HomeMy WebLinkAboutKGM Associates LLC - Agreement - 07.11.2022LICENSE AND RIGHT OF ENTRY AGREEMENT
This License and Right of Entry Agreement (Agreement) is entered in this day of
July __..11, 2022, by and between the CITY OF FRESNO, a California municipalcorporation
(CITY) and KGM ASSOCIATES LLC , a California limited liability company, as property
manager on behalf of the tenant-in-common owners listed on Sched ule 1 attached hereto
(LICENSOR 1) and the tenant-in-common owners listed on Schedul e 2 attached hereto
(LICENSOR 2). LICENSOR 1 and LICENSOR 2 are collectively referred to herein as
"LICENSOR".
RECITALS
A. WHEREAS, LICENSOR 1 is the owner in fee of that certain real property
commonly referred to as 4343 N. Blackstone Avenue, Fresno, California 93725 , APN 426-
253-17, and more particularly describedin Exhibit "A" attached hereto and incorporated
herein by reference (the Property 1 ).
B. WHEREAS, LICENSOR 2 is the owner in fee of that certain real property
commonly referred to as 4323-4333 N. Blackstone Avenue , Fresno, California 93725,
APN 426-253-19, and more particularly described in Exhibit "B" attached hereto and
incorporated herein by reference (the Property 2). Property 1 and Property 2 are
contiguous and referred to herein together as the "Property."
C. WHEREAS, CITY desires to obtain the LICENSOR'S permission for CITY
and its agents and contractors to enter onto the Property, on temporary basis, in order to
perform certain studies, inspections, evaluations, tests, or surveys of the Property that
CITY elects to perform (collectively, the Investigations).
D. WHEREAS, the Parties wish to enter into this Agreement whereby the
LICENSOR will allow CITY to enter the Property on a temporary basis, for the purpose of
performing the Investigations.
NOW, THEREFORE, the LICENSOR and CITY do hereby agree as follows :
AGREEMENT
1. Rig ht of En try . The LICENSOR hereby grants to CITY, and its agents,
employees, and contractors the temporary non-exdusive right to enter onto the Property
during normal business hours for the sole purpose of performing the Investigations, and
for no other purpose, in accordance with the terms and provision of this Agreement. CITY
shall have the right to access the Property, at all times during normal business hours,
following execution of this Agreement by the parties , for the purpose of conducting all
Investigations that CITY elects to have performed upon reasonable notice to LICENSOR.
Reasonable notice shall be defined as providing LICENSOR , or its agent, with twenty
four hours' notice, in writing, including electronic mail (which may be in the form of an
email to KenM@nkproperty.com and gmolar@aol.com), prior to entry; provided, however,
that for access to the interior of any tenant-occupied space on Property 2, reasonable
notice shall mean at least seventy-two hours' notice , in writing , including electronic mail ,
prior to entry. When necessary, LICENSOR shall provide notice to its tenants. CITY shall
conduct any such inspections or testing at a time and manner to minimize disruption or
interference with any tenants on Property 2. Notwithstanding anything to the contrary,
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the CITY shall have the right to perform the following investigations without LICENSOR'S
consent, but with prior written notice to the LICENSOR: boundary and topographic
surveys; soil, engineering tests; lead-based paint testing, asbestos testing, Phase I
environmental assessments; and commercial building inspection (including roofing,
structural integrity, electrical, plumbing, and HVAC}, collectively "the Permitted
Inspections." Notwithstanding the foregoing, any environmental investigations for
hazardous substances or materials (as now or hereafter defined in any law, regulation or
rule) on the Property (i) involving soil borings, soil vapor testing, PIO screening and related
soil and soil gas testing shall be subject to LICENSOR's approval, not to be unreasonably
withheld, as to the scope and methodology of the testing and the location of any soil
borings on the Property (which scope , methodology and location must be reasonably
recommended by the CITY's environmental consultants and must minimize any
interference with the operations of existing tenants on Property 2), and (ii) involving the
testing of groundwater and/or of indoor air sampling shall be subject to LICENSOR's
approval, which shall not be unreasonably withheld if the recommendation for such testing
and/or sampling by t.he CITY's environmental consultant is confirmed by an independent
third-party environmental consultant mutually agreed upon by both the CITY and
LICENSOR. If any of the Permitted Inspections or environmental investigations set forth
in this Paragraph 8(a) indicate that further inspection is necessary, the CITY may conduct
such further inspections, subject to the terms and conditions of this Agreement. All work
done in connection with the Investigations including any and all fees, studies, reports,
approvals, plans, surveys, permits and any expenses whatsoever necessary or desirable
shall be obtained and paid for by, and be the sole responsibility of, CITY. A representative
of LICENSOR shall have the right, but not the obligation, to be present during any
Investigations. CITY agrees, at its own expense, to immediately repair any damage,
impact, or disturbance to the Property directly or indirectly caused by any acts of CITY,
its employees, contractors, or agents, and to restore the Property to the condition it was
in immediately prior to such inspection, including, but not limited to, the removal of
anything placed on the Property in connection with such inspection.
