shall name CDC, TENANT, and their officers, officials, agents and employees as additional insureds, and separate additional insured endorsements shall be provided. form. f. All required insurance coverage shall be provided on an "occurrence" g. Any aggregate insurance limits must apply solely to this Agreement. h. Insurance shall be written with only California admitted companies which hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by CDC's Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. i. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by CDC's Risk Manager. If LICENSEE does not keep all such insurance policies in full force and effect at all times during the terms of this Agreement, CDC may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. j. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by CDC. 3. Indemnity Regarding LICENSEE'S Activities. LICENSEE shall indemnify, protect, defend and hold harmless CDC, TENANT, and their officers, officials, and employees from any and all claims, damages, liabilities, actions or causes of action, mechanics liens, materialmen's liens (including attorney's fees and costs) arising from any injury or damage to persons or property attributable solely to the entry onto the property by LICENSEE or 2 Entry License and Indemnity Agreement CDC of National City and NCSDI NO. 1, LLC LICENSEE'S agents, employees, contractors or subcontractors, but excluding any injury or damage attributable to the sole negligence of willful misconduct of CDC or TENANT. 4. Notices. All notices required hereunder shall be in writing, and shall be delivered as follows: To CDC: To TENANT: Brad Raulston Executive Director 1243 National City Blvd. National City, CA 91950 Gary Fenelli Frank Motors, Inc. 2400 National City Blvd. National City, CA 91950 To LICENSE: Mark Radelow NCSDI NO.1, LLC 5465 Morehouse Drive, Suite 260 San Diego, CA 92121-4714 5. Attorneys' Fees. In the event that any party hereto institutes an action or proceeding for a declaration of the rights of the parties under this Agreement, for injunctive relief, for an alleged breach or default of, or any other action arising out of this Agreement, or the transactions contemplated hereby, or in the event any party is in default of its obligations pursuant thereto, whether or not suit is filed or prosecuted to final judgment, the non -defaulting party or prevailing party shall be entitled to its actual attorneys' fees and to any court costs incurred, in addition to any other damages or relief awarded. 6. Binding on Successors. The terms and conditions herein contained shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties hereto. This Agreement shall not be assigned without the prior written permission of CDC and TENANT. 7. Applicable Law. This Agreement shall be construed in accordance with the laws of the State of California. 8. Partial Invalidity. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the reminder of the Agreement shall continue in full force and effect and shall in no way be impaired or invalidated, and the parties agree to substitute for the invalid or unenforceable provision a valid and enforceable provision that most closely approximates the intent of the invalid or unenforceable provision. 9. Entire Agreement. This Agreement contains the entire agreement and understanding of the parties with respect to the subject matter hereof and cannot be amended or 3 Entry License and Indemnity Agreement CDC of National City and NCSDI NO. 1, LLC modified except by a written agreement, executed by each of the parties hereto. The terms and provisions of the Agreement and the terms and provisions of the Purchase Agreement shall be read together as a single, integrated document. However, in the event of a conflict between the terms and provisions of the Agreement, and the terms and provisions of the Purchase Agreement, the terms and provisions of this Agreement shall prevail. 10. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall, for all purposes, be deemed an original and all such counterparts, taken together, shall constitute one of the same instrument. 11. No Obligation to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. 12. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parities hereto have executed this Agreement as of the date set forth above. COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY Executive Director APPROVED AS TO FORM: NCSDI NO. 1, LLC By: Title: FRANK MO • RS, INC. /7) Jgot.I.x By: George H. Eiser, III City Attorney 4 Title: By: Title e%t-l'(`1/'0 f Entry License and Indemnity Agreement CDC of National City and NCSDI NO. 1, LLC modified except by a written agreement. executed by each of the parties hereto. The terms and provisions of the Agreement and the terns and provisions of the Purchase Agreement shall be read together as a single, integrated document. However, in the event of a conflict between the terms and provisions of the Agreement. and the terms and provisions of the Purchase Agreement, the terns and provisions of this Agreement shall prevail. 10. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall, for all purposes, be deemed an original and all such counterparts, taken together, shall constitute one of the same instrument. 11. No Obligation to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto. to any person or entity other than the parties hereto. 1?. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength. (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement. (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement. (iv) each party and such party's counsel and advisors have reviewed this Agreement. (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof. or any amendments hereto. IN WITNESS WHEREOF, the parities hereto have executed this Agreement as of the date set forth above. COMMUNITY DEVELOPMENT NCSDI NO. 1, LLC COMMISSION OF NATIONAL CITY a limited liability company, By: Sudberry Development, Inc., a California corporation Its: Mana By: Brad Raulston, Executive Director Colton T. Sudberry President APPROVED AS TO FORM: George H. Eiser, Iii City Attorney FRANK MOTORS. INC. By: Title: By: Title: 4 Entry License and Indemnity .Agreement CDC of National City and NCSDI NO. I. LLC ACORD_ CERTIFICATE OF LIABILITY INSURANCE OP !DIM SUDBE 1 DATE (WD23/ 01/23/09 ^RDDIxT'I Cavignac & Associates 450 B Street, Suite 1800 San Diego CA 92101-3547 Phone: 619-234-6848 Fax: 619-234-8601 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED NCSDI, No. 1, LLC c/o Sudberry Properties, Inc. 5465 Morehouse Dr., #260 San Diego CA 92121-4714 INSURER A I UAN1 >AueO Gryoratlr INSURER B'. MEURERC NSUERIR *GIBER E COVERAGES THE POUCTES OF INSURANCE ANY REOU REMENT. NAY PERTAIN THE POUCHES. AGGREGATE LISTED BELOW HAVE BEEN ISSUED TO THE NEARED NAMED ABOVE FOR THE POLICY PERWD WICiATED N Ot WRHSTNANG DOCUMENT WITH RESPECT TO WHICH TNS CERTIFICATE MAY BE ISSUED OR HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH CLAMS. TERM OR CONDITION OF ANY CONTRACT OR OTHER INSURANCE AFFORDED BY TIE POLICES DESCRIBED LOUTS SHOWN MAY HAVE BEEN REDUCED BY PAIO ANSI 1TR ADD7. NERD TWEE OP INSURANCE POLICY HAMER POIK,Y EFFECTIVE DATE DIMOOYT) POLICY EAIATION DATE (NIYODIYY) RATS A GENERAL UABIJTY CCASALRCNLOE)ERALLIABIITY MZX80887903 04/01/08 04/01/09 EACH OCCURRENCE f 1,000,000 X DAMAGE TO RENTED PREMISES (EA Nunn* f 100,000 OASIS MADE X OCUI MEDEXPI*y DRIIP.m.) f 5,000 PE/MOPMLSAw INJURY f 1,000,000 GENERAL AGGREGATE S 2,000,000 GIN. 1 AGGREGATE OMIT APPLIES PER. PRODUCTS- COMP/OP AGO f 2,000,000 POLICY n ECT n UDC AUTOMOBILE COMBINED SINGLE OMIT (Es) , LWUTY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON.OWNED AUTOS BOORT INJURY (P. WARN) S BODILY NASTY (P. AcdJ.v) S PROPERTY CNMAGE (PGA mad..) 8 OARAOEUNNRY ANY AUTO AUTO CILY - EA ACCIDENT $ OTHERTNW EA ACC 1 AUTO ONLY AGG f EXCES$ARMUn1A U*J8JTYY OCCUR 1 10MIS MADE ll 111 DEDUCTIBLE RETENTION f EACH OCCURRENCE f AGGREGATE 1 f f f WORKERS COr BIILOYERS' ANY PROPRJETORTARTNEP/EXECIITNE OFFICERNEMBER INSATN AND A LIABILITY EXCLUDEDi uIE. SNe. VYYLIMOUTTSS ER OER TOM STAL E.L. EACH ACCIDENT f El DISEASE -UEMPLOYEE 1 R yin. PARTIN SPECIAL PROVISKYIS EL DISEASE- POLICY LSAT f OTHER DESCRIPTION OF OPERATIONS I LOCATIONS R VESICLES I EXCLUSIONS ADDED SY EIAORS[SANT 1 SPECML PROVMbNS Re: National City Derr Properties - Due Diligence. 