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HomeMy WebLinkAbout16-Public Works ORIGINAL CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION From: Nadeem Majaj, Director Subject: Resolution authorizing and directing the execution of a License Agreement with Magnolia Dept: Public Works Highland, L.P. for an encroachment within Medical Center Drive within the City, for the installation and Date: August 16, 2011 operation of a bus stop shelter and appurtenant facilities, located at 2196 Medical Center Drive. File: 15.02C-13 MCC Date: September 19, 2011 Synopsis of Previous Council Action: None. Recommended Motion: Adopt Resolution. Nadeem aj aj Contact Person: Ryan Sandoval Phone: 5226 Staff Report, Maps, Reso., Supporting data attached: License Agreement Ward(s): 6 FUNDING REQUIREMENTS: Amount: None Source: (Acct. No.)N/A Acct. Description: N/A Finance: Council Notes: s d2o�i-n2 Agenda Item No. Itp CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION STAFF REPORT SUBJECT: Resolution authorizing and directing the execution of a License Agreement with Magnolia Highland, L.P. for an encroachment within Medical Center Drive within the City, for the installation and operation of a bus stop shelter and appurtenant facilities, located at 2196 Medical Center Drive. BACKGROUND: On June 16, 2011, the Public Works Department received a request from Magnolia Highland, L.P. for a License Agreement for an encroachment within public right of way for the installation, operation and future maintenance of a bus stop shelter. This request is in conjunction with Conditional Use Permit No. 09-05 (CUP 09-05), which is the development of an affordable senior housing complex called The Magnolia at Highland. The proposed encroachment is to be within Medical Center Drive right of way, located at 2196 Medical Center Drive, within the City as shown on the attached maps. Currently there is an Omnitrans bus stop at this location with minimal improvements. However, per the conditions of a Disposition and Development Agreement (DDA) that was approved in 1 2010, between the Redevelopment Agency (RDA) and Magnolia Highland, L.P., the bus stop needs to be improved to include a cover and provide access in compliance with the American with Disabilities Act(ADA). This bus stop shelter will be privately owned and maintained by the licensee in perpetuity. Upon approval and execution of the License Agreement, Magnolia Highland, L.P. will pay an initial permit fee of$625, and an annual renewal fee of$150 thereafter until terminated. As set forth in the Agreement, Magnolia Highland, L.P. will also obtain liability insurance and name the City as an additional insured. The License Agreement stipulates that Magnolia Highland, L.P. will need to obtain any street cutting permits, temporary encroachment permits, lane closure permits and any additional permits needed for construction and maintenance. The License Agreement is for a period of five years commencing on the date of execution and has a provision that allows the agreement to be extended for additional terms by written mutual consent by the licensee and the Director of Public Works. FINANCIAL IMPACT: The City will receive revenue of $625 for the initial permit, and $150 per year for five years, totaling $750. RECOMMENDATION: Adopt Resolution. 2 ATTACHMENTS: - Vicinity Map - Letter - Resolution - License Agreement 3 4 LOCATION OF PROPOSED ENCROACHMENT v w w Ql. �s 18 �Q Ga 15 �o kej'aaii O, 40th St. 330 B, Marshall Blvd. - _ — 210 Highland Ave. \ 259 I t � Base Line St. aU 9th St @ U Q 5th St. ° Rialto Ave. Mill St. U � C c9 210 CL Orange how Rd. a ` 0 VICINITY MAP `W NTS J CITY OF SAN BERNARDINO PUBLIC WORKS DEPARTMENT PROPOSED ENCROACHMENT LICENSE AND REAL PROPERTY SECTION AGREEMENT TO MAGNOLIA HIGHLAND, L.P. FOR A BUS PU STOP SHELTER AND APPURTENANT FACILITIES ® Indicates un-incorporated areas within City's Sphere of Influence Created by: Ryan Sandoval Date: 06/29/2011 � i I rpWN���N3 j � i o i z ( i• m ! ID O m I i t k f � j`__', i zIIe � I I ` ! Xz O E F pill t Nlli LAND AVE �p N 0 �{}.l a Z $ i ► IIaIlI � IIfI �� THE MAGNOLIA 5 � Ip Ii2F a�i1 - �` ) { j j f '►, I i � T HIGHLAND g �� s " 9 D 9 t,��FFt Ag ?o 1 O �\ I` 2196 MEDICAL CENTER DRIVE (� w�� 11�L SAN BERNARDNO,CA 92411 D r F m g -p L�. APN:0143-191-M.48 663 PLAN CHECK NO:81001052 aw 3 gO�e NOT FOR CONSTRUCTION Magnolia Highland, L.P. r June 16,2011 City of San Bernardino Public Works Department 300 N."D"Street, 3`d Floor San Bernardino,CA 92418 Attention: Laszlo Fogassy i Subject: 2196 Medical Center Drive Request for Encroachment Permit Please accept this letter as our request for the Encroachment Permit per Conditions of Approval for Conditional Use Permit No. 09-05. If you have any questions do not hesitate to contact our Construction Manager: Merideth Madole at 818-244-6900 i Sincerely, ' Y , t uskey nd Sole Member Highland,LLC Administrative General Partner i 1640 S.Sepulveda Blvd.,Suite 425•Los Angeles,CA 90025•Tel:310/575-3543•Fax:3101575-3563 RESOLUTION NO. -- 1 2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING EXECUTION OF A LICENSE AGREEMENT WITH MAGNOLIA 3 HIGHLAND, L.P., FOR AN ENCROACHMENT WITHIN MEDICAL CENTER DRIVE, LOCATED AT 2196 MEDICAL CENTER DRIVE, WITHIN THE CITY, FOR THE 4 INSTALLATION, OPERATION, AND MAINTENANCE OF A BUS STOP SHELTER 5 AND APPURTENANT FACILITIES. 