2. Term . The term of this Agreement shall automatically terminate the earlier
of (i) sixty (60) days from the date first herein written above or (ii) the date on which
LICENSEOR and CITY mutually execute a purchase and sale agreement for the Property
(a Purchase Agreement), unless earlier terminated as provided herein. The term may be
extended by written notice to CITY in the sole and absolute discretion of the LICENSOR.
Right of Entry is subordinate to all prior or future rights and obligations of the LICENSOR
in the Property except that the LICENSOR shall grant no rights inconsistent with the
reasonable exercise by CITY of its rights under this Agreement. Upon the mutual
execution of a Purchase Agreement, this Agreement and its terms shall merge into the
Purchase Agreement (except as provided in Section 4 below), which Purchase
Agreement shall control to the extent of any inconsistency.
3. Liens . CITY shall not permit to be placed against the Property, or any part
thereof, any design professionals', mechanics, materialmen's, contractors' or
subcontractors' liens with regard to CITY's actions upon the Property. CITY agrees to
hold the LICENSOR harmless for any loss or expense, including reasonable attorney's
fees and costs arising from any such liens, which might be filed against the Property.
4. Indemnity and Insurance. CITY agrees to the Indemnification provisions
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attached hereto as Exhibit D and to the Insurance provisions attached hereto as Exhibit
E and incorporated herein. The Indemnification provision attached as Exhibit D shall
survive the expiration or earlier termination of this Agreement with regard to any acts,
omissions or events happening prior to the termination of this Agreement.
5. Compliance with Laws/Permits. CITY shall in all activities undertaken
pursuant to this Agreement , comply and cause its contractor, agents and employees to
comply with all federal , state and local laws , statues , orders , ordinances , rules,
regulations, plans policies and decrees. Without limiting the generality of the foregoing,
CITY at its sole cost and expense, shall obtain any and all permits which may be required
by any law, regulation, or ordinance for any activities CITY desires to conduct or have
conducted pursuant to this Agreement. CITY hereby agrees to observe all appropriate
safety precautions in conducting any inspections of the Property. CITY hereby agrees
that its inspection rights shall be subject to the rights of any tenants occupying the
Property and the rights held under easements and other documents recorded against the
Property, including without limitation, rights of quiet enjoyment, and CITY agrees that it
will not interfere with any tenants, contractors , or invitees on the Property .
6. In spe ction. The LICENSOR and its representatives, employees, agents, or
independent contractors may enter and inspect the Property or any portion there or any
improvements thereon at any time and from time to time at reasonable times to verify
CITY 'S compliance with the terms and conditions of this Agreement.
7. Not 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 Property to CITY. This Agreement is not exclusive, and the
LICENSOR specifically reserves the right to grant other rights of entry within the vicinity
of the Property.
8. Attorney 's Fe es . In the event of a dispute between the parties with respect
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 .
9. Rev oca ble Li cense s and T erm ina ti on. Notwithstanding any improvements
made by CITY to the Property or any sums expended by CITY in furtherance of this
Agreement , the right of entry granted herein is revocable and may be terminated by the
LICENSOR in accordance with the terms of this Agreement. This Agreement may be
terminated at any time by either party upon ten (10) business day's prior notice in writingto
be served upon the other party. In cases of any emergency or a breach of this Agreement
by CITY, this Agreement may be terminated by the LICENSOR immediately.
