HomeMy WebLinkAbout1986-059
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1 RESOLUTION NO. 86-59
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF A LICENSE AGREEMENT BETWEEN THE CITY OF SAN
3 BERNARDINO, THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO AND CENTRAL CITY COMPANY AUTHORIZING AN ENCROACHMENT
4 PERMIT FOR THE CONSTRUCTION OF TENANT STORES ON THE AGENCY MALL
PARCEL AS SHOWN ON EXHIBIT "A" OF THE RECIPROCAL EASEMENT
5 AGREEMENT. SAID ENCROACHMENT SHALL NOT EXCEED 32" FROM
LICENSEE'S PROPERTY LINES IN ANY INSTANCE, AND SHALL BE ALLOWED
6 ON BOTH THE FIRST AND SECOND LEVELS OF CENTRAL CITY MALL.
7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
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9 SECTION 1. The Mayor of the City of San Bernardino is
10 hereby authorized and directed to execute on behalf of said City
11 a License Agreement between the City of San Bernardino, the
12 Redevelopment Agency of the City of San Bernardino and Central
13 City Company authorizing the encroachment of Central City Mall's
14 tenant stores upon the Agency Mall parcel shown on Exhibit "A" of
15 the Reciprocal Easement Agreement. Said License Agreement, a
16 copy of which is attached hereto, marked Exhibit "A", and
17 incorporated herein by reference shall permit an encroachment
18 upon both the upper and lower levels of the Agency Mall parcel
19 not to exceed 32 inches from the Central City Mall's property
20 line on the mall, which includes a maximum four inch sign
21 projection.
22 I HEREBY CERTIFY that the foregoing resolution was duly
23 adopted by the Mayor and Common Council of the City of San
24 Bernardino at a n aC(jomTl"ll rP.!JJ1'I'lr
meeting thereof,
25 held on the 18th day of Fp-hrllAry
26 following vote, to wit:
27 / / / / /
28 / / / / /
, 1986, by the
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AYES:
Council Members Estradn Rp.illy, Mnrk~
Ouiel. Frazier Stricklp.r
NA YS : None
ABSENT: None
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The foregoing resolution is hereby approved this ~~c-~
Februarv
11 Approved as to form:
ino
~~rz
13 City "Attorney
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LICENSE AGREEMENT
(Central City Company)
THIS LICENSE AGREEMENT (License) is entered into this
/'~~~ day of ~~~ , by and between the CITY OF
SAN BERNARDINO, a municipal corporation, referred to as "City",
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,
CALIFORNIA, a local public agency, hereinafter referred to as
"Agency", and CENTRAL CITY COMPANY, hereinafter referred to as
"Licensee", a joint venture between CTC Company, a California
Partnership, and Central City Associates, a California Joint
Venture.
1. Recitals.
14 permit Licensee's tenants to construct their stores flush with
(al Licensee desires a license from City and Agency to
15 the edge of the columns that support the building constructed on
16 the Agency Mall Parcel shown on Exhibit RA" of the Declaration of
17 Restrictions, Construction, Operation, Restriction and Easement
18 Agreement, (Agreement), dated and recorded December 24, 1970, in
19 Book 7580, Page 280 of the Official Records of the County of San
20 Bernardino, California. All terms defined therein shall have the
21 same meaning when used herein. The tenant construction may
22 encroach a distance of 28 inches upon the Agency Mall Parcel, on
23 both the upper and lower levels of the Enclosed Mall. Said
24 encroachment line depicted in Exhibit "A", attached hereto, shall
25 be parallel to Licensee's existing property lines and shall not
26 extend past the columns supporting the building constructed on
27 the Agency Mall Parcel. In addition, Licensee's tenant signs
28 shall be permitted to project 4 inches beyond the encroachment
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1 line established in this License. Tenant signs shall conform to
2 the criteria set forth in the Agreement.
3 (b) The parties hereto acknowledge that the construction of
4 tenant stores upon the encroachment area will occur over a period
5 of time as new leases are executed and store remodeling occurs.