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 8 SECTION 1. That the Mayor and Common Council of the City of San Bernardino 9 hereby approves a License Agreement with Magnolia Highland, L.P., for an encroachment within 10 Medical Center Drive, located at 2196 Medical Center Drive, in the City of San Bernardino, for 11 the installation, operation, and maintenance of a bus stop shelter and appurtenant facilities. 12 SECTION 2. That the City Manager is hereby authorized and directed to execute on 13 behalf of the City said License Agreement, a copy of which is attached hereto and incorporated 14 15 herein as Exhibit"A". 16 SECTION 3. The authorization to execute the above referenced license agreement is Al 17 rescinded if the parties fail to execute it within ninety(90) days of the passage of this Resolution. 18 19 20 21 22 23 24 25 26 27 28 09/14/2011 t RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING EXECUTION 1 OF A LICENSE AGREEMENT WITH MAGNOLIA HIGHLAND, L.P., FOR AN ENCROACHMENT WITHIN MEDICAL CENTER DRIVE, LOCATED AT 2196 MEDICAL CENTER DRIVE, WITHIN THE 2 CITY, FOR THE INSTALLATION, OPERATION, AND MAINTENANCE OF A BUS STOP SHELTER AND APPURTENANT FACILITIES. 3 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 4 Common Council of the City of San Bernardino at a meeting thereof 5 6 held on the day of , 2011, by the following vote, to wit: 7 Council Members: AYES NAYES ABSTAIN ABSENT 8 9 MARQUEZ 10 JENKINS 11 BRINKER 12 SHORETT 13 KELLEY 14 JOHNSON 15 16 MCCAMMACK 17 18 RACHEL G. CLARK, City Clerk 19 20 The foregoing resolution is hereby approved this day of , 2011. 21 22 PATRICK J. MORRIS, Mayor 23 City of San Bernardino ved as to Forni: 25 26 JAMES F. PENMAN, City Attorney 27 28 08/29/2011 2 EXHIBIT "A" LICENSE AGREEMENT THIS LICENSE AGREEMENT ("Agreement') is made and entered into this day of , 2011, by and between the MAGNOLIA HIGHLAND, L.P., hereafter 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 agree as follows: 1. City hereby gives permission, removable and terminable as hereinafter provided, to Licensee for an encroachment to install, maintain, inspect, operate, protect, repair, replace and retain in place a bus stop shelter and appurtenances thereto, including any facilities necessary for protection thereof (hereafter, "Encroachment') at 2196 Medical Center Drive, San Bernardino, CA 92411, as shown on the plat(s) attached hereto as Exhibit "1", and in accordance with that letter, dated June 16, 2011, from Licensee attached hereto as Exhibit "2", both incorporated herein by reference. In the event that Licensee at any future time desires to expand its facilities to include public streets, highways and/or alleys other than as shown on said Exhibit "1" as authorized by this Agreement, an amendment of this Agreement shall be required before undertaking any such expansion, and subject to any requirements or conditions as may be imposed by the Director of Public Works of the City,or his/her designee. 2. Licensee agrees to install, use and maintain said Encroachment as required by this Agreement. Any bus stop shelter and appurtenant facilities installed, located or maintained pursuant to this Agreement shall be so placed and maintained as not to interfere with the use of any public streets, highways, alleys or bridges by the traveling public to any greater extent than is reasonably necessary, and the,placement of any bus stop shelter and appurtenant facilities shall 1 of 8 be subject to approval of the Director of Public Works so as not to interfere or conflict with any existing, or future improvements owned by the City. 3. The 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 Public Works, stating in general terms how and in what manner the maintenance is required, Licensee shall be required to perform such 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 shall, at its own responsibility and expense, obtain and keep in effect all licenses, bonds, insurance and permits necessary for the installation and existence of said Encroachment. 