RESOLUTION NO. 2023-018
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
AUTHORIZING A LICENSE AGREEMENT WITH DP
INDUSTRIAL PARKWAY, LLC, A DELAWARE LIMITED
LIABILITY COMPANY, FOR THE CONSTRUCTION OF
IMPROVEMENTS THAT INCLUDE A DRIVEWAY,
BLOCK WALL, TRAILER PARKING, AND PAVING
LOCATED AT 5770 INDUSTRIAL PARKWAY, SAN
BERNARDINO, CALIFORNIA; AND DIRECTING THE
CITY MANAGER TO EXECUTE THE AGREEMENT; AND
FINDING THAT THE PROJECT IS COVERED BY THE
MITIGATED NEGATIVE DECLARATION PREVIOUSLY
APPROVED FOR THE 5770 INDUSTRIAL PARKWAY
PROJECT PURSUANT TO THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT
WHEREAS, the City of San Bernardino, a California municipal corporation, is the custodian of certain real property easements located in the Public Right-of-Way (Property) of the City of San Bernardino, California; and
WHEREAS, DP Industrial Parkway, LLC, a Delaware limited liability company, is authorized to conduct business in the State of California; and WHEREAS, DP Industrial Parkway, LLC desires the City’s permission to install, construct, operate, maintain, repair, reconstruct, alter, and remove improvements located in the Public Right-of-Way; and
WHEREAS, the City of San Bernardino, California, is willing to allow DP Industrial Parkway, LLC a license to enter onto the Property for the construction of improvements that will consist of pavement, landscaping, and a block wall, subject to the terms and conditions of the License Agreement; and
WHEREAS, pursuant to the California Environmental Quality Act (Public Resources Code, § 2100 et seq.), the State CEQA Guidelines (California Code of Regulations, Title 14, § 15000 et seq.), and the District’s local CEQA Guidelines (collectively, “CEQA”), the District is the lead agency for the License Agreement; and
WHEREAS, pursuant to the requirements of Section 15063 of the State CEQA Guidelines, an Initial Study/Mitigated Negative Declaration was prepared for Development Code Amendment (Zoning Map Amendment) 21-03 and Development Permit Type-D 21-15 (the 5770 Industrial Parkway Project); and
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Resolution No. 2023-018
Resolution 2023-018
January 18, 2023
WHEREAS, on September 21, 2022, the City Council adopted Ordinance MC-1593 and Resolution No. 2022-188, adopting the MND and approving a Mitigation Monitoring and Reporting Program for the 5770 Industrial Parkway Project in accordance with CEQA and approving the Project.
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 Mayor and City Council hereby authorize and direct the City Manager to execute the License Agreement between the City of San Bernardino, California, and DP Industrial Parkway, LLC attached hereto as “Exhibit A”.
SECTION 3. As the decision-making body for the project, the City Council has reviewed and considered the information contained in the administrative record for the proposed project.
Based upon the facts and information contained in the administrative record, including all written and oral evidence presented to the City Council, the City Council finds, as follows:
(1) The administrative record has been completed in compliance with CEQA, the State CEQA Guidelines, and the City’s Local CEQA Guidelines.
(2) The approval of the License Agreement is covered by the 5770 Industrial Parkway Project evaluated in the approved 2022 MND. No further environmental review is required for the project pursuant to Public Resources Code section 21166 and State CEQA Guidelines section 15162.
(3) The determination of CEQA exemption reflects the independent judgment of the City Council. S
SECTION 4. 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 5. 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 18th day of January 2023.
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Resolution No. 2023-018
Resolution 2023-018
January 18, 2023
Helen Tran, Mayor
City of San Bernardino
Attest:
Genoveva Rocha, CMC, City Clerk
Approved as to form:
Sonia Carvalho, City Attorney
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Resolution No. 2023-018
Resolution 2023-018
January 18, 2023
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, City Clerk, hereby certify that the attached is a true copy of Resolution No. 2023-___, adopted at a regular meeting held on the ___ day of _______ 2023 by the following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _____ _____ _______ _______
SHORETT _____ _____ _______ _______
REYNOSO _____ _____ _______ _______
CALVIN _____ _____ _______ _______
ALEXANDER _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this ___ day of ____________ 2023.
Genoveva Rocha, CMC, City Clerk
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EXHIBIT C
1 CITY OF SAN BERNARDINO
LICENSE AGREEMENT
This LICENSE AGREEMENT (“Agreement”) is made this 18th day of January 2023 by and between the City of San Bernardino, a charter city and municipal corporation organized and operating under the laws of the State of California with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, CA 92401 (“CITY”), and DP Industrial Parkway LLC, a Delaware limited liability company (“LICENSEE”). CITY and LICENSEE are sometimes individually referred to as “Party” and collectively as “Parties”.
RECITALS
A. CITY is the custodian of certain real property easements commonly referred to as:
5770 N Industrial Parkway, San Bernardino, California, 92407; also known by Assessor’s Parcel Numbers 0266-041-40 & 0266-041-22, and legally described in Exhibits “A-1 & A-2” attached hereto and incorporated herein by reference. (the “Property’).
B. Licensee desires to obtain CITY’S permission to enter onto the Property, for the purposes specified in Item 2 of the Basic License Provisions.
C. The Parties wish to enter into this License whereby CITY will allow Licensee to enter onto the Property, on a temporary basis, for the construction of improvements that will consist of pavement, landscaping, and a block wall, as more particularly described in Exhibits “B-1 & B-2” attached hereto and incorporated herein by reference.
NOW THEREFORE, CITY and LICENSEE do hereby agree as follows:
AGREEMENT
PART I. BASIC LICENSE PROVISIONS
1. Description of Licensed Property:
The CITY’s real property easements are in the County of San Bernardino, State of California, as more particularly described in the attached Exhibit “A”.
2. Use of Licensed Property:
For the installation, construction, operation, maintenance, repair, reconstruction, alteration, and removal of the improvements described in Item 9 of these Basic License Provisions and any usual, necessary, and related appurtenances thereto, above, under, and across the easement area of the Licensed Property (“Project”), as more particularly described in the attached Exhibit “B”.
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2 3. Commencement Date: Date of the Agreement first specified above.
4. Intentionally Omitted:
5. Administrative Fee: $1535.30
6. Licensing Fee:
(A) Annual License Fee: $346.80
(B) Annual License Fee Adjustment:
(1) Annually based on CPI
(2) Periodically to Reflect Fair Market
Rental Value
7. CITY Address:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Manager
8. LICENSEE Address:
DP Industrial Parkway, LLC
100 Wilshire Blvd. Suite 250
Santa Monica, CA 90401
Attn: Patrick Kealy
9. Facility:
Pavement, landscaping, and block wall to be installed above, under, or across the Licensed Property (the “Facility”), as more particularly described in the attached Exhibit “B”.
The foregoing Basic License Provisions and the General License Provisions set forth in the attached Part II are incorporated into and made part of this Agreement.
PART II. GENERAL LICENSE PROVISIONS
1. General Grant. Subject to the terms and conditions hereinafter set forth, CITY hereby grants a revocable, non-exclusive license to DP Industrial Parkway, LLC, above, under, and across the Licensed Property, as further described in Exhibit “B“, for the purposes described in Item 2 of the Basic License Provisions, together with rights for access and entry onto the Property as necessary or convenient for the use of the installation of pavement, installation of landscaping, and construction of a block wall. In
INITIAL INITIAL
INITIAL INITIAL
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3 connection with this grant of license, LICENSEE, its employees, agents, customers, visitors, invitees, licensees and contractors (collectively, “LICENSEE’s Parties”), may, subject to the provisions hereof, have reasonable rights of entry and access onto adjoining real property of CITY if necessary for the use of the Facility or the Licensed Property, with the time and manner of such entry and access to be subject to CITY’S prior written approval. The Licensed Property, adjoining real property of CITY and personal property of CITY located thereon shall hereinafter collectively be referred to as “CITY Property”.
2. Term. The term (“Term”) of this Agreement shall commence on the “Commencement Date” specified in Item 3 of the Basic License Provisions. Unless a specific term of this Agreement is filled in at Item 4 of the Basic License Provisions, this Agreement shall continue in full force and effect until terminated as provided herein. If Item 4 of the Basic License Provisions provides for a specific term, then this Agreement shall be a license for the term specified in said Item 4; provided, however, that CITY shall have the absolute right to terminate this Agreement prior to the date specified in Item 4 in its sole discretion pursuant to the termination provisions provided herein.
3. Use. LICENSEE shall use the Licensed Property and Facility solely for the purposes specified in Item 2 of the Basic License Provisions and for such lawful purposes as may be directly incidental thereto. No change shall be made by LICENSEE in the use of the Licensed Property, the Facility, or the commodity or product being conveyed through the Facility, if any, without CITY’s prior written approval.
3.1 Notice Prior to Initial Entry. LICENSEE shall provide CITY no less than three (3) days prior written notice before LICENSEE’s initial entry onto the Licensed Property for the purposes hereunder.
4. Condition of Premises. LICENSEE ACCEPTS THE LICENSED PROPERTY IN ITS “AS IS” CONDITION, WITH ALL FAULTS. LICENSEE ACKNOWLEDGES AND
AGREES THAT LICENSEE IS ENTERING THE LICENSED PROPERTY UNDER THIS
AGREEMENT BASED ON LICENSEE'S OWN INVESTIGATIONS AND KNOWLEDGE
OF THE PROPERTY AND THAT, EXCEPT AS OTHERWISE SPECIFICALLY STATED
IN THIS AGREEMENT, NEITHER LICENSOR NOR ANY AGENT OF LICENSOR, HAS
MADE ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR
IMPLIED, WITH REGARD TO THE PHYSICAL CONDITION OF THE PROPERTY OR
THE SUITABILITY OF THE PROPERTY FOR ANY PARTICULAR PURPOSE OR USE,
INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES
REGARDING THE APPLICABILITY OR NON-APPLICABILITY OF ANY LAWS, THE
SOIL OR SUBSOIL, SURFACE OR SUBSURFACE CONDITIONS, TOPOGRAPHY,
POSSIBLE HAZARDOUS SUBSTANCES CONTAMINATION, FILL, DRAINAGE,
ACCESS TO PUBLIC ROADS, AVAILABILITY OF UTILITIES, EXISTENCE OF
UNDERGROUND STORAGE TANKS, APPLICABILITY OF OR COMPLIANCE WITH
ANY ENVIRONMENTAL LAWS OR ANY OTHER MATTER OF ANY NATURE WHATSOEVER. THE LICENSOR IS NOT RESPONSIBLE FOR DAMAGE TO OR LOSS BY THEFT OF LICENSEE’S PROPERTY LOCATED IN OR ON THE PROPERTY.
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4 5. Termination of License.
A. Notwithstanding any other term or provision of this Agreement, CITY shall have the right to terminate this Agreement and shall have no obligation to reimburse LICENSEE for the Facility or any other improvements to the Licensed Property, under any of the following circumstances:
i In the event that CITY determines in its sole discretion that it requires the Licensed Property for its own uses, which determination shall be made by the City Manager or his or her designee and shall not require proof of or satisfaction of any legal standard of necessity. Should CITY exercise this option, CITY may terminate this Agreement by providing thirty (30) days written notice to LICENSEE of the intent to terminate this Agreement.
ii CITY may terminate this Agreement at any time for cause, for a breach by LICENSEE of any covenant or term of this Agreement, or a default by LICENSEE of any term or provision of this Agreement, which acts of LICENSEE shall include but not be limited to: (i) The failure by LICENSEE to pay any amount in full when it is due under this Agreement; or (ii) The failure by LICENSEE to perform any obligation under this Agreement. Notification of such termination shall be in writing.
B. LICENSEE may terminate this Agreement at any time for its convenience by providing written notice to Lessor six (6) months prior to the date of termination.
6. Hazardous Materials Use and Related Indemnity.
A. Use. LICENSEE shall operate and maintain the Licensed Property in compliance with all, and shall not cause or permit the Licensed Property to be in violation of any federal, state or local environmental, health and/or safety-related laws, regulations, standards, decisions of the courts, permits or permit conditions, currently existing or as amended or adopted in the future which are or become applicable to LICENSEE or the Licensed Property (collectively, “Environmental Laws” and, individually, an “Environmental Law”). Except for Hazardous Materials expressly approved by CITY in writing, LICENSEE shall not cause or permit, or allow any of LICENSEE’s Parties to cause or permit, any Hazardous Materials to be brought upon, stored, used, generated, handled, transported, treated, or disposed of on or about the CITY Property. Any Hazardous Materials on or about the CITY Property shall be stored, used, generated, handled, transported, treated, or disposed of in accordance with all applicable Environmental Laws. As used herein, “Hazardous Materials” means any chemical, substance or material which is now or becomes in the future listed, defined or regulated in any manner by any Environmental Law based upon, directly or indirectly, its properties or effects.
B. Indemnity. LICENSEE shall indemnify, defend (by counsel acceptable to CITY) and hold harmless the Indemnitees (as defined in Section 18) from and against any and all loss, liability, claim, demand, damage, cost or expense (including without limitation, any fines, penalties, judgments, litigation expenses, attorneys’ fees, and Packet Pg. 1553
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5 consulting, engineering, and construction fees and expenses) incurred by Indemnitees as a result of (a) LICENSEE’s breach of any prohibition or provision of this Section, or (b) any release of Hazardous Materials onto the CITY Property and/or any adjacent property, or (c) any contamination of the CITY Property and/or any adjacent property (i) which occurs due to the use and occupancy of the Facility or the CITY Property by LICENSEE or LICENSEE’s Parties, or (ii) which is made worse due to the act or failure to act of LICENSEE or LICENSEE’s Parties. The foregoing indemnity shall be effective regardless of any negligence (whether active, passive, derivative, joint, concurring or comparative) on the part of Indemnitees, except to the extent, but only to the extent, caused by the gross negligence or willful misconduct of the Indemnitees; shall survive termination of this Agreement; and is in addition to any other rights or remedies which Indemnitees may have under the law or under this Agreement.
C. Remediation. In addition, in the event of any release on or contamination of the CITY Property and/or any adjacent property, LICENSEE, at its sole expense, shall promptly take all actions necessary to clean up the affected property and to return the affected property to the condition existing prior to such release or contamination, to the satisfaction of CITY and any governmental authorities having jurisdiction thereover.
D. Termination for Breach of Hazardous Materials Obligations. Should LICENSEE not comply fully with the above-stated obligations, CITY may, in its sole discretion, terminate this Agreement by serving five (5) days’ notice of termination upon LICENSEE. Any waiver by CITY of any breach of LICENSEE’s obligation shall not constitute a waiver of the right to terminate this Agreement for any subsequent breach which may occur, or to enforce any other provision of this Agreement. Upon termination, LICENSEE shall remove the Facility and restore the Licensed Property as herein provided.
E. Phase I. Prior to execution of this Agreement, CITY may, at CITY’S discretion, provide LICENSEE with a Phase 1 environmental review of the Licensed Property. Upon termination of this Agreement, CITY, at its cost, may perform another Phase 1 environmental review of the Licensed Property. If this second Phase 1 environmental review shows the presence of Hazardous Materials which were not present at the time of the first Phase 1 environmental review, if performed, then LICENSEE shall be conclusively presumed to have released Hazardous Materials on the Licensed Property and shall, in addition to any other responsibilities herein, be responsible for cleaning up the Licensed Property to remove any such Hazardous Materials and taking such other remedial steps required under federal, state or local law or regulation and to indemnify CITY, as necessary, as provided in Section 6.B above, except as provided in Section 6.F below.
F. Inapplicability. It is understood and agreed that a
LICENSEE who does not now, or in the future, generate, handle, transport, treat, store or dispose of Hazardous Materials on the CITY Property within the meaning of this Section, is not subject to the provisions of Section 6.B.
INITIAL INITIAL
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6 7. Fees.
A. Administrative Fee. LICENSEE agrees to reimburse CITY for all costs incurred by CITY to process this Agreement. LICENSEE has deposited the amount specified in Item 5 of the Basic License Provisions (“Deposit”) for processing costs. Such reimbursements shall be made first out of the Deposit made by LICENSEE for such purpose. Any processing costs exceeding that amount shall be reimbursed within thirty (30) days of request.
B. Annual License Fee.
i LICENSEE shall pay CITY as compensation for this license an Annual License Fee as specified in Item 6 of the Basic License Provisions, as such fee may be adjusted as set forth in paragraphs (ii) and (iii) below. The Annual License Fee shall be due and payable on the first day of the month following the execution of this Agreement (“Payment Date”) and then on that same date during each succeeding year for as long as this Agreement is in effect.
ii The Annual License Fee shall be increased, but not decreased, annually as provided below. The adjusted Annual License Fee as of each Payment Date shall be the greater of the Annual License Fee on the day preceding that Payment Date or that amount multiplied by a fraction, the numerator of which is the CPI figure for the third month preceding the month during which the particular Payment Date occurs and the denominator of which is the CPI figure for the month that is three (3) months prior to the month containing the prior Payment Date. As used in this Section, the “CPI” means the Consumer Price Index for Urban Wage Earners and Clerical Workers, Riverside-San Bernardino-Ontario, California, all items (1982-84 = 100), published by the U.S.
Department of Labor, Bureau of Labor Statistics, or if such index is no longer published, the U.S. Department of Labor’s most comprehensive official index then in use that most nearly corresponds to the index named above. If it is calculated from a base different from the base period 1982-84 = 100, figures used for calculating the adjustment shall first be converted to the base period used under a formula supplied by the Bureau. If a comparable index is no longer be published by the U.S. Department of Labor, another index generally recognized as authoritative shall be substituted by CITY. iii At intervals of not less than three (3) years, the Annual License Fee (as such fee may be adjusted by paragraph (ii), above) payable under this Section, at the sole discretion of CITY, may be increased, but not decreased, in order to adjust the fee to the then fair market rental value of the Licensed Property as determined by CITY in good faith. Such increases shall be effective on the Payment Date. CITY shall give LICENSEE written notice of the date and amount of any such adjustment not less than thirty (30) days prior to the applicable Payment Date. If no adjustment is made on a given Payment Date, an adjustment may nevertheless be made on a subsequent date and thereafter at intervals of not less than three (3) years apart.
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7 contemplated by this Agreement, the exact amount of such costs being extremely difficult and impracticable to fix. Therefore, if any payment due from LICENSEE is not received by CITY within fifteen (15) days of when due, LICENSEE shall pay to CITY an additional sum of ten percent (10%) of the overdue payment as a late charge, up to a maximum amount of $1000. The Parties agree that this late charge represents a fair and reasonable estimate of the administrative costs that CITY will incur by reason of a late payment by LICENSEE. Acceptance of any late payment charge shall not constitute a waiver from exercising any of the other rights and remedies available to CITY under this Agreement, at law or in equity, including, but not limited to, any interest charges imposed herein.
8. Permits. Without limiting the generality of any other provision hereunder, LICENSEE, at its sole cost and expense, shall obtain and shall comply with any and all permits which may be required by any law, regulation or ordinance for any activities LICENSEE desires to conduct or have conducted pursuant to this Agreement.
9. Maintenance and Repair. LICENSEE shall, at its own cost and subject to the approval of the City Manager or his or her designee, repair, maintain and utilize the Facility and Licensed Property so that they will not at any time be a source of danger to or interference with the CITY Property, or any other activities on the CITY Property. Any repair and maintenance work shall be done to the Standards (defined below). LICENSEE shall provide CITY no less than thirty (30) days written notice and shall acquire all necessary approvals from CITY prior to LICENSEE’s commencement of any such repair or maintenance work. If, at any time, LICENSEE shall, in the judgment of CITY, fail to perform properly its obligations under this Section, CITY may, at its option, perform such work itself as it deems necessary for the safe operation of its property and other uses on the CITY Property. In such event, LICENSEE agrees to pay, within fifteen (15) days after a bill is rendered therefor, the cost so incurred by CITY. However, failure on the part of CITY to perform the obligations of LICENSEE shall not release LICENSEE from liability hereunder for any loss or damage occasioned thereby.
10. Standards. LICENSEE shall comply with all applicable statutes, ordinances, rules, regulations, orders and decisions (hereinafter referred to as “Standards”), issued by any federal, state or local governmental body or agency established thereby including without limitation, the United States Department of Transportation, and the California Public Utilities Commission (hereinafter collectively referred to as “Agency”), relating to LICENSEE’s use of the Licensed Property hereunder. In its use of the Licensed Property, LICENSEE shall at all times be in full compliance with all Standards, present or future, set by any Agency, including, but not limited to, Standards concerning air quality, water quality, noise, and Hazardous Materials. In the event LICENSEE fails to be in full compliance with Standards set by any Agency, CITY may, but shall not be obligated to, after giving notice of the failure to LICENSEE, and if LICENSEE, within fifteen (15) days following receipt of such notice (unless such period is extended by CITY), fails to correct such non-compliance, take whatever action it determines in its sole discretion to be necessary to protect the CITY Property. LICENSEE shall reimburse the CITY for all costs (including but not limited to, consulting, engineering, clean-up and disposal, and legal costs) incurred by the CITY as a result of the LICENSEE’s failure to comply with such Standards, and also such costs incurred by the CITY in abating a violation of such Packet Pg. 1556
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8 Standards, protecting against a threatened violation of such Standards, defending any claim of violation of such Standards in any proceeding before any Agency or court, and paying any fines or penalties imposed for such violations. LICENSEE shall, to the extent permitted by law, assume liability for and shall save and hold harmless the CITY from any claim of a violation of the Standards regardless of the nature thereof or the Agency or person asserting such claim, which results from LICENSEE’s use of the Licensed Property in violation of the Standards, even if such claim arises in whole or in part from the negligence or alleged negligence of the CITY. LICENSEE, at its cost, shall assume the defense of all such claims as provided for in Section 20 hereof.
11. Tests and Inspections. CITY shall have the right at any time to inspect the Licensed Property and the Facility so as to monitor compliance with this Agreement. If, in CITY’S sole judgment, any installation on, or use or condition of the Licensed Property may have an adverse effect on the CITY Property (whether or not owned by CITY) or CITY’S operations, CITY shall be permitted to conduct any tests or assessments, including but not limited to environmental assessments, of, on or about the Licensed Property and the Facility, as it determines to be necessary or useful to evaluate the condition of the Licensed Property and the Facility. LICENSEE shall cooperate with CITY in any tests or inspections deemed necessary by CITY. LICENSEE shall pay or reimburse CITY, as appropriate, for all reasonable costs and expenses incurred due to the tests, inspections or any necessary corrective work and inspections thereafter within thirty (30) days of a request for payment.
12. Construction and Installation.
A. The Facility shall be installed and constructed at the LICENSEE’s sole cost in accordance with the design plans, which are attached hereto as Exhibit B. Exhibit “B”. Any deviation from the plans shall be approved in writing by the City Manager or his or her designee.
C. Construction, installation, and maintenance of the Facility shall be accomplished in such a manner so that it will not interfere with or be a source of danger to the CITY Property or other activities on the CITY Property. Any aspect of the Facility which will interfere with other uses on the CITY Property shall be approved in advance by CITY. CITY may require that CITY’s representative be present during some or all of the construction, installation or maintenance of the Facility. If CITY’s representative determines that the construction, installation or maintenance of the Facility is not being accomplished in accordance with this Agreement, he or she may, but shall not be required to, halt the work. Notwithstanding the presence of the CITY’s representative, LICENSEE shall, at all times, retain full liability and responsibility for all aspects of the construction, installation or maintenance of the Facility.
D. LICENSEE shall provide CITY with “As Builts” within twenty (20) days of completion of the Facility, if necessary.
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9 13. Underground Storage Tanks. LICENSEE shall not install or use any underground storage tanks on the Licensed Property unless specifically approved in advance in writing by CITY, which approval may be withheld in CITY’s sole discretion.
If such underground storage tanks are permitted to be installed or used by LICENSEE, at CITY's option to terminate this Agreement at any time and for any reason, LICENSEE shall, prior to the effective date of such termination, remove and close all underground storage tanks and related equipment and clean up and remove all Hazardous Materials in, on, under and about the CITY Property, in accordance with the requirements of all federal, state and local environmental laws and to the satisfaction of CITY and any governmental authorities having jurisdiction thereof, and deliver to CITY a copy of a certificate of closure issued for such tanks by the appropriate governmental authority.
14. Landscaping and Protective Fencing. If required by CITY, LICENSEE, at its sole cost and expense, shall install barrier fencing and/or landscaping to shield the construction area from public access and/or the Facility from public view. CITY shall have the right to review and approve fencing and/or landscaping plans prior to installation. All fencing and/or landscaping work shall be done in accordance with the provisions of Sections 12 and 16 hereof and shall be subject to the maintenance and repair provisions of Section 9 above.
15. Markers. If required by CITY, Project markers in form and size satisfactory to CITY, identifying the Facility and its owners, shall be installed and constantly maintained by and at the expense of LICENSEE at such locations as CITY shall designate. Such markers shall be relocated or removed upon request of CITY without expense to CITY.
Absence of markers in or about CITY Property does not constitute a warranty by CITY of the absence of subsurface installations.
16. Insurance. LICENSEE, at its sole cost and expense, shall obtain and maintain, and require its contractors and subcontractors to obtain and maintain, in full force and effect insurance as required by CITY in the amounts and coverage specified and issued by insurance companies as described on Exhibit “C”. CITY reserves the right, to review and change the amount and type of insurance coverage it requires in connection with this Agreement or the work to be performed on the Facility. Prior to (i) entering the Licensed Property or (ii) performing any work or maintenance on the Facility, LICENSEE shall furnish CITY with the insurance endorsements and certificates in the form and amounts specified in Exhibit “C”, evidencing the existence, amounts and coverage of the insurance required to be maintained hereunder. In most instances, CITY does not allow self-insurance, however, if LICENSEE can demonstrate assets and retention funds meeting CITY’s self-insurance requirements, CITY may permit LICENSEE to self-insure; provided, however, that the right to self-insure with respect to any coverage required to be maintained hereunder may be granted or revoked by CITY in its sole and absolute discretion. CITY shall not be liable for the payment of any premiums or assessments for insurance required to be maintained by LICENSEE under this Agreement.
17. Subordinate Rights. This Agreement is subject and subordinate to the prior and future rights and obligations of CITY, its successors and assigns, to use its property in Packet Pg. 1558
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10 the exercise of its powers and in the performance of its duties. Accordingly, there is reserved and retained unto CITY, its successors, assigns and permittees, the right to construct, reconstruct, maintain and use existing, and facilities and appurtenances and existing and future transportation, communication, pipeline facility and other facilities and appurtenances in, upon, over, under, across and along the Licensed Property, and in connection therewith, the right to grant and convey to others, rights and interests to the Licensed Property in, on and around the Licensed Property. This Agreement is subject to all licenses, leases, easements, restrictions, conditions, covenants, encumbrances, liens, claims and other matters of title (hereinafter referred to as “Title Exceptions”) which may affect the Licensed Property now or hereafter, and the words “grant” or “convey” as used herein shall not be construed as a covenant against the existence of any such Title Exceptions.
18. Indemnity. LICENSEE shall at all times indemnify and save harmless CITY and its subsidiaries, officials, officers, employees, agents, contractors, successors and assigns (“Indemnitees”) against and pay in full all losses, damages, or expenses that the Indemnitees may sustain, incur or become liable for, resulting in any manner from the installation, construction, operation, maintenance, repair, reconstruction, alteration, removal, condition, use or presence of the Facility or the use and maintenance of the Licensed Property by the LICENSEE, LICENSEE’s Parties or any person or entity claiming, using or occupying the Licensed Property by, under or through LICENSEE, or anyone directly or indirectly employed by or for whose acts LICENSEE is liable, 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, (d) taxes or assessments of any kind, or (e) interference with the use of the CITY’s property. 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 the Indemnitees unless such injury is a result of the sole negligence of CITY.
19. Assumption of Risk and Waiver. 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 Facility or appurtenances, if any, the CITY Property and any other property of, or under the control or custody of, LICENSEE, which is on or near the Facility. LICENSEE’s assumption of risk shall include, without limitation, loss or damage caused by defects in any structure or improvement on the Licensed Property, accident or fire or other casualty on the Licensed Property, or electrical discharge, and noise or vibration resulting from CITY’s transit operations on or near the Licensed Property, if applicable. The term “CITY” as used in this Section shall include any other persons or companies employed, retained or engaged by CITY.
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:
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11 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 materiality affected his or her settlement with the debtor or released party.
The provisions of this Section and of Sections 6.B, 18 and 20 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.
20. Defense. Upon written notice from CITY, LICENSEE agrees to assume the defense of any lawsuit, administrative action or other proceeding brought against the Indemnitees 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 Indemnitees. LICENSEE shall pay all the 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.
21. Attorneys’ Fees. In any judicial or arbitration proceeding involving performance under this Agreement, or default or breach thereof, the prevailing party shall be entitled to its reasonable attorneys’ fees and costs.
22. Successors and Assigns. All the covenants and provisions of this Agreement shall be binding upon and inure to the benefit of the successors, legal representatives and assigns of the CITY and LICENSEE to the same extent and effect as the same are binding upon and insure to the benefit of the Parties hereto.
23. Survival of Obligations. All obligations of LICENSEE hereunder not fully performed as of the termination or cessation of this Agreement in any manner shall survive the termination of this Agreement, including without limitation, all payment obligations with respect to fees and all obligations concerning the condition of the Facility and the CITY Property.
24. Assignment. This Agreement and the license granted herein are personal to the LICENSEE. LICENSEE shall not assign or transfer (whether voluntary or involuntary) this Agreement in whole or in part, or permit any other person or entity to use the rights or privileges hereby conveyed, without the prior written consent of CITY, which may be withheld in CITY’s sole and absolute discretion. Any attempted act in violation of this Section shall be void and without effect and give CITY the right to immediately terminate this Agreement.
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12 25. Waiver of Covenants or Conditions. The waiver by CITY of the performance of any covenant or condition under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by it of any other covenant or condition under this Agreement.
26. Amendment. This Agreement may be amended at any time by the written agreement of CITY and LICENSEE. All amendments to this Agreement shall be binding upon the Parties despite any lack of legal consideration, so long as the same shall be in writing and executed by the Parties hereto.
27. Revocation. If, at any time, LICENSEE shall fail or refuse to comply with or carry out any of the covenants herein contained, CITY may, at its election, immediately revoke and terminate this Agreement unless a longer notice period is specifically provided for elsewhere in this Agreement.
28. Abandonment. Should LICENSEE at any time abandon the Licensed Property, or any part thereof, or fail at any time for a continuous period of six (6) months to use the same for the purposes contemplated by this Agreement, then CITY may terminate this Agreement to the extent of the portion so abandoned or discontinued. In addition to any other rights or remedies, CITY shall immediately be entitled to exclusive possession and ownership of the portion so abandoned or discontinued, without the encumbrance of this Agreement or any license granted herein. LICENSEE may abandon the Facility, or any portion thereof, in place subject to the CITY’s prior written approval if CITY determines in its sole and absolute discretion that the abandoned Facility does not conflict with an existing or proposed project or CITY’s use of the CITY Property. Should LICENSEE abandon the Facility, or any portion thereof, LICENSEE shall provide CITY with any documentation CITY deems necessary for said abandonment, which may include, but not be limited to, a certificate of abandonment. CITY shall have no obligation to permit the Facility to be abandoned in place or relocated to any other location on the CITY Property.
29. Eviction, Abandonment or Sale. In the case of the eviction of LICENSEE by anyone owning or obtaining title to the premises on which the Facility is located, or the sale or abandonment by CITY of said premises, CITY shall not be liable to LICENSEE for any damage of any nature whatsoever or to refund any payment made by LICENSEE to CITY hereunder, except the proportionate part of any recurring rental charge which may have been paid hereunder in advance.
30. Condemnation. In the event all or any portion of the Licensed Property shall be taken or condemned for public use (including conveyance by deed in lieu of or in settlement of condemnation proceedings), LICENSEE shall receive compensation (if any) only for the taking and damage to the Facility. Any other commission or damages arising out of such taking or condemnation awarded to LICENSEE are hereby assigned by LICENSEE to CITY.
31. Revocable Licenses and Termination. LICENSEE agrees that notwithstanding the improvements made by LICENSEE to the Licensed Property or the installation of the Facility, or other sums expended by LICENSEE in furtherance of this Agreement, the Packet Pg. 1561
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13 license granted herein is revocable and may be terminated by CITY in accordance with the terms of this Agreement.
32. Restoration of CITY’s Property, Claims for Costs. Upon the termination, revocation of cessation of this Agreement in any manner provided in this Agreement, LICENSEE, upon demand of CITY and at LICENSEE’s own cost and expense, shall abandon the use of the Facility and remove it and restore the Licensed Property of CITY to the same condition in which they were prior to the placing of the Facility thereunder, reasonable wear and tear excepted. In no event shall LICENSEE have any claim against CITY for any of the costs of constructing, maintaining, or removing the Facility. In case LICENSEE shall fail to restore Licensed Property as aforesaid within ten (10) days after the effective date of termination, CITY may proceed with such work at the expense of LICENSEE or may assume title and ownership of the Facility and any other property of LICENSEE located on the Licensed Property. No termination hereof shall release LICENSEE from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date the Facility is removed, and the Licensed Property restored as above provided.
33. Notice. Any notice hereunder to be given by CITY to LICENSEE shall be deemed to be properly served on the date it is deposited in the United States Mail, postage prepaid, addressed to such party at its address set forth in the Basic License Provisions.
Either CITY or LICENSEE may change its address for the receipt of notice by giving written notice thereof to the other party of such change. Notices shall be effective on the date delivered to custody of the U.S. Postal Service.
34. Interest on Past-due Obligations. Except as expressly herein provided, any amount due to CITY which is not paid when due shall bear interest, from the date due, at the rate of ten percent (10%) per annum. Such interest will be due CITY as it accrues.
Payment of such interest shall not excuse or cure any default by LICENSEE under this Agreement, provided, however, that interest shall not be payable on late charges incurred by LICENSEE.
35. Joint and Several. In the event that two or more parties execute this Agreement as LICENSEE, all the covenants and agreements of LICENSEE in this Agreement shall be the joint and several covenants and agreements of such parties.
36. Nondiscrimination. LICENSEE certifies and agrees that all persons employed thereby and/or the affiliates, subsidiaries, or holding companies thereof and any contractors retained thereby with respect to the Licensed Property and the Facility are and shall be treated equally without regard to or because of race, religion, ancestry, national origin, or sex, and in compliance with all federal and state laws prohibiting discrimination in employment, including but not limited to the Civil Rights Act of 1964; the Unruh Civil Rights Act; the Cartwright Act; and the California Fair Employment Practices Act.
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14 tax, levied by any governmental authority: (a) against the Facility, the Licensed Property and/or any personal property, fixtures or equipment of LICENSEE used in connection therewith or (b) as a result of the Facility’s operations.
38. Liens. LICENSEE will fully and promptly pay for all materials whether or not joined or affixed to the Facility or the Licensed Property, and fully and promptly pay all persons who perform labor whether or not upon said Facility or the Licensed Property. LICENSEE shall not suffer or permit to be filed or enforced against the CITY Property or the Facility, or any part thereof, any mechanics’, materialmen’s, contractors’, or subcontractors’ liens or stop notices arising from, or any claim for damage growing out of, any testing, investigation, maintenance, or work, or out of any other claim or demand of any kind.
LICENSEE shall pay or cause to be paid all such liens, claims or demands, including sums due with respect to stop notices, together with attorneys’ fees incurred by CITY with respect thereto, within ten (10) business days after notice thereof and shall indemnify, hold harmless and defend CITY from all obligations and claims made against CITY for and with respect to the above-described work, including attorneys’ fees. LICENSEE shall furnish evidence of payment upon request of CITY. LICENSEE may contest any lien, claim or demand by furnishing a statutory lien bond or equivalent with respect to stop notices to CITY in compliance with applicable California law. If LICENSEE does not discharge any mechanic's lien or stop notice for works performed for LICENSEE, CITY shall have the right to discharge same (including by paying the claimant) and LICENSEE shall reimburse CITY for the cost of such discharge within ten (10) business days after billing. CITY reserves the right at any time to post and maintain on the CITY Property such notices as may be necessary to protect CITY against liability for all such liens and claims. The provisions of this Section shall survive the termination of this Agreement.
39. Further Acts. LICENSEE agrees to perform any further acts and to execute and deliver in recordable form any documents which may be reasonably necessary to carry out the provisions of this Agreement, including, at CITY’s sole discretion, the relocation of the Facility and the license granted by this Agreement.
40. Waiver of Relocation Rights. LICENSEE HEREBY WAIVES ANY RIGHT TO
RELOCATION ASSISTANCE, MOVING EXPENSES, GOODWILL OR OTHER
PAYMENTS TO WHICH LICENSEE MIGHT OTHERWISE BE ENTITLED, BUT FOR THIS WAIVER AND CITY’S EXPRESS RIGHT OF TERMINATION, UNDER THE
UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION POLICIES ACT OF 1970, AS AMENDED, 42 UNITED STATE CODE SECTION 4601 ET SEQ. AND/OR THE CALIFORNIA RELOCATION ASSISTANCE LAW, AS AMENDED, GOVERNMENT CODE SECTION 7260 ET SEQ.
41. Non-Exclusive License. The license granted by this Agreement is not exclusive and CITY specifically reserves the right to grant other licenses within the vicinity of the Facility.
42. Counterparts; Facsimile Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together Packet Pg. 1563
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15 shall constitute one and the same instrument. Facsimile signatures shall be considered original signatures.
43. Severability. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions, or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby.
44. Captions. The Captions included in this Agreement are for convenience only and in no way define, limit, or otherwise describe the scope or intent of this Agreement or any provision hereof, or in any way affect the interpretation of this Agreement.
45. Time of Essence. Time is of the essence in this Agreement.
46. No Recording. LICENSEE shall not record or permit to be recorded in the official records of the county where the Licensed Property or Facility is located any memorandum of this Agreement or any other document giving notice of the existence of this Agreement, or the license granted hereby.
