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HomeMy WebLinkAbout2018-2001! 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 RESOLUTION NO.2018-200 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, AUTHORIZING THE EXECUTION OF A LICENSE AGREEMENT WITH RG-TIPPECANOE LLC FOR THE ENCROACHMENT OF A WROUGHT IRON FENCE AT 1385 S. TIPPECANOE AVENUE BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager is hereby authorized to execute the agreement with RG -Tippecanoe LLC, attached hereto as Exhibit "1 ". SECTION 2. The agreement may be extended for additional terms by written mutual agreement of the Director of Public Works and the Licensee as set forth in said agreement. SECTION 3. The agreement may be assigned by written mutual agreement of the City Manager, Licensee and Assignee as set forth in said agreement. SECTION 4. The above authorization is rescinded if the parties to the agreement fail to file a fully executed copy of said agreement with the City Clerk within sixty (60) days of the passage of this Resolution. 1 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 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, AUTHORIZING THE EXECUTION OF A LICENSE AGREEMENT WITH RG-TIPPECANOE LLC FOR THE ENCROACHMENT OF A WROUGHT IRON FENCE AT 1385 S. TIPPECANOE AVENUE I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and City Council of the City of San Bernardino at a Joint Regular Meeting thereof, held on the 18t` day of July 2018, by the following vote, to wit: Council Members: AYES NAYS MARQUEZ I BARRIOS k VALDIVIA SHORETT y NICKEL k RICHARD X MULVIHILL ABSTAIN ABSENT Georgeann ifanna, CMt), City Clerk The foregoing Resolution is hereby approved this 18'h day of July 2018. R. Carey Da is, Mayor City of Sa ernardino Approved as to form: Gary D. Saenz, City Attorney By: ( Pj LICENSE AND AGREEMENT THIS LICENSE AND AGREEMENT is made and entered into this �� day of 2018, by and between RG-TIPPECANOE LLC, 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 a fence to be located on the south side of San Bernardino Avenue to the benefit and enjoyment of the commercial property located at 1385 S. Tippecanoe Avenue, also known as Assessor's Parcel Number 0281-101-30, as described in the legal description attached hereto and incorporated herein as Exhibit "A" and as shown on the plat attached hereto as Exhibit `B" ("Encroachment Area"). Use of said Encroachment Area shall be for the right to construct, maintain, inspect, operate, protect, repair, replace and retain in place an eight foot wrought iron fence ("Improvements"). Licensee agrees to install, use and maintain said Encroachment Areas required by this Agreement. All Improvements 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 Improvements shall be subject to approval of the Director of Public Works so as not to interfere or conflict with any existing, or future storm drains, sewers, water lines and any other utilities or improvements owned by the City. In installing, replacing, repairing or LICENSE AGREEMENT FOR ENCROACHMENT OF WROUGHT IRON FENCE AT 1385 S. TIPPECANOE AVENUE, IN THE CITY OF SAN BERNARDINO, CA. 1 of 8 maintaining said Improvements, the Licensee shall fill all trenches and leave the surface of said streets, highways or alleys in as good condition as it was prior to excavating for said installation, replacement, repair or maintenance to the satisfaction of City, and shall comply with any and all Federal, State and local laws, rules and regulations applicable thereto. 2. The Encroachment Area 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. 3. 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 Agreement is granted, including the widening, change of grade, construction or reconstruction of such highway, street, alley or other public places or portion thereof, 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 LICENSE AGREEMENT FOR ENCROACHMENT OF WROUGHT IRON FENCE AT 1385 S. TIPPECANOE AVENUE, IN THE CITY OF SAN BERNARDINO, CA. 2 of 8 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 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. 4. 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. 5. 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. 6. 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 LICENSE AGREEMENT FOR ENCROACHMENT OF WROUGHT IRON FENCE AT 1385 S. TIPPECANOE AVENUE, IN THE CITY OF SAN BERNARDINO, CA. 3 of 8 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. 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. 7. This Agreement may be extended for any additional terms by written mutual consent and approval by the Licensee and the Director of Public Works. 8. 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 Area 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. 9. City shall in no way be responsible for loss of or damage to said Encroachment Area 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. 