4. City reserves the right to improve, widen, vacate or relocate any highway, street, alley or other public places, or portion thereof, over and within which this License is granted, including the widening, change of grade, construction or reconstruction of such highway, street, alley or other public places or portion thereof, the installation, repair or maintenance of storm drains, sewers, water lines and any other utilities or improvements owned by the City for the purpose of any public improvements. If notice is given by City to Licensee that work is to be done pursuant to the rights reserved herein, which notice shall specify the general nature of the work in the area in which the same is to be performed, Licensee shall at its expense, do all things reasonably necessary to protect, disconnect, relocate or remove its property during the progress of such work at the required time in order to accommodate such work. All such things to be done and work to be performed by Licensee shall be at the sole cost and expense of the Licensee. In the event that City shall hereafter construct, install, reconstruct or repair any bridge or artificial support in, on, over or underlying any highway, street, alley or other public place or improvement in which the Licensee's property is located pursuant to this Agreement, and in the 2 of 8 event that the cost of such work as may reasonably be required is increased in order to provide for the installation, maintenance or operation of Licensee's property in, on, over or under the area covered by such project, then Licensee shall pay to City the full amount of such increase of cost, upon completion of such construction, installation or repair. Any damage done directly or indirectly to any public street, highway, alley or other public place or improvement by the Licensee, in exercising directly or indirectly any right, power or privilege under this Agreement, or in performing any duty under or pursuant to the provisions of this Agreement, shall be promptly repaired by Licensee at its sole cost and expense, to the reasonable satisfaction of City. 5. This permission is given to Licensee as an accommodation to Licensee and shall be subject to the requirement that the Licensee maintain the applicable surface areas in a condition acceptable to the Director of Public Works of the City. 6. Licensee hereby acknowledges the title or 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. 7. Licensee shall, as and for the consideration for the granting of this License, pay to the City of San Bernardino, forthwith, the sum of$625.00 due immediately upon approval of this Agreement by the City. This Agreement shall not take effect until such payment has been made by the Licensee to the City. Licensee shall also make an annual payment of$150.00 to the City which shall be due and payable on January 1 of each year while this Agreement is in effect. 8. City reserves the right to terminate this License 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 3 of 8 not be deemed a waiver of any subsequent breach of the same or any other term or provision hereof. If not otherwise terminated, this Agreement shall be for a period of five (5) years commencing on the latest date of execution of this Agreement by the parties hereto and ending five (5) years from that date. 9. This Agreement may be extended for any additional terms by written mutual consent and approval by the Licensee and the Director of Public Works. 10. 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 Public Works. If Licensee fails to exercise its duties under this paragraph, City shall have the right to remove said Encroachment and to restore the premises at no cost or liability to the City. Licensee covenants and agrees to reimburse City for such cost of removal and/or restoration. 11. 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. 12. Licensee shall exercise its privileges under this Agreement 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 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 4of8 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. 13. While not restricting or limiting the foregoing, during the term of this Agreement, Licensee shall maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount of$1,000,000.00 combined single limit, and statutory worker's compensation coverage, and shall file copies of said policies with the City's Director of Public Works prior to undertaking any work under this Agreement. City shall be set forth as an additional named insured in each policy of insurance provided hereunder. The Certificate of Insurance furnished to the City shall require the insurer to notify City of any change or termination in the policy. If the Licensee is self-insured, a Certificate of Self-Insurance, in a form acceptable by the City,may be furnished. 14. This Agreement is personal to Licensee. It is nonassignable, except with prior written consent of the City. Any attempt to assign this Agreement without consent will terminate the privileges granted to Licensee under this Agreement. The City will not unreasonably withhold consent. 15. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of California without regard to principles of conflicts of law. The parties hereto further agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the City of San Bernardino, County of San Bernardino, State of California or the U.S. District Court for the Eastern Division of the Central District of California. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 16. In the performance of this Agreement and in the hiring and recruitment of employees, Licensee shall not engage in, nor permit its officers, employees or agents to engage 5 of 8 in, discrimination in employment of persons because of their race,religion, color,national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law, except as permitted pursuant to Section 12940 of the California Government Code. 17. Licensee shall hold City, its authorized officers, agents and employees, harmless from and against any and all liability or loss resulting from claims or damages by any person arising out of the acts or omissions of Licensee, its agents or employees in the performance of any work authorized hereunder. 18. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of Ar any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the City shall be considered as "attorneys' fees" for the purposes of this paragraph. 19. All official notices relative to this Agreement shall be in writing and addressed to the following representatives of Licensee and City: City Licensee CITY OF SAN BERNARDIO MAGNOLIA HIGHLAND, L.P. Public Works Department/Real Property 1640 S. Sepulveda Blvd, Suite 425 300 North "D" Street Los Angeles, CA 90025 San Bernardino, CA 92418 Ph: (310) 575-3543 Ph: (909) 384-5111 Fax: (310) 575-3563 Fax: (909) 384-5190 20. This Agreement may be amended only in a writing signed by the parties in interest at the time of the amendment. No amendment shall be binding upon City unless formally approved by a vote of the Mayor and Common Council of City. 6of8 21. This Agreement constitutes the entire Agreement between the parties with respect to any matter referred to in this Agreement, and supersedes any and all other writings and oral negotiations with respect to any matter referred to in this Agreement. The terms of this Agreement shall prevail over any inconsistent provision in any other document relating to this Agreement, including exhibits to this Agreement. Signatures to follow on next page 7of8 LICENSE AGREEMENT FOR ENCROACHMENT OF A BUS STOP SHELTER AND APPURTENANT FACILITIES WITHIN MEDICAL CENTER DRIVE, LOCATED AT 2196 MEDICAL CENTER DRIVE, IN THE CITY OF SAN BERNARDINO,CA. IN WITNESS,the parties have executed this Agreement on date first written above. CITY OF SAN BERNARDINO MAGNOLIA HIGHLAND,L.P. EXHIBIT COPY EXHIBIT COPY CHARLES E. MCNEELY, JOHN M. HUSKEY, City Manager Manager and Sole Member ATTEST: RACHEL CLARK, City Clerk — Approved as to form: EXHIBIT COPY JAMES F. PENMAN, City Attorney 8 of 8 NOuonHISNOO WJ ION � g O fA99►'C6lt► NdV N uzera'oraarNaaerrvs o I Hill f y o p aniaa a3iNa� ss�z 1 ±: a= "O f I I 1 {{ } o 'jj � o a NV JIH lb n a s w CO e j e � � Q WROPW °! VI-IONOVIN 3H1 + I H ! I I I I I ! 11.11MI;, a.0 y i 3AV UN 11�01H I i ° o� I R II i�I■" '�y I I � �! \� �� ! 1 ui j I p ° t °' , I Jig eI 1 RR i tu W IN F,&ENp' -, I � _ i I ENcRtwctilaFN i i � I i ! EXHIBIT 111" Magnolia Highland, L.P. June 16,2011 City of San Bernardino Public Works Department 300 N. "D" Street, 3'Floor San Bernardino,CA 92418 Attention: Laszlo Fogassy i- Subject: 2196 Medical Center Drive Request for Encroachment Permit Please accept this letter as our request for the Encroachment Permit per Conditions of Approval for Conditional Use Permit No. 09-05. If you have any questions do not hesitate to contact our Construction Manager: Merideth Madole at 818-244-6900 Sincerely, Y J hn M.Huskey anager and Sole Member Magnolia Highland, LLC Administrative General Partner i 1640 S.Sepulveda Blvd.,Suite 425•Los Angeles,CA 90025•Tel:310/575-3543•Fax:310/575-3563 FYA7RTT cc7» LICENSE AGREEMENT THIS LICENSE AGREEMENT ("Agreement") is made and entered into this day of , 2011, by and between the MAGNOLIA HIGHLAND, L.P., hereafter 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 agree as follows: 1. City hereby gives permission, removable and terminable as hereinafter provided, to Licensee for an encroachment to install, maintain, inspect, operate, protect, repair, replace and retain in place a bus stop shelter and appurtenances thereto, including any facilities necessary for protection thereof (hereafter, "Encroachment") at 2196 Medical Center Drive, San Bernardino, CA 92411, as shown on the plat(s) attached hereto as Exhibit "1", and in accordance with that letter, dated June 16, 2011, from Licensee attached hereto as Exhibit "2", both incorporated herein by reference. In the event that Licensee at any future time desires to expand its facilities to include public streets, highways and/or alleys other than as shown on said Exhibit "1" as authorized by this Agreement, an amendment of this Agreement shall be required before undertaking any such expansion, and subject to any requirements or conditions as may be imposed by the Director of Public Works of the City, or his/her designee. 