6 The provisions of this License for actual possession of the
7 encroachment area, maintenance, liability insurance and
8 indemnification will become operable on a phased basis, and will
9 become effective only as building permits are issued to
10 Licensee's tenants to construct upon encroachment area and will
11 be effective only as to the area actually constructed upon or
12 occupied by Licensee or its tenant stores.
13 (c) City and Agency will benefit from this License by a
14 gradual reduction of maintenance and accident liability in the
15 encroachment area. Security in the public areas of the Enclosed
16 Mall will be improved and a greater amount of sales area will be
17 created resulting in increased sales tax, business license fees,
18 area tax and utility tax revenue to the City.
19 (d) City and Agency desire to grant a license to Licensee
20 for the encroachment described in paragraph l(a) above to the
21 extent such license may be given by the City and Agency upon the
22 conditions set forth in this License.
23 2. Undertakings by Licensee.
24 (a) City and Agency acknowledge that over the past several
25 years, Licensee has provided various benefits to the public areas
26 of the Enclosed Mall, which have eased the burdens imposed upon
27 City and Agency. City and Agency desire that many of these
28 benefits will continue to be provided by or through Licensee.
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1 Benefits provided in the recent past by or through Licensee
2 include, but are not limited to, (1) efforts by Licensee to have
3 CCMA, Inc., the former Central City Mall Merchants Association,
4 institute and pay for, as a voluntary contribution, a parking
5 control program to provide better security in the customer
6 parking areas serving the Enclosed Mall at an annual cost to
7 CCMA, Inc., of approximately $60,000, with approximately $200,000
8 so expended to date; (2) construction of a security office and
9 Information Center in the center of the Enclosed Mall at a cost
10 of approximately $35,000; (3) installation and maintenance of a
11 closed circuit security TV system to monitor the Enclosed Mall's
12 public areas, with installation costs of approximately $50,000
13 and annual maintenance costs of approximately $4,000; (4)
14 contribution of not less than $12,000 annually toward a portion
15 of the ongoing costs of Mall security forces; (5) furnishing of
16 Security and Information Booth secretarial service and support
17 staff at an annual cost of more than $18,000; (6) decoration of
18 the public areas of the Enclosed Mall with more than $100,000 of
19 Christmas decorations and more than $35,000 of other seasonal
20 decorations without claiming any offset against area tax; (7)
21 installation of hanging plant materials in the Harris' and Ward
22 Court areas to beautify the Enclosed Mall at a cost of
23 approximately $23,000; (8) installation of flowered planters and
24 continuous flower replacement for such planters at the Enclosed
25 Mall's main entrance at Second Street to assist in beautifying
26 the downtown area, with an installation cost of approximately
27 $2,000 and annual flower replacement costs of approximately
28 $1,500; and (9) furnishing of reflective white ceiling paint for
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1 dark areas of the three-level parking structure at a cost of
2 approximately $5,000.
3 (b) Licensee, as partial consideration for the grant of
4 this License, agrees to continue its efforts toward
5 beautification, improved safety services, and providing of
6 support services on an ongoing basis, and agrees that it will (1)
7 use its best efforts to assure, to the extent that it is able to
8 do so, that CCMA, Inc., will continue to provide a parking
9 program, (2) maintain the closed circuit TV system as long as it
10 exists and is technologically current, (3) continue its
11 contributions to the Enclosed Mall security costs at no less than
12 its present level, (4) continue to provide secretarial service
13 and support staff for the Security and Information Booth, (5)
14 continue to provide decorations for the public areas of the
15 Enclosed Mall during the holiday season, as well as other
16 seasonal decorations, without claiming an offset against area
17 tax, (6) maintain as necessary the hanging plant materials in the
18 Harris' and Ward Court areas, and continue to look for further
19 opportunities to beautify the public areas of the Enclosed Mall,
20 and (7) continue to assist City's Director of Public Buildings
21 with materials and supplies, when and as available, for
22 improvements within the three-level parking structure.
23 3. Consideration.
24 (a) In consideration of the granting of this License by the
25 City and Agency, Licensee agrees to cooperate reasonably with the
26 City and Agency in determining the feasibility of developing and
27 implementing a modernization plan for the Enclosed Mall that
28 would include the addition of a department store, with upscale
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1 merchandising policies, as a fourth department store,
2 (hereinafter referred to as .upscale major"), the addition of a
3 restaurant/food court at the east end of the Enclosed Mall in the
4 outdoor Harris' Court area, and a refurbishment plan of the
5 Enclosed Mall and the Agency Parking Parcel.
6 (b) The parties recognize that it would be to the mutual
7 advantage of the parties to attract a department store with
8 upscale merchandising policies, hereinafter referred to as
9 "Upscale Major", as a fourth major department store. Licensee
10 agrees to actively pursue the acquisition of such an Upscale
11 Major, recognizing, however, that any such addition would require
12 consent of all parties to the Agreement. If Licensee, through
13 its own efforts or through the combined efforts of City, Agency
14 and Licensee, succeeds in locating a potential Upscale Major
15 willing to locate within the Enclosed Mall, or any extension or
16 enlargement thereto, Licensee agrees to use its best efforts to
17 obtain approval of all other parties to the Agreement and their
18 respective Lenders. Any such acquisition effort may be suspended
19 if the then operating Upscale Majors in the Greater Los Angeles
20 marketing area are not interested in locating in the City of San
21 Bernardino.
22 4. License Granted.
23 City and Agency grant to Licensee a license to construct or
24 cause to be constructed tenant stores upon the encroachment area
25 as depicted on Exhibit "A". The store structures shall not
26 encroach more than 28 inches upon the Agency Mall Parcel except a
27 four-inch sign projection is permitted. This license is subject
28 to any conditions imposed by the City Engineer or the
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1 Superintendent of the building and Safety Department of the City
2 for the construction of stores upon the encroachment area.
3 5. Construction.
4 Licensee agrees and agrees to require of its tenants that
5 any construction within the encroachment area comply with all
6 codes of the City of San Bernardino that are applicable to such
7 construction and that drawings of the proposed construction be
8 submitted to the Department of Building and Safety and building
9 permits obtained prior to the commencement of any work.
10 6. Rules and Regulations.
11 Licensee shall observe and require its tenants to observe
12 all rules, regulations, ordinances and enactments of City and all
13 applicable statutes of the State of California in constructing
14 and maintaining tenant stores within the encroachment area.
15 7. Liability Insurance.
16 Licensee agrees to procure and maintain and/or cause its
17 tenants to procure and maintain in force during the term of this
18 License and any extension, at no cost to the City or Agency,
19 public liability insurance in a minimum amount of at least
20 $500,000 combined single limit, with responsible companies to
21 protect against liability resulting from, arising out of, or in
22 any way connected with, the construction of tenant stores into
23 the encroachment area and the occupation or use of the
24 encroachment area and the occupation or use of the encroachment
25 area by such tenant stores. Licensee shall provide or cause to
26 be provided to City's Risk Management Division a certificate of
27 insurance and an additional insured endorsement which provides:
28 (a) The City of San Bernardino is an additional insured.
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1 (b) The insurance company name, policy number, period of
2 coverage and the amount of insurance.
3 (c) That the City Clerk of the City of San Bernardino must
4 be given notice in writing at least 30 days prior to
5 cancellation, material change or refusal to renew the pOlicy.
6 (d) That Licensee or Licensee's tenants insurance will be
7 primary to any coverage the City of San Bernardino may have in
8 effect.
9 The requirements of this paragraph 5 shall become operative
10 only as building permits are issued for the construction of
11 tenant stores upon the encroachment area, and then only as to the
12 area actually constructed upon or occupied by the tenant store.
13 8. Title of Property.
14 Licensee acknowledges the title and paramount interest of
15 City and Agency to the Agency Mall Parcel, and agrees that this
16 License shall not be asserted to assail or resist City's or
17 Agency's title or interest therein.
18 9. Indemnification. Licensee shall exercise its privileges
19 under this License at its own risk. Licensee shall indemnify and
20 hold harmless City, its elective and appointive boards,
21 commissions, officers, agents and employees from liability
22 resulting from, arising out of, or connected with, the
23 construction upon the encroachment area, the occupation or use of
24 the encroachment area by Licensee's tenant stores, both during
25 and after the construction thereof, including claims resulting
26 from the conduct of Licensee, or Licensee's failure to perform
27 its promises in connection herewith. Licensee shall defend, or
28 cause its tenants to defend, City, its elective and appointive
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boards, commissions, officers, agents and employees from any
suits or actions at law or in equity for damages caused, or
alleged to have been caused, by reason of any of Licensee's
operations under this license.