10 days notice of cancellation for non-payment of premium. CERTIFICATE HOLDER CANCELLATION NATIO-1 City of National City Attn: Redevelopment Division Nat3 National City Blvd. National City, CA 91950 SHOULD ANY OF OR ABOVE DESCRIBED POLICES BE CANCELLED BEFORE THE EXPRATIDN DATE THEREOF. THE AMMO INSURER WALL ENDEAVOR TO MAL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR UAIIITY Of ANY KID UPON THE INSURER, ITS AGENTS OR ��%y��.14� ACORD 25 (2001/08) 0ACORD CORPORATION 1988 ACORD, CERTIFICATE OF LIABILITY INSURANCE DATE 9/29/2008 ' PRODUCER (415) 788-9810 FAX: (415) 248-3534 ISU/San Francisco 201 California St., Suite 200 License # 0778092 San Francisco CA 94111-5098 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED Frank Motors, Inc. Janice Ulrich 2400 National City Blvd. National City CA 91950 INSURER A. Travelers Indemnity Co. INsuRERBTravelers PC Co America 36161 INSURER Zenith Insurance Co. 0164 INSURERD: INSURERE OVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POL CIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGRE • TE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR ADM INSRD TYPE OF INSURANCE POLICY NUMBER POUCY EFFECTIVE DATE (MM/DD/YY) POUCY EXPIRATION DATE (MM/DD/YY) LIMITS GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY RECEIVED (fir r -( 0 gyp 9 2 ��/�jQ UOr( unity EACH OCCURRENCE - $ GE TO PREMISES SES EaE NTED Roccurrence) $ CLAMS MADE OCCUR MED EXP (Any PERSONAL ADV INJURY $ GENERAL AGGREGATE $ GENT AGGREGATE(ATjLIMIT APPLIES�jPER. PRODUCTS - COMP/OP AGG $ POLICY ( j JECT I 1 LOC A AUTOMOBILE UABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS Duu;,;lopment GA-7207M388-08 Corutisstoil 9/30/2008 9/30/2009 COMBINED SINGLE LIMIT (Eaaccident) $ 1,000,000 X BODILY INJURY (Pe person) $ BODILY INJURY (Per accdent) $ PROPERTY DAMAGE (Per accident) $ A GARAGE UABIUTY ANY AUTO OTHER THAN AUTO GA-7207M388-08 9/30/2008 9/30/2009 AUTO ONLY - EA ACCIDENT $ 1,000,000 X OTHER THAN EA ACC $ 1,000,000 X AUTO ONLY AGG $ 3,000,000 B EXCESS/UMBRELLA LIABILITY YSM-CUP-7207M388-TIL-08 9/30/2008 9/30/2009 EACH OCCURRENCE $ 9,000,000 X OCCUR CLAIMS MADE AGGREGATE $ 9,000,000 DEDUCTIBLE RETENTION $ NONE $ $ X $ C WORKERS COMPENSATION AND EMPLOYERS' UABIUTY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBEREXCLUDED? If yes, describe under SPECIAL PROVISIONS bektw Z066121905 7/1/2008 7/1/2009 X 1 TQ Y L M US OTH- ER E L EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 E L DISEASE - POLICY LIMIT $ 1,000,000 A OTHER AUTO PHYSICAL DAMAGE GA-7207M388-08 9/30/2008 9/30/2009 Per Location $17,000,000 Schedule on File Total limit with carrier. all locations DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS *10 days for non-payment of premium. Community Development of the City of National City, City of National City, and their officers, agents, and employees are listed as additional insureds. RE: 720 23rd Street, National City, CA. CERTIFICATE HOLDER CANCELLATION Community Development of National City 1243 National City Blvd. National City, CA 91950-4397 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL *30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBUGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE Jeannie Elias/JEANEL�'L"- ACORD 25 (2001/08) INS025 (0108)A8a © ACORD CORPORATION 1988 Page 1 of 2 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001/08) INS025 (oloa) 08a Page 2of2 City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Dalla, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 February 9, 2009 Mr. Gary Fenelli Frank Motors, Inc. 2400 National City Blvd. National City, CA 91950 Dear Mr. Fenelli, On January 28th, 2009, an Agreement was entered between the Community Development Commission of the City of National City and NCSDI No. 1, LLC and Frank Motors. We are enclosing for your records a fully executed original agreement. Sincerely, Michael R. Dalla, CMC City Clerk Enclosure cc: Community Development Commission ® Recycled Paper City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Dalla, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 February 9, 2009 Mr. Mark Radelow NCSDI No. 1, LLC 5465 Morehouse Drive, Suite 260 San Diego, CA 92121-4714 Dear Mr. Radelow, On January 28th, 2009, an Agreement was entered between the Community Development Commission of the City of National City and NCSDI No. 1, LLC and Frank Motors. We are enclosing for your records a fully executed original agreement. Sincerely, Michael R. Dalla, CMC City Clerk Enclosure cc: Community Development Commission ® Recycled F'aper