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HomeMy WebLinkAbout2004-0761 2, 3 4li 6 7 8 9 10 11 12 13 14 15 16 171 211 23 24 25 26 27 28 RESOLUTION NO. 2004-76 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF SAN BERNARDINO AUTHORIZING THE MAYOR TO ENTER INTO A CONTRACT WITH THE CENTRAL CITY COMPANY, LLC, TO ALLOW USE OF CITY OWNED RESTROOM FACILITIES AT CAROUSEL MALL. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City of San Bernardino owns restroom facilities within the public portions of the Carousel Mall. The Central City Company, LLC wishes to use these restrooms for Carousel Mall customers and tenants. The Mayor is hereby authorized and directed to execute said contract on behalf of the City; a copy of the contract is attached hereto as Exhibit A and incorporated herein. SECTION 2. Any amendment or modification thereto shall not take effect or become operative until fully signed and executed by the parties and no party shall be obligated hereunder until the time of such full execution. No oral agreements, amendments, modifications or waivers are intended or authorized and shall not be implied from any act or course of conduct of any party. This resolution is rescinded if the parties to the contract fail to execute it within sixty (60) days of the passage of this resolution. 2004-76 1 2 3 4 5 6' 7I, 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF SAN BERNARDINO AUTHORIZING THE MAYOR TO ENTER INTO A CONTRACT WITH THE CENTRAL CITY COMPANY, LLC, TO ALLOW USE OF CITY OWNED RESTROOM FACILITIES AT CAROUSEL MALL. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a joint regular meeting thereof, held on the 15th day of March 2004, by the following vote, to wit: y Council Members: AYES NAYS ABSTAIN ABSENT E.STRADA x LONGVILLE MCGINNIS x DERRY x KELLEY x JOHNSON x McCAMMACK x x Rac el G. ClarCity Clerk The foregoing resolution is hereby approved this & u day of March 2004. Approved as to form and legal content: L" - P" es F. Penman, City Attorney 6- e'-- h Valles, Mayor of San Bernardino 2004-76 "Exhibit All AGREEMENT (License for Use of Facilities) THIS AGREEMENT is entered into this 15 th day of March 2004, by and between the CITY OF SAN BERNARDINO, a municipal corporation, referred to as "City", and CENTRAL CITY COMPANY, LLC, referred to as "Licensee". City and Licensee agree as follows: 1. Recitals. (a) Licensee has requested permission from City to convert the City owned restrooms to meet ADA requirements and make them available, with controlled access, to the public and the mall tenants of the Carousel Mall (hereafter "ADA Restroom Improvements"). (b) City is willing to grant permission to Licensee for said construction to the extent that such permission may be given by City, upon the conditions set forth in this agreement. 2. License Granted. City grants to Licensee permission to convert the restrooms to meet ADA requirements and make them available, with controlled access, to the public and the mall tenants of the Carousel Mall; said restroom improvements shall consist of updating the existing restrooms to current code and ADA standards. The encroachment shall allow the Licensee to use, operate and maintain the City owned restroom facilities. The license granted herein is subject to any conditions as shall hereafter be imposed by the Director of the Facilities Management Department of the City. 3. Construction. Licensee agrees to construct the ADA Restroom Improvements in accordance with the drawings entitled "Carousel Mall 1 s` Floor Common Restrooms", on file in the office of the Director of Facilities Management. No alterations or changes in the drawings shall be made without first receiving written approval of the Director of Facilities Management. 4. Rules and Regulations. Licensee shall observe all rules, regulations, ordinances and enactments of City and all applicable laws of the State of California in install ing and maintaining the restrooms. 5. Liability Insurance. Licensee agrees to procure and maintain in force during the term of this agreement and any extension, at its expense, public liability insurance in companies and through brokers approved by City, through its Risk Management Coordinator, adequate to protect the City and its Economic Development Agency against liability resulting from, arising out of, or in any way connected with, the construction, maintenance, or use of the ADA Restroom Improvements by Licensee or any of its officers, contractors, agents, tenants, or employees, or any member of the public in a minimum amount of at least $1,000,000 combined single limit. Licensee shall provide to City's Risk Management Division a policy of insurance which includes: (a) The City of San Bernardino and its Economic Development Agency (hereafter "EDA"), as additional named insured; (b) The insurance company name, policy number, period of coverage and the amount of insurance; (c) Condition that the Director of Facilities Management of the City of San Bernardino must be given notice in writing at least 30 days prior to cancellation, material change or refusal to renew the policy; 2004-76 "Exhibit All (d) Condition that Licensee's insurance will be primary to any coverage the City of San Bernardino may have in effect. 6. Title of Property. Licensee acknowledges the title and paramount interest of City to the public areas surrounding the Carousel Mall, and agrees never to assail or resist City's title or interest therein. Licensee shall not obtain any prescriptive rights hereunder. 7. Indemnification. Licensee shall exercise its privileges under this license at its own risk. Licensee shall indemnify and hold harmless City and the EDA, their elective and appointive boards, commissions, officers, agents and employees from liability resulting from, arising out of, or in any way connected with, the construction or maintenance of any facilities referenced in this license, the occupation or use of such facilities, both during and after the construction and installation thereof, including but not limited to claims resulting from the conduct of Licensee or City, their employees, invitees, guests, tenants or agents, or Licensee's failure to perform its promises in connection herewith. Licensee shall defend City and the EDA, their elective and appointive boards, commissions, officers, agents and employees from any suits or actions at law or in equity for damages or injuries, including death, caused, or alleged to have been caused, by reason of any of Licensee's operations under this agreement. City shall not be liable to Licensee if Licensee's occupation or use of said facilities is hindered or disturbed. 