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CC - Item 3D - Klingerman License AgreementROSEMEAD CITY COUNCIL STAFF REPORT TO: THE HONORABLE MAYOR AND CITY COUNCI FROM: JEFF STEWART, INTERIM CITY MANAGER DATE: APRIL 14, 2009 SUBJECT: RENEWAL OF LICENSE AGREEMENT WI H SCE FOR KLINGERMAN PARK SUMMARY Klingerman Park is located just east of Walnut Grove on Klingerman Street. The property is owned by Southern California Edison (SCE), which leases the property to the City for the use as a park. Recently, staff negotiated a five year extension of the lease with SCE for use of the property as a park. The proposed lease agreement will cost the City $100 a year, and is for a five year term which expires the last day of December, 2013. Staff Recommendation Staff recommends that the City Council approve the License Agreement with Southern California Edison Company (Attachment A) for the use of Klingerman Park and authorize its execution by the Mayor. PUBLIC NOTICE PROCESS This item has been noticed through the regular agenda notification process. -SCOTT rector ITEM NO. ~~ APPROVED FOR CITY COUNCIL AGENDA: Attachment A: License Agreement ~~` SOUTHERN CrtLIEOR~IA 1 EDISQN` :1n Iil~l.~C~~~ l~~"fI:R~A'~1'I'fO,~:~IL " Company Mr. David Montgomery City of Rosemead Department of Parks & Recreation 8838 E. Valley Boulevard Rosemead, CA 91770 Subject: License Agreement -Contract No. 9000000002315 Formerly Acct No. 1212 Property No. OLGEN636H31 Location: South of Klingerman Street City of Rosemead Dear Mr. David Montgomery: March 12, 2009 The enclosed License Agreement has been prepared at your request and executed on behalf of the Southern California Edison Company. The License Agreement is for a five (5) year term. Please execute the enclosed "Licensor" copy and return it in the self-addressed envelope provided along with your first year's payment of $100.00. The "Licensee" copy is for your records. Please note Article 4, Insurance, of the enclosed License Agreement requires you to secure and keep in force an insurance policy including Southern California Edison Company as an additional insured and to provide evidence of such insurance. Please refer to the License Agreement for specific amounts. If you are self insured, please provide a Certificate of Self Insurance with the types and limits specified in Article 4, of the License Agreement. This Agreement is not valid until we have received the signed License Agreement, proof of insurance and your check in the above amount. Once we have received the items mentioned above, please call me so we can scheduled a pre-construction meeting for the proposed improvements at Klingerman Park. 14799 Chestnut Street Westminster, CA 926~t3 Mr. David Montgomery Contract No. 9000000002315 Page 2 March 12, 2009 In addition, upon completion of the improvements at Klingerman Park, we ask that you forward a drawing or as built that depicts the new improvements as well as the existing improvements such as the aluminum park benches, concrete pads, Barbecue grills within the licensed area. We do not have any approved plans, information, schematic or plot plan that shows the existing improvements in our file. If you have any questions concerning the License Agreement, please call me at (714) 934-0818. Sincerely, Betty Per z Land Services Agent Corporate Real Estate Enclosure cc: Lou Leblanc/City of Rosemead Marisa Castro-Salvati/SCE Eric Meuser/SCE CITY OF ROSEMEAD Contract No. 9000000002315 Formerly Contract No. 1212 L I C E N S E A G R E E M E N T INDEX 1. USE 2. TERM 3. CONSIDERATION 4. INSURANCE 5 LICENSORS USE OF THE PROPERTY 6. LICENSEE'S IMPROVEMENTS 7. LICENSEE'S PERSONAL PROPERTY 8. HEIGHT LIMITATIONS 9. ACCESS AND CLEARANCES 10. PARKING 11. FLAMMABLES, WASTE AND NUISANCES 12. PESTICIDES AND HERBICIDES 13. HAZARDOUS WASTE 14. SIGNS 15. FENCING 16. PARKWAYS AND LANDSCAPING 17. IRRIGATION EQUIPMENT 18. UNDERGROUND TANKS 19. UNDERGROUND FACILITIES 20. UTILITIES 21. TAXES, ASSESSMENTS AND LIENS 22. EXPENSE 23. ASSIGNMENTS 24. COMPLIANCE WITH LAW 25. GOVERNING LAW 26. INDEMNIFICATION 27. TERMINATION 28. EVENTS OF DEFAULT 29. REMEDIES 30. NON-POSSESSORY INTEREST 31. WAIVER 32. AUTHORITY 33. ATTORNEY FEES 34. ELECTRIC AND MAGNETIC FIELDS 35. NOTICES 36. RECORDING 37. COMPLETE AGREEMENT _ADDENDUM PARK USE Licensor Contract No. 9000000002315 Formerly Contract No. 1212 LICENSE AGREEMENT THIS AGREEMENT, made as of the day of 20 , between SOUTHERN CALIFORNIA EDISON COMPANY (SCE), a corporation organized under the laws of the State of California, hereinafter called "Licensor", and CITY OF ROSEMEAD hereinafter called "Licensee"; WITNESSETH: That Licensor, for and in consideration of the faithful performance by Licensee of the terms, covenants and agreements hereinafter set forth to be kept and performed by Licensee, does hereby give to Licensee the license to use that certain real property described below and depicted on Exhibit "A" attached hereto and made a part hereof the ("Property") solely for the purpose hereinafter specified, upon and subject to the terms, reservations, covenants and conditions hereinafter set forth. The subject Property is located in the City of Rosemead, County of Los Angeles, State of California further described as follows: That portion of L.ot "A" of Tract No. 3260, as per map recorded in Book 34, page 21 of Maps, in the office of the County Recorder of said Los Angeles County, bounded and described as follows: on the Southeast by the Northwesterly line of that certain parcel of land conveyed to the City of Monterey Park by deed recorded December 27, 1968, in Book D4235, page 610, of Official Records, in the office of the County Recorder of said Los Angeles County, on the North by the Southerly line of HIingerman Street, 60 feet wide as described in that certain easement to the County of Los Angeles filed as Document 322-D in the office of the Registrar of Land Title of said County, now records of the Recorder's Office of said Los Angeles County, and on the West by the Easterly line of Southern California Edison Company's General Office Parking Lot, Section "A", said Land as shown on map attached marked EXHIBIT "A" and by this reference hereof. SUBJECT TO Covenants, conditions, restrictions, reservations, exceptions, rights and easements, whether or not of record including but not limited to, the following: a. An easement for sanitary sewer purposes granted to the City of Rosemead by instrument recorded on May 26, 1971, in Book D5069, page 469 of Official Records in the office of the County Recorder of said Los Angeles County. 1. Use: Licensee will use the Property for parks and/or public recreation purposes only. Licensor makes no representation, covenant, warranty or promise that the Property is fit for any particular use, including the use for which this Agreement is made and Licensee is not relying on any such representation, covenant, warranty or promise. Licensee's failure to make such use of the Property as determined by the Licensor in its sole discretion, will be grounds for immediate termination of this Agreement in accordance with Article 28. 2. Term: Unless otherwise terminated as provided herein, this Agreement will be in effect for a term of five (S) years commencing on the first day of January, 2009 and ending on the last day of December, 2013. Licensee acknowledges that this Agreement does not entitle Licensee to any subsequent agreement, for any reason whatsoever, regardless of the use Licensee makes of the Property, the improvements Licensee places on or makes to the Property, or for any other reason. -1- 3. Consideration: Licensee will pay to Licensor the sum of One Hundred Dollars and 00/ 100 Dollars ($100.00) upon the execution and delivery of this Agreement for the first year; Term Year Due Yearly Amount Paymeat Due First Da Of First Year 2009 $100.00 January Second Year 2010 $100.00 January Third Year 2011 $100.00 January Fourth Year 2012 $100.00 January Fifth Year 2013 $100.00 January All payments subsequent to the initial payment will be paid to the Southern California Edison Company, Post Office Box 800, Rosemead, California, 91770, Attention: Corporate Accounting Department -Accounts Receivable. All accounts not paid within 30 days of the agreed upon due date will be charged a late fee equal to ten percent (10%) of the amount due. insurance: 4. Insurance: During the term of this Agreement, Licensee shall maintain the following (a) Workers' Compensation with statutory limits, in accordance with the laws of the State of California and Employer's Liability with limits of not less than $1,000,000.00. Licensee shall require its insurer to waive all rights of subrogation against Licensor, its officers, agents and employees, except for any liability resulting from the willful or grossly negligent acts of the Licensor. (b) Commercial General Liability Insurance, including contractual liability and products liability, with a combined single limit of $2,000,000.00. Such insurance shall: (i) name Licensor, its officers, agents and employees as additional insureds, but only for Licensee's acts or omissions; (ii) be primary for all purposes and (iii) contain standard cross-liability provisions. (c) Commercial Automobile Insurance with a combined single limit of $1,000,000.00. Such insurance shall: (i) cover the use of owned, non-owned and hired vehicles on the Property and (ii) name Licensor, its officers, agents and employees as additional insureds. Licensee shall provide Licensor with proof of such insurance by submission of certificates of insurance, pursuant to Section 35 "Notices," at least ten days prior to the effective date of this Agreement. Such insurance shall not be canceled nor allowed to expire nor be materially reduced without thirty days prior written notice to Licensor, or provide a certificate of self insurance. S. Licensor's Use of the Property: Licensee agrees that Licensor, its successors and assigns, have the right to enter upon the Property, at any time, for any purpose, and the right to conduct any activity on the Property. Exercise of these rights by Licensor, its successors and assigns, will not result in compensation to Licensee for any damages whatsoever to personal property and/or crops located on the Property. 