2. Licensee agrees to install, use and maintain said Encroachment as required by this Agreement. Any bus stop shelter and appurtenant facilities installed, located or maintained pursuant to this Agreement shall be so placed and maintained as not to interfere with the use of any public streets, highways, alleys or bridges by the traveling public to any greater extent than is reasonably necessary, and the placement of any bus stop shelter and appurtenant facilities shall 1 of 8 be subject to approval of the Director of Public Works so as not to interfere or conflict with any existing, or future improvements owned by the City. 3. The 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 Public Works, stating in general terms how and in what manner the maintenance is required, Licensee shall be required to perform such 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 shall, at its own responsibility and expense, obtain and keep in effect all licenses, bonds, insurance and permits necessary for the installation and existence of said Encroachment. 4. City reserves the right to improve, widen, vacate or relocate any highway, street, alley or other public places, or portion thereof, over and within which this License is granted, including the widening, change of grade, construction or reconstruction of such highway, street, alley or other public places or portion thereof, the installation, repair or maintenance of storm drains, sewers, water lines and any other utilities or improvements owned by the City for the purpose of any public improvements. If notice is given by City to Licensee that work is to be done pursuant to the rights reserved herein, which notice shall specify the general nature of the work in the area in which the same is to be performed, Licensee shall at its expense, do all things reasonably necessary to protect, disconnect, relocate or remove its property during the progress of such work at the required time in order to accommodate such work. All such things to be done and work to be performed by Licensee shall be at the sole cost and expense of the Licensee. In the event that City shall hereafter construct, install, reconstruct or repair any bridge or artificial support in, on, over or underlying any highway, street, alley or other public place or improvement in which the Licensee's property is located pursuant to this Agreement, and in the 2 of 8 event that the cost of such work as may reasonably be required is increased in order to provide for the installation, maintenance or operation of Licensee's property in, on, over or under the area covered by such project, then Licensee shall pay to City the full amount of such increase of cost, upon completion of such construction, installation or repair. Any damage done directly or indirectly to any public street, highway, alley or other public place or improvement by the Licensee, in exercising directly or indirectly any right, power or privilege under this Agreement, or in performing any duty under or pursuant to the provisions of this Agreement, shall be I promptly repaired by Licensee at its sole cost and expense,to the reasonable satisfaction of City. 5. This permission is given to Licensee as an accommodation to Licensee and shall be subject to the requirement that the Licensee maintain the applicable surface areas in a condition acceptable to the Director of Public Works of the City. 6. Licensee hereby acknowledges the title or 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 I future set-back requirements relating thereto while this Agreement is in force and effect. 7. Licensee shall, as and for the consideration for the granting of this License, pay to the City of San Bernardino, forthwith,the sum of$625.00 due immediately upon approval of this Agreement by the City. This Agreement shall not take effect until such payment has been made by the Licensee to the City. Licensee shall also make an annual payment of$150.00 to the City I which shall be due and payable on January 1 of each year while this Agreement is in effect. 8. City reserves the right to terminate this License 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 3 of 8 not be deemed a waiver of any subsequent breach of the same or any other term or provision hereof. If not otherwise terminated, this Agreement shall be for a period of five (5) years commencing on the latest date of execution of this Agreement by the parties hereto and ending five (5) years from that date. 9. This Agreement may be extended for any additional terms by written mutual consent and approval by the Licensee and the Director of Public Works. 10. 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 Public Works. If Licensee fails to exercise its duties under this paragraph, City shall have the right to remove said Encroachment and to restore the premises at no cost or liability to the City. Licensee covenants and agrees to reimburse City for such cost of removal and/or restoration. 11. 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. 