47. Entire Agreement. This Agreement and the Exhibits hereto constitute the entire agreement between the CITY and LICENSEE with respect to the subject matter hereof and supersede all prior verbal or written agreements and understandings between the Parties with respect to the items set forth herein.
48. Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.
49. Electronic Signature. Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature
[SIGNATURES ON FOLLOWING PAGE]
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16 SIGNATURE PAGE FOR LICENSE AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND DP INDUSTRIAL PARKWAY, LLC
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.
LICENSOR
CITY OF SAN BERNARDINO
APPROVED BY:
City Manager
ATTESTED BY:
Genoveva Rocha, CMC
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP,
City Attorney
LICENSEE
DP INDUSTRIAL PARKWAY, LLC
Signature
Brett Dedeaux
Name
Authorized Signatory
Title
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19 EXHIBIT B-1
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20 EXHIBIT B-2
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21 EXHIBIT C
INSURANCE REQUIREMENTS
LICENSEE shall obtain and shall require any consultant or contractor entering the Licensed Property on its behalf to obtain insurance of the types and in the amounts described below and satisfactory to the CITY.
A. Commercial General Liability Insurance. LICENSEE shall maintain occurrence version commercial general liability insurance or equivalent form with a combined single limit of not less than $2,000,000 per occurrence, with a general aggregate limit no less than $4,000,000. Such insurance shall include coverage for, but not be limited to: (i) bodily injury and property damage; (ii) personal injury and advertising injury; (iii) fire legal liability; and (iv) products and completed operations. Such insurance policy or policy endorsement shall:
1. Include the CITY, its officials, officers, employees, agents, and consultants as additional insureds with respect to the Licensed Property and LICENSEE’s installation, construction, operation, maintenance, repair, reconstruction, alteration, removal or any other work that LICENSEE undertakes with respect to the Facility;
2. Not contain special limitations on the scope of coverage or the protection afforded to CITY, its officials, officers, employees, agents, and consultants as additional insureds;
3. Be primary with respect to any insurance or self-insurance programs covering CITY, its officials, officers, employees, agents and consultants;
4. Contain standard separation of insured provisions; and
5. Contain a waiver of subrogation that waives any right the insurer has against CITY for any claims or suits.
C. Automobile Liability. LICENSEE shall acquire and maintain during the period of the Project, automobile liability with a combined single limit of $1,000,000.
E. Workers' Compensation Insurance. LICENSEE shall maintain workers' compensation insurance with statutory limits and employers' liability insurance with limits of not less than $1,000,000 each accident.
F. Privacy/Network Security (Cyber). LICENSEE shall maintain privacy/network security insurance, in a form and with insurance companies acceptable to the City, for: (1) privacy breaches, (2) system breaches, (3) denial or loss of service, and (4) the introduction, implantation or spread of malicious software code, in a form and with insurance companies acceptable to CITY with limits of not less than $1,000,000 per occurrence and aggregate.
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22 G. Aviation and/or Drone Liability. If the proposed use of the Licensed Property will involve drones, LICENSEE shall maintain Aviation and/or Drone Liability insurance for bodily injury and property damage, in a form and with insurance companies acceptable to the CITY, with $1,000,000 per occurrence limit.
H. Certificates of Insurance. LICENSEE shall, prior to (i) entering the Licensed Property or (ii) performing any installation, construction, operation, maintenance, repair, reconstruction, alteration, removal or any other work that LICENSEE undertakes with respect to the Facility, furnish CITY with properly executed certificates of insurance and, if requested by CITY, certified copies of endorsements and policies, which clearly evidence all insurance required under this Agreement and provide that such insurance shall not be canceled, allowed to expire or be materially reduced in coverage, except on thirty (30) days’ prior written notice to CITY. CITY shall have the sole discretion to determine whether the certificates and endorsements presented comply with the provisions of this Agreement.
I. Coverage Maintenance. LICENSEE shall replace certificates, policies, and endorsements for any insurance expiring prior to the termination of this Agreement and shall not allow any lapse in coverage. Further, LICENSEE shall maintain such insurance from the execution of this Agreement until the Facility is removed and the Licensed Property fully restored, except as otherwise provided in this Agreement.
J. Licensed Insurer. LICENSEE shall place such insurance with insurers having A.M. Best Company ratings of no less than A: VIII and licensed to do business in California.
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ITEMS TO BE CONSIDERED FOR FUTURE MEETINGS
City of San Bernardino
Request for Council Action
Date: January 18, 2023
To: Honorable Mayor and City Council Members
From: Theodore Sanchez, Council Member, 1st Ward
Department: Council Office
Subject: Recognized Partnership With Casa Ramona (Ward 1) – Council Member Sanchez
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ITEMS TO BE CONSIDERED FOR FUTURE MEETINGS
City of San Bernardino
Request for Council Action
Date: January 18, 2023
To: Honorable Mayor and City Council Members
From: Ben Reynoso, Council Member, 5th Ward
Department: Council Office
Subject: Initiate a Request for Proposal seeking a consultant to prepare a feasibility study for installing bike lanes and crosswalk improvements in Downtown (Wards 1, 3)
– Council Member Reynoso
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ITEMS TO BE CONSIDERED FOR FUTURE MEETINGS
City of San Bernardino
Request for Council Action
Date: January 18, 2023
To: Honorable Mayor and City Council Members
From: Damon L. Alexander, Council Member, 7th Ward
Department: Council Office
Subject: Direct staff to work with the Mayor and City Council to evaluate and determine the appropriate staffing levels
in the Office of the Mayor and the City Council Office
(All Wards) – Council Member Alexander
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