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Home My WebLink About2007-184 1 2 RESOLUTION NO. ?007-1RL. RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING AND 3 DIRECTING EXECUTION OF A LICENSE AND AGREEMENT WITH JKS- 4 MARSHALL PLAZA LLC, A DELAWARE LIMITED LIABILITY COMPANY FOR ENCROACHMENT OF AN OVERHANGING FACADE AND APPURTENANCES IN 5 THE RIGHT-OF-WAY OF A PUBLIC ALLEY LOCATED SOUTH OF SECOND STREET AND WEST OF "G" STREET. 6 7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 8 SECTION 1. That the Mayor and Common Council of the City of San Bernardino 9 10 hereby approves a License and Agreement with JKS-Marshall Plaza LLC, a Delaware Limited 11 Liability Company for encroachment of an overhanging fa.,:ade and appurtenances in the right-of- 12 way of a public alley located south of Second Street and west of "0" Street. 13 14 15 LLC, a Delaware Limited Liability Company, a copy of which is attached hereto and 16 17 18 19 SECTION 2. That the City Manager is hereby authorized to execute on behalf of the City the License and Agreement between the City of San Bernardino and JKS-Marshall Plaza incorporated herein as Exhibit "A". SECTION 3. The authorization to execute the above referenced license and agreement is rescinded if the parties fail to execute it within sixty (60) days of the passage of this Resolution. 20 I II 21 III 22 23 24 25 26 27 28 August 29, 2005 1 RESOLUTION.... AUTHORIZING AND DIRECTING EXECUTION OF A LICENSE 2 AND AGREEMENT WITH JKS-MARSHALL PLAZA LLC, A DELAWARE LIMITED LIABILITY COMPANY FOR ENCROACHMENT OF AN OVERHANGING FA<;ADE 3 AND APPURTENANCES IN THE RIGHT -OF-WAY OF A PUBLIC ALLEY LOCATED SOUTH OF SECOND STREET AND WEST OF "G" STREET. 7 8 held on the 4th day of June 9 10 11 12 13 14 15 16 17 18 19 20 21 The foregoing resolution is hereby approved this 22 4 5 6 23 24 25 26 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a j oint regular meeting thereof ,2007, by the following vote, to wit: Council Members: AYES NA YES ABSTAIN ABSENT ESTRADA x BAXTER x BRINKER x DERRY x KELLEY x JOHNSON x MCCAMMACK x ~eJu...t /~. ~ City lerk rtt. 1y-- day of June ,2007. ~- - atri~k J. Morris, Mayor 1 of San Bernardino Approved as to form: JAMES F. PENMAN 27 City Attorney 28 By: L ~f~ () August 29, 2005 2 2007-184 EXHIBIT "A" LICENSE AND AGREEMENT THIS LICENSE AND AGREEMENT is made and entered into this ~ f! day of uvne.. , 2007, by and between JKS-MARSHALL PLAZA LLC, A DELAWARE LIMITED LIABILITY COMPANY, hereinafter referred to as "Licensee," and the CITY OF SAN BERNARDINO, a municipal corporation hereafter referred to as "City." WITNESSETH: For and in consideration of the mutual promises and covenants herein contained, the parties hereto do hereby agree as follows: 1. City hereby gives permission, removable and terminable as hereinafter provided, to Licensee for encroachment of an overhanging fa'Yade and appurtenances in the right-of-way of a public alley located south of Second Street and west of "G" Street, indicated in Attachment "I ", and in accordance with that letter dated April 25, 2007, from Licensee (Attachment "2"), both attached and made a part hereof, and subject to any requirements or conditions as may be imposed by the Director of Development Services of City. 2. This permission is given to Licensee as an accommodation to Licensee and shall be subject to the requirement that the Licensee maintain the entire 24-foot wide alley in a condition acceptable to the City Engineer. 3. Licensee hereby acknowledges the title and paramount interest of City to the public right-of-way and agrees never to assail or resist said title or interest and to observe present or future set-back requirements relating thereto while this agreement is in force and effect. ~[g@[gDW[g~ JUN Z 0 2007 Iof6 CITY OF SAN BERNARDINO DEVELOPMENT SERVICES DEPARTMENT . EXHIBIT "A" 4. City and Licensee each reserves the right to terminate this License and Agreement at any time for any reason by giving Licensee at least thirty (30) days written notice of such termination, except that City may, at its election, terminate said permission forthwith at any time if Licensee shall fail to comply with or abide by each and all of the provisions hereof or keep each and all of the Licensee's promises herein. Waiver by City of any breach of any term or provision hereof shall not be deemed a waiver of any subsequent breach of the same or any other term or provision hereof. 