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HomeMy WebLinkAboutE-13 Staff Report - OLSON URBAN HOUSING LP TEMPORARY LICENSE AGREEMENTCONSENT ITEM E-13 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL VIA: DON PENMAN, INTERIM CITY MANAGER FROM: KURT E. CHRISTIANSEN, FAICP ECONOMIC AND COMMUNITY DEVELOPMENT DIRECTOR DATE: DECEMBER 4, 2017 SUBJECT: APPROVE A TEMPORARY LICENSE AGREEMENT WITH OLSON URBAN HOUSING, LP FOR THE TEMPORARY PARKING OF PASSENGER VEHICLES AND LIGHT TRUCKS ON CITY OWNED PROPERTY LOCATED AT THE SOUTHEAST CORNER OF AZUSA AVENUE AND NINTH STREET SUMMARY: Olson Urban Housing, LP (The Olson Company), the developer for the “Metro Walk” project, a thirty (30) unit, three story townhome development on 803-813 N. Dalton Avenue, has requested a temporary license agreement to allow temporary parking of its construction vehicles on City owned property located on the southeast corner of Azusa Avenue and Ninth Street. The proposed action approves a temporary license agreement with The Olson Company for the temporary parking of passenger vehicles and light trucks on City owned property through May 31, 2018. RECOMMENDATION: Staff recommends the City Council take the following actions: 1) Approve the Temporary License Agreement with Olson Urban Housing, LP for the temporary parking of passenger vehicles and light trucks on City owned property through May 31, 2018 subject to any non-substantive changes made by the Interim City Manager and City Attorney; and 2) Authorize the Interim City Manager to execute the Temporary License Agreement, in a form acceptable to the City Attorney, on behalf of the City. DISCUSSION: The Olson Company began the construction of a thirty (30) unit three story townhome project in late April 2017. Since then, The Olson Company has completed all utility work and is on schedule to complete its model homes by the first quarter of 2018. In order to continue construction work onsite and APPROVED CITY COUNCIL 12/4/2017 Temporary License Agreement December 4, 2017 Page 2 to maintain traffic and pedestrian safety, The Olson Company reached out to Staff and requested a temporary license agreement to allow The Olson Company to temporarily park passenger vehicles and light trucks on City owned property located on the southeast corner of Azusa Avenue and Ninth Street APNs 8608-025-902, 906, 907, 908, 909, 910. The City property is currently fenced off from the general public and not being utilized. Under the Temporary License Agreement (Attachment 1) with The Olson Company, the following terms shall apply: The property shall only be used for the purpose of parking no more than twenty (20) passenger vehicles and light trucks during the hours of 7:00 a.m. to 5:00 p.m. Monday through Saturday; The Olson Company will pay $50 a day; and Insurance and indemnification of the City will be provided by The Olson Company. FISCAL IMPACT: The proposed actions will consist of the developer paying the City $50 a day for the use of the City owned property. Prepared by: Reviewed and Approved: Carina Campos Kurt Christiansen, FAICP Economic Development Specialist Economic and Community Development Director Reviewed and Approved: Reviewed and Approved: Louie F. Lacasella Don Penman Senior Management Analyst Interim City Manager Attachment: 1) Temporary License Agreement License Agreement 1 November 9, 2017 TEMPORARY LICENSE AGREEMENT THIS LICENSE AGREEMENT (this "Agreement") is entered into as of December 4, 2017 (the "Effective Date"), by and between CITY OF AZUSA (the "Licensor"), and OLSON URBAN HOUSING, LP, a Delaware limited partnership (collectively, the "Licensee"). Each of Licensor and Licensee are sometimes referred to herein as a "Party" and collectively as the "Parties." Recitals: A.Licensor has a possessory interest in that certain real property located at the intersection of Azusa Avenue and Ninth Avenue, in the city of Azusa, California (the "Licensor Property"); B.Licensee is performing construction-related activities on property in the immediate vicinity of the Licensor Property (the “Construction Activities") and has requested that Licensor enter into this Agreement to allow Licensee to use a portion of the Licensor Property for parking in connection with the Construction Activities (the "Licensor Property"), as depicted on Exhibit "A" attached hereto; and C.Licensor has agreed to allow Licensee to use the Licensor Property pursuant to the terms and conditions of this Agreement. Agreement: NOW, THEREFORE, in consideration of the above recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1.Grant of License, Use and Conditions. The Licensor hereby grants to the Licensee and its affiliates, employees, agents, and subcontractors (the "Licensee Parties") during the term of this Agreement a nonexclusive, revocable license on and over the Licensor Property for the purpose of parking no more than twenty (20) passenger vehicles and light trucks (the “License") during the hours of 6:30 a.m. to 5:00 p.m. Monday through Saturday. This License is subject to all existing covenants, conditions, reservations, contracts, leases, licenses, easements, encumbrances, restrictions and rights of way of record, and to such other matters concerning use of the Licensor Property as are within the actual knowledge of Licensee. The Licensee will be responsible for any security, utilities, trash collection, maintenance, or any other services necessary to maintain the site for the Licensee’s use of the property. 