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HomeMy WebLinkAbout1989-122 , ...t.. , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L_m RESOLUTION NO. 89-122 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PARKING AGREEMENT AND AGREEMENT FOR CONSTRUCTION OF PEDESTRIAN WALKWAYS BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO; CITY OF SAN BERNARDINO, AND 235 INVESTMENTS, INC., A NEVADA CORPORATION, BY THE MAYOR OF THE CITY OF SAN BERNARDINO ON BEHALF OF SAID CITY. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed to execute, on behalf of said City, a parking agreement with The Redevelopment Agency of the City of San Bernardino and 235 Investments, Inc., a Nevada corporation, relative to the five-level parking structure- various levels, and construction of pedestrian walkways. A copy of said agreement is attached hereto marked Exhibit "A" and incorporated herein by this reference as fully as though set forth at length SECTION 2. This Agreement shall not take affect until fully signed and executed by both parties. The City shall not be obligated hereunder unless and until the Agreement is fully executed and no oral agreement relating thereto shall be implied or authorized. SECTION 3. This resolution is rescinded if the parties to the agreement(s) fail to execute it within sixty (60) days of the passage of this resolution. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San / / / / / / JFW:ss April 20, 1989 1 . 4 / .~ . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 '. RESO: EXECUTE AGREEMENT WITH 235 INVESTMENTS, INC., FOR PARKING AND CONSTRUCTION OF PEDESTRIAN WALKWAYS and RDA Bernardino, at an adj ourned regular meeting held on the 3rd day of May AYES: NAYS: ABSENT: The foregoing day of May , 19~, by the following vote, to wit: Council Members Estrada, Flores, Maudsley, Minor, Pope-Ludlam, Miller None Council Member .Reil~. ~~~ City Clerk resolution is hereby approved this ~.89. '. ~~ f6--~ f ~ Evlyn Wil ox, Mayor' City of San Bernardino 7/4" Approved as to form an legal content: 9.,~ Attorney JFW:ss April 20, 1989 2 PARKING AGREEMENT (Five-Level Parking structure - 5th Level) THIS Pl'.RKING AGREEMENT (referred to as "Agreement") is entered into between the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, referred to as "Agency", the CITY OF SAN BERNARDINO, a municipal corporation, referred to as "City", and 235 INVESTMENTS, INC~, a Nevada corporation, referred to as "Owner". CITY and OWNER agree as follows: 1. RECITALS. (a) City and Agency executed a Lease Agreement dated September 4, 1972, wherein the Agency leased to City for a period of 50 years the Parking Facility adjoining City Hall, San Berna:cd5..r:o, :;t.~li):crrd.a, \~.td.ch would provide necessary public parking to the users of the commercial, ci vi c and cuI tural complex. Said Parking Facilities are described in Exhibit "A", a copy of which is at~ached hereto and by this reference made a part hereof. (b) Section 4 of the Lease Agreement provides for the use of the Parking Facility as follows: "a. I t is understood and agreed that the leased premises shall be maintained and used as a parking facility for the benefit of the public patronizing the Commercial, Business and Cultural Areas which facility shall be available to the public without charge, provided, however, that City shall adopt and enforce reasonable regulations and controls with respect to such use, including parking JFW:ss 1 time limits, which regulations and controls shall be substantially in accordance with the parking assignments and allocations set forth in the report of Armstrong-Ulmer Gruen Associates, Inc., entitled San Bernardino Central City Parking Structures Operation, attached hereto as Exhibit 'D' and by this reference made a part hereof: provided, however, said assignments and allocations may be varied or changed from time to time upon the recommendation of Agency or City subject to the concurrence of Agency and City, such concurrence not to be unreasonably withheld. b. City agrees that the use of the leased premises shall be restricted solely to uses consistent with the purposes specified in subparagraph a. of this paragraph." (c) The Lease Agreement, although prohibiting the imposition of charges upon the public patronizing the Commercial, Business and Cultural areas, permits the imposition of charges for parking upon regular users with reserved spaces, and upon employees of tenants and owners of property in the immediate downtown area. (d) The owner is the owner of certain real property more particularly described on Exhibi t "B" attached hereto, upon which is constructed an office building. ( e ) Owner has requested the designation of certain spaces for use by its officers, employees, tenants, and invitees, and City has determined that no adverse impact on public parking in the Parking Facility will result from the allocation of these parking spaces. JFW:ss 2 (f) The parties have agreed to enter into this agreement to provide parking as required by San Bernardino Municipal Code Section 19.56.190, for the use of Owner's officers, employees, tenants and invitees to the building described in Exhibit "B". NOW, THEREFORE, the parties hereby agree as follows: 2. TERM. The term of this agreement shall commence upon the effective date of this agreement, and terminate at 12:00 a.m., on June 15, 1994. Owner shall have the option to renew this agreement for three (3) successive five-year periods provided that Owner is not in default of any of the provisions of this agreement at the time of renewal. This lease may be terminated by either party without cause upon the giving of written notice of the termination to be effective no sooner than ninety (90) calendar days from the date of notice. 