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HomeMy WebLinkAboutItem No. 14 - License Agreement and Street Dedication with S&S Baseline Page 1 Consent Calendar City of San Bernardino Request for Council Action Date: February 19, 2020 To: Honorable Mayor and City Council Members From: Teri Ledoux, City Manager By: Kris Jensen, Director of Public Works Subject: License Agreement and Street Dedication with S&S Baseline 76, Inc. for a Permanent Enroachment Recommendation It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Resolution No. 2020-39 accepting the street dedication for APN 0140- 013-26 and APN 0140-0131-06, 07, and authorizing the execution of a License Agreement with S&S Baseline 76 Inc. for the encroachment of four (4) parking stalls and parking lot lights at 799 W. Baseline Street, San Bernardino . Background S&S Baseline 76, Inc. is in the process of completing the construction of a new convenience store, car wash building, and gas station facility located at 799 W. Baseline Street. As a condition of development , S&S Baseline 76, Inc. was required to dedicate an additional area of right-of-way to bring Baseline Street to its ultimate width, as per the General Plan. On September 25, 2019, S&S Baseline 76, Inc. submitted a letter to Public Works Department (Attachment 2) requesting a permanent encroachment permit to all ow S&S Baseline 76, Inc. to construct and maintain four (4) parking stalls and parking lot light behind the sidewalk. Discussion The City’s standard License Agreement for permanent encroachments within the public right-of-way protects the City’s interest in the right-of-way while giving the Licensee permission to occupy the right-of-way in such a manner as to have as little impact to the public’s use as possible. If, in the future, the City requires the reconfiguration or modification of the public right-of-way, the permission granted within the License Agreement is subservient to the City’s paramount right and interest in the public right -of- way. Pursuant to the License Agreement the Licensee shall indemnify, defend and hold harmless the City from any costs, claims, damages, injuries or liability arising from the Licensee’s use of the public right-of-way under the License Agreement. 2020-2025 Key Strategic Targets and Goals No General Fund appropriation is required for this item. This project is consis tent with 6612 Page 2 Key Target No. 1: Financial Stability by creating an asset management plan. The approval of this License Agreement helps the property owner ensure that the City is clean and attractive while also protecting the City’s right of way for future use . Fiscal Impact Costs incurred with this action have been offset by the non -refundable processing fee of $638.50, which has been paid in full by the petitioner. A $150 administrative fee is collected on the first of the year for each year the agreement is effective. Conclusion It is recommended that the Mayor and City Council of the City of San Bernardino, California, adopt Resolution No. 2020-39, accepting the street dedication for APN 0140 - 013-26, and APN 0140-013-06, 07 and authorizing the execution of a License Agreement with S&S Baseline 76, Inc. for the encroachment of four (4) parking stalls and parking lot lights at 799 W. Baseline Street, San Bernardino . Attachments Attachment 1 Resolution; Exhibit A - License and Agreement Attachment 2 Letter Requesting Encroachment Attachment 3 Title Report Attachment 4 Grant of Easement 1 Attachment 5 Grant of Easement 2 Attachment 6 Encroachment Application Ward: 3 None Resolution No. 2020-39 RESOLUTION NO. 2020-39 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO, CALIFORNIA, ACCEPTING THE STREET DEDICATION FOR APN 0140 - 0131-26 AND APN 0140-013-06, 07, AND AUTHORIZING THE EXECUTION OF A LICENSE AGREEMENT WITH S&S BASELINE 76, INC. FOR THE ENCROACHMENT OF FOUR (4) PARKING STALLS AND PARKING LOT LIGHTS AT 799 W. BASELINE STREET, SAN BERNARDINO WHEREAS, it is the practice of the City to condition development to dedicate certain right-of-ways to the City to allow streets to be constructed to ultimate width per the General Plan; and WHEREAS, the City may allow for an entity to secure permanent encroachment within the public right-of-way through a standard license agreement; and WHEREAS, on September 25, 2019, S&S Baseline 76, Inc. submitted a letter to Public Works requesting a permanent encroachment permit to allow S&S Baseline 76, Inc. to construct and maintain a four (4) parking stalls and parking lots light behind the sidewalk; and WHEREAS, staff have reviewed the request and is in support of approving a permanent encroachment to support the construction of parking stalls and lighting as requested by S&S Baseline 76, Inc.; and WHEREAS, the applicant has remitted to the City all the fees required for processing the dedication documents and the permanent encroachment applications. BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The above recitals are true and correct and are incorporated herein by this reference. SECTION 2. The City Manager is hereby authorized to execute the agreement with S&S Baseline 76, Inc. SECTION 3. 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 4. The licensee will pay $150 administrative fees on or before the first of the year for each year the agreement is effective to cover the City staff costs associated with administering and tracking the agreement. SECTION 5. That the City Council finds this Resolution is not subject to the California Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA Resolution No. 2020-39 applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty, as in this case, that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. SECTION 6. Severability. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Resolution are declared to be severable. SECTION 7. Effective Date. This Resolution shall become effective immediately. APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this ___ day of __________, 2020. John Valdivia, Mayor City of San Bernardino Attest: __________________________________ Georgeann Hanna, MMC, City Clerk Approved as to form: __________________________________ Gary D. Saenz, City Attorney Resolution No. 2020-39 CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO) ss CITY OF SAN BERNARDINO ) I, Georgeann Hanna, MMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. _____, adopted at a regular meeting held at the ___ day of _______, 2020 by the following vote: Council Members: AYES NAYS ABSTAIN ABSENT SANCHEZ _____ _____ _______ _______ IBARRA _____ _____ _______ _______ FIGUEROA _____ _____ _______ _______ SHORETT _____ _____ _______ _______ NICKEL _____ _____ _______ _______ RICHARD _____ _____ _______ _______ MULVIHILL _____ _____ _______ _______ WITNESS my hand and official seal of the City of San Bernardino this ___ day of ____________ 2020. ______________________________ Georgeann Hanna, MMC, City Clerk LICENSE AGREEMENT FOR ENCROACHMENT OF PARKING STALLS AND PARKING STREEET LIGHTS AT 799 W. BASELINE, IN THE CITY OF SAN BERNARDINO, CA. 1 of 10 LICENSE AND AGREEMENT THIS LICENSE AND AGREEMENT is made and entered into this ________day of ______________________________, 2020, by and between S&S BASLINE 76, INC., 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 the encroachment of parking stalls and lights to be located on the south side of Baseline Street to the benefit and enjoyment of the commercial property located at 799 W. Baseline Street, also known as Assessor’s Parcel Number 0140-013-26, 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 four parking stalls and parking lot lights (“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 advance 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 LICENSE AGREEMENT FOR ENCROACHMENT OF PARKING STALLS AND PARKING STREEET LIGHTS AT 799 W. BASELINE, IN THE CITY OF SAN BERNARDINO, CA. 2 of 10 installing, replacing, repairing or 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 Improvements. 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 LICENSE AGREEMENT FOR ENCROACHMENT OF PARKING STALLS AND PARKING STREEET LIGHTS AT 799 W. BASELINE, IN THE CITY OF SAN BERNARDINO, CA. 3 of 10 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 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 t he 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 $638.50 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. LICENSE AGREEMENT FOR ENCROACHMENT OF PARKING STALLS AND PARKING STREEET LIGHTS AT 799 W. BASELINE, IN THE CITY OF SAN BERNARDINO, CA. 4 of 10 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 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 City Manager. 8. Upon termination of this Agreement, Licensee agrees to immediately remove said Improvements 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 Improvements 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 the Improvements, the 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 Area. 10. To the maximum extent allowed by law, Licensee assumes any and all risk of loss, damage or injury of any kind to any person or property, including without limitation, the LICENSE AGREEMENT FOR ENCROACHMENT OF PARKING STALLS AND PARKING STREEET LIGHTS AT 799 W. BASELINE, IN THE CITY OF SAN BERNARDINO, CA. 5 of 10 Improvements, the Encroachment Area, City’s property and any other property of, or under the control or custody of, Licensee, which is on or near the Encroachment Area. Licensee’s assumption of risk shall include, without limitation, loss or damage caused by defects in any structure or improvement on the Encroachment Area, accident or fire or other casualty on the Encroachment Area. Licensee, on behalf of itself and its Personnel, as a material part of the consideration for this Agreement, hereby waives all claims and demands against City for any such loss, damage or injury of Licensee and/or its Personnel. In that connection, Licensee waives, for itself and its Personnel, the benefit of California Civil Code Section 1542, which provides as follows: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party. The provisions of this section and of Section 11 and 12 shall survive the termination of this Agreement. As used in this section, “Personnel” means the Licensee, or its officers, directors, affiliates, or anyone directly or indirectly employed by Licensee or for whose acts Licensee is liable. 11. Licensee shall at all times indemnify, defend and hold harmless City, its elective and appointed officials, officers, agents, and employees against and pay in full all losses, damages, or expenses that City may sustain, incur or become liable for, resulting in any manner from the conducting, maintenance, use, state of repair, or presence of the Improvements or the Licensee’s use and maintenance of the Encroachment Area, including, but not limited to, any such losses, damages or expenses arising out of (a) loss of or damage to property, (b) injury to or death of persons, (c) mechanics’ or other liens of any character, LICENSE AGREEMENT FOR ENCROACHMENT OF PARKING STALLS AND PARKING STREEET LIGHTS AT 799 W. BASELINE, IN THE CITY OF SAN BERNARDINO, CA. 6 of 10 (d) taxes or assessments of any kind, or (e) interference with the use of the City’s property including its right of way. It is the intention of the parties that City’s right to indemnity hereunder shall be valid and enforceable against Licensee regardless of negligence (whether active or passive) on the part of City, its officials, officers, agents and employees, unless such injury is a result of the sole negligence of the City. 12. Upon written notice from City, Licensee agrees to assume the defense of any lawsuit, administrative action or other proceeding brought against City by any public body, individual, partnership, corporation, or other legal entity, relating to any matter covered by this Agreement for which Licensee has an obligation to assume liability for and/or to indemnify or save and hold harmless the City. Licensee shall pay all costs incident to such defense, including, but not limited to, attorneys’ fees, investigators' fees, litigation expenses, settlement payments, and amounts paid in satisfaction of judgments. Any and all lawsuits or administrative actions brought or threatened on any theory of relief available at law, in equity or under the rules of any administrative agency shall be covered by this section, including, but not limited to, the theories of intentional misconduct, negligence, breach of statute or ordinance, or upon any theory created by statute or ordinance, state or federal.. 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 LICENSE AGREEMENT FOR ENCROACHMENT OF PARKING STALLS AND PARKING STREEET LIGHTS AT 799 W. BASELINE, IN THE CITY OF SAN BERNARDINO, CA. 7 of 10 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 non-assignable, except with prior written consent of the City, which it may withhold in its sole and absolute discretion. Any attempt to assign this Agreement without consent will terminate the privileges granted to Licensee under this Agreement. Notwithstanding Section 20, the City Manager may authorize the assignment of this Agreement in a writing signed by the assignee and Licensee without formal approval of the City Council. 15. 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 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. 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 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 LICENSE AGREEMENT FOR ENCROACHMENT OF PARKING STALLS AND PARKING STREEET LIGHTS AT 799 W. BASELINE, IN THE CITY OF SAN BERNARDINO, CA. 8 of 10 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: 20. 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. 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. CITY OF SAN BERNARDINO C/O Public Works – Real Property 201 North “E” Street San Bernardino, CA 92401 S&S BASELINE 76, INC. 799 W. Baseline Street San Bernardino, CA 92410 LICENSE AGREEMENT FOR ENCROACHMENT OF PARKING STALLS AND PARKING STREEET LIGHTS AT 799 W. BASELINE, IN THE CITY OF SAN BERNARDINO, CA. 9 of 10 [Signatures on following page] LICENSE AGREEMENT FOR ENCROACHMENT OF PARKING STALLS AND PARKING STREEET LIGHTS AT 799 W. BASELINE, IN THE CITY OF SAN BERNARDINO, CA. 10 of 10 LICENSE AGREEMENT FOR ENCROACHMENT OF PARKING STALLS AND PARKING LOT LIGHTS AT 799 BASELINE ST, IN THE CITY OF SAN BERNARDINO, CA. IN WITNESS, the parties have executed this Agreement on date first written above. CITY OF SAN BERNARDINO: S&S BASELINE, INC.: ______________________________ ____________________________________ Teri Ledoux, City Manager By: (PRINT NAME) Its: (PRINT TITLE) Approved as to form: GARY D. SAENZ, City Attorney By:__________________________