10. Continu ing li a bility. No termination of this Agreement shall release CITY
from any liability or obligation hereunder resulting from any acts, omissions or events
happening prior to the termination of this Agreement and restoration of the Property to its
prior condition.
11. No Ass ignment. This Agreement is personal to CITY and shall not be
assigned. Any attempt to assign this Agreement shall automatically terminate it. No legal
title or leasehold interest in the Property is created or vested in CITY by the grant ofthis
Agreement.
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12. Service of Notice. Except as otherwise provided in this Agreement, any
notice required or permitted to be given hereunder shall be in writing and may be given
by personal delivery or by certified or registered mail, and shall be deemed sufficiently
given if delivered or addressed to (i) CITY at the address listed below the CITY'S
signature.with a copy to 2600 Fresno Street, Fresno, CA 93721, Attention: CITY Attorney
and (ii) Licensor c/o N & K Commercial Property, Inc., 3424 W. Carson Street, Suite 280,
Torrance, CA 90503. Mailed notices shall be deemed given upon actual receipt at the
address required, or forty-eight hours following deposit in the mail, postage prepaid,
whichever first occurs. Either party may by notice to the other specify a different address
for notice purposes.
13. Laws, Venues, and Attorneys' Fees. This Agreement shall be interpreted
in accordance with the laws of the State of California. If any action is brought to interpret
or enforce any term of this Agreement, the action shall be brought in a state or federal
court situated in the County of Fresno, State of California. In the event of any claim, legal
action or proceeding between the parties arising under or concerning this Agreement.or
any of the rights and obligations described herein, the prevailing party shall be entitledto
reasonable attorneys' fees and expenses. All such fees shall be deemed to have accrued
on commencement of the action and shall be enforceable whether or not such action is
prosecuted to judgment.
14. Entire Agreement. Each of the Exhibits referred to in this Agreement is
incorporated into and made a part of this Agreement. This Agreement constitutes the
entire agreement between LICENSOR and CITY relating to the Right of Entry. Any prior
agreements, promises, negotiations, or representations not expressly set forth herein are
of no force and effect. Any amendment shall be of no force and effect unless it is in writing
and signed by the LICENSOR and CITY.
15. Severability. The provisions of this Agreement are severable. The invalidity,
or unenforceability, of any provision in this Agreement will not affect the other provisions.
16. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original. Signatures on counterparts of this Agreement that
are delivered via PDF, facsimile or other electronic means are hereby authorized and
shall be acknowledge as if such signatures were an original execution.
[Signature Pages Immediately Follow]
457609-00009/4423315.2
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first above written.
CITY OF FRESNO (CITY)
A California municipal corporation
By: ~ ti(_~ }-//-22-
Scott.Mozlei;PE Date
Public Works Director
APPROVED AS TO FORM :
RINA M. GONZALES
Interim City Attorney
By:_ __.._--==--------------'=---
Tracy N. P an ian Date
Supervisin eputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
By: ~ 1h •<(----
Deputy
ADDRESS FOR NOTICE:
CITY OF FRESNO
2600 Fresno Street
Fresno, CA 93721
Attn: City Attorney
[LICENSOR Signatures on Next Page]
57609-00009/4423315 .2 5
"LICENSOR 1"
On behalf of the tenants-in-common listed on
Schedule 1 attached hereto:
KGM ASSOCIATES LLC,
a California limited liability company
Its: Property Manager ~ _
By: ~~G-0 h:t~
Gregory C iyake, Manag
"LICENSOR 2"
On behalf of the tenants-in-common listed on
Schedule 2 attached hereto:
KGM ASSOCIATES LLC,
a California limited liability company
Its: Property Manager
By. ¾ G_ "6-b~L
Grego. Miyake, Manag
57609-00009/4423315.2 6
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY 1
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF FRESNO,
COUNTY OF FRESNO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
APN: 426-253-17
All that portion of the North half of the Southeast quarter of the Southeast quarter of Section
16, Township 13 South, Range 20 East, Mount Diablo Base and Meridian, in the City of
Fresno, County of Fresno, State of California, according to the Official Plat thereof, described
as follows:
Commencing at the Southeast quarter of Lot 1 of Tract No. 1145, Del Mar Homesites No. 2,
recorded in Book 15 Page 22 of Plats, Fresno County Records; thence 0° 07' West, along
the East line of said Tract No . 1145 and the Northerly prolongation thereof, 627.12 feet to a
point on the North line of the North half of the Southeast quarter of the Southeast quarter of
said Section 16; thence North 88° 58' East, along said North line 450.10 feet to a point on a
line 55.00 feet West of the East line of said Section 16; thence South 0° 07' 30" East, along
said line parallel with the said East line of Section 16, 427.00 feet more or less to a point on
line 230.00 feet North of the South line of the North half of the Southeast quarter of the
Southeast quarter of said Section 16; thence South 88° 57' West along said line parallel
with the South line of the North half of the Southeast quarter of the Southeast quarter of
said Section 16, 418 .28 feet to a point on a line 32. 00 feet East of the said East line of Tract
1145; thence South 0° 07' East, along said line parallel with the said East line of Tract 1145,
200.00 feet to a point on a line 30.00 feet North of the South line of the North half of the
Southeast quarter of the Southeast quarter of said Section 16; thence South 88° 57' West,
along said line, 32.00 feet to the point of commencement.
57609-00009/4423315.2 7
EXHIBIT 8
LEGAL DESCRIPTION OF PROPERTY 2
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF FRESNO,
COUNTY OF FRESNO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
APN: 426-253-19
ALL THAT PORTION OF THE NORTH HALF OF THE SOUTHEAST QUARTER OF THE
SOUTHEAST QUARTER OF SECTION 16, TOWNSHIP 13 SOUTH, RANGE 20 EAST,
MOUNT DIABLO BASE AND MERIDIAN, IN THE CITY OF FRESNO, COUNTY OF
FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF,
DESCRIBED AS FOLLOWS :
COMMENCING AT THE SOUTHEAST CORNER OF THE SAID NORTH HALF OF THE
SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 16; THENCE
SOUTH 88° 57' WEST, ALONG THE SOUTH LINE OF THE SAID NORTH HALF OF THE
SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 16, A DISTANCE
OF 366.0 FEET; THENCE NORTH 00° 07' 30" WEST, PARALLEL WITH THE EAST LINE
OF SAID SECTION 16, A DISTANCE OF 30.00 FEET TO THE TRUE POINT OF THIS
DESCRIPTION; THENCE FROM SAID POINT, SOUTH 88° 57' WEST, PARALLEL WITH
THE SAID SOUTH LINE OF THE NORTH HALF OF THE SOUTHEAST QUARTER OF THE
SOUTHEAST QUARTER OF SECTION 16, A DISTANCE OF 107.31 FEET TO A POINT
32.00 FEET EAST OF THE SOUTHEAST CORNER OF LOT 1 OF TRACT NO. 1145 , DEL
MAR HOMESITES NO. 2, AS SHOWN ON THE MAP THEREOF RECORDED IN BOOK 15,
PAGE 22 OF PLATS, FRESNO COUNTY RECORDS; THENCE NORTH 00° 07' WEST
ALONG A LINE 32.00 FEET EAST OF AND PARALLEL WITH THE EAST LINE OF SAID
TRACT NO. 1145, A DISTANCE OF 200.00 FEET; THENCE NORTH 88° 57' EAST,
PARALLEL WITH THE SAID SOUTH LINE OF THE NORTH HALF OF THE SOUTHEAST
QUARTER OF THE SOUTHEAST QUARTER OF SECTION 16, A DISTANCE OF 418.28
FEET; THENCE SOUTH 00° 07' 30" EAST, ALONG A LINE 55.00 FEET WEST OF AND
PARALLEL WITH THE SAID EAST LINE OF SECTION 16, A DISTANCE OF 100.00 FEET;
THENCE SOUTH 88° 57' WEST, PARALLEL WITH THE SAID SOUTH LINE OF THE
NORTH HALF OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF
SECTION 16, A DISTANCE OF 311.00 FEET; THENCE SOUTH 00° 07' 30" EAST,
PARALLEL WITH THE SAID EAST LINE OF SECTION 16, A DISTANCE OF 100.00 FEET
TO THE TRUE POINT OF BEGINNING.