3. PAYMENT. Owner shall pay to City the sum of $22.34 per month per per designated parking space and $11.17 for each of the undesignated parking spaces for a total base cost of $73,052.00 per year, payable quarterly, in advance. This sum shall be adjusted annually based on changes in the Los Angeles/Long Beach Consumer Price Index, provided said adjustment shall be limited to a maximum of ten percent (10%) annually. Upon acceptance of this Agreement, Owner shall deposit with City the amount of $18,263.00, which will be held by City as a performance bond. JFW:ss 3 City agrees to apply the performance bond funds toward the first quarterly payment. Failure by Owner to pay to City, quarterly payments in advance shall consitute a breach of this agreement. 4. PARKING RIGHTS. City hereby covenants, grants, and agrees that the following parking rights (collectively the "Parking Rights") will be provided and maintained on the Garage Site to provide parking for the use of any tenants, subtenants, guests, licensees, customers, visitors, invitees, and employees of the buildings now and hereafter located on the office building site on the terms and conditions contained herein: (a) 185 designated parking spaces on various levels of the Parking Facilities; and, (b) 175 undesignated parking spaces on the fifth level of the Parking Facility; and, (c) Owner acknowledges and agrees that the allocation of 175 undesignated parking spaces does not obligate the City to ensure that such parking space or any parking space will be available at any particular time on any given day. 5. OPERATION AND MAINTENANCE The City shall, at its own expense: (i) operate, maintain and furnish the Parking Facilities, including but not limited to accessways, driveways, stairways, and elevators, in accordance with the usual standards of operation and maintenance of parking structures, and in accordance with all applicable laws, statutes, ordinances and regulations; (ii) restripe the spaces required for handicapped parking; JFW:ss 4 (iii) develop traffic patterns within the Parking Facilities satisfactory to City after consultation with the owner, including new and improved signage clearly directing users from the parking facility to the owner's Building. 6. APPLICABLE REQUIREMENTS Owner hereby promises that no use or combination of uses shall be permitted of the real property described in Exhibit "B" which shall require a number of parking spaces which pursuant to the San Bernardino Municpal Code is in excess of those provided under this agreement, except as may be otherwise provided by law. Nothing herein shall be construed as exempting the owner from any other requirements or from compliance with any other law or regulation with respect to the occupancy of such real property. Subject to the qualifications set forth above, City represents that the parking provided pursuant to this covenant complies with all applicable state and local zoning, building, fire, safety, and other requirements in connection with parking required for the use and operation of the office building. 7. LAWS GOVERNING AGREEMENT This Agreement shall be governed under the laws of the State of California. 8. GENERAL PROVISIONS Each party agrees to perform any further acts and to execute and deliver any further documents which may be reasonably necessary to carry out the provisions of this Agreement. JFW:ss 5 9. POSSESSORY INTEREST The City and the Owner hereby agree and understand that this Agreement may create a possessory interest subject to property taxation and that if such possessory interest is created, the Owner shall pay the property taxes, if any, levied on such possessory interest. The Owner shall promptly provide to the City upon such payment a written certification, signed by an authorized agent of the Owner, that all such taxes due, if any, have been paid by the Owner. 10. PARKING CREDIT This agreement does not grant, authorize, or otherwise effect in any manner any parking credit to which owner mayor may not be entitled as owner of a building subject to assessment by the Central City Parking District. 11. HOLD HARMLESS Owner agrees to, and shall, hold City, its elective and appointive boards, commissions, officers, agents and employees harmless from any liability for damage or claims for damage for personal injury, including death, as well as from claims for property damage which may rise from Owner's operations under this Agreement, whether such operations be by Owner, its officers, employees, tenants or invitees, or by anyone or more persons directly or indirectly employed by or acting as agent for Owner. Owner agrees to and shall defend City and its elective and appointive boards, commissions, officers, agents and employees from any suits or actions at law or in equity for JFW:ss 6 damages caused, or alleged to have been caused, by reason of any of the operations hereunder. 