8. Waiver. Waiver by City of any breach of any provision of this license does not waive any subsequent breach of the same or any other provision. 9. Notice. All notices relating to this agreement/license shall be in writing and delivered in person or sent by certified mail, postage prepaid, addressed as follows: AS TO CITY: AS TO LICENSEE: City of San Bernardino Central City Company, LLC 300 North "D" Street 295 Central City Mall San Bernardino, CA 92418 San Bernardino, CA 92401 ATTENTION: Attention: Director of Facilities Management General Manager 10. Assignment. No assignment of this license by Licensee, its successors, legal representatives or assigns, or any subsequent assignee, shall be binding upon City without the prior written consent of City in each instance. City shall not unreasonably withhold its consent. 11. Amendment. This license/agreement may be amended or modified only by written agreement, signed by both parties. 12. Term. The term of this license/agreement shall be for a period of 30 (thirty) years, commencing on March 2, 2004. This license/agreement will renew itself thereafter from year to year, unless either party notifies the other, in writing, of termination at least fifteen (15) days before the expiration of any such year. 13. Consideration. Licensee shall pay to City the sum of ONE HUNDRED DOLLARS ($100.00) as consideration for the issuance of this license/agreement. 14. Maintenance. Licensee agrees to maintain the facilities, which are the subject of this license/agreement, in good condition and repair at all times. Central City Company, LLC shall pay for the full cost of the restroom remodel to meet ADA standards and cosmetic upgrade, as outlined on the plans on file with the Director of Facilities Management. -2- 2004-76 "Exhibit All Central City Company, LLC shall assume all maintenance responsibility, including but not limited to supplies and paper products, for the restrooms. Any controlled access system that would be installed shall be subject to the approval of the Director of Facilities Management. If said system is installed, it would be at the cost of Licensee. All costs for maintenance of said system as well as the monitoring and granting of controlled access shall be the responsibility of Central City Company, LLC. 15. Free of Liens. Licensee shall pay or cause to be paid all costs of construction and/or installation of the restroom improvements referred to above and shall keep the property free and clear of any and all claims arising out of the performance of work or furnishing of materials for said construction and installation. 16. Possessory Interest. Licensee recognizes and understands that this license/agreement may create a possessory interest subject to property taxation and that Licensee may be subject to the payment of property taxes levied on such interest. Licensee agrees to and shall hold harmless the City from any and all liability for any such taxes. 17. Conflict with Carousel Mall. City does not warrant or make any representation concerning its full control over the Carousel Mall and surrounding public areas. City is lessee of such property by Lease from the Redevelopment Agency of the City of San Bernardino; in addition, City is a signatory with numerous other parties to a Reciprocal Easement Agreement, covering the Carousel Mall. The existence of each of these documents is called to the attention of Licensee. Each is a public record, duly recorded. In the event any party to either the Lease or said Reciprocal Easement Agreement claims or has any rights to or control over or interest in the portion of the public areas covered by this license/agreement, Licensee shall defend, indemnify, and hold the City, the Economic Development Agency of the City of San Bernardino and the Community Development Commission, and their officers, agents, and employees, harmless from any claims, demands, suits or judgments arising from Licensee's occupancy of the areas covered under this license, or for interruption thereof. 18. Non -Discrimination. During the term of this Agreement, Licensee agrees that Licensee shall not discriminate on the grounds of race, religious creed, color, national origin, ancestry, age, physical disability, mental disability, medical condition including the medical condition of Acquired Immune Deficiency Syndrome (AIDS) or any condition related thereto, marital status, sex or sexual orientation. Further, Licensee agrees to conform to the requirements of the Americans with Disabilities Act during the term of this Agreement. 19. Standard of Performance. Licensee shall complete all work in conformance with Federal, State, and local regulations and industry standards. 20. Severability. In the event this license, or any portion thereof, should be determined to be void, i 11 egal or improper, for any reason whatever, or Licensee's rights thereunder are set aside through Court action or otherwise, all other portions of the license/agreement shall remain fully enforceable to the extent possible after such determinations. 21. Complete Agreement/License. This document represents the total and complete agreement regarding the License for Use of Facilities, and no other written and/or oral agreements exist in this regard. 3- 2004-76 "Exhibit A" AGREEMENT LICENSE for Use of Facilities IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date written above by their duly authorized officers on their behalf. ATTEST: BY: ..¢�a b, UQhA Rach'ei Clark, City Clerk City of San Bernardino Approved as to form and legal content: JAMES F. PENMAN City Attorney BY: /// CITY OF SAN BERNARDINO BY: 6Lez---� JCi - alles, Mayor rt of San Bernardino Central City Company, LLC i BY: Signature NAME: -,!L I L),&c Ve- TITLE: