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CC - Item 3H - Approval of License Agreement With County of Los Angeles for Construction and Operation of Proposed Downtown PlazaROSEMEAD CITY COUNCIL STAFF REPORT TO: HONORABLE MAYOR AND CITY COUNCIL FROM: JEFF ALLRED, CITY MANAGER DATE: MAY 28, 2013 SUBJECT: APPROVAL OF LICENSE AGREEMENT WITH COUNTY OF LOS ANGELES FOR CONSTRUCTION AND OPERATION OF PROPOSED DOWNTOWN PLAZA SUMMARY As part of the City's Capital Improvement Program, funding was included to create a new public plaza space adjacent to the Rosemead Public Library, City Hall, and Rosemead Community Recreation Center. The new Downtown Plaza will create a welcoming public space and include decorative paving, three (3) water features, new landscaping, and new lighting fixtures. Once complete, the space will connect with the Civic Center and create a gateway to commercial uses along Valley Boulevard. The proposed plaza will be located on land owned in fee by both the City and the County of Los Angeles. As such, the County Public Library has partnered with the City to design the space and ensure its safe and proper operation once built. Prior to initiating construction, it is necessary to approve a license agreement between the City and County that will formalize these elements. Staff Recommendation It is recommended that the City Council authorize the City Manager or designee to execute a license agreement with the County of Los Angeles for the construction and operation of the new Downtown Plaza. DISCUSSION In 2010, the City completed the Parks and Facilities Master Plan to help serve as a guide for future capital improvements. As such, the City, with significant public input, identified a need to create a "Downtown" public plaza that will create a vibrant public gathering space for the community. Together with the new Civic Center Parking Lot and renovated Rosemead Community Recreation Center, this area will serve as an inviting space for public events and will help complement nearby commercial uses. The Downtown Plaza Project (Plaza) is currently out to bid and will be considered by the City Council in June for award of a construction contract. It is expected that work will get underway in July and take approximately four (4) months to complete. The proposed ITEM NO. 3_ City Council Meefing May 28, 2013 Paqe 2 of 2 Plaza will be located on land owned in fee by both the City and the County of Los Angeles. As such, the County has been an active partner in the design of the space. Since the Plaza will be located on land owned by both entities, it is necessary for the City and County to execute a license agreement for the construction and operation of the new Plaza. This agreement must be approved prior to starting any construction activities. The draft license agreement was prepared with input from both the City and County and has been reviewed by the City Attorney. Once approved, the license agreement will allow the City to initiate construction work on the new Plaza. Following construction, the agreement will also provide for the safe operation and maintenance of the new space. If approved by the City Council, the agreement will be forwarded to the County for consideration by the County Board of Supervisors (Board). It is expected that the Board will review the agreement in June 2013. FINANCIAL REVIEW There is no financial impact associated with the approval of this license agreement. Submitted by: I Chris Marcarello Director of Public Works Attachments: (1) Draft License Agreement DRAFT LICENSE AGREEMENT THIS LICENSE AGREEMENT ( "License') is made and entered into this day of , 2012 BY AND BETWEEN COUNTY OF LOS ANGELES, a body corporate and politic ( "County' or "Licensor "), AND CITY OF ROSEMEAD, a body corporate and politic ( "City" or "Licensee "). RECITALS: County is the owner of certain real property located at 8800 Valley Blvd., Rosemead, California and is authorized to license use of the property pursuant to Gov. Code 25537 and /or 26227: and City is desirous of using only a portion of said real property, which is not required exclusively for County. In consideration of the mutual promises, covenants, and conditions set forth herein, the parties hereto and each of them do agree as follows: 1. LICENSED AREA 1.01 County hereby licenses to City and City hereby agrees to the use, upon the terms and conditions hereinafter set forth, a space identified as a Public Plaza located in between the Rosemead Public Library (8800 Valley Blvd., Rosemead, CA) and The Rosemead City Hall (8838 E. Valley Blvd., Rosemead, CA) as shown in Attachment I (the "Licensed Area "). 1.02 The Licensed Area shall be used only by the City for the purpose of designing, developing, constructing, and maintaining a Public Plaza and such other purposes as are related thereto, including but not limited to the holding or hosting of, and permitting or sub - licensing others to hold or host, events thereon which shall be open to the public or related to City business. - 1of11— City of Rosemead License Agreement — Public Plaza 1.03 City acknowledges that City has performed a personal inspection of the Licensed Area and the surrounding area and evaluation of the extent to which the physical condition thereof will affect the License. City accepts the Licensed Area in its present physical condition and agrees to make no demands upon County for any improvements or alterations thereof. 1.04 City hereby acknowledges the title of County and/or any other public agencies having jurisdiction herein and to the Licensed Area and covenants and agrees never to assail, contest or resist said title. 2. USE 2.01 City will construct a Public Plaza located in between the Rosemead Library and Rosemead City Hall. 2.02 City will be responsible for the maintenance of the Public Plaza. 2.03 City may at its discretion hold or host events on the Public Plaza. Such events will be open to the public or will be related to City business. 2.04 City may at its discretion permit, allow, or sublicense the Public Plaza to private groups or individuals for the holding or hosting of events thereon. Such events will be open to the public. 2.05 County may at its discretion hold or host up to - events per fiscal year on the Public Plaza. City and County agree that other than City events, County events shall have scheduling priority for events on the Public Plaza if County makes a request for an event date as set forth in Section 2.06 of this License. Notwithstanding any fee or sublicense cost that City may impose on third parties using the Public Plaza pursuant to Section 2.04 of this License, County's use of the Public Plaza for the - events per fiscal year shall not require the payment of any fee to City unless the parties determine that some fee is required for City services necessary to mitigate the impacts of the County event. 2.06 County agrees that representatives of the County will meet with the City no less than sixty (60) days prior to the start of each fiscal year to request dates for the holding or hosting of County events. Any event dates requested by County at this meeting, or by writing submitted to City in lieu of a meeting and at least sixty (60) days prior to the start of a fiscal year, shall be given scheduling priority over third -party events. Any event dates requested after this time shall be subordinate to previously - scheduled third -party events. 3. TERM 3.01 The term of the License shall be for a period of twenty (20) years ( "Initial - 2of11— City of Rosemead License Agreement — Public Plaza Term ") and two (2) ten (10) year extensions, which extensions shall be automatically triggered unless one or both of the parties gives written notice of its intent not to extend the term. 3.02 The term of the License shall commence upon execution of the License. 3.03 The City shall have the option of terminating this License at will upon giving the County notice in writing. The County shall have the option of terminating this License upon giving the City notice in writing. In addition, during the Initial Term, any termination by the County shall trigger a responsibility on the part of the County to pay the City for its costs incurred in constructing the Public Plaza (but not any costs of maintenance or costs related to holding or hosting events thereon). Both parties will endeavor, but shall not be required, to give at least 30 days advance notice of such termination. Notwithstanding the foregoing provision, this License may be immediately cancelled in the event of an emergency or unsafe condition. 3.04 The term of the License is to grant access to City for the Construction of the Public Plaza until completion, upon the County's approval of the City's plans for the Public Plaza. 3.05 The term of the License is thereafter to grant access to City for the use and maintenance of the Public Plaza commencing upon the County accepting the completion of the construction. 4. OPERATING RESPONSIBILITIES 4.01 Compliance with Law City's operations in and use of the Licensed Area shall conform to and abide by all City and County ordinances and all State and Federal laws and regulations insofar as the same or any of them are applicable, and where permits and /or licenses are required for City's specific use of the Licensed Area, the same must be first obtained from the regulatory agency having jurisdiction herein. City shall maintain the Licensed Area in compliance with all applicable City and County ordinances and all State and Federal laws and regulations. 4.02 Signs. City shall not post signs or advertising matter upon the Licensed Area unless prior approval therefore is obtained from the County, which approval shall not be unreasonably withheld. 4.03 Sanitation No offensive matter or refuse or substance constituting an unnecessary, unreasonable, or unlawful fire hazard, or material detrimental to the public health, shall be permitted or remain on the Licensed Area, and County shall prevent any accumulation thereof from occurring. City shall pay all charges which may be made for the removal thereof. 4.04 Design and Construction City shall be responsible for designing and constructing the Licensed Area as a Public Plaza. All work performed shall be directly - 3of11— City of Rosemead License Agreement — Public Plaza supervised by a designated City representative Once established, no work will take place within the Public Plaza without a City representative present. 4.05 Maintenance City shall be responsible for the maintenance of the Licensed Area identified as the Public Plaza which includes but not limited to water, grounds, fountains, landscape, lighting, and repairs. County is responsible for the electricity of the Licensed Area. 4.06 Examination of Licensed Area City shall permit authorized representatives of the County to enter the Licensed Area for the purpose of determining whether the authorized activities are being conducted in compliance with the terms of this License, or for any other purpose incidental thereto. 4.07 Responsibility Limit. City shall have no responsibility or obligation to provide any other services of any kind other than those described in this License. 5. AMENDMENTS 5.01 No representative of either City or County, including those named in this License, is authorized to make changes in any of the terms, obligations or conditions of this License, except through the procedures set forth in this Paragraph 5. 5.02 For any change requested by either party which affects any term or condition included in this License, a negotiated written Amendment to this License shall be prepared and executed by each of the City's and the County's authorized representative. 5.03 The County Librarian has delegated authority by Board of Supervisors for any revisions to this License. A negotiated Amendment shall be executed by the County Librarian, or his /her designee. 5.04 Such Amendments shall be authorized under the following conditions: A. That Amendments shall be in compliance with all applicable Federal, State, City and County laws, rules, regulations, ordinances, guidelines, and directives; and B. That the County Librarian ensures that such Amendments are approved by the County's Chief Executive Officer, and as to form by County Counsel; and C. That the County Librarian files a copy of all Amendments with the Executive Office of the County's Board of Supervisors within fifteen (15) days after execution of each Amendment. 6. INDEMNIFICATION AND INSURANCE REQUIREMENTS - 4of11— City of Rosemead License Agreement — Public Plaza During the term of this License, the following indemnification and insurance requirements shall be in effect. 6.01 Indemnification City shall indemnify, defend and hold harmless the County and all of its officers, employees, agents, and representatives, from and against any and all liabilities, loss, injury or damage including (but not limited to) demands, claims, actions, fees, costs, liens, and expenses (including attorney and expert witness fees) that may be asserted against the County, arising from or connected with the City's repair, maintenance and other acts and omissions arising from and /or relating to the City's use of the Licensed Area. County shall indemnify, defend and hold harmless the City and all of its officers, employees, agents, and representatives, from and against any and all liabilities, loss, injury or damage including (but not limited to) demands, claims, actions, fees, costs, liens, and expenses (including attorney and expert witness fees), that may be asserted against the City arising from or connected with the County's acts and omissions arising from and /or relating to the County's ownership of the Licensed Area. 6.02 Insurance Coverage Types and Limits City self -funds its liabilities arising from acts or omissions of the City, it's appointed and elected officers, employees and volunteers (except for actual fraud, corruption or malice) under California Government Code Section 989 - 991.2, County Code Chapter 5.32 and Articles 1 and 2 of the County Charter. The liabilities that the City self -funds include general and automobile liability and workers compensation. A. Commercial General Liability insurance (providing scope of coverage equivalent to ISO policy form CG 00 01), with limits not less than: General Aggregate: $ 2 million Products /Completed Operations Aggregate: $ 2 million Personal and Advertising Injury $ 1 million Each Occurrence: $ 1 million B. Automobile Liability insurance (providing scope of coverage equivalent to ISO policy form CA 00 01) with limits of not less than $1 million for bodily injury and property damage, in combined or equivalent split limits, for each single accident. Insurance shall cover liability arising out of Licensee's use of automobiles pursuant to this License, including owned, leased, hired, and /or non -owned automobiles, as each may be applicable. C. Workers Compensation and Employers' Liability insurance or qualified self- insurance satisfying statutory requirements, which includes Employers' Liability coverage with limits of not less than $1 million per - 5of11— City of Rosemead License Agreement — Public Plaza accident. If applicable to Licensee's operations, coverage also shall be arranged to satisfy the requirements of any federal workers or workmen's compensation law or any federal occupational disease law. 6.03 Contractor Insurance Coverage. City will require any contractor it engages to perform work on the Public Plaza to provide evidence of insurance satisfactory to the County; and to name the County and City as additional insured's on the contractor's general and auto liability insurance policies. T TRANSFERS City acknowledges that the rights conferred herein are personal to the City and do not operate to confer on or vest in City any title, interest, or estate in the Licensed Area or any part thereof, and therefore, City shall not assign, hypothecate or mortgage the Licensed Area or any portion thereof, by, through, or pursuant to this License. 8. NONDISCRIMINATION Both parties certify and agree that all persons employed by County and City and /or by the affiliates, subsidiaries, or holding companies thereof are and shall be treated equally without regard to or because of race, ancestry, national origin, or sex, and in compliance with all Federal and State laws prohibiting discrimination in employment, including, but not limited to, the Federal Civil Rights Act of 1964, the Unruh Civil Rights Act; the Cartwright Act, the State Fair Employment Practices Act; and the Americans with Disabilities Act. 9. DEFAULT Either party hereto shall be in default in the performance of any obligation required to be performed by such party under this License if said party has failed to perform such obligations within five (5) days after the giving of written notice with respect thereto by the other party; provided, however, that if the nature of such default is such that the same cannot reasonably be cured within such five (5) day period, the non - performing party shall not be deemed to be in default if said party shall within such period commence such cure and thereafter diligently prosecute the same to completion. 10. WAIVER 10.01 Any waiver by either party of any breach of any one or more of the covenants, conditions, terms and agreements herein contained shall not be construed to be a waiver of any subsequent or other breach of the same or of any other covenant, condition, term or agreement herein contained, nor shall failure on the part of either party to require exact, full and complete compliance with any of the covenants, conditions, terms or agreements herein contained be construed as in any manner changing the terms of this License or stopping either party from enforcing the full provisions hereof. - 6of11— City of Rosemead License Agreement — Public Plaza 10.02 No option, right, power, remedy, or privilege of either party shall be construed as being exhausted by the exercise thereof in one or more instances. The rights, powers, options and remedies given either party by this License shall be cumulative. 11. SURRENDER Upon expiration of the term hereof or cancellation thereof as herein provided, City shall peaceably vacate the Licensed Area and deliver the Licensed Area to County in reasonably good condition. 12. NOTICES Any notice required to be given under the terms of this License or any law applicable thereto may be placed in a sealed envelope, with postage paid, addressed to the person on whom it is to be served, and deposited in a post office, mailbox, sub post office, substation, mail chute, or other like facility regularly maintained by the United States Postal Service. The address to be used for any notice served by mail upon the City shall be: City of Rosemead Attn: Public Works Department 8838 E. Valley Blvd. Rosemead, California 91770 or such other place as may hereinafter be designated in writing to the County by the City. Notice served by mail upon County shall be addressed to: County Librarian County of Los Angeles Public Library 7400 E. Imperial Highway Downey, California 90242 With a copy to: County of Los Angeles Chief Executive Office Real Estate Division - Property Management 222 South Hill Street, 3' Floor Los Angeles, CA 90012 Attention: Christopher Montana Acting Director of Real Estate Division or such other place as may hereinafter be designated in writing to City by the County. Service by mail shall be deemed complete upon deposit in the above - mentioned manner. 13. REPAIR OF DAMAGE - 7of11— City of Rosemead License Agreement — Public Plaza City shall, at City's sole expense, be responsible for the cost of repairing any area of the Licensed Area, which is damaged by City or City's agents, employees, invitees or visitors. All repairs and replacements shall: (a) be made and performed by contractors or mechanics approved by County, which approval shall not be unreasonably withheld or delayed; (b) be at least equal in quality, value and utility to the original work or installation, and (c) be in accordance with all laws. 14. DAMAGE OR DESTRUCTION In the event any portion of the Licensed Area is damaged by fire or any other cause rendering the Licensed Area totally or partially inaccessible or unusable in the sole judgment of the City, then the City shall have the right to terminate this License immediately upon written notice to the Licensor. In the event the City elects not to exercise such termination right, then the Licensor shall promptly undertake to perform the repair and restoration of the Licensed Area, except to the extent such damage was caused by the City. 15. SIGNATURE AUTHENTICITY CLAUSE The individual(s) executing this License on behalf of the County hereby personally covenants, guarantees and warrants that he /she has the power and authority to obligate the County to the terms and conditions in this License. 16. INTERPRETATION Unless the context of this License clearly requires otherwise: (i) the plural and singular numbers shall be deemed to include the other; (ii) the masculine, feminine and neuter genders shall be deemed to include the others; (iii) "or" is not exclusive; and (iv) "includes" and "including" are not limiting. 17. GOVERNING LAW AND FORUM This License shall be governed by and construed in accordance with the internal laws of the State of California. Any litigation with respect to this License shall be conducted in the courts of the County of Los Angeles State of California. 18. ENTIRE AGREEMENT This License contains the entire agreement between the parties hereto, and no addition or modification of any terms or provisions shall be effective unless set forth in writing, signed by both County and City. - 8of11— City of Rosemead License Agreement — Public Plaza 1 IN WITNESS WHEREOF, City has executed this License or caused it to be duly executed and County of Los Angeles, pursuant to Chapter 2.08 of the Los Angeles County Code, has caused this License to be executed on its behalf by the Chief Executive Officer, the day, month and year first above written. CITY OF ROSEMEAD COUNTY OF LOS ANGELES WILLIAM T FUJIOKA City Manager Chief Executive Officer - 9of11— City of Rosemead License Agreement — Public Plaza By: By: Date: Date: APPROVED AS TO FORM: City Attorney M JOHN KRATTLI County Counsel BY: Jill M. Jones Deputy County Counsel License Agreement - Qty Of Rosemead - Public Plaza Draft 3. Doc - 10of11— City of Rosemead License Agreement — Public Plaza ATTACHMENT LICENSED AREA - 11of11— City of Rosemead License Agreement — Public Plaza