6. Licensee's Improvements: Licensee must submit, for Licensor's prior written approval, complete improvement plans, including grading plans, identifying all existing and proposed improvements, a minimum of sixty (60) days prior to making any use of the Property. Licensee must -2- submit, for Licensee's prior written approval plans for any modifications to such improvements. Written approval may be modified and/or rescinded by Licensor for any reason whatsoever. At any time, Licensee may be required to modify and/or remove any or all such previously approved improvements at Licensee's risk and expense and without any compensation from Licensor. Licensor is not required, at any time, to make any improvements, alterations, changes or additions of any nature whatsoever to the Property. Licensee expressly acknowledges that any expenditures or improvements will in no way alter Licensoe's right to terminate in accordance with Article 27. ?. Licensee's Personal Property: All approved equipment and other property brought, placed or erected on the Property by Licensee shall be and remain the Property of Licensee, except as otherwise set forth herein. If Licensee is not in default hereunder, Licensee shall have the right to remove the same from the Property at any time prior to the expiration or earlier termination of this Agreement; provided, however, that Licensee shall promptly restore any damage to the Property caused by the removal. If Licensee is in default, however, such equipment or other property shall not be removed by Licensee without Licenser's written consent until Licensee has cured such default, and Licensor shall have a lien thereon to the extent thereof. 8. Height Limitations: Any equipment used by Licensee or its agents, employees or contractors, on and/or adjacent to the Property, will be used and operated so as to maintain a minimum clearance of twenty seven (27) feet from all overhead electrical conductors. All trees and plants on the Property will be maintained by Licensee at a maximum height of fifteen (15) feet. If requested by Licensor, Licensee will remove, at Licensee's expense, any tree and/or other planting. 9. Access and Clearances: Licensee will provide Licensor with adequate access to all of Licensoe's facilities on the Property and at no time will there be any interference with the free movement of Licensoe's equipment and materials over the Property. Licensor may require Licensee to provide and maintain access roads within the Property, at a minimum usable width of sixteen (16) feet, together with commercial driveway aprons and curb depressions capable of supporting a gross load of forty (40) tons on a three-axle vehicle. The minimum width of all roads shall be increased on curves by a distance equal to 400/inside radius of curvature. All curves shall have a radius of not less than 50 feet measured at the inside edge of the usable road surface. Unless otherwise specified in writing by Licensor, Licensee will make no use of the area directly underneath Licensor's towers and will maintain the following minimum clearances at all times: a. A 50-foot-radius around suspension tower legs and 100-foot radius around dead-end tower legs. b. A 10-foot-radius around all steel and wood poles. NOTE: Additional clearance may be required for structures 10. Parking: Licensee will not park, store, repair or refuel any motor vehicles or allow parking, storage, repairing or refueling of any motor vehicles on the Property unless specifically approved in writing by Licensor. 11. Flammables. Waste and Nuisances: Licensee will not, nor allow others to, place or store any flammable or waste materials on the Property or commit any waste or damage to the Property or allow any to be done. Licensee will keep the Property clean, free from weeds, rubbish and debris, and in a condition satisfactory to Licensor. Licensee will be responsible for the control of and will be liable for any damage or disturbance, caused by dust, odor, flammable or waste materials, noise or other nuisance disturbances. Licensee will not permit dogs on the Property. 12. Pesticides and Herbicides: Any pesticide or herbicide applications and disposals will be made in accordance with all federal, state, county and local laws. Licensee will dispose of all 3- pesticides, herbicides and any other toxic substances declared to be either a health or environmental hazard, as well as all materials contaminated by such substances, including but not limited to, containers, clothing and equipment, in the manner prescribed by law. 13. Hazardous Waste: Licensee will not engage in, or permit any other party to engage in, any activity on the Property that violates federal, state or local laws, rules or regulations pertaining to hazardous, toxic or infectious materials and/or waste. Licensee will indemnify and hold Licensor, its directors, officers, agents and employees, and its successors and assigns, harmless from any and all claims, loss, damage, actions, causes of action, expenses and/or liability arising from leaks of, spills of, and/or contamination by or from hazardous materials as defined by applicable laws or regulations, which may occur during and after the Agreement term, and are attributable to the actions of, or failure to act by, Licensee or any person claiming under Licensee. 