5. Licensee agrees to install, use and maintain said encroachment as required by this Agreement. Said encroachment shall be maintained at all times in a safe, neat, sightly and good physical condition. City shall be the sole judge of the quality of maintenance, and upon written notice by City, through its Director of Development Services, stating in general terms how and in what manner the maintenance is required, Licensee shall be required to perform such required maintenance. If Licensee fails to do so, then City shall have the right to perform this maintenance, the cost of which shall be borne by Licensee. Licensee further agrees to' install, use and maintain said encroachment in conformity with applicable Federal, State, and local laws, rules and regulations. Licensee shall at its own responsibility and expense obtain and keep in effect all licenses, bonds and permits necessary for the installation and existence of said encroachment. 6. Upon termination of this Agreement, Licensee agrees to immediately remove said encroachment from the public right-of-way and to restore the public right-of- way to the satisfaction of the Director of Development Services. If Licensee fails to exercise its duties under this paragraph, City shall have the right to remove said 20f6 . EXHIBIT "A" encroachment and to restore the premises at no cost or liability to the City. Licensee covenants and agrees to reimburse City for such removal and/or restoration. 7. City shall in no way be responsible for loss of or damage to said encroachment or for any property belonging to or leased by Licensee, its officers, servants, agents or employees, that may be stolen, destroyed or in any way damaged during the installation, use or maintenance of said encroachment. 8. Licensee shall exercise its privileges under this license at its own risk. Licensee shall indemnify, defend and hold harmless City, its elective and appointive boards, commissions, officers, agents and employees from any costs, claims, damages, injuries, and liability resulting from, arising out of, or in any way connected with, the City's approval of this License and Agreement, the construction, installation, use and maintenance of said encroachment, the occupation or use of the public areas of such structure, both during and after the installation thereof, and including but not limited to any costs, claims, damages, injuries, and liability resulting from the conduct of Licensee or the employees, invitees, guests or agents of Licensee, or Licensee's failure to perform its promises in connection herewith. 9. The Licensee's attention is directed to Section 7-3, "Liability Insurance", of the Standard Specifications for Public Works Construction, 2006 Edition, providing that the Licensee shall furnish the City with policies or certificates of liability insurance prior to execution of the contract. All of the Insurance Policies shall name the City of San Bernardino as an additionally insured. The endorsement shall be provided by the agent of the insurance company and shall be notarized to that affect. ACCORD Forms are not acceptable nor forms signed by the broker, unless they have Power of Attorney to 30f6 EXHIBIT "A" bind the insurance provider. Licensee shall maintain minimum limits of insurance no less than: A) General Liability: $1,000,000.00 per occurrence and $2,000,000 aggregate for bodily injury, personal injury and property damage. Commercial General Liability Insurance or other form with a general aggregate limit shall apply separately to this project/location. B) Products/Completed Operations: $1,000,000.00 per occurrence and $2,000,000.00 aggregate. C) Automobile Liability: $1,000,000.00 per accident for bodily injury and property damage. D) Employer's Liability: $1,000,000.00 per accident for bodily injury or illness. E) The Licensee's attention is directed to Section 7-4, "Worker's Compensation Insurance", of Standard Specifications for Public Works Construction, 2006 Edition, providing that the Licensee shall file a signed certification Certificate of Worker's Compensation Insurance before start of work under terms of this Agreement. F) The above-referenced Insurance Policies shall remain in effect during the entire term of this Agreement, and shall not be materially altered or canceled until after Licensee has provided thirty (30) days written notice to the City. 10. This