12. Licensee shall exercise its privileges under this Agreement 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 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 4 of 8 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. 13. While not restricting or limiting the foregoing, during the term of this Agreement, Licensee shall maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount of$1,000,000.00 combined single limit, and statutory worker's compensation coverage, and shall file copies of said policies with the City's Director of Public Works prior to undertaking any work under this Agreement. City shall be set forth as an additional named insured in each policy of insurance provided hereunder. The Certificate of Insurance furnished to the City shall require the insurer to notify City of any change or termination in the policy. If the Licensee is self-insured, a Certificate of Self-Insurance, in a form acceptable by the City, may be furnished. 14. This Agreement is personal to Licensee. It is nonassignable, except with prior written consent of the City. Any attempt to assign this Agreement without consent will terminate the privileges granted to Licensee under this Agreement. The City will not unreasonably withhold consent. 15. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of California without regard to principles of conflicts of law. The parties hereto further agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the City of San Bernardino, County of San Bernardino, State of California or the U.S. District Court for the Eastern Division of the Central District of California. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 16. In the performance of this Agreement and in the hiring and recruitment of employees, Licensee shall not engage in, nor permit its officers, employees or agents to engage 5of8 i in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law, except as permitted pursuant to Section i li 12940 of the California Government Code. 17. Licensee shall hold City, its authorized officers, agents and employees, harmless from and against any and all liability or loss resulting from claims or damages by any person arising out of the acts or omissions of Licensee, its agents or employees in the performance of any work authorized hereunder. 18. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the City shall be considered as "attorneys' fees" for the purposes of this paragraph. 19. All official notices relative to this Agreement shall be in writing and addressed to the following representatives of Licensee and City: City Licensee CITY OF SAN BERNARDIO MAGNOLIA HIGHLAND, L.P. Public Works Department/Real Property 1640 S. Sepulveda Blvd, Suite 425 300 North"D" Street Los Angeles, CA 90025 San Bernardino, CA 92418 Ph: (310) 575-3543 Ph: (909) 384-5111 Fax: (310) 575-3563 Fax: (909) 384-5190 20. This Agreement may be amended only in a writing signed by the parties in time of the amendment. No amendment shall be bindin . on City unless u interest at the t binding.upon formally approved by a vote of the Mayor and Common Council of City. 6 of 8 21. This Agreement constitutes the entire Agreement between the parties with respect to any matter referred to in this Agreement, and supersedes any and all other writings and oral negotiations with respect to any matter referred to in this Agreement. The terms of this Agreement shall prevail over any inconsistent provision in any other document relating to this Agreement, including exhibits to this Agreement. Signatures to follow on next page 7of9 LICENSE AGREEMENT FOR ENCROACHMENT OF A BUS STOP SHELTER AND APPURTENANT FACILITIES WITHIN MEDICAL CENTER DRIVE, LOCATED AT 2196 MEDICAL CENTER DRIVE, IN THE CITY OF SAN BERNARDINO,CA. IN WITNESS,the parties have executed this Agreement on date first written above. CITY OF SAN BERNARDINO MAGNOLIA HIGHLAND,L.P. CHARLES E. MCNEELY, JOHN M. HUSKEY, City Manager Manager and Sole Member ATTEST: RACHEL CLARK, City Clerk A ved as to form: JAMES F. ENMAN, City Attorney 1 1 8 of 8 NquonIJISNOO UO:J ION So < iij`•I I# Q N ZU 00le-ONMO3HONV-W I caso 'risrc►o Nv 1 o uzs VO'OMQHW ti3e Nrs 3UNO a3MO1V3KM 96LZ 0 aMdIHOIH ltWoo �dIIONJdW 3Hl 1 I I `` I I ILO IWKI 1 i ® 8 # y 3AV ONV1 elm 7 = I p � I 1 � loll LU p LL I i i I oc jWI t WI_ r ! W o W s` T- I + i 1 I + eNcw�acK►av� I i EXHIBIT "I" Magnolia Highland, L.P. a June 16,2011 City of San Bernardino Public Works Department 300 N."D"Street,3'Floor San Bernardino,CA 92418 Attention: Laszlo Fogassy Subject: 2196 Medical Center Drive Request for Encroachment Permit Please accept this letter as our request for the Encroachment Permit per Conditions of Approval for Conditional Use Permit No. 09-05. If you have any questions do not hesitate to contact our Construction Manager: Merideth Madole at 818-244-6900 Sincerely, Y t Iuskey nd Sole Member Highland,LLC Administrative General Partner i 1640 S.Sepulveda Blvd.,Suite 425•Los Angeles,CA 90025•Tel:31015753543•Fax:310/575.3563 EXHIBIT "2"