14. Ste: Licensee must obtain written approval from Licensor prior to the construction or placement of any sign, signboard or other form of outdoor advertising. 15. Fencing: Licensee may install fencing on the Property with prior written approval from Licensor. Such fencing will include double drive gates, a minimum of sixteen (16) feet in width, designed to accommodate Licensor's locks, in locations specified by Licensor. Licensee will ground and maintain all fencing. 16. Parkways and Landscaping: Licensee will keep parkway and sidewalk areas adjacent to the Property free of weeds and trash. Licensee will maintain parkways and provide landscaping that is compatible with adjoining properties and that is satisfactory to Licensor. 17. Irrigation Equipment: Any irrigation equipment located on the Property prior to the commencement of this Agreement, including but not limited to pipelines, well pumping equipment and other structures, is the property of Licensor and will remain on and be surrendered with the Property upon termination of this Agreement. Licensee will maintain, operate, repair and replace, if necessary, all irrigation equipment at its own expense. 18. Underground and Above-Ground Tanks: Licensee will not install underground or above-ground storage tanks, as defined by any and all applicable laws or regulations, without Licensor's prior written approval. 19. Underground Facilities: Any underground facilities installed or maintained by Licensee on the Property must have a minimum cover of three feet from the top of the facility and be capable of withstanding a gross load of forty (40) tons on a three-axle vehicle. Licensee will compact any earth excavated to a compaction of ninety percent (90%). Licensee will relocate its facilities at its own expense so as not to interfere with Licensor's proposed facilities. 20. Utilities: Licensee will pay all charges and assessments for, or in connection with, water, electric current or other utilities which may be furnished to or used on the Property. 21. Taxes, Assessments and Liens: Licensee will pay all taxes and assessments which may be levied upon any crops, personal property, and improvements, including but not limited to, buildings, structures, and fixtures on the Property. Licensee will keep the Property free from all liens, including but not limited to, mechanics liens and encumbrances by reason of use or occupancy by Licensee, or any person claiming under Licensee. If Licensee fails to pay the above-mentioned taxes, assessments or liens when due, Licensor will have the right to pay the same and charge the amount to the Licensee. All accounts not paid within 30 days of the agreed upon due date will be charged a "late fee" on all amounts outstanding up to the maximum rate allowed by law. 22. Expense: Licensee will perform and pay all obligations of Licensee under this Agreement. All matters or things herein required on the part of Licensee will be performed and paid -4- for at the sole cost and expense of Licensee, without obligation on the part of Licensor to make payment or incur cost or expense for any such matters or things. 23. Assignments: This Agreement is personal to Licensee, and Licensee will not assign, transfer or sell this Agreement or any privilege hereunder in whole or in part, and any attempt to do so will be void and confer no right on any third party. 24. Compliance with Law: Licensee will comply with all applicable federal, state, county and local laws, all covenants, conditions and restrictions of record and all applicable ordinances, zoning restrictions, rules, regulations, orders and any requirements of any duly constituted public authorities now or hereafter in any manner affecting the Property or the streets and ways adjacent thereto. Licensee will obtain all permits and other governmental approvals required in connection with Licensee's activities hereunder. 25. Governing Law: The existence, validity, construction, operation and effect of this Agreement and all of its terms and provisions will be determined in accordance ~~ith the laws of the State of California. 26. Indemnification: Licensee shall hold harmless, defend and indemnify Licensor, its officers, agents and employees, and its successors and assigns, from and against all claims, loss, damage, actions, causes of actions, expense and/or liability arising from or growing out of loss or damage to property, including that of Licensor, or injury to or death of persons, including employees of Licensor resulting in any manner whatsoever, directly or indirectly, by reason of this Agreement or the use or occupancy of the Property by Licensee or any person claiming under Licensee. Licensee understands and acknowledges that it has maintained anon-possessory interest and occupancy of the Property for the entire term as specified in its prior License Agreement with Licensor, dated as of January 1, 2008, and has continued to maintain such occupancy from the termination date of such License Agreement up to and through the date upon which this Agreement is executed, all in accordance with the terms, covenants, and conditions specified in the prior Agreement. By executing this Agreement, Licensee hereby agrees that the terms and obligations of Licensee under Article 26 of the prior License Agreement shall be effective and binding upon Licensee throughout the period the Licensee remained in occupancy on the Property up to the date upon which this Agreement is executed. 