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EXHIBIT C
INTENTIONALLY OMITTED
57609-00009/4423315 .2 9
EXHIBIT D
INDEMNIFICATION
CITY hereby agrees to indemnify, defend (with counsel reasonably satisfactory to
LICENSOR), and hold LICENSOR and its trustees, beneficiaries employees, tenants,
invitees, contractors, and agents (the "Indemnified Parties") harmless from and against any
losses, damages, expenses , liabilities, claims, demands, and causes of action (together with
any legal fees and other costs and expenses incurred by the Indemnified Parties in
connection therewith), resulting directly or indirectly from, or in connection with, any entry on
the Property (whether or not permitted by this Agreement) by CITY or its agents, contractors,
or other representatives, including, without limitation, any losses, damages, expenses,
liabilities, claims, demands, and causes of action resulting, or alleged to be resulting , from
personal injury or death, or property damage , or mechanic's or materialmen's liens; provided,
however, that under no circumstances shall CITY be liable to LICENSOR hereunder as a
result of CITY's mere discovery of hazardous materials or other conditions at the Property so
long as the hazardous condition was not created or exacerbated by CITY or its employees,
agents or contractors. Nothing herein shall constitute a waiver by CITY of governmental
immunities including California Government Code section 810 et seq.
57609-00009/4423315 .2
EXHIBIT E
INSURANCE PROVISIONS
Prior to any entry onto the Property , CITY agrees to , and shall cause its agents and
contractors to, provide LICENSOR with satisfactory certificates of insurance listing
LICENSOR as an additional insured on all policies , with the exception of the Worker's
Compensation and Employer's Liability policies, evidencing that CITY, its agents or
contractors have insurance in full force and effect meeting the requirements set forth below:
a) Commercial general liability insurance coverage for bodily injury and
property damage . Such insurance shall have a combined single limit of
not less than One Million Dollars ($1,000 ,000) per occurrence with a Two
Million Dollars ($2,000,000) aggregate limit and excess umbrella liability
insurance in the amount of Two Million Dollars ($2 ,000,000).
b) Workers' Compensation insurance in accordance with statutory law and
employers ' liability insurance with limits of not less than One Million
Dollars ($1,000 ,000) per accident, One Million Dollars ($1,000,000)
disease policy limit and One Million Dollars ($1,000,000) disease limit
each employee.
c) Business automobile liability coverage insuring bodily injury and property
damage with a combined single limit of not less than One Million Dollars
($1,000 ,000) per accident for owned, non-owned and hired vehicles.
As a condition to the right of access granted hereby, CITY covenants and agrees to cause
CITY and its agents and contractors entering onto the Property to maintain the aforesaid
coverages throughout the term of this Agreement. Furthermore, any coverage written on a
"Claims-Made" basis shall be kept in force, either by renewal, or the purchase of an extended
reporting period , for a minimum period of three (3) years following the termination of this
Agreement. Nothing herein contained shall in any way limit CITY's liability under this
Agreement or otherwise.
57609-00009/4423315.2 11
SCHEDULE 1
LICENSOR 1 PARTIES
Pro~ertv 1 Co-Owners
Robert M. Mochizuki, M .D. and Susan M.
Mochizuki, Co-Trustees of The Mochizuki
Family Trust, Dated November 20 , 2000
Gregory G. Miyake and Patricia S. Miyake,
Co-Trustees of The Miyake Family Trust,
dated February 6, 2009
Kenneth (Douglas) Miyake, as his sole and
separate property
Harry Miya and Nancy Miya, Trustees of
the Harry Miya and Nancy Miya Family
Revocable Trust of May 19, 1992
Michael K. Miya, Trustee of the Miya Family
Revocable Trust dated August 7, 2007
Melynda K. Miya, Trustee of the Melynda K.
Miya Revocable Trust dated February 11,
2008
Mark K. Miya, Trustee of the Mark K. Miya
Revocable Trust dated February 28, 2008
57609-00009/4423315.2 12
SCHEDULE 2
LICENSOR 2 PARTIES
ProQertv 2 Co-Owners
Robert M. Mochizuki, M.D. and Susan M.
Mochizuki, Co-Trustees of The Mochizuki
Family Trust, Dated November 20, 2000
Gregory G. Miyake and Patricia S. Miyake,
Co-Trustees of The Miyake Family Trust,
dated February 6, 2009
Kenneth (Douglas) Miyake, as his sol~ and
separate property
,-r·~, J
67609-00009/4423315 .2 t. 13