license is personal to Licensee. It is nonassignable, except with prior written consent of the City, and any attempt to assign this license without consent will terminate the license privileges granted to Licensee under this Agreement. The City will not unreasonably withhold consent. A reorganization of the Licensee's business entity 40f6 EXHIBIT "A" form, or a transfer of not less than two-thirds of the assets of Licensee, shall not be deemed an assignment for the purposes of this license if the resulting or successor entity shall as a matter of law be liable for Licensee's accrued and future obligations under this Agreement. Licensee shall be entitled to transfer this license to a purchaser of at least two thirds of Licensee's shopping center provided that the purchaser shall be bound by Licensee's accrued and future obligations under this License. 11. Licensee agrees that should any action, whether real or asserted, at law or in equity, arise out of the terms of this Agreement, or by Licensee's operations on the premises, venue for that action shall lie in San Bernardino County, California. 12. Licensee hereby certifies that it will not discriminate against any employee or applicant for employment because of race, color, religion, sex, marital status, national origin, disability, or any other category prohibited by law. Licensee's hiring practices and employee policies shall comply with applicable Federal, State and local laws. Such action shall include, but not be limited to, the following: recruitment and recruitment advertising, employment, upgrading and promotion. 13. The prevailing party in any legal action to enforce or interpret any provision(s) of this Agreement shall be entitled to recover from the losing party all attorney's fees, court costs and necessary disbursements in connection with that action. The costs, salary and expenses of the City Attorney and members of his office in connection with that action, shall be considered as attorney's fees for the purposes of this Agreement. III III 50f6 EXHIBIT "A" LICENSE AND AGREEMENT for encroachment of an overhanging fa9ade and appurtenances in the right-of-way of a public alley located south of Second Street and west of "G" Street. 14. All official notices relative to this Agreement shall be in writing and addressed to the following representatives of Licensee and City: Licensee City Mr. John Kaufman, Manager JKS-Marshall Plaza, a Limited Liability Company 4727 Wilshire Boulevard, Suite 610 Los Angeles, CA 90010 Ph. (323) 525-1515 Fax. (323) 525-1616 Ms. Valerie C. Ross, Director Development Services Department City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 Ph: (909) 384-5357 Fax: (909) 384-5155 ~ IN WITNESS, the parties have executed this Agreement on the ~ - day of UV n.e.. ,2007. Fred~_~ CITY OF SAN BERNARDINO ATTEST: ~J' t. h,~ Ra I Clark, City Clerk Approved as to form: James F. Penman City Attorney t-cl ~ 60f6 l 25' r- o m~ z~ g 0 )>=1 Oz )>s:)> 0)>0 ::I:""tJ::I: S:"'TIS: mom z......z -1......-1 ""tJ""tJ .. m:::o~ :::00 S:""tJ -0 -100 m CJ 1J~ 5ii '< ~:1!J : ~~ I u;~ --Iii> 241.0" EXISTING ALLEY . .. G II STREET SUITE707A,B, ~585' 1!1:3 l;l!"i ~~ ~~ oil! JIl' i~ ~~ '" ~ ~ !'.) o::! ....... -..I ~ " SUITE7( 1,456' i~ j ~ en )>m""tJ :::OZ:::O rnOO )>:::O""tJ 00 )>00 om ::I: CJ s: m Z -I s . .... JKS - Marshall Plaza, LLC ATTACHMENT "2" 707 - 815 West Second Street San Bernardino, California 92410 A Limited LiIlbility Company April 25, 2007 Mr. Mike Grubbs CITY OF SAN BERNARDINO PUBLIC WORKS 300 N. "D" Street 3nd Floor San Bernardino, CA 92418 RE: Marshall Plaza 707 - 815 West 2nd Street Dear Mr. Grubb: This letter serves as our request for a permanent encroachment permit for the alley that commences on the west side of "G" Street and runs approximately 200 feet into our shopping center. The applicant is: JKS-Marshall Plaza LLC, a Delaware limited liability company 4727 Wilshire Boulevard, Suite 610 Los Angeles, CA 90010 (323) 525-1515 (323) 525-1616 (fax) 1 will be signing on behalf of the company in my capacity as manager. Enclosed herewith is the application fee in the amount of$625.00. Should you have any questions please do not hesitate to contact me at this office. ~[g~~~~7[g@ Encl. CITY 0:- ~hi~ ~C::,;J;..huil'JU DEVELOPMENT SERVICES DEPARTMENT 4727 Wilshire Boulevard, Suite 610 . Los Angeles, California 90010-3875 Telephone 323.525.1515, Facsimile 323.525.1616