27. Termination: This Agreement may be canceled and terminated by either Licensor or Licensee, at any time, for any reason, upon thirty (30) days notice in writing. Licensee will peaceably quit, surrender and, prior to termination date, restore the Property to a condition satisfactory to the Licensor. Termination, cancellation or expiration does not release Licensee from any liability or obligation (indemnity or otherwise) which Licensee may have incurred. Licensee's continued presence after termination shall be deemed a trespass. 28. Events of Default: The occurrence of any of the following shall constitute a material default and breach of this Agreement by Licensee: (a) Any failure by Licensee to pay the consideration due in accordance with Article 3, or to make any other payment required to be made by Licensee hereunder when due. (b) The abandonment or vacating of the Property by Licensee. (c) Any attempted assignment or subletting of this Agreement by Licensee in violation of Article 23. -5- (d) The violation by Licensee of any resolution, ordinance, statute, code, regulation or other rule of any governmental agency in connection with Licensee's activities pursuant to this Agreement. (e) A failure by Licensee to observe and perform any other provision of this Agreement to be observed or performed by Licensee, where such failure continues for the time period specified in a written notice thereof by Licensor to Licensee. (f) Any attempt to exclude Licensor from the licensed premises. (g) The making by Licensee of any general assignment for the benefit of creditors; the appointment of a receiver to take possession of substantially all of Licensee's assets located on the Property or of Licensee's privileges hereunder where possession is not restored to Licensee within five (5) days; the attachment, execution or other judicial seizure of substantially all of Licensee's assets located on the Property or of Licensee's privileges hereunder, where such seizure is not discharged within five (5) days. (h) Any case, proceeding or other action brought against Licensee seeking any of the relief mentioned in "clause g" of this Article which has not been stayed or dismissed within thirty (30) days after the commencement thereof. 29. Remedies: in the event of any default by Licensee, then in addition to any other remedies available to Licensor at law or in equity, Licensor shall have the immediate option to terminate this Agreement and all rights of Licensee hereunder by giving written notice of termination to Licensee. Upon termination, Licensor will have the right to remove Licensee's personal property from the Property, including but not limited to, buildings, structures and fixtures. In addition, Licensor may immediately recover from Licensee all amounts due and owing hereunder, plus interest at the maximum rate permitted by law on such amounts until paid, as well as any other amount necessary to compensate Licensor for all the detriment proximately caused by Licensee's failure to perform its obligations under this Agreement. 30. Non-Possessory Interest: Licensor retains full possession of the Property and Licensee will not acquire any interest temporary, permanent, irrevocable, possessory or otherwise by reason of this Agreement, or by the exercise of the permission given herein. Licensee will make no claim to any such interest. Any violation of this provision will immediately void and terminate this Agreement. 31. Waiver: No waiver by Licensor of any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach by Licensee of the same or any other provision. Licensoe's consent to or approval of any act shall not be deemed to render unnecessary the obtaining of Licensor's consent to or approval of any subsequent act by Licensee. 32. Authority: This Agreement is pursuant to the authority of and upon, and is subject to the conditions prescribed by General Order No. 69-C of the Public Utilities Commission of the State of California dated and effective July 10, 1985, which General Order No. 69-C, by this reference, is hereby incorporated herein and made a part hereof. 33. Attorneys' Fees: In the event of any action, suit or proceeding against the other, related to this Agreement, or any of the matters contained herein, the successful party in such action, suit or proceeding shall be entitled to recover from the other party reasonable attorney fees incurred. 34. Electric and Magnetic Fields ("EMF"): There are numerous sources of power frequency electric and magnetic field ("EMF"), including household or building wiring, electrical appliances and electric power transmission and distribution facilities. There have been numerous scientific studies about the potential health effects of EMF. Interest in a potential link between long-term exposures to EMF and certain diseases is based on the combination of this scientific research and public concerns. -6-