10. Waiver.
6 Waiver by a party of any breach of any provision of this
7 License does not waive any subsequent breach of the same or any
8 other provision.
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11. Notice.
10 All notices relating to this License shall be in writing and
11 delivered in person or sent by certified mail, postage prepaid,
12 addressed as follows:
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City of San Bernardino
Attn: Real Property Division
300 North -D- Street
San Bernardino, CA 92418
Central City Company
295 Central City Mall
San Bernardino, CA 92401
The Redevelopment Agency of the
City of San Bernardino, California
300 North -D- Street
San Bernardino, CA 92418
12. Assignment.
19 No assignment of this License by Licensee, its successors,
20 legal representatives or assigns, or any subsequent assignee,
21 except to a successor to Licensee as Developer under the
22 Agreement, shall be binding upon City and Agency without the
23 written consent of City and Agency in each instance except that
24 Licensee may permit or require its tenants by lease or other
25 agreement to construct and operate stores upon the encroachment
26 area without further consent of City and/or Agency. City and
27 Agency shall not unreasonably withhold their consent.
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13. Amendment.
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This License may be amended or modified only by written
agreement signed by both parties.
14. ~.
This License shall run concurrent with the Agreement
heretofore referred to, and during the term of any extension
thereof. This License shall not be terminable except as the
Agreement is terminated.
15. Maintenance.
Licensee agrees to cause its tenants to maintain in good
repair at all times any structure, windows, storefronts,
entrances, etc., built upon the encroachment area. This
maintenance responsibility shall commence upon the issuance of a
building permit and shall apply only to the area for which the
building permit was issued.
16. Free of Liens.
Licensee shall payor cause its tenants to pay all costs of
construction upon the encroachment area and shall keep the
encroachment area free and clear of any and all claims arising
out of the performance of work or furnishing of materials for
said construction.
17. Possessory Interest.
Licensee acknowledges this License 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.
18. Conflict with central City Mall.
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1 City and Agency do not warrant or make any representation
2 concerning its full control over the Agency Mall Parcel. City is
3 lessee of such property by lease from The Redevelopment Agency of
4 the City of San Bernardino, California; in addition, City and
5 Agency are signatories with numerous other parties to the
6 Agreement. The existence of each of these documents is called to
7 the attention of Licensee. Each is a public record, duly
8 recorded. In the event any other party to the Agreement claims
9 or has any rights to or control over or interest in the portion
10 of the Agency Mall Parcel covered by this License, Licensee shall
11 hold City, its officers, agents and employees, and The
12 Redevelopment Agency of the City of San Bernardino and the
13 Community Development Commission, harmless from any claims,
14 demands, suits or judgment arising from Licensee or its tenants
15 encroachment upon the Agency Mall Parcel under this License. In
16 the event this License, or any portion thereof, should be
17 determined by a court of competent jurisdiction to be void or if
18 any of Licensee's rights be set aside, Licensee shall have no
19 recourse against City and Agency, their officers, agents and
20 employees.
21 19. Binding Effect.
22 This License binds and benefits the parties and their
23 successors and assigns.
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1 IN WITNESS WHEREOF, the parties hereto have executed this
2 License Agreement on the date first above written.
3 CITY OF SAN BERNARDINO
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ATTEST:
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5 ~tb~
6 CityClerk
Approved as to form:
~/f-IA.f~;"f
City Attorney
Approved as to legal form
and adequacy:
..~{..~
B4~)/4
Ma or
THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO, CALIFORNIA
By Jl;4k:' lt1~
cbauman ( .
By .~~dd
Secretary
CENTRAL CITY COMPANY,
a Joint Venture
BY: CTC COMPANY,
a California Partnership
By l'1?o:J:M-t'
~General Partner
BY: CENTRAL CITY ASSOCIATES,
'" a Joint ~ure
By /).. -A 4/. 1# -~
Joint Venturer
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Oversized
Map
Attached to
Original
. Resolution