12. INSURANCE PROVISION Owner agrees to procure and maintain in force during the terms of this Agreement and any extension thereof, at its expense, public liability insurance adequate to protect against liability for damage claims through public use of or arising out of accidents occurring in or around said parking spaces, in a minimum amount of $1,000,000 for injuries in anyone accident, and $100,000 for property damage. Such insurance policies shall provide coverage for City's contingent liability on such claims or losses. City shall be named as an additional insured in such policy of insurance. Documentation of insurance shall be delivered to City's Risk Management Division. Owner agrees to obtain a written obligation from the insurers to notify City in writing at least thirty (30) days prior to cancellation or refusal to renew any such policies. 13. REVOCABLE LICENSE This Agreement shall constitute a revocable license and does not constitute an easement or covenant running with the land. Owner shall not assign any parking spaces which are the subject of this Agreement without the prior written consent of the City. The parties contemplate that the parking spaces will be devoted to occupants of Owner's building and customers. JFW:ss 7 14. PEDESTRIAN BRIDGE AND WALKWAY Owner hereby promises that within ninety (90) days of the effective date hereof, Owner shall file with the appropriate departments of the City of San Bernardino plans for the construction of a pedestrian bridge and walkway to span the area between the Westerly side of the second floor of the Parking Facility and the Easterly side of the real property described in Exhibit "B" attached hereto, commonly known as the Thrifty Building. The Easterly facade of the Thrifty Building shall be suitably remodeled to look like the front entrance of the Thrifty Building. Within ninety (90) days of the date of the notice advising Owner of the final approval of plans, Owner shall commence construction of the pedestrian bridge/walkway span and remodeling of the Easterly facade of the Thrifty Building. 15. COVERED PEDESTRIAN RAMP Owner hereby promises that within ninety (90) days of the effective date hereof, Owner shall file with the appropriate departments of the City of San Bernardino plans for the construction of a covered pedestrian ramp spanning the area from the Westerly side of the fifth floor of the Parking Facility to the second floor of the property described in Exhibit "B", commonly known as the Thrifty Building. Within ninety (90) days of the date of the notice advising Owner of the final approval of plans, Owner shall commence construction of the covered pedestrian ramp. JFW:ss 8 16. ASSIGNMENT. Owner shall not assign any parking spaces which are the subject of this Agreement without first having received the written consent of City. City hereby agrees not to unreasonably withhold its consent. The parties contemplate that the parking spaces will be devoted to occupants of Owner's building and customers, business invitees and employees thereof. Any other use shall be subject to strict scrutiny. 1 7 . AMENDMENT. This Agreement may be amended or modified only by written agreement signed by both parties and failure on the party of either party to enforce any provision of this Agreement shall not be construed as a waiver of the right to compel enforcement of such provision or provisions, nor act to release any surety from its obligations under this Agreement. 18. NOTICES. All notices herein required shall be in writing and delivered in person or mailed by certified mail, postage prepaid, addressed as follows: OWNER CITY 235 Investments, Inc. 235 Montgomery street Suite 972 San Francisco, CA 94104 City Clerk City of San Bernardino 300 North "0" Street San Bernardino, CA 92418 19. VALIDITY. If any terms, conditions, provisions or covenants of this Agreement shall to any extent be judged invalid, JFW:ss 9 unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, each and all remaining terms, conditions, promises and covenants of this Agreement shall not be affected and shall be valid and enforceable to the fullest extent permitted by law. 20. CONCURRENCE BY REDEVELOPMENT AGENCY. The foregoing provisions of this Agreement and the assignment and allocation of parking spaces is concurred in by the Redevelopment Agency of the City of San Bernardino, without waiving its rights to insist upon full compliance with the terms of the lease referred to in Section 1. IN WITNESS WHEREOF the parties have executed this Agreement on crJ1.r /0 , 19?f ATTEST: ~~J?~!~1~r/ . City Clerk APPROVED AS TO FORM AND LEGAL CONTENT ~ REDEVELOPMENT AGENCY OF THE CITY S :n)~~ APPROVED AS TO FORM AND LEGAL CONTENT: 235 IT JAM~ BY: ) ./ - BY: JFW:ss 10 . , EXHIBIT "A" Parcel 28 of Parcel Map No. 688, as per plat thereof recorded in Book 25 of Parcel Maps, pages 47 through 58, inclusive, records of the County Recorder of San Bernardino County, State of California. JFW:ss 11 . . . . , EXHIBIT "B" Parcel 27 of Parcel Map No. 688, as per plat thereof recorded in Book 25 of Parcel Maps, pages 47 through 58, inclusive, records of the County Recorder of San Bernardino County, State of California. JFW:ss 12