10. 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 LICENSE AGREEMENT FOR ENCROACHMENT OF WROUGHT IRON FENCE AT 1385 S. TIPPECANOE AVENUE, IN THE CITY OF SAN BERNARDINO, CA. 4 of 8 this Agreement, the construction, installation, use and maintenance of said Encroachment Area, 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. 11. 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. 12. This Agreement is personal to Licensee. It is non -assignable, 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. Notwithstanding Paragraph 18, the City Manager, Licensee and Assignee may modify this agreement without a formally approved vote by the City Council of the City by filing with the City Clerk a Memorandum of Assignment substantially of the form attached hereto as Exhibit "C". 13. This guarantee 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 LICENSE AGREEMENT FOR ENCROACHMENT OF WROUGHT IRON FENCE AT 1385 S. TIPPECANOE AVENUE, IN THE CITY OF SAN BERNARDINO, CA. 5 of 8 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 County of San Bernardino, State of California or the U.S. District Court for the Central District of California. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 14. 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 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. 15. 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. 16. 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. LICENSE AGREEMENT FOR ENCROACHMENT OF WROUGHT IRON FENCE AT 1385 S. TIPPECANOE AVENUE, IN THE CITY OF SAN BERNARDINO, CA. 6 of 8 17. 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 BERNARDINO ROCKEFELLER GROUP C/O Public Works — Real Property 4 Park Plaza, Suite 840 290 North "D" Street Irvine, CA 92614 San Bernardino, CA 92401 18. This Agreement may be modified only in a writing signed by the parties in interest at the time of the modification. No modification shall be binding upon City unless formally approved by a vote of the City Council of City. 19. 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 on following page] LICENSE AGREEMENT FOR ENCROACHMENT OF WROUGHT IRON FENCE AT 1385 S. TIPPECANOE AVENUE, IN THE CITY OF SAN BERNARDINO, CA. 7 of 8 LICENSE AGREEMENT FOR ENCROACHMENT OF WROUGHT IRON FENCE AT 1385 S. TIPPECANOE AVE, IN THE CITY OF SAN BERNARDINO, CA. IN WITNESS, the parties have executed this Agreement on date first written above. CITY OF SAN BERNARDINO: J�IhLl ANDREA M MIL ER, City Manager Approved as to form: GARY D. SAENZ, City Attorney By: ATTEST: ct'�' 4 Georgeann HAnna, C C, ity Clerk RGTIPPECANOE LLC: By: (PRINT NAME) Its: (PRINT TITLE) LICENSE AGREEMENT FOR ENCROACHMENT OF WROUGHT IRON FENCE AT 1385 S. TIPPECANOE AVENUE, IN THE CITY OF SAN BERNARDINO, CA. 8 of 8 LICENSE AGREEMENT FOR ENCROACHMENT OF WROUGHT IRON FENCE AT 1385 S. TIPPECANOE AVE, IN THE CITY OF SAN BERNARDINO, CA. IN WITNESS, the parties have executed this Agreement on date first written above. CITY OF SAN BERNARDINO: ANDREA M MILLER, City Manager Approved as to form: GARY D. SAENZ, City Attorney RG-TIPPECANOE LLC: I By (PRINT NAME) Its:�iG� (PRINT TITLE) LICENSE AGREEMENT FOR ENCROACHMENT OF WROUGHT IRON FENCE AT 1385 S. TIPPECANOE AVENUE, IN THE CITY OF SAN BERNARDINO, CA. 8 of 8 EXHIBIT "A " SHEET 1 OF 1 ENCROACHMENT PERMIT LEGAL DESCRIPTION THAT PORTION OF LOT A OF PARCEL MAP NO, 19752, IN THE CITY OF SAN BERNARDIN0, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 248, PAGES 52 THROUGH 54, INCLUSIVE, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS.• COMMENCING THE NORTHWEST CORNER OF PARCEL 2 OF SAID PARCEL MAP, THENCE EASTERLY ALONG THE SOUTHERLY LINE OF SAID LOT A , NORTH 89' 31' 39" EAST 177.30 FEET TO THE POINT OF BEGINNING,' THENCE CONTINUING ALONG SAID SOUTHERLY LINE. NORTH e9' 31 ' 39" EAST 212.00 FEET; THENCE AT RIGHT ANGLES TO SAID SOUTHERLY LINE, NORTH 00' 28' 21 " WEST 10.00 FEET TD THE NORTHERLY LINE OF SAID LOT l THENCE WESTERLY ALONG SAID NORTHERLY LINE, SOUTH 89' 31' 39" WEST 212.00 FEET; THENCE AT RIGHT ANGLES TO SAID NORTHERLY LINE, SOUTH 00' 28' 21" EAST 10.00 FEET TO T7IE POINT OF BEGINNING EXHIBIT "B" ATTACHED HERETO 15 MADE A PART HEREOF BY THIS REFERENCE. CONTAINING. 2,120 SOUAR£ FEET OF 0.048 ACRES MORE OR LESS. a Thienes Engineering, Inc. J / CIVIL ENGINEERING • LAND SURVEY1`NG ,J t4j49 F/RESFONE BOULEVARD L.� LA MIRADA, CALIFORNIA 90638 P,�(7r4)52t-48tt FAr(714)5�1-417, PERM/,r NUMBER RP 1800004 PREPAREOFRTJ ON OF., BANDATE P. .S. NO. 5750 REG. EXP. DEC. .31, 2019 LAAip F * m N0. 5750 -9 � 'kOF rp1>�a� � I O a�,` OR d/ O ��`�� NESno ado J z o RAIW7 M .2,9Z.0 N W yoiJ'��JB*SSP MaY/ &aAlhi v za za a a o �o W � N w Q 3 W a _ O N � o N o o� 00 °° Z 10 _ N z J W Llc� w ins Z U ch a. QJN � m W s Z 3 „IZ.9Z-.o s U? 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