2.Term and Condition of Property. The term of this Agreement (the "Term") shall commence on the Effective Date and shall continue until May 31, 2018 (the "Expiration Date") unless terminated by either party, with or without cause, upon fifteen (15) days written notice. This Agreement shall be effective on no earlier than the date of this Agreement, and subject to this Agreement having been fully executed by all parties and all insurance submittals completed and received by Licensor; and shall expire, if not terminated sooner, in accordance with this section, on May 31, 2018. Licensee has the option to extend this Agreement, upon written request from the Licensee and agreement by the Licensor. Licensor shall have the right to immediately terminate this Agreement if Licensee continues to violate any provision of this Agreement after notice to Licensee of such violation. Licensor’s termination of this Agreement shall be effective upon giving Licensee written notice of termination. 3.Compensation. Licensee shall pay Licensor the following amount: Fifty Dollars ($50) per day as consideration for the license for the period from December 2017 to May 2018. Licensee may extend the term of this License and Agreement by providing Licensor with ten (10) days written notice of such extension and by tendering to Licensor Fifty Dollars ($50) for each day extended. The term of this Agreement and License shall not be extended beyond June 30, 2018. Attachment 1 License Agreement 2 November 9, 2017 4. Restoration of Licensor Property. Prior to the expiration of the Term, Licensee shall restore the Licensor Property so that the Licensor Property is in substantially the same condition as of the Effective Date of this Agreement. 5. Development Rights. The approval of this License Agreement shall not independently confer development rights or create any long term rights to use, occupy or buy the Property. 6. Insurance. The Licensee shall obtain and keep in full force and effect at all times during the Term of this Agreement a comprehensive general liability and property damage insurance policy from an insurance provider authorized to do business in California with policy limits of not less than One Million Dollars ($1,000,000) per occurrence. 7. Indemnification. With respect to Licensee’s entry as provided for herein, Licensee shall defend, indemnify and hold Licensor and the City of Azusa, and their officers, officials, employees and agents and future purchasers of Licensor’s Property harmless from and against any and all claims for actual or alleged losses, costs (including reasonable attorneys’ fees and actual litigation costs), damages, actions or expenses arising out of the Licensee’s use of the Property. Notwithstanding anything to the contrary herein, this indemnification shall not be applicable with respect to matters resulting from the negligence or willful acts of Licensor, its agents or employees. This Section 7 shall survive the expiration or termination of this Agreement. 8. Hazardous Materials Indemnity. Licensee agrees to indemnify, defend and hold Licensor and its elected and appointed officials, employees and agents and future purchasers of Licensor’s Property harmless from and against all claims, demands, causes of action, damages, judgments, costs, expenses and fees for injury to or death of persons or loss or damage to property arising by reason of the use, generation, storage or disposal of hazardous materials by Licensee on the Property resulting from the activities contemplated by this Agreement and the cost of any required or necessary repair, cleanup or detoxification to the full extent that such liability is attributable, directly or indirectly, to the presence or use, generation, storage, release, threatened release, or disposal of hazardous materials by Licensee on the Property. Licensee shall have no responsibility to Licensor, and Licensor hereby releases Licensee from liability for any injury to or death of persons or loss or damage to property arising out of hazardous materials existing on the Property prior to the term of this Agreement. For the purpose of this provision, “hazardous materials” shall include, without limitation, substances defined as “Hazardous Substances,” “Hazardous Materials,” “Toxic Substances,” “Hazardous Waste,” “Extremely Hazardous Waste,” or “Restricted Hazardous Waste,” or stated to be known to cause cancer or reproductive toxicity, under the Comprehensive Environment Response, Compensation and Liability Act of 1980, amended, 42 U.P.S.C. Sections 9601, et seq.; the Hazardous Materials Transportation Act , 49 U.P.S.C. Section 1801, et seq.; the Resource Conservation and Recovery Act, 41 U.S.C. Section 6901, et seq.; Federal Water Pollution Control Act, 33 U.S.C., Sections 1317, et seq.; Section 25115, 25117, 25112.7, 25140, 25249.5, 25249.8, 25281, 25316, or 25501 of the California Health and Safety Code; or any substances so defined or stated in any of the regulations adopted and publications promulgated pursuant to said laws and they may be amended from time to time. 9. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to principles of conflicts of law. 10. Counterparts. This Agreement may be executed in one or more counterparts and by facsimile, all of which when taken together shall constitute one and the same instrument and shall be binding upon each Party who may sign a counterpart of this instrument. 11. Terminology. The captions beside the section numbers of this Agreement are for reference purposes only and shall not modify or affect this Agreement in any manner whatsoever. Wherever required by the context, any gender shall include any other gender, the singular shall include the plural, and the plural shall include the singular. License Agreement 3 November 9, 2017 12. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid or unenforceable under applicable law, such provision shall be ineffective to the extent of such prohibition, invalidity or unenforceability, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions. 13. Amendment. No amendment to or modification of this Agreement shall be binding or enforceable unless it is in writing and signed by the Parties. 14. Breach and Remedies. In the event of a breach by Licensee of any obligation hereunder, which is not cured after five (5) days written notice thereof, in addition to all other remedies available at law or in equity. Licensor shall be permitted to immediately terminate this License by written notice delivered to Licensee. 15. Attorneys' Fees. The prevailing party in any legal or administrative proceeding shall be entitled to its reasonable legal costs and expenses, including, without limitation, reasonable attorneys' fees. 16. Representations and Warranties. Each Party represents and warrants to the other as follows: (i) it, or its authorized agent, has read the contents of this Agreement and understands such contents; (ii) that each person signing this Agreement (a) has the full authority to act on behalf of the Party for which he or she is signing and (b) has the ability to bind such Party to the obligations and agreements set forth in this Agreement; and (iii) that no other person must sign this Agreement on behalf of such Party in order to make the obligations hereunder binding and enforceable against such Party. 17. Notices. All notices, requests, demands, consents and other communications under this Agreement shall be in writing and shall be served either personally, by certified mail, or by a reputable courier service such as Federal Express and United Parcel Service. If served personally, service shall be conclusively deemed made at the time of service. If served by certified mail, service shall be conclusively deemed made on the third (3rd) business day after deposit (hereof in the United States mail, postage prepaid, return receipt requested, addressed to the Party to whom such notice or demand is to be given as hereinafter provided. If served by a reputable courier service, service shall be conclusively deemed made one (1) business day after deposit thereof with such reputable courier service, shipping fee provided for, addressed to the Party to whom such notice or demand is to be given as hereinafter provided. Notices shall be delivered to the following addresses (said addresses may be changed from time to time by notice given in accordance with the provisions of this Section 17): Licensor: City of Azusa 213 East Foothill Boulevard Azusa, CA 91702 Licensee: OLSON URBAN HOUSING, LP Attn: Brian Radley 3010 Old Ranch Parkway, Suite 100 Seal Beach, CA 90740 18. Entire Agreement. There are no oral agreements between Licensor and Licensee affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, written or oral, if any, between Licensor and Licensee and none of them shall be used to interpret or construe this Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above. License Agreement 4 November 9, 2017 "LICENSOR" CITY OF AZUSA By: __________________________ "LICENSEE" OLSON URBAN HOUSING, LP a Delaware limited partnership By: ALAMITOS BUILDING, INC. a California corporation its General Partner By: _________________________ Brian Radley Its: Vice President of Operations By: _________________________ Thomas Moore Its: Vice President, Operational Planning License Agreement 5 November 9, 2017 EXHIBIT “A